text:
    John Russell v. The Hudson River Railroad Co.
    The rule that a servant or agent cannot sustain an action against his employer for an injury sustained by reason of the negligenee of another servant or agent in the common employment, does not apply to the case of a day laborer, whose contract is only from day to day, and who, by arrangement of the Company, is carried to and from his work.
    In such a case, if an injury occurs from the exclusive fault of an engineer of the train to such a laborer on his passage from his work, the company will be liable. The laborer is not then in the discharge of any service which his contract with the employer imposes upon him.
    Qitere, if the rule is applicable where the employment of the injured servant is wholly distinct from that of the one doing or causing the injury.
    (Before Duna, Boswobth and Slosson, J. J.)
    October 1, 27, 1855.
    Case upon a verdict for the plaintiff for $225, subject to the opinion of the court, on a case to be made to be heard in the first instance at General Term, with liberty to either party to turn the same into a bill of exceptions, or case containing exceptions, and •with liberty to the court at General Term to dismiss the complaint, if of the opinion that no action would lie on the facts proved.
    The action was, to recover damages for injuries sustained by the plaintiff from being thrown between two cars, in consequence of the train being precipitated into Spuytendevil Creek. The complaint alleges, that the cars were run at a dangerous rate of speed on a curve; that the engineer had not the requisite skill, of which the defendants were aware, and was of a rash disposition, and that such unskilfulness and rashness caused the accident, from which he received great bodily injury, and was put to large expenses.
    The plaintiff was in the employ of the defendants, and had been working at a gravel-pit on the day of the accident. He was on a platform car, on his return to the city, after his day’s work. The custom was to carry the workmen who lived in the city to their work, and bring them back to that place, without a charge.
    Considerable testimony was produced, as to the cause' and nature of the accident and the negligence of the engineer, which, from the points decided it is needless to state.

      It appears that there was no other engagement between the plaintiff and the company than that of a workman from day to day.
    The defendants moved for a nonsuit, on the ground that the plaintiff was in the employ of the defendants, and that the injury was occásioned by the negligence of another employee of the company.
    This application was denied, and the defendants excepted.
    The defendants’ counsel then requested the Judge to charge the jury to the same effect. This was refused, but the Judge stated that any verdict which' the jury might render, if in favor of the plaintiff, would be taken subject to the opinion of the court, as to whether the defendants were liable to the plaintiff, he being in the employ of the company at the time of the accident.
    The Judge then charged the jury—•

      First. That the plaintiff was not entitled to recover for his injuries from the accident in question, unless it arose from the negligence of the engineer, without any negligence on his own part occurring to produce the injury. That there seemed to be no doubt the injury was caused by the negligence of the engineer. .

      Second. That the plaintiff was only entitled to recover his actual damage, such as the expense of medical attendance and medicines, and for loss of time and personal suffering, and such as might result from the permanent nature of the injury, if any; but not any exemplary damages, unless the jury believed that the engineer was incompetent, and the officers of the defendants knew of, or had reason to suspect such incompetency.
    To such instructions the plaintiff’s counsel excepted, and requested the Judge to charge— , . .

      First. That if the jury found that the plaintiff was, at the time of the accident, not in the employ of the defendants, he was entitled to recover.

      Second. That if the plaintiff was not engaged or employed in that branch of defendants’ business which consisted of the running of cars, engines, or trains, the defendants were liable.
    The Judge refused so to charge, and the plaintiff’s counsel excepted.
    A verdict was then found for the plaintiff, as before stated.

      W. A. Robertson, for the plaintiff.

      W. Fullerton, for the defendants.
   By the Court. Duer, J.

It cannot he denied that the decision of the Court of Appeals in the case of Coon v. the Syracuse and Utica R. R. Co., (1 Selden, p. 492,) has established the law that a servant or agent cannot maintain an action against his employer for injuries sustained by him, through the negligence of another servant or agent engaged with him in the same common employment, and if this rule were applicable to the present case, it would be our plain duty to dismiss the complaint. But we are clearly of opinion that the rule is not applicable, since, as we understand the facts of the case, the plaintiff was not in the employ of the defendants when, through the negligence of their engineer, the accident happened by which he was injured. It appears from the evidence, and was admitted upon the argument by the counsel for the defendants, that the plaintiff was employed by the day, and when the work of each day was performed, was under no obligation to return on the following. There was a separate contract, therefore, for each day, and it was a part of this contract that when the day’s work was over, the plaintiff should be transported in the cars of the defendants, without charge, to his residence in this city. When the accident happened, the plaintiff had performed his day’s work, had done all that he was bound to do, and the defendants, in the execution of their contract, were transporting him to his residence. Hence, although the contract between the parties, not having been fully performed by the defendants, was not terminated, it seems to us manifest that the relation between them of master and servant, which the contract created, had wholly ceased, since there were no longer any services, which the defendants had a right to exact and the plaintiff was bound to render. His taking passage in the cars was not in the discharge of any duty which he owed to the defendants, and. in the discharge of which he was subject to their authority. It was as much a voluntary act as in the case of an ordinary passenger, and as he had paid for his passage by the work he had performed—(for his free transportation was a part of his day’s wages)—we see no reason to doubt that his rights were in all respects the same as those of an ordinary passenger, and, consequently, the defendants just as responsible for any injuries which, through the negligence of their servants, he might sustain. To sustain the defence, we should be obliged to hold that the relation of master and servant continues, even when the servant has performed all his stipulated work, so long as any part of his stipulated wages remains unpaid; a proposition which, when thus stated, the learned counsel for the defendants readily admitted could not be maintained.

The case before us is, therefore, widely distinguishable from the recent case in the Supreme Court of Pennsylvania, to which we were referred, (Ryan v. Cumberland Valley R. R., Law Mag., April, 1850, p. 253,) for in that case, the very ground of the decision was, that the plaintiff, when he sustained the injuries for which the action was brought, was in the actual employment of the defendants, and in the discharge of a duty which his contract of service imposed on him.

Placing our decision upon the ground that when the cause of action occurred, the relation between the parties, which is set up as a defence, no longer existed, we deem it unnecessary to consider the other questions that were raised and discussed upon the hearing. We think, however, with Mr. Justice Gardiner, that it may reasonably be doubted, whether the rule, that exiempts the common employer from all liability, can be justly applied, when the employment of the servant, who is injured, is wholly distinct from that of the servant by whose negligence the injury was occasioned, (1 Selden, p. 495.) The decision in the Court of Appeals leaves this an open question.

The plaintiff is entitled to judgment upon the verdict, with costs.


source: Caselaw Access Project

author: By the Court. Bosworth, J.

license: Public Domain

text:
    Louis Newstadt v. Alvin Adams and others.
    In an action against the carriers of goods by express, to recover the value of a diamond pin, received at New York, to be delivered at Philadelphia, the fact that the complaint states a delivery to the carriers at 59 Broadway, while the proof is of a delivery at an office in Canal street, is no obstacle to a recovery. The variance is immaterial. So is the omission to state, as a part of the carrier’s contract, that he was not to be liable for any loss or damage, unless proved to have occurred from his fraud, or gross negligence. In such a case, proof of the delivery and acceptance of the goods to be carried, of a demand of them at a proper time and place, and of a refusal to deliver them, without explanation, is sufficient, in the first instance, to entitle the plaintiff to recover.
    It is only when an actual loss is shown, that a plaintiff, under such a contract, is hound to prove that the fraud or gross negligence of the carrier, caused the loss. When the contract limits the liability to $150, unless the nature and value of the property are disclosed when delivered, to the carrier, the plaintiff, prima fade, cannot recover beyond that sum, though the property is clearly proved to be worth more.
    (Before Duer, Bosworth and Slosson, J.J.)
    October 1, 1855.
    This action was tried before Oh. J. Oakley, and a jury, on the 19th of March, 1856. . A verdict was taken for the plaintiff by direction of the Judge, for the sum of $175, subject to the opinion of the court, at general term, upon a case, with power to the court to reduce the verdict to $150, should it think proper.
    The defendants were partners, carrying on the express and forwarding business between New York and Philadelphia. The complaint alleges that on the 10th of December, 1854, a box was delivered to the agent of the defendants, at their office, No. 59 Broadway, in New York, to be delivered to the plaintiff in Philadelphia, to whom it was directed. A receipt was given, signed by one Griffin, the agent. The box contained a diamond ring of the value of $175. The box was a small flat one, about two and a half inches long, made of paper, and had paper around it. It was delivered at what was alleged to be an office of the defendants, in Canal street. A receipt was given at the time, which is in the following form:

      ADAMS AND CO.’S
    GREAT EASTERN, WESTERN, AND SOUTHERN PACKAGE EXPRESS.
    £ nti g3 O Pi PQ Oí ¡a £ d O § cS
    New York, October 16th, 1854.

