author: Dwight, P. J.:

text:
    Elizabeth Blazy, Respondent, v. Hector McLean, Appellant.
   judgment appealed from affirmed, with costs.—

Dwight, P. J.:

The action was to compel a reconveyance to the plaintiff by the defendant of two city lots in the city of Rochester, which had once been conveyed to the defendant by the plaintiff by a deed absolute on its face, but which by an instrument in writing, contemporaneously executed by the defendant, was declared to be collateral security for the payment of §2,000, part of the purchase rice of a farm in Orleans county, which the efendant, at the same time, contracted to convey to John Blazy, the husband of the plaintiff, and one White. The complaint also asked for an accounting by the defendant for the rents and profits of the lots in question during the time they had been occupied by him. The §2,000 was to be paid prior to the execution of a deed of the farm by the defendant to Blazy and White. The action was first tried at an equity term in Monroe county where it was found and held that the deed of the plaintiff was given only as collateral security, as above stated; that the contract under which the §2,000 was payable to the defendant had been canceled by agreement of the parties thereto, and that the farm had been subsequently conveyed by the defendant, under a new contract and for a new consideration, to the wife of White; that the debt for the payment of which the collateral security was given by the plaintiff no longer existed; that such secm’ity was thereby discharged and that the plaintiff was entitled to the relief demanded in her complaint. An interlocutory judgment was rendered accordingly, and a reference was ordered to take the account and ascertain the amount of the rents and profits chargeable to the defendant. On the coming in of the referee’s report final judgment was entered from which an appeal was taken to this court, where the judgment was affirmed and the findings and conclusions of the Special Term were fully sustained. (See opinion of the court by Macomber, J.. 35 N. Y. St. Repr. 409.) On appeal from the judgment of this court to the Court of Appeals the same view was taken of all the questions arising upon the evidence as was taken at Special Term. It was held, in an opinion by Finch, J., that upon the case so made the deed was collateral security only; that the debt secured thereby had been discharged by the act and consent of the defendant, and that a reconveyance was the necessary consequence. Ejut the judgment appealed from was reversed and a new trial-ordered on the sole ground that evidence offered by the defendant for the purpose of showing that, notwithstanding the instrument in the nature of a defeasance, the plaintiff had delivered her deed to the defendant as an absolute transfer of the lots and for which he agreed to allow §2,000, as a payment upon her husband’s contract. (Blazy v. McLean, 129 N. Y. 44.) On the new trial, which is now under review, the evidence was in all respects the same as on the previous trial — being read by consent from the stenographer’s minutes — except that the defendant was permitted to give such evidence as he could in pursuance of his offer made on the former trial. That evidence proved to be utterly inadequate to establish the fact indicated by the offer, andtheproposition was negatived by the findings of the referee. In other respects his findings and conclusions were to the same effect as those of the court on the former trial, and the judgment directed by him was the same as the foz’mer judgment. There seems to us to be no question left for consideration on this appeal. The case now made is the same as that which resulted in the former judgment; and on that case, as held both by this court and the Court ox Appeals, the plaintiff was entitled to the judgment appealed from. That judgment must, therefore, be affirmed. Lewis, Haight and Bradley, JJM concurred.


source: Caselaw Access Project

license: Public Domain

text:
    Frank H. Lovell, Respondent, v. George W. Jacobs, Appellant.
   Judgment appealed from affirmed, with costs.


author: Bradley, J.:

text:
    Allegany Lumber Company (Limited), Appellant, v. William Hoyt and Another, as Surviving Partners, etc., Respondents.
   Judgment appealed from affirmed. — The action was brought for an alleged breach of contract made between the parties, of date May 15,1884, by which the defendants agreed to sell to the plaintiff all the hemlock timber, after it had been cut and the bark peeled from it, on certain described lands in McKean and Bradford counties, State of Pennsylvania, at a certain price per specified quantity, also the cherry, ash, oak, cucumber, basswood, whitewood, pine and black birch upon the lands at another price specified. It was stated in the contract that the defendants intended to construct a railroad from the terminus of the New York, Lake Erie and Western railroad in the city of Bradford, up the west branch of the Tunangwant creek, and up Fuller brook to the east line of warrant No. 3422, to be furnished with an engine, the railroad to be and remain under the management' and control of the defendants, subject to the terms of their contract with the New York, Lake Erie and Western Railroad Company of date May 9,1884, and that the parties and Benjamin F. Hazelton should have the right and privilege of using the railroad and engine for the purpose of moving bark, logs and lumber, they respectively to furnish their own rolling stock other than the engine; that the cost and expense of operating and maintaining the railroad after its completion be borne by the plaintiff, defendants and Hazelton pro raía, in proportion to the number of car loads shipped over it by each: and that the plaintiff should have equal rights and facilities with the defendants “in loading its cars, and in moving all logs and timber.” The railroad was afterwards constructed' and completed in August, 1884, and the contract remained operative between the parties to it until in January, 1888. The plaintiff charges that the defendants failed to pay then* pro rata share of the expense of maintaining and operating the railroad, and denied to the plaintiff the facilities to which it was entitled for removal and transportation of its logs and lumber; and as the consequence the plaintiff sustained large amount of damages. The allegations in support of a cause of action were put in issue by the answer of the defendants; and they allegeda counterclaim against the plaintiff for moneys due them on the contract. The referee found that there remained unpaid from the plaintiff to the defendants of the purchase price of the timber sold to it, the sura of $4,265.91, which became due June 1, 1889; that the defendants had failed and neglected to afford the plaintiff equal rights and facilities with them in loading its cars and in moving logs and timber over the railroad, to the plaintiff’s damage of $2,000, and directed judgment against the plaintiff for $2,368.36.—

Bradley, J.:

The defendants had a large tract of hemlock timber land in the counties of McKean and Bradford, in the State of Pennsylvania. They desired to use the bark in their tannery at Limestone, in the county of Cattaraugus, N. Y., and the plaintiff wanted the timber to manufacture into lumber for market. The timber was on the uplands some miles from the city of Bradford in the county of McKean. And it was quite necessary to enable the parties to get the timber, lumber and bark to (heir places of destination and market, to construct a railroad leading from such lands to intersect that of the New York, Lake Erie and Western Railroad Company at the city of Bradford, which was the most feasible means to accomplish the purpose in view. The parties having a common interest, joined in its maintenance in the manner provided in the contract. The New York, Lake Erie and Western Railroad Company contributed to the construction of the road, pursuant to a contract of date May 9, 1884, between it and the defendants, by which that company agreed to furnish the iron rails, the detendants to maintain it, the railroad company to furnish the defendants with empty cars at Bradford as required for their business, and the railroad to be used jointly by them and the company. It had a right of way on the route mentioned in the contract, up the west branch of the Tun angwant creek on which a roadbed had. been constructed and a tramway laid, and then in use by Benjamin P. Hazelton, who thereupon, in view of the advantages to accrue to him from the contemplated road, surrendered the roadbed to the railroad company. On May 15, 1884, Hazelton entered into contract of that date with the defendants, by which they sold to him all the hemlock timber after the bark had been peeled from it, on certain lands in the county of McKean, Hazelton to cut the timber, peel the bark ana load it upon the cars for the defendants, who also sold to him other timber on the same tract, and they in the contract expressed their intention to construct a railroad up the west branch of such creek for the distance of eight miles, and to furnish an engine, they also to furnish cars for removing the bark, Hazelton to have the right to use the railroad and engine to remove his logs, timber and lumbei’, but to furnish his own rolling stock other than the engine for that purpose, and Hazelton to have equal rights and facilities with the defendants and the plaintiff in moving his logs, timber and lumber over the railroad, and in the use of the engine. It thus appears that all these parties had an interest in common in the purpose for which the railroad was intended. The railroad was completed, and with a view to its operation the plaintiff, defendants and Hazelton entered into an agreement of date August 23, 1884, whereby it was mutually agreed that Hazelton “should have absolute charge of operating said West Branch railroad under the direction of the New York, Lackawanna and Western Railroad Company. ” The parties assumed to proceed upon the basis represented by the contracts before mentioned. The plaintiff charges that their provisions were not observed, in that it was not permitted to have equal rights and facilities with the defendants, in the means of the removal of its logs, timber and lumber upon the railroad. This complaint has relation to the use of the engine and supply of cars. Upon that subject there was much evidence which was not entirely in harmony. The plaintiff had a mill located on what was known as the Fuller branch of the railroad, where alarge quantity of lumber was manufactured from logs taken there on the cars, and later, cars were employed in removing the lumber from the mill. There is evidence tending to prove that the engine was almost constantly employed in taking empty cars to places where desired to load upon them bark for the defendants, logs and lumber for the plaintiff and Hazelton, the bark and lumber taken to Bradford for transportation elsewhere, and the logs to the mills to be cut into lumber: that there were times when cars were not required or desired by the plaintiff, or those in charge of its mill there at Fuller branch. It may be observed that neither of the parties undertook to furnish cars for any other of them. Hazelton had his own log cars; the plaintiff and defendants were .ependentupon the railroad company for cars for their use; while the defendants wanted them for their bark, the plaintiff required them for its logs and lumber. Those supplied by the railroad company to the defendants upon their order were not available to the plaintiff in some instances, because the railroad company would not consent to their use by it. And Hazelton did not permit the use of single brake cars to haul out the plaintiff’s lumber, because he did not deem it safe to do so on a grade of 850 feet to the mile. His views in that respect had some evidence in its support tending to justify it. While it was contemplated that the parties should have equal facilities for the removal of their bark, logs and lumber, there was nothing which they had in common for the purpose, except the railroad and the engine. It may be assumed that their opportunities for ordering cars from the railroad company were equal, and if any exclusion of the plaintiff from the use of the engine was unduly caused by the defendants’ appropriation of it to their use to the prejudice of the plaintiff, they were chargeable for the consequences. It must be assumed that the defendants for that cause were liable to the plaintiff to the extent and for the amount found by the referee. This upon the evidence was a ctuestion of fact for him to determine.- and it is difficult to see in the evidence that he was required by it to find a liability for a larger amount, even if it be assumed that there was some, which would have permitted him to do so. The magnitude of the business in bark, logs and lumber, in which the parties were engaged and which they transacted there was large; and for that purpose during the period from about the 1st of September, 1884, to early in January, 1888, the number of carloads handled for them as per account rendered, was about 11,900, of which the plaintiff had 5,377, the defendants 2,946, and Hazelton the residue. The latter testified that he never failed to supply cars to the plaintiff when there were any to supply it with. The disputed questions of fact upon the subject of distribution of cars and of inequality of facilities, in view of the circumstances which the evidence tends to prove existed, must he deemed disposed of by the findings of the referee. The fact that the plaintiff had a large quantity of lumber remaining piled in the woods at the close of the year 1837 does not necessarily