      Received of Emilia Newstadt, in apparent good order, to be transported by our Express Lines, the undersigned articles, marked as per margin, which we promise to deliver in like order, subject to the agreement now made, and hereafter expressed, to Louis Newstadt, at Philadelphia, Pa. It is agreed, and is part of the consideration of this contract, that we are not to be responsible for any loss or damage arising from the dangers of Railroad, Steam, or River navigation, leakage, fire, or from any cause whatever, unless the same be proved to have occurred from the fraud or gross negligence of ourselves, our agents, or servants, and we are in no event to be hable beyond our route, as herein receipted. Valued under $150, unless herein otherwise stated.
    Freight to
    MARKS.
    Louis Newstadt, Philadelphia, Pa. To be called for.
    PACKAGES.
    Little box, to be left at Adams’ Express, for the proprietor.
    Griffin.
    Griffin, who signed the receipt, was an agent of the defendants. They had an office in Canal street, where articles were received, and from which they were taken to the office 59 Broadway. This was for the accommodation of up-town people, and packages were received there when the goods were of small value. The agent’s orders were, not to take articles at that office of over the value of $150, nor any money. He was authorized to sign receipts of the character of that produced, for packages of small value to go to the lower office. Nothing was paid to Griffin the agent, at the time, for carrying and delivering the package, or agreed to be paid. Nothing was said at the time of the value of the box. The agent states he would not have taken it if apprised of its value. He supposed from its appearance it was not valuable, and did not make any inquiry as to it. It was the custom to receive packages at the office in Canal street, and send them by the drivers to that in Broadway.

      The defendants, when the plaintiff’s testimony was closed, moved for the dismissal of the complaint on the ground that no delivery of the box, as alleged in the complaint, had been proved; and that there was no proof of compensation or hire for carrying the box, paid or agreed to be paid by the plaintiff to defendants, that the complaint did not allege the defendants to be common carriers, and that no negligence had been shown on the part of the defendants.
    The Chief Justice refused the motion, and the defendants’ counsel excepted.
    The defendants offering no evidence, a verdict was directed, as before stated.
    The other facts sufficiently appear in the opinion of the court.

      L. S. Ashley, for plaintiff.

      J. G. Vose, for defendants.
   By the Court. Bosworth, J.

The complaint states, and the answer does not deny, and therefore admits, that the defendants were partners, and as such, were “ carrying on the express and forwarding business between the cities of New York and Philadelphia.” They were common carriers.

When they took goods in the ordinary course of their business, to be carried from one of those cities to the other, in the absence of any special contract, the implication of law would be, that the defendants were to be paid the usual and customary compensation.

If the defendants received the goods and undertook to carry them, although they were paid nothing, nor promised any thing for doing it, they, would be bound to use, at the least, as much care and skill as they stipulated for in the written contract.

The fact that they were delivered to the defendants at Canal street, instead of Broadway, is a variance which the court is required by section 169 of the Code to disregard.

The objection that the legal effect of the contract proved, varied from that described in the complaint, does not apppear to have been taken at the trial. Neither was the objection taken that the complaint did not allege any fraud or gross negligence of the defendants. It is too late to take such objections now. (Barnes v. Perine, 2 Kernan, 24,25.)

The objection taken was, that no negligence had been proved. Proof of a delivery and acceptance of the goods to be carried, and of a demand of the goods and non-compliance with it, without any explanation or apology, was sufficient proof of fraud or gross negligence, until some evidence of care or fidelity had been given by the defendants.

As the case presents the facts, the defendants received the goods and undertook to carry them. They stipulated that they should not be charged for any loss or damage unless caused by fraud or gross negligence, and that the plaintiff should be required to prove fraud or such negligence in order to be entitled to recover. The defendants, if made liable, agreed to pay whatever might be shown to be the value of the property; such value, at all events, to be deemed less than $150. The plaintiff has demanded the goods at the place at which the defendants have agreed to deliver them; and they have not complied with the demand, nor assigned any reason or excuse for their failure to do so.

If the contract had been set out according to its legal effect, as evidenced by the paper signed by Griffin, no other proof of fraud, or gross negligence, could well have been given, than such as was furnished in this case.

When the defendants admit, or it is proved, that they took the goods, and agreed to carry and deliver them at a place named, and they admit that they did not carry and deliver them there—• and the only question is, whether their default results from fraud or misconduct, if it appears that the plaintiff called at the proper place and demanded his goods, and the defendants refused to deliver them, without explaining or apologizing for their conduct, the plaintiff would seem to have given all the evidence of fraud or negligence that should be required in the first instance.

Frankness and good faith require that carriers, under such circumstances, should give some explanation of their conduct. It is known to themselves, and cannot be presumed to be known to the plaintiff. It is easy for them to state the cause of the loss or injury, and thus enable a plaintiff to examine into the truth of their statements.

, But when they refuse to deliver the goods, and fail to suggest any ground for such refusal, or to give any explanation of their conduct, I think a plaintiff has proved enough, unexplained, to make a prima facie case of fraud or gross negligence. (Beardslee v. Richardson, 11 Wendell, 25; Angeli & Ames on Carriers, § 38, n. 4, ed. of 1851.)

The defendants did not object that they were not required by the pleadings to come prepared to try the question whether their conduct had been fraudulent or grossly negligent; but the objection was, that no evidence of such conduct had been given.

The main question was, whether the defendants had undertaken to carry and deliver the goods, and had broken their contract.

They did agree to carry and deliver; but the evidence disclosed that this agreement was subject to the further agreement, that the plaintiff should have no claim on them for loss or damage, unless he proved that such loss or damage was caused by their fraud or gross negligence.

The plaintiff gave all the proof that this condition required. If the defendants had objected that the complaint contained no averment of fraud or gross negligence, the court might have ordered an amendment at the trial.

All that the complaint alleged was proved. The most that can be said is, that the agreement produced required the plaintiff to prove more, in order to recover, than he had averred. To this it may be answered, that such proof was given. The defendant did not object that the plaintiff could not give the proof because he had not alleged the fact, but that he had failed to give the necessary proof. If he was mistaken as to the effect of the evidence, as we think he was, the objection made is untenable. There are no variances between the pleadings and proofs, which should not, under the circumstances, be disregarded. (Code, §§ 169 and 170. 2 Kernan, 24-25.)

There is another consideration which is fatal to the defence. The complaint does not allege, nor was there any evidence tending to show, that the package was actually lost. The complaint states that the defendants received the package, and undertook to carry it and to deliver it at Philadelphia. That a delivery has been demanded there, and at the office of the defendants in New York, and that they have wholly neglected and refused, and still refuse to deliver it.

To make the qualifying clause of the contract available to the defendants, after the plaintiff had proved the case stated in the complaint, it was incumbent on the defendants to give evidence, tending to show that it was lost, or that they were not able to deliver it, in consequence of its destruction, or of its being placed beyond their control by some casualty arising “from the dangers of railroad, steam, or river navigation, leakage, fire, or some other cause.”

Then it would be the duty of the plaintiff to show that the cause of the loss, destruction, or other disability of the defendants to deliver, occurred from the “fraud or gross negligence of the defendants, their agents, or servants.”

But it cannot be pretended that the plaintiff cannot recover, for a refusal to deliver the article, if the defendants have the power to deliver it. Feither the complaint, nor the answer, alleges a loss of the package, nor any inability of the defendants to deliver it.

It was not suggested on the trial that it had been actually lost.

The concluding part of the contract is inoperative, except in case of an actual loss of the package. When the proof shows a loss of it, that answers the plaintiff’s claim, until he gives proof that the" loss resulted from fraud or gross negligence.

As'the case is presented to us, it is simply a case of a refusal to comply with" a demand, made in due form, at the proper place, to deliver the package. The refusal is not accompanied by any explanation. Fo suggestion was made that it was lost. The case, therefore, as far as the rights and liabilities of the parties to this action are concerned, is the same, as if this qualifying clause was out of the contract. There is nothing in the facts of the case on which it can operate. (Hearn v. The London and South- Western Railway Co., 29 Eng. L. and Eq. R. 494.)

There must be a judgment for the plaintiff; but, as the value of the property was not disclosed, the verdict must be reduced to $149.99.

Judgment accordingly for plaintiff, with costs.


author: By the Court. Slosson, J.

text:
    William B. Fish v. James Ferris, Jr.
    Where a person hires a horse to go a fixed distance, and goes beyond it, the act is, in judgment of law, a dispossession of the owner, and a conversion of the property to his own use.
    Hence, when an action for damages is brought by the owner, as it is founded, not upon a breach of the contract of hiring, but upon the unlawful conversion, infancy is no defence.
    Hew trial ordered, upon payment of costs.
    (Before Dues, Boswoeth and Slossoh, J.J.)
    October, 1855.
    Case, upon the verdict of a jury for the plaintiff, subject to the opinion of the court at G-eneral Term. All the material facts are stated in the opinion of the court.

      Mr. Allen, for the plaintiff.

      Mr Aitken, for the defendant.
   By the Court. Slosson, J.

The action is brought to recover the value of a horse, alleged in the complaint to have been hired by the defendant, on the 5th of July, 1854, of the plaintiff, a livery-stable keeper in the city of Hew York, to go from the city of Hew York to Flushing in Queen’s county, and to no other place whatever ; and the allegation is, that the horse was driven to Jamaica, without the permission of the plaintiff, and thus converted to the defendant’s use. The defendant, by his answer, denies the specific hiring and conversion of the horse mentioned in the complaint, but alleges that he hired the horse generally, and that he died whilst he was being used with ordinary care, and without any fault on the part of the defendant, but from defects in the animal himself. He then sets up infancy, as a distinct defence, and submits his rights to the court.

The jury were directed to find the value of the horse; and a verdict fixing the value was taken, subject to the opinion of the court.

There is no doubt that where the goods of one person are intrusted to another, for a particular purpose, a misappropriation of them is a conversion, and trover lies. This has been held in the case of the misapplication of a note. (Murray & Ogden v. Bowling, 10 J. R. 172.)

So trover will lie where a party hires a horse to go a fixed distance, and goes beyond it. The act is, for the time being, a dispossession of the plaintiff of his right in his horse, and an assumption by the defendant of a right to use him as his own, and this is a conversion. These principles are recognized in Sarjeant v. Blunt, (16 J. R. 74.)

The evidence, however, leaves the exact nature of the contract extremely doubtful. Whether it was a hiring of the horse to go to Flushing by the shortest and most direct route, without liberty of diverging, and to the exclusion of all other places, or was a hiring by the day, for the general object of a trip to Flushing, but without restriction of route, is a question left very much in doubt. The plaintiff, therefore, fails clearly to make out a case of conversion, and there should be a new trial, but as the defendant seems to have tried the case on the assumption that the contract was as said, viz., a hiring of the horse to go to' Flushing and no other place, and as he seems to have relied solely upon the defence of infancy, treating the action as one founded on a breach of contract, to which infancy would be a perfect defence, we think he should pay the costs of the trial.

Had the plaintiff proved that the hiring was for the purpose of going to Flushing by the most direct route, then going by way of Jamaica would have been a wilful act on the part of the infant, which would have disaffirmed the contract of hiring, and made him a trespasser. The contract of hiring was voidable at his elec- and a wilful departure from it was an election to avoid |t. From the moment an infant becomes a trespasser, his plea of ipfancy fails him, and I do not see why the plaintiff would not ha've been entitled to recover in this action, notwithstanding the defendant’s infancy, and notwithstanding there was a contract of hiring, had his proof established the contract as laid in the complaint. (Campbell v. Stakes, 2 Wend. 139; Veese v. Smith, 6 Cranch, 226.

There must be a new trial, on payment of costs.


author: By the Court.

text:
    Francis O’Brien, surviving Executor, &c., of James Whitty, deceased, v. Nicholas Mooney, Alexander H. Mooney, and Melissa Keenan.
    J. W., by his last will and testament, devised a house and lot, in the city of "New York, to his executors, in trust, to pay over the rents &e., to his father during his life, and after the death of his father, to pay out of the income an annuity of $300 to his mother, during her life, and the residue to his sister M. M. B. After the death of his mother, to pay the whole income to his sister during life, and after the decease of his father, mother and sister, to pay the income to the three children of his sister, A. H. M., N. M., and M. M., as soon as the youngest of them should attain the age of 21, during their lives. After their death, and as soon as the youngest child of any of them should attain the age of 21, to sell the property, and divide the proceeds among the children of the children named in the will, in certain specified proportions.

      Held, that the devise to the executors was either, as an entirety, wholly void, or was valid only during the lives of the father and sister of the legatee, and that, upon either supposition, the children of the sister became entitled, upon her death, as her heirs-at-law, to the house and lot, as tenants in common in fee.
    (Before Duer, Bosworth and Siossosr, J.J.)
    October term, 1855.
    This was the submission of a controversy under § 372 of the Code. The parties to the submission were the surviving executor and trustee, under the last will and testament of James Whitty, deceased, and the three children, mentioned in his will, of his sister Mary Mooney.
    The following are the material facts stated in the written submission, signed by the parties.
    James Whitty made and published his last will and testament in due form of law, dated February 5, 1834, and also a codicil thereto, dated 6th February, 1834, which will and codicil are as follows, viz:—
    In the name of God, Amen: I, James Whitty, of the city and state of New York, being at present weak in body, but of sound and disposing mind and memory, do make, publish, and declare this instrument tobe my last will and testament, as follows, to wit:—

      First. It is my will, and I do hereby order and direct, that all my just debts and funeral and testamentary expenses be paid and discharged by my executors hereinafter named, within a reasonable and convenient time after my decease.

      Second. I give, devise, and bequeath unto my executors hereinafter named, and the survivor of them, my house and lot, known and distinguished by the number 244 Water street, in the city of Hew York, upon the trusts and condition following:—Eirst: To pay out of the rents, issues, and profits arising therefrom, all taxes and assessments against the same, and also such sum or sums of money as may be necessary to effect insurance upon the said house against loss or damage by fire, and as may be necessary to keep the same in sufficient repair. Second: To pay the whole of the net annual income of said house and lot unto my father, Hicholas Whitty, of the city of Hew York, for and during the term of his natural life; and at the decease of my said father, then to pay unto my mother, Melissa Whitty, should she at that time be living, for and during the term of her natural life, the sum of three hundred dollars per annum, in equal quarter-yearly payments, and the balance of the said net annual income unto my sister, Mary Mooney, widow of Alexander H. Mooney, for and during the term of her natural life.

      Third,. At the decease of my said mother, I direct my said executors to pay unto my said sister, Mary Mooney, should she at that time be living, the whole of the said net annual income for and during the term of her natural life; and in the event of the death of my said sister before she would become entitled to receive the said income, then I direct my executors to invest the same in such manner as they, in their discretion, may deem most advantageous for my estate, for the benefit of the children hereinafter mentioned of my said sister.

      Fourth. After the decease of my said father, mother, and sister, I direct my said executors, and the survivor of them, to pay to Melissa Mooney, Alexander H. Mooney, and Hicholas Mooney, the children of my said sister Mary, so soon as the youngest of them shall arrive at the age of twenty-one years, but not before —yearly and every year during their natural lives—to each of them an equal third part of the said income arising from and out of the said house and lot; and in case that either the said Melissa Mooney, Alexander H. Mooney, and Hicholas Mooney should depart this life, either before or after the decease of my said sister leaving a child or children, then I order and direct my said executors, and the survivor of them, to apply such share of said rents, issues, and profits, as would have been paid to such parent or parents, if living, of such child or children, for the support, maintenance, and education of such child or children; and after the decease of the said above named children of my said sister, and so soon as the youngest child or children of them shall have attained the age of twenty-one years, but not before, I direct my said executors, and the survivor of them, to sell and dispose of the said house and lot number 244 Water street, either at public auction or private sale, as they in their discretion shall deem best; and the proceeds of the sale to divide in the following proportions, namely: To the child or children then living of the said Melissa Mooney, one-third part thereof; to the child or children then living of the said Alexander H. Mooney, one other third part thereof; to the child or children then living of the said Nicholas Mooney, the remaining third part thereof. But in case that either the said Melissa Mooney, Alexander H. Mooney, or Nicholas Mooney should depart this life without leaving a child or children, in that event the part or share of the proceeds of the sale of said house and lot, which would have belonged to such child or children, had he, she or they survived, his, her, or their said parent, shall belong and be paid to the survivors, in the proportions above mentioned.
    The residue of the will, and the codicil, are omitted, as having no bearing upon the questions to be decided.
    The testator died March 19,1834; his father, mother, and sister, and the children of the sister named in the will all surviving him. He had no other near relatives. The father died in July, 1838; the mother, in November, 1852; and the sister, the mother of the defendants, in July, 1841. Melissa, one of the defendants, intermarried with John Keenan, who died in May, 1850.
    The questions were, whether the legal estate was in the plaintiff, as surviving trustee, or in the defendants, as heirs-at-law of their mother; and from what time, if at all, the plaintiff was bound to account to the defendants for the rents and profits received by him.
    -, for plaintiff, the trustee.

      F. Byrne, for the defendants.
   By the Court.

Whether the devise in trust to the executors ought to be regarded, according to the principle of the decision of the Court of Errors in Coster v. Lorillard, (14 Wend. 265,) as an entirety and as such, wholly void, is a question which it is unnecessary to decide, since it is certain that the- devise, if valid at all, was only so, during the lives of the father and sister of the testator. The estate of the trustees necessarily ceased upon the death of the sister, as its continuance during the lives of her children, the defendants, would suspend the power of alienation beyond the period allowed by the statute, that is, beyond two lives in being at the death of the testator. All the trusts in the will limited to take effect after the death of the sister are very plainly illegal and void. It follows, that as the reversion in fee was undisposed of by the will, it descended, upon the death of the testator, to his father; upon his death, to the sister, as heir-at-law of the father, and upon her death, to the defendants as her heirs; and as the estate of the trustees terminated at the same time, it vested in them, not as a reversion, but as an immediate and absolute fee. The result is exactly the same, upon the supposition, that the devise to the executors is wholly void, for then the estate descended, as an absolute fee, to the father; upon his death, to the mother of the defendants, and, upon her death, to the defendants. Hence, guacwnque via data, the defendants are entitled to the possession of the house and lot devised, as tenants in common in fee.

A judgment, containing this declaration, must be entered, and also that the plaintiff account to the defendants for the rents and profits received by him since the death of their mother; but in taking this account he is to be allowed the payments made by him on account of the annuity to the mother of the testator, for, although the devise is wholly or partially void, the' annuity is valid, as a legacy charged upon the rents and profits, (Hawley v. James, 16 Wend. 61; Lang v. Ropke, 5 Sand. S. C. Rep. 464.)

       The better opinion would seem to be, that the devise to the trustees was wholly void, and such, had it been necessary to decide the question, would probably have been the judgment of the court. Vide Amory v. Lord, 5 Seld. 403, (R.)


author: By the Court, Duer, J.

text:
    Johann H. Schroeder v. The Hudson River Railroad Company; John Otte v. The same; Heinrich C. Duerkop v. The same.
    A contract by a railroad company, for the transportation and delivery of goods, to a point beyond its own limits, is settled to be a valid contract by the Court of Appeals.
    When goods were delivered in New York to the company’s agent, to be carried to Chicago, and they were not carried there, the defendants were held liable, although the plaintiff had made no demand of them at that place. It appeared that the company had not an office or an agent there of whom demand could be made.
    The duty of a common carrier is, to deliver the goods to the owner or his agent personally, and for that purpose to seek him at the place of delivery. He is only relieved from this duty by special contract, or general usage.
    The party signing the freight receipt was found not to have any special authority from the company, nor any authority to carry freight to, or deliver it beyond the city of Albany; but it was proven that he was their general agent, to receive all freights offered, and to sign receipts therefor. And by the pleadings it was admitted, that the defendants were common carriers of goods as well beyond as to Albany. Sold, that the company was sufficiently bound by such agent’s receipt.

      Sold further, that as it did not appear that the goods were transported even to Albany, that the company would have been in all events responsible, for that neglect.
    (Before Dueb, Boswoeth and Siosson, J.J.)
    October, 1855.
    Appeal on behalf of the defendants from a judgment entered upon the direction of a Judge for the sum of $507.72. The action was tried before the Judge without a jury, a jury trial having been waived in open court by the respective parties.
    By a written consent the two other causes of Otte and of Duerkop, against the company, were to be tried upon the same evidence, and at the same time.
    Judgments have been entered in these cases, and an appeal is taken in each.
    The decision of the Judge at Special Term contains a statement of the material facts, and is as follows:—

      Special Term, March 28, 1855. Before Bosworth, Justice.
    ■—This action having been tried before the undersigned, one of the Justices of said court (a trial by jury having been waived, by the consent of said parties) and having heard the testimony offered by both parties, and their counsel thereupon, I find the facts, established by the evidence, exclusive of those admitted by the pleadings, to be as follows—that is to say:

      First. On the 14th of November, 1853, at the city of New York, the plaintiff delivered to the defendants, at their depot in said city, six boxes and their contents, to be forwarded to Chicago, Hlinois, and to be sent forward from New York on the defendants’ railroad. The said boxes and contents,-when so delivered, were received on behalf of the defendants by Abraham Pierce, who at that time was a station master, and general agent of the defendants at the depot where the boxes were delivered. He was not the freight master, but was an employee of the defendants under him, and was authorized to receive all freight delivered up to a certain hour of the day, and sign papers evidencing the delivery of freight to, and the receipt of it by, the defendants, to be forwarded on their railroad, and to sign such paper as that secondly hereinafter copied and signed “ Pierce.”

      Second. The said Pierce, on the delivery of said six boxes and their contents to the defendants as aforesaid, executed and delivered to said Schroeder, two several paper writings, in the words and figures following, that is to say:
    “Received, New York, November 14th, 1853, in good order, on board the Hudson River Railroad, six cases marked Schroeder, Chicago, Illinois, to be forwarded by us to Chicago.
    “ 6 Cases Goods,
    “ Marked Schroeder,
    “ Chicago,
    “Illinois. Ab’m Pierce, Agent.”
    “Received from J. H. Schroeder, six boxes, containing emigrant luggage, marked Schroeder, Nos. 1 to 6, to be forwarded per Hudson River Railroad freight train to Chicago, Illinois.
    “New York, Nov. 14th, 1853.
    “ Pierce.”

      Third. Only two of these six boxes and their contents were the property of the plaintiff and this fact was disclosed to Pierce when the six boxes were delivered to the defendants aforesaid. The two boxes belonging to the plaintiff contained the articles described in the complaint, and the said two boxes, and their contents, at the time they were delivered to and received by the defendants, on the 14th of November, 1853, were worth the sum of three hundred and eighty-five dollars.
    Nothing was paid to the defendants, or to any of their agents, for or on account of the forwarding or transhipment of said boxes by the plaintiff. Nor was any thing said by either party as to the amount of freight to be paid for such forwarding or transportation.

      Fourth. The plaintiff was an emigrant from Europe, and had then recently arrived in the city of New York. He left the boxes in question with defendant’s said agent, on the 14th of November, 1853, he knowing at the time that the plaintiff desired to have the boxes and their contents taken to Chicago, and that he intended starting immediately for the same place. He left New York for Chicago on the same day, and travelled from New York to Albany on the railroad of the defendants. After arriving at Chicago, the plaintiff went several times to the different railroad depots, and to a great many warehouses in Chicago, and looked for these boxes and could not find them. The defendants, on the 14th of November, 1853, had not, and since then have not had, prior to the commencement of this action, any office or agent at Chicago. The said two boxes and their contents were not, nor was any part thereof, carried by the defendants, or by them caused to be carried to Chicago, so that a delivery of them could be there made to the plaintiff.

      Fifth. After the plaintiff, upon the search and examination aforesaid, was unable to find the two boxes and contents at Chicago, and before the commencement of this action, he caused the paper writing secondly hereinbefore copied, to be presented to and a demand to be made upon the defendants at their office and place of business in the city of New York, for the delivery to the plaintiffs of said two boxes and their contents. In answer to such demand, the defendants, by their authorized agent, stated that they could not make a delivery of the boxes and contents, but they would make a search for them. Ko further application was made to the defendants for a delivery of said boxes and contents, nor was any other demand for a delivery made than has been stated, before this action was brought.

      Sixth. The defendants are a corporation, created by an act of the legislature of the state of New York, passed May 12th, 1846, entitled, “An Act to authorize the construction of a Railroad from New York to Albany,” and the acts amendatory of the same, which several acts were read in evidence, are to be deemed a part of this case, and may be read from the published statutes of this state.
    Upon evidence given, on his cross-examination, by a witness introduced by the plaintiff, and not objected to, I further find, that the said railroad company receive passengers’ luggage to be carried and delivered beyond the terminus of their road, but not luggage or freight of the description of the property in question.
    That the said Pierce had no authority to make any special contracts, nor had he any authority to make a contract on behalf of the defendants to carry freight to, and deliver it at points beyond the city of Albany.
    But neither the plaintiff nor said Schroeder knew, or had any notice,- that it was not according to the common course of the defendants’ business, for them to contract to carry and deliver property like that in question beyond the terminus of their road, nor did the plaintiff, or said Schroeder know, or have any notice, that said Pierce was not authorized by the defendants to contract for the carriage of property like that in question, or of any kind of freight from New York city to Chicago, and for its delivery at the place last named.
    Before the testimony was - unconditionally closed, the plaintiff stated and insisted, that the defendants were, in fact, common carriers beyond Albany, to places to which they might undertake and agree to carry and convey goods and merchandise, and so held themselves out to be; that these facts were admitted by the pleadings, and that the only questions to be tried were, whether they had contracted to carry the property in question to Chicago and deliver it there, and had broken such contract.
    The defendants, although denying that the admission by the pleadings was as extensive as- the plaintiff claimed, moved for liberty to amend their answer, so that it should admit they were common carriers between New York and Albany only, and should deny each and every other material allegation in the complaint. The court gave leave to so amend, on condition of the defendants paying the costs of the term, and consenting that the trial be postponed to the next term. The defendants declined to avail themselves of permission to amend on such terms, and the counsel of both parties proceeded to sum up the cause, without any evidence being thereafter introduced by either party.
    My conclusions, as to the law, upon the facts found as aforesaid, and upon those admitted by the pleadings, are as follows, that is to say:

      First. The defendant is capable of making a contract valid in law, for carrying of goods from the city of New York, and the delivery of them at Chicago. (4 Selden, 37.)

      Second. The contract actually made, determining it in the light of both of the papers executed by Pierce, and of the facts of the case, was a contract to carry the property from New York to Chicago, so that a delivery could be made of it there, on the payment of a reasonable or the customary compensation therefor, to be paid on the delivery of the goods. (8 Mees. & Welsby, 421; 3d Sandf. 610, and 1 Smith, 234; 6 Hill, 157; Oranch v. London and North- Western R. R., 25 Eng. L. and Eq. 287.)

      Third. The fact proved, that the defendant did not receive property like that in question, to be carried by them to, and delivered at a point beyond Albany, cannot, in this case, be made available to them against an express admission in the pleadings to the contrary. (Code, § 168:)
    As they, in fact, did business as common carriers, between New York and Albany, and any points beyond Albany, to which they undertook to carry such property as that in question, and other freight, the only further practical question is, whether the contract made is their contract.
    It is proved, by evidence given, that Pierce was not authorized to make such a contract as I have decided this to be. But it being proved that he was their general agent, to receive all freight offered during certain hours of the day, and to sign papers acknowledging the receipt of it, and stating to what place it was to be forwarded, and in such form as that of one of those given in this case, and there being no attempt to show that any person had any authority to make contracts which he could not properly make, during the hours when it was his business and duty to receive freight, strangers are not to be prejudiced, who make with him such contracts as the defendants are in the habit of making, merely because they do not know the precise extent of his powers, especially when he holds himself out by his acts as fully authorized to make them, and was authorized to make such contracts as one of the papers signed by him properly imports.
    As no objection appears to have been made when the receipt, signed “Pierce,” was presented at the office of the defendants, and the goods demanded, that he had no authority to make such a contract as that imported; and as the fact is found, that he was a proper person to sign a paper like that; it seems evident, to me, that the case comes to this narrow point: that the defendant’s position is, that Pierce was authorized to make a contract like that, but that, in legal effect, it is a contract to carry to Albany only, and there deliver it to a proper forwarding line, according to the established course of business. If authorized to sign such a paper, he was authorized to make such a contract as that imported, under the circumstances under which it was given. In law, upon the facts found upon the evidence, and upon those admitted by the pleadings, the contract is binding upon the defendants, and is their contract, and the plaintiff is entitled to a judgment for three hundred and eighty-five dollars.
    To which decision the defendant’s counsel offered the following exceptions:—
    1. The defendants except to the decision of the Judge, that the defendants are capable of making a contract valid in law for the conveyance of goods from the city of Hew York, and the delivery of them at Chicago.
    2. The defendants further except to the decision of the Judge, that the contract actually made was a contract to carry the property from Hew York to Chicago, so that a delivery could be made of it there, on the payment of a reasonable or the customary compensation therefor, to be paid on the delivery of the goods.
    3. The defendants further except to the decision of the Judge, that the fact proved that the defendants did not receive properly like that in question, to be carried by them, to and delivered at a point beyond Albany, cannot in this case be made available to them, against any express admission in the pleadings to the contrary.
    The defendants also except to the decision of the Judge, that the pleadings do expressly admit that the defendants received property to be carried and delivered at a point beyond Albany, and that they did business as common carriers between Hew York and points beyond Albany.
    4. The defendants further except to the decision of the Judge, that strangers are not to be prejudiced who might make with the agent, Pierce, such contracts as the defendants are in the habit of making, because they do not know the extent of such agent’s powers.
    5. The defendants further except to the decision of the Judge, that the demand, in this case, of the goods in question, was made of the proper person and at the proper place; also, that the agent, Pierce, was authorized to sign such a contract as was proved, or that became binding on the defendants, further than to carry to the city of Albany. The defendants also except to the decision of the Judge, that the plaintiff had the right to recover on the facts proved.
    6. The defendants further except to the decision of the Judge, in deciding that the commission, produced on the part of the plaintiff, was admissible in evidence.
    Fullerton, for defendants and appellants, argued the exceptions taken to the decision.

      May, for the plaintiff.
   By the Court, Duer, J.

The question whether a railroad company can make a valid contract for the transportation of freight beyond the limits of its own road, as their limits are fixed by its charter, as we understand the decision of the Court of Appeals, in West v. The Rensselaer and Saratoga R. R. Co., (4 Selden, 37,) must now be regarded as finally settled. It is only upon the supposition that such a contract is valid, that the decision in that case can be explained. It is, therefore, needless to refer to the recent decisions in England, or to prior decisions in onr own courts, which, countenance, if they do not establish, the same doctrine.

But, had the law been otherwise settled, we should still be compelled to say, that, upon the finding of the Judge at Special Term, and the evidence by which it is sustained, the defence set up has wholly failed. The contract made by the agent of the defendants certainly bound them to transport the goods of the plaintiff to Albany, the terminus of their own road; and it is not shown that their contract, even in this limited interpretation, has. been performed. For aught that appears, the boxes of the plaintiff never reached Albany at all. The burden of proving that they were carried there, and were there delivered, or tendered for delivery, to the plaintiff, rested upon the defendants, and upon the trial no such proof was given, nor offered to be given.

There is no force in the objection, that it was not proved, on the part of the plaintiff, that the delivery of the goods was demanded by him in Chicago. It is found by the Judge, and his finding is justified by the proof, that the boxes of the plaintiff and their contents were not, nor was any part thereof, carried by the defendants, or by them caused to be carried, to Chicago; and that, prior to the commencement of this action, they had no office there, nor agent at Chicago, from whom the demand could have been made. A demand is excused, when it is shown that it could not have been complied with, and the obligation to make it ceases, when the act is proved to be impossible. Lex neminem cogit ad impossibilia.

But, had a different state of facts been proved, still the objection could not have prevailed. It is founded on an erroneous view of the existing law. The duty, which, as a general rule, the law imposes upon a common carrier, is that of delivering the goods, which he undertakes to transport, to the owner or consignee, personally, at the place where the transportation ends. His duty is to seek the person to whom the delivery is to be made, and make its tender; and from this duty he can only be discharged by a special contract, or by proof of an opposite usage. Such was the decision of the Supreme Court, in Gibson v. Culver, (17 Wend. 305,) and that such is the established law, is abundantly proved by the cases and authorities which Mr. Justice Cowen, in an elaborate judgment, has there collected and reviewed. (Vide, also, Magill v. Potter, 2 Johns. Cases, 371; Fish v. Austin, 1 Denio, 45; Brice v. Powell, 3 Comst. 322.)

The objection that has probably been most relied on as creating a bar to the plaintiff’s recovery, is, that it has been found by the Judge that the agent of the defendants, Pierce, had no authority to make the contract, upon which this action is founded, but the meaning of the Judge undoubtedly is, that Pierce had no such express authority; that no such authority was in terms delegated to him; and, in our opinion, the effect of this finding is completely removed by his having also found that Pierce was the general agent of the defendants, in making contracts for the reception and transportation of freight; that he was held forth to the world as possessing full authority to make all such contracts, and that the plaintiff had no knowledge or notice of any limitation of his powers. Hence, as the contract upon which the action is founded was certainly within the general scope of the agent’s apparent authority, we are clearly of opinion, that it bound the defendants, and that they are answerable for the damages which the plaintiff is proved to have sustained from its breach. (Story on agency, § 443, p. 540.)

It seems to us that the other exceptions stated in the case are so plainly untenable as not to require a special consideration. Even had the answer been amended as was desired, we cannot see that the amendment would have helped the defendants, for, admitting that they were not common carriers from New York to Chicago, we must still have held, that they were liable for their breach of a positive contract.

The judgment at Special Term is affirmed, with costs.


text:
    Stephen S. Chatterton v. Edward Fox.
    When a tenant is evicted before the expiration of Ms lease, he is thereby absolved from all liability to pay rent from the commencement of the quarter in which the eviction occurred. He may also recover the difference between .the value of his lease for the unexpired term, and the stipulated rent.
    If evicted at a season of the year when the expense of removing is greater than it •would have been at the expiration of the term, he may recover such extra expense.
    But he cannot recover, as a matter of course, any increased rent which he may he compelled to pay for other premises which he may hire for the purposes of the business for which he was using the premises from wMch he was evicted.
    (Before Dunn, Boswobtb and Slosson, J.J.)
    October, 1855.
    This action came before the court on an appeal from a judgment entered upon the report of a referee, in favor of the plaintiff, for $429.26.
    The report is as follows:
    I, Henry Brewster, sole referee, appointed to hear and determine the issues in this action, do certify and report to the Superior Court of the city of New York, that I have been attended by the counsel of the respective parties, and that I have examined the issues, and taken the testimony of the several witnesses on oath, and I do find, as matters of fact, that the plaintiff wastenant of the front room in the second story of the building, on the lot at number 186 Water street, in the city of New York, under a lease; his term ending the first day of May, 1853; and that the rent was at the rate of $250 per annum. That the defendant became the owner of the premises number 136 Water street, in January, 1851, and, as such, the landlord of the plaintiff, and entitled to the rent. That in November, 1852, the defendant, by his servants, so tore down and demolished the building as to deprive the plaintiff of the enjoyment thereof and in consequence of which the plaintiff was obliged to, and did remove therefrom, the latter part of November, or early in December. That he was subjected to great disturbance and interruption before removing, and that he was a job printer by trade, and had a business established, which was interrupted for a time, and the good-will injured by his removal, and he was put to expense, inconvenience, and subjected to a heavier rate of rent in the premises to which he removed, besides the necessary losses incident to removal at an unusual and cold season of the year. His damages and expenses I have estimated, after a careful consideration of the evidence, at $288rfir.
    I find that the conduct of the defendant is wholly without excuse, and being tortious, I have found $he damages resulting on the principle of a.liberal allowance of all damage shown to have been sustained by the plaintiff.
    The defendant having, in his answer, set up a counter claim, on which issue is joined, by the plaintiff, on the merits, I find that there is due from the plaintiff to the defendant, $62.50 for one quarter’s rent, due on the first of November, 1852.
    That the defendant is not entitled to rent after the end of that quarter, because he had destroyed the premises so as to deprive the plaintiff of the enjoyment.
    As to the law, I find, that the acts of the defendant bar all claim for rent after the first quarter. That the acts of the defendant being tortious, I may take a more liberal scale of finding damages, where the amount cannot be stated by witnesses with exactness, than in a mere breach of contract; yet that damages must be proved from the acts of the defendant. That the defendant is liable for what was done in this case, it being under his direction.
    I also decide that the plaintiff, not having demurred, or moved to strike out the defence of counter claim, and the issue being presented under the rule for reference, I am now bound to try that issue, and allow the counter claim. I have not allowed interest, because the damages of the-plaintiff, sustained about the same time, exceeded the amount of the rent due. I do therefore direct judgment for the plaintiff for the sum of two hundred and twenty-six dollars, being the balance of his damages after deducting rent due to the defendant.
    The matters of fact, and points of law, upon which the court held that the referee erred, are sufficiently stated in the opinion of the court.

      A. Matthews, for the defendant and appellant.

      J. S. Carpentier, for the plaintiff and respondent.
   By the Court. Bosworth, J.

We think the finding of the referee, that the defendant evicted the plaintiff, and that the eviction was in November, 1852, is fully warranted by the evidence.

The evidence is, that the plaintiff hired the premises in Maiden Lane on the first of November, 1852. This was before the eviction. We are not at liberty to infer that this hiring was in consequence of the eviction. The referee allowed as an item of damage, the “heavier rate of rent” of the premises to which the plaintiff removed. Eor aught that appears, the plaintiff might have hired a room of the dimensions of that from which he removed, at the same rent, and one as well adapted to his business. If the referee allowed the difference in the rent of the two premises, for the period of six months, he must have allowed eighty- . seven dollars and a half for the increased rent, if he allowed the actual difference, for the unexpired term of plaintiff’s lease.

Instead of there being any evidence tending to show that the plaintiff was obliged to pay this rent in consequence of the eviction, the evidence shows that he hired before he was evicted, and that if he had not been evicted, he would have been obliged to pay the rent of the premises in Maiden Lane, as well as rent to the plaintiff.

If the plaintiff had a valid lease, which would not expire until the first of May, 1853, the consequences of being forcibly evicted by his landlord in November, 1852, would be, first, an exemption from liability to pay rent from the commencement of the quarter in which the eviction occurred; second, a right to recover the difference between the value of the lease for its unexpired term and the stipulated rent; third, any other damages which necessarily resulted from the eviction.

If it is clearly shown that it cost more to remove, at the season of the year when the eviction occurred, than it would at the ex^ piration of the lease, this excess of expense may be recovered. (Noyes v. Anderson, 1 Duer, 342, 352-3.)

The judgment must be reversed, the report of the referee set •aside, and a new trial ordered, with costs to abide the event.


author: By the Court. Duer, J.

text:
    Henry F. Warhus, Administrator, &c., of Frederick Warhus, deceased, v. The Bowery Savings Bank.
    F. W., in his lifetime, deposited several sums with the defendants, amounting in the whole to $198.68, and when he made the first deposit, a hook called a pass-book, was delivered to him, in which the sum deposited was entered by an officer of-the bank. When the plaintiff, his administrator, demanded payment of the whole deposit and interest, he did not, although required, produce this book, nor allege that it was lost or destroyed, nor was any proof of its loss or destruction given on the trial of this action, in which judgment was demanded for the whole deposit and interest. When the deposits were made, a regulation of the bank was in force, and was put up in a conspicuous place in the hanking-room, requiring every depositor, when demanding any payment of his deposit, to produce the original pass-book.

      Held, that this regulation was authorized by the charter of the bank, that it was not unreasonable, and that the intestate was chargeable with knowledge of its existence, and consequently, that it was binding upon the intestate and upon the plaintiff.

      Held, that as the regulation had not been complied with, the plaintiff, upon the evidence given upon the trial, was not entitled to recover.
    Verdict for plaintiff set aside, and new trial ordered: costs to abide event.
    (Before Dunn, Bosworth and Slosson, J. J.)
    October term, 1855.
    This was an action to recover the amount, with interest, of a deposit made by the intestate, F. Warhus, with the defendants. The- cause was tried upon the issues made by the pleadings, before Campbell, J., and a jury, in May, 1855.
    The following are the material facts established by the evidence upon the trial.
    The intestate was credited on the books of the bank with the sum of $198.68, including interest to the 1st of June, 1855, for several sums deposited by him with the bank.
    When the first deposit was made, a book called a pass-book, was delivered to the intestate, in which an entry was made by an officer of the bank of the sum deposited. The book also contained, printed in English, the regulations and by-laws hereinafter referred to, but the attention of the intestate was not directed to them, nor was any explanation given to him of their purport. The intestate, it was proved, was a German, incapable of reading, speaking, or understanding the English language, and he continued so ignorant until his death. When he made the deposit, he subscribed his name in a book kept in the bank, containing the regulations and by-laws of the institution. He was directed by a clerk to sign his name in the book, but was not told for what purpose his signature was required.
    After the death of the intestate, the plaintiff, in the month of August, 1854, went to the bank, and demanded payment of the whole sum standing to the credit of the intestate, and as proof of his authority to make the demand, exhibited the letters of administration that had been granted to him. He was asked by an officer of the bank whether he had the pass-book, and replied that he had not, and did not know where it was; but did not allege that any search had been made for it by himself or any other person. The letters of administration were then returned to him, and he was told, that without the book, the money would not be paid. A few days thereafter, he commenced this action.
    No evidence was given or offered upon the trial to show the loss or destruction of the pass-book.
    On the part of the defendants, the following by-laws were proved to have been duly made by the board of managers of the bank, and were read in evidence.
    By-law No. 8.—“No person shall have the right to demand any part of his principal or interest without producing the original book, that such payments may be entered therein.”
    By-law No. 11.—“ On making the first deposit, the depositor shall be required to subscribe, and thereby signify his assent to the regulations and by-laws of the institution.”
    These rules had been adopted several years before the intestate made his first deposit, and at that time, were, among others, printed in English and framed, and were hung up in four or five different conspicuous places in the banking-room. It had been the uniform custom of the bank to require their observance.
    The counsel for the defendants then called the attention of the Judge upon the trial to the following section in the act incorporating the bank:—
    “ Section 6.—Such deposits shall be repaid to each depositor when required, at such times, and with such interest, and under such regulations as the board of managers shall from time to time prescribe, which regulations shall be put up in some public and conspicuous place in the room where the business of the said corporation shall be transacted, and shall not be altered so as to affect any deposit which shall have been made previous to such alteration, until after personal notice thereof.” (Sess. Laws, 1804, 414.)
    It was then insisted on the part of the defendants, that they were entitled to a verdict in their favor.
    The Judge, however, directed the jury to find a verdict for the plaintiff, for the sum of $204.01, principal and interest, subject to the opinion of the court at General Term, upon the questions of law arising on the evidence.

      J. T. Williams, for plaintiff,
    contended that the plaintiff was clearly entitled to judgment upon the verdict, unless it had been proved that there was a subsisting contract between the intestate and the defendants, founded upon a good and valuable consideration, to the effect that the intestate, and those claiming under him, should not be entitled to demand the funds deposited by him with the bank, unless the original book should be produced at the time of the demand; and he argued, that the rules and regulations of the bank neither created nor contemplated such a contract, but were intended solely for the government and convenience of the officers of the bank, and could not affect the rights of third persons, even if brought home to their personal knowledge. That the signature of the intestate in the book of rules and regulations kept by the bank, was not made by him with the intent that it should be evidence of a contract, or with knowledge that such was the intention of the officers of the bank. There was, consequently, no meeting of the minds of the parties, in reference to the alleged contract, its terms, or subject matter. He cited 19 Johnson, 158; 19 Wend. 234, 251; 2 Hall, 623; 4 Wheat. 225; 5 Mees. & Welsb. 535; 1 Paige, 580; 2 Paige, 30; and other cases and authorities.

      A. Schell for the defendants,
    contended that the regulation of the bank, requiring the production of the book, when payment of a deposit was demanded, was folly authorized by law, and was binding on the intestate and his representatives, and as it had not 'been complied with, and there was no evidence to show that the book had been lost or destroyed, the plaintiff could not be entitled to recover, but that the verdict in his favor ought to be set aside, and a verdict and judgment thereon to be entered for the defendants. He referred to a decision alleged to have been made by this court, in the case of M'Donald v. The Bank of Savings, in September, 1845.
   By the Court. Duer, J.

We are clearly of opinion that upon the evidence given on the trial, the complaint ought to have been dismissed. This is not a case, however, in which a judgment as upon a verdict, which would operate as a bar to a future recovery, ought to be entered for the defendants. It may well be in the power of the plaintiff, in a future action, to give such evidence as will entitle him to recover.

Whether we should be justified in saying upon the case before us, that there was an express contract between the intestate and the defendants by which he bound himself to produce the original pass-book, whenever any payment of his deposit should be demanded, is a question we deem it unnecessary to consider. The plaintiff has no right to maintain this action, if the regulation contained in the bye-laws, requiring the production of the original book, was binding upon the intestate and his representatives; and it certainly was so, if the board of managers had power under the charter to make the regulation, and the regulation was not unreasonable in itself, and the intestate was chargeable in law with knowledge of its existence.

The authority of the managers to make the regulation cannot be doubted. By the express words of the charter, they are authorized to prescribe any regulations they may deem proper, relative to the payment of deposits, and the regulation in the bye-law which they passed is, plainly, of this character. Hor can it be said that the regulation, fairly construed, is unreasonable, and therefore void. In all cases, where there is a written evidence of a debt, and here the original pass-book is such evidence, its production, we apprehend, when payment of the debt is required, or sufficient proof of its loss or abstraction, may be justly demanded by the debtor, and it is this duty, and no more than this, that the by-law, as we understand it, imposes upon depositors. We have no right-to say that the meaning of the by-law is, that the non-production of the book, although its loss or destruction may be clearly proved, shall operate as a forfeiture of the deposit, and we are convinced that we should do great injustice to the managers by imputing to them such an intention. Thus construed, the bylaw would indeed be illegal and void, but, ut resmagisvaleatquam pereat, we are bound to give it a construction that will render it valid. The only question, then, that remains, is, whether the intestate was chargeable with knowledge of the regulation, and that he was so, seems to us also free from a reasonable doubt. The regulation, as the charter requires, was put up in one or more conspicuous places in the room in which the business of the bank was transacted, and the intention of the legislature plainly was, that this should operate as notice to the depositors. The provision that where a subsisting regulation shall 'be altered after a deposit shall have been made, it shall not affect the depositor without personal notice, necessarily implies, that when the regulation has not been altered, the depositor shall be bound by it, if it was properly put up in the banking room when his deposit was made; nor is there, in this, the slightest injustice. As a general rule, every person who deals with a moneyed institution, is bound by its regulations, lawfully made, although not communicated to him at all. If he wishes information he must inquire. A fortiori is the dealer bound, when an act, which the charter of the institution prescribes, and deems to be equivalent to a direct notice, has been performed. The charter, in the present case, by prescribing the mode by which the means of information shall be furnished to depositors, creates an exception, in their favor, from the general rule.

The conclusion is, that the regulation in question was binding upon the intestate, and upon the plaintiff, as his representative, and it cannot be- pretended, that it has been complied with. When the plaintiff demanded payment of the deposit, he did not produce the original pass-book, nor even allege—so far from offering any proof of the fact—that it was lost or destroyed. He said, only, that he did not know where it was, but did not say that he had searched for it in vain, or had searched for it at all. Nor was any proof of the loss or destruction of the book given or offered upon the trial. We do not say that this proof, if offered, could have been received, for this question is not properly before us, but, it is certain, that if this evidence could have been admitted, it was a necessary part of the plaintiff’s case.

Our decision, therefore, is, that the verdict for the plaintiff must be set aside, and there must be a new trial, with costs to abide the event.

We have been informed by the Chief Justice, that a similar decision was made by this court in 1844 or 5, in a case not differing, in any material circumstance, from the present.


text:
    Thomas Coddington v. William W. Gilbert, George S. Coe, Heyron D. Johnson, and William A. Nichols.
    Bonds executed by a railroad company, and in the hands of its agents, to be negotiated for its use, cannot be seized on an attachment against the company, so as to give the attaching creditor a right to enforce the bonds against the company, or any claims against parties who had guaranteed such bonds, for the better enabling the company to negotiate them.
    Property which may be attached under the 227th section of the Code, is property as defined in the 463d and 464th sections. “ Persona] property includes money, goods, chattels, things in action, and evidences of debt.” Such bonds could not be regarded as of either class. The fact that the agents had an interest in the bonds, with a power to sell them for reimbursement of advances, does not make a difference as to the right to attach.
    (Before Dube, Bosworth and Slosson, J.,T.)
    October —, 1855.
    At the trial of this action, a verdict was taken for the plaintiff for $3,359.77, subject to the opinion of the court at General Term, on the questions of law arising in the case, the entry of judgment to be suspended, and judgment to be applied for'in the first instance at the General Term, with power to the court there to dismiss the complaint, if of opinion that the plaintiff was not entitled to recover.
    On the 17th of Fovember, 1853, the Maysville and Lexington Railroad Company, a foreign corporation, created under the laws of Kentucky, were indebted to the defendants, Gilbert, Coe & Johnson, in about $60,000 upon an unsettled account for moneys advanced. As a collateral security for the payment of this debt, the defendants held 292 second «.mortgage six per cent, bonds of the Maysville and Lexington Railroad Company, of $1,000 each, (guaranteed in part by the city of Maysville, and in part by the Louisville and Frankfort Railroad Company,) with authority to sell the same, to an amount sufficient to reimburse and protect them for the advances made by them for said company.
    About the 26th of January, 1854, the plaintiff, Coddington, having a demand against the Maysville and Lexington Railroad Company for $3,027.68, commenced an action in the Supreme Court, and issued an attachment under the Code to the sheriff of the city and county of New York.
    About the 2d of February, 1854, the sheriff delivered a certified copy of the attachment to the defendants, who, at the same time, gave the sheriff a statement in writing, admitting that they had received notice of the attachment, and stating that all the property in their possession of the Maysville and Lexington Railroad Company, consisted of the bonds above described, and that they held them as collateral security for advances as already mentioned.
    The sheriff did nothing further in the matter until after judgment and execution in the action.
    May 19th, 1854, the plaintiffs recovered judgment for $3,174.58, against the Maysville and Lexington Railroad Company, and issued execution thereon to the sheriff.
    The sheriff called on the defendants, and informed them he had the execution, with instructions to sell the bonds. The defendants requested the sale adjourned, and said to the sheriff, they would write to the Maysville and Lexington Railroad Company in Kentucky. The sheriff adjourned the sale a week. In the interval the Maysville and Lexington Railroad Company paid the demand of Gilbert, Coe & Johnson, the defendants, and took the bonds.
    The sheriff realized nothing on the execution. The plaintiff, therefore, commenced this action, claiming (under the Code, § 237, subd. 3; Laws of 1842, ch. 197, § 4, subd. 3) to recover from Gilbert, Coe & Johnson, double damages for having wilfully withheld from the sheriff property attached.
    The action was tried before Justice Bosworth and a jury, on the 19th of March, 1855.

      The court charged the jury that for the purposes of the action, they should consider the bonds in question as property of the Maysville and Lexington Bailroad Company, and liable to levy on an attachment.
    To this thp defendants’ counsel excepted.
    The verdict was therefore taken as before stated.

      S. P. Nash, for the plaintiff.

      A. Matthews, for defendants.
   By the Court. Bosworth, J.

The bonds in question, not having been issued by the Maysville and Lexington Bailroad Company, were not property in their hands, or in the hands of their agents, in such sense that any creditor of the company by attaching them could enforce the obligation which their terms import, either by action on the bonds, or by a foreclosure of the mortgage by which they purported to be secured, or by action against the city of Maysville, or the Louisville and Frankfort Bailroad Company, on their respective guaranties.

As well might a creditor, on attachment against his debtor, seize a note made by the debtor, and left with an agent to be negotiated, but which had not been negotiated at the time of such seizure.,

The attachment requires the sheriff to attach and safely keep all the property of the Maysville and Lexington Bailroad Company within his county, &c.

The word “property,” as used in the Code, includes property real and personal. (§ 464.)

The words “personal property,” as used in the Code, include “money, goods, chattels, things in action, and evidences of debt.” (§ 463.)

The bonds were not things in action, on which the company issuing them could maintain an action, nor were they evidence of debt owing to the company. As obligations, they had no validity, and were valueless.

For the purpose of raising the questions of law, to be passed upon at the General Term, they were treated as valid obligations, precisely as they would have been, if they had been issued and negotiated by some other company, and at the time belonged to the defendants in the attachment. One question, which it was considered would arise for the consideration of the court, was, whether bonds executed by a railroad company, and in the hands of its agents to be negotiated for it, could be seized, on an attachment against the company, and by such seizure give to the creditor any right to enforce the bonds against the company, or to enforcé any claims against those who had guaranteed the bonds, for the purpose of enabling the company tó negotiate them on better terms. We are clearly of the opinion, that no such rights could be acquired by such an attachment.

The fact, that Gilbert, Coe & Johnson, were authorized to sell enough of the bonds to reimburse them the amount the company owed them, does not strengthen the plaintiff’s case. The only property in the bonds, as obligations, which this authority could create, was the property of Gilbert, Coe & Johnson. When they were paid, the bonds, so far as relates to the capacity of the plaintiff .to proceed against and attach them, were in precisely the same condition as they would have been if Gilbert, Coe & Johnson had never been creditors of the company, but had at all times held them merely as agents of the company, with power to negotiate them for the company. ■

The decision of this point being sufficient to dispose of the case, we deem it unnecessary to pass upon any other of the numerous questions discussed at the hearing, and which it was insisted were fatal to the plaintiff’s right to recover.

The verdict must be set aside, and the complaint be dismissed.


text:
    James Alcock v. Andrew Giberton and John Binsse.
    An instrument, under seal, was executed, upon a sale made by the plaintiff to the defendants, by which the former sold to the latter all his interest in the manufacture and sale of porcelain teeth in the city of New York, with his stock on hand, and the good-will of the business. The plaintiff covenanted to instruct one of the. defendants in the art of manufacturing porcelain and incorruptible teeth, and to furnish him with his recipes therefor. The agreement also contained the following clause: “And the party of the first part will not carry on, or cause to be carried on by any person with whom he shall be interested, the manufacture of porcelain teeth, or impart the knowledge of manufacturing the same to any person, other than as aforesaid.”
    It was alleged, in the complaint, that the said art of manufacturing porcelain teeth, in which the defendant was to be instructed, was a secret of the plaintiff, and known to be such by the defendant.

      Held, on demurrer, that the covenant in question was valid, and not one in restraint of trade.

      Quere, as to the effect of one covenant, void, as against public policy, being united in the same instrument with a valid covenant ?
    Ruling of the judge at, Special Term, that, ordinarily, it will not vitiate the whole contract, not passed upon by the court at General Term.
    (Before Dueb, Boswobth and Slosson, J.J.)
    October term, 1855.
    The case arose upon an appeal from an order of Justice Hoffman at Special Term, overruling a demurrer to a complaint, and giving judgment against the defendants, unless they should answer and pay costs within twenty days.
    The statements of the complaint, and the points raised, are fully set forth in the opinion of the Judge at Special Term, which is as follows:—
    The questions arise upon an agreement, dated the twenty-ninth day of December, 1853, made between the present plaintiff and defendants. By that agreement, the plaintiff engaged to sell to the defendants “all his right, title and interest, in the manufacture and sale of porcelain or mineral teeth hitherto held by him in the city of New York, with all his porcelain teeth contained in the dépóts, with the moulds, machinery, and materials used in connection with such manufactory, and also the good-will of the business,” upon the terms therein specified. The good-will was estimated at the sum of $8,000.
    The mill and materials, including biscuit teeth, were to be inventoried at theiz actual ■ cost; the othez tools and fixtures, at fifty per cent, below their cost: all the stock and merchantable teeth, at fifty per cent, below their then retail prices, viz., pivot and plate teeth ten cents each, and gum teeth twenty cents each.
    The periods and amounts of the payments are then specified. And it was covenanted, that the sale of the good-will of the business, tools, fixtures, and materials, should not be perfected, nor a bill of sale therefor executed, until the payment of $10,000; and of the first-mentioned instalment, agreed to be paid on or before the thirty-first of July, 1854, various particulars, as to the mode of payment, are there stated.
    The instrument contains the two following clauses—“ and it is further agreed by the parties hereto, that the party of the first part shall, from the 2d day of January next to the 31st of July, 1854, give directions and instructions to Adrian Giberton, one of the parties of the second part, in the art of manufacturing porcelain, or incorruptible teeth, and also his receipts for the fabrication of the same, and that the party of the first part, will allow and permit the said John Binsse, the other party of the second part, to be present at the tuition of the said Adrian Giberton in the art of manufacturing the teeth as aforesaid, and that the said party of the first part will not carry on, or cause to be carried on by any person with whom he shall be interested, the manufacture of porcelain teeth, or impart the knowledge of manufacturing the same to any person other than as aforesaid.”
    The amended complaint contains the following passage, which was not in the original complaint—“ and the said plaintiff avers, that the mode of manufacturing the said porcelain teeth, mentioned in the agreement aforesaid, in the art of manufacturing which the said plaintiff agreed to instruct the said defendant, Giberton, and the manufacture of which, in and by said agreement, the said plaintiff agreed not to carry on, or cause to be carried on by any person with whom he should be interested, and the knowledge of manufacturing which teeth, said plaintiff, in and by the same agreement, stipulated not to impart to any person other than the said defendant, was a secret with the said plaintiff, and the said defendant knew it was when said agreement was made.”
    The want of an allegation of this nature is understood to have been the ground of the allowance of the demurrer to the original complaint. It was supposed that it did not sufficiently appear on the face of the instrument that a secret was disposed of.
    With the present allegation, the case appears to be a very plain one.
    The cases of Bryson v. Whitehead, (1 Sim. & Stewart, 74,) and Peck v. Jarvis, (10, p. 118,) seem decisive. Here is the sale of a business secret, and an engagement by the vendor not to use that secret in conducting any business himself. The validity of this covenant is to my mind clear. See, upon the subject of such covenants generally, Ramine v. Irving, (7 Marn. & Graing, 976,) and Mullan v. May, (11 Meeson & Welsby, 633.)
    The case presents another question which was adverted to by the Chancellor in Jarvis v. Peck. I had decided that case as Assistant Vice-Chancellor, (see Hoffman’s Reports, 497,) and placed the decision on the ground that there was a large consideration for the bond, entirely independent of the covenant supposed to be in restriction of trade. ' The Chancellor, upon the appeal, notices some cases in support of this view, but deemed it unnecessary to pass upon it. (See 10 Paige, 119.)
    In the present case, the consideration was a sale of the good-will, which the parties estimate at $8,000, and of the stock of materials and tools, as well as of teeth already made, of a large, though unascertained value. The question is, whether, if the particular covenant is void, the contract may not still be sustained upon these considerations.
    In addition to the numerous authorities cited in the opinion in Hoffman’s Reports, and those referred to by the Chancellor, the following may be noticed:—Oheseman v. Naseby, in the House of Lords, (1 Br. P. C. 234,) settled that a bond given by a hired servant or apprentice, not to exercise the trade of a linen draper after the expiration of her time of service, at any place within half a mile from the dwelling house of the party, or any other house, she should remove to, was valid.

      Price v. Green, (16 Meeson & Welsby, 347,) applied the same principle to a covenant, and determined that where the covenant was not to practice .the trade of a perfumer in London or "W est-minster, or within six hundred miles from the same respectively, the covenant was void as to the latter clause, but good as to the cities. In this case, the distinction is noticed betwen void and illegal covenants. The stipulation as to the six hundred miles was of the former class. The fact was also adverted to, that the whole covenant, doubtless, formed the consideration for the payment of the £1,500, the amount given; but it was answered, that the rest of the restriction formed a sufficient consideration for the agreement.
    This decision followed and supported that of Mullan v. May, (11 Meeson & Welsby, 643.) In this case, the doctrine upon these covenants in restraint of trade, is stated and explained by Baron Parke, as carefully as in any case of which I am aware. The chief test is, whether the contract will be prejudicial or not to the .public interest. It was held in the case, that a covenant that the party should not carry on the business of a surgeon-dentist in London was valid, but the further restriction, “or in any of the towns or places in England or Scotland, where the plaintiffs, or the defendant, on their account, might have been practicing before the expiration of his service,” (as an assistant,) was void.
    It cannot be questioned that in many cases much difficulty must attend the application of this doctrine. In the present case, for example, probably the principal consideration of the contract was the agreement to abstain from carrying on the business, or instructing others in it. If this is void, and cannot be enforced, it would be hard to sustain the contract on the ground of the other portions of the consideration.
    This view was considered by Baron Parke in Price v. Green, before stated, and the rule of that, and the many other cases seems to be, that if a sufficient valuable consideration remained, after rejecting the illegal one, to support the contract, the court would enforce it.
    On both grounds, I am of opinion that the demurrer must be overruled, and judgment be rendered for the plaintiff upon the same, with liberty to answer in twenty days.
    Jordan, for the appellants and defendants.
    Archer, for the respondent and plaintiff.
   By the Court.

We concur in the decision of the Judge at Special Term overruling the demurrer, and giving judgment for the plaintiff. We consider that he is clearly right in the first point stated in his opinion, viz., That the covenant not to use the secret mode of conducting the business, or manufacturing the teeth, was valid in itself. We do not find it necessary to consider the other important question raised by the learned Judge, as to the effect of a union in the same instrument, of a covenant prohibited by law, or against public policy, with another of a perfectly valid character, and express, therefore, no opinion upon it.

Order affirmed with costs.


author: By the Court. Hoffman, J.

text:
    George F. Thomas, Assignee of Isaac H. Bassett and Robert W. Aborn, v. Edward A Quintard.
    Upon the sale of an interest in a patent, the purchaser is precluded from setting up the want of value in the invention, or insufficiency of the materials, where he has sold the right transferred to him, to another for value. He cannot defend an action for the unpaid purchase money on that ground. It would he otherwise if there had been a warranty, or express representation of the value or character of the article.
    By parting with the patent, he had disabled himself from reinstating the plaintiff in its possession, and this forms another answer to his defence.
    (Before Hoffman and Slosson, J.J.)
    November 7-27, 1855.
    The cause came up on a verdict taken, subject to the opinion of the court, upon a case to be made, with a stay of proceedings, and to be heard in the first instance at the General Term. The defendant moves that the verdict be set aside, and a new trial granted, with costs to abide the event.
    The plaintiff is the general assignee of Bassett and Aborn, and the action was brought upon a promissory note given by the defendant to the firm of Bassett, Aborn & Motley, upon his purchase from them of an interest in a certain patent known as Mason’s Patent Sperm Oil. Motley released all his right and interest in the partnership assets to his copartners, Bassett and Aborn, and the note passed, with other assets of the firm, into the hands of the present plaintiff, as their assignee, under a general assignment for the benefit of creditors. The following is a copy of the note:
    $1,070, New York, July 1st, 1853.
    Twelve months after date, I promise to pay to Messrs. Bassett, Aborn & Motley, ten hundred and seventy dollars, for value received.
    E. A. Qttirtard.
    Endorsed, Bassett, Aborit & Motley.
    Bassett & Aborh.
    The defence was, that the note was not negotiable, nor intended to be so; that it was without consideration passing to the defendant from any one.
    The defendant proved that the note was given, among other notes, in payment of a purchase of an interest in a patent known as Mason’s Patent Sperm Oil.
    The defendant’s counsel, at the trial, offered to show of what ingredients the article was composed, the offer was rejected, and an exception taken.
    He next offered to show, that the article which was sold by Bassett, Aborn & Motley, and called Mason’s Sperm Oil, was composed of ingredients substantially different from that patented, and that the latter was of no value, and incapable of use.
    This was also rejected, and forms the ground of another exception.
    A distinct offer was also made, to prove, that the thing patented was of no value, and again, that the thing patented would not produce the effect described in the patent.
    Both these offers were overruled. It appears that the defendant had assigned his interest in the patent and invention to one Jones, before the suit was commenced, and this assignment recited the assignment to himself of the patent right, known as Mason’s patent, and purports to transfer it, as it was transferred to the defendant.
    There was no warranty upon the sale, and there were no representations as to the character or value of the articles sold.

      De Forest, for the plaintiff.

      Worth, for the defendants.
   By the Court. Hoffman, J.

We think the plaintiff is entitled to judgment upon the verdict, on two grounds.

First. That his own assignment precludes him from saying that what he sold was valueless; and there being neither warranty nor fraudulent representation, there was a sufficient consideration for the note. (Johnson v. Titus, 2 Hill, 606; Oakley v. Boorman, 20 Wend. 596; Say v. Richards, 21 Wend. 626; Williams v. Hicks, 2 Vt. 36.)

Next. That, by parting with the patent to another, and apparently on a valuable consideration, he has disabled himself from placing the plaintiff in the same situation as he was in at the formation of the contract. The defendant would have a right to call for the restoration of what was transferred. It may be of some value to him. (Taylor v. Hare, 4 Bos. and Pull, 201; Barnet v. Stanton, 2 Ala. Rep. 181; Chance v. Commissioners of Clay County, 5 Blackford, 441; Conner v. Henderson, 15 Mass. Rep. 319; Griffith v. The Fred. County Bank, 6 Gill & John. 624.)

Besides these considerations, the defendant is probably estopped by his own assignment, referring to that to him, from questioning the patent or invention. The case of Boorman v. Taylor (2 Add. & Ellis, 278) is very strong to this point. Upon these views, the ruling of the Judge was, in all respects, correct.

Judgment for the plaintiff, for the amount of the verdict, with interest and costs.