require the conclusion that it had been denied the facilities to which it was entitled. The question is raised as to the right of the plaintiff to place within the operation of the contract, m respect to facilities, the timber upon the lands purchased by Mr. Bullís (who was the president of the plaintiff) of Healy & Son, about three months prior to the time the defendants were relieved from tho obligation of their covenants in tho contract with the plaintiff. And it is urged that the denial of such rights by the defendants was in violation of that to which the plaintiff was entitled. This view is not supported. The contracts to which the defendants were parties had reference to the lands from which it was contemplated by their provisions the hark and timber would be taken, and to extend the facilities to other land and proportionally to the increase of the plaintiff's lumber business, so occasioned, would evidently take the operation of the contract beyond the purposes m view, and to the unanticipated prejudice of the defendants as well as Hazel-ton. It is unnecessary to consider the further suggestion whether the plaintiff had such relation to the Healy lands (the legal title to which was in Bullís) as to enable it to assert such right. The contract between the plaintiff and defendants provided that “the cost and expenses of operating and maintaining the railroad should be borne by the defendants, plaintiff and Hazelton pro rata in proportion to the number of carloads shipped over it by each.” The plaintiff contends that the account of such cost and expense as rendered was unfair, to its prejudice; and that having from time to time been required to make payments in the proportion as charged, the plaintiff seeks reimbursement of the alleged excess so paid, over the amount with which it was justly chargeable. This claim of overpayment is based mainly upon tho grounds: (1) That many of the cars furnished to tho plaintiff were of less capacity than those had by the other parties, and no discrimination was made on that account; and (2) that many carloads of logs handled by Hazel-ton were not included in the statement upon which division of exponses was made. The referee was, upon the evidence, permitted to find that there was no substantial support for the complaint founded upon the first proposition. It appears that the plaintiff snipped substantially no lumber until the year 1886; that prior to that time cars were employed on its part mainly in hauling logs. For that purpose fiat cars were necessarily used; the larger or gondola cars could not conveniently be employed for the purpose. They were the ldnd of cars suitable for the shipment of the defendants' bark. And there is evidence tending to prove that the capacity as indicated by the label on the cars did-not necessarily control in regard to the loads placed upon them. As to the charge that carloads or logs taken by Hazelton to his mill were not included in the statements upon which ex-Eenses were apportioned, it may be said that is mill was located on the railroad between the place where his logs were skidded and Bradford; that he owned the log cars used by him, and they were by the engine pushed from the mill up to the place where loaded and dropped down to the mill by gravity without aid of the engine, and that the lumber manufactured from the logs was put on cars and drawn by the engine to Bradford. The removal of his logs to his mill was not specifically included in the account, but the trips of cars loaded with lumber manufactured irom them to Bradford were treated in the statement of the account as those with which he was chargeable as between him and the other’ parties. The distance from his mill to tho place where his logs were skidded was short, from one to three miles, and a few minutes only were occupied in shoving the cars up to them on each occasion. This was done onco a day most of tho time and sometimes twice a day. In May or June, 1887, Hazelton ob tained an engine of his own, which was thereafter used upon his log cars and in switching about his mill. And it further appears that with a view to the payment monthly of tho expenses of operating the road, statements were made, and they furnished the meaps by which the proportions chargeable to the plaintiff, defendants and Hazelton respectively, were obtained and the basis upon which tho monthly payments were made. There is evidence tending to prove that in the summer of 1885 the representative of the plaintiff in the business charged that Hazelton was moving cars not included in the monthly statements; thereupon he was invited to and did investigate the matter, and heard the explanation of Hazelton with which he expressed himself as satisfied. The view taken by Hazelton of the manner of making up and presenting his use of tho road in the montlily statements made for tho purpose of distribution of tho burden of its operating expense may not upon the evidence be deemed unreasonable. These facts, which the evidence tended to prove, may properly have had some bearing upon the disposition made by the refere© of the plaintiff's alleged claim for denial of facilities to which it was entitled in the business, as well as upon the question whether or not it had paid more than its proportional share of the expenses chargeable to all the parties. Without expressing further reference to tho evidence or amplifying reasons upon the subject, we think the referee was reasonably permitted as he did to reach the conclusion that the latter claim of the plaintiff was not supported by the evidence. No consideration is given to the release of the plaintiff to the defendants, of date December 29,1887, which became operative in January following, as the construction and effect given to it by tho referee are deemed conclusive upon this review. In the rulings upon the trial there was no error to the prejudice of the plaintiff. And as viewed here none of the exceptions to the findings as made by the referee or to his refusals to find as requested were well taken. The judgment should be affirmed. All concurred.


text:
    Hampden Hyde, as Executor, etc., of D. Cameron Hyde, Deceased, Appellant, v. Margaret S. Houston, Respondent, Impleaded, etc.
   Judgment appealed from affirmed, with costs, on the opinion of Bradley, J., at Special Term. Bradley, J., not sitting.


text:
    John J. Smith, Respondent, v. Nathan J. Milliken and Charles F. Milliken, Appellants.
   Interlocutory judgment appealed from affirmed, with costs, with leave to the defendants to withdraw demurrer and answer over within twenty days, on payment of the costs of this appeal and of the demurrer.


text:
    Arthur H. Allen and Mary J. Allen, Respondents, v. Lydia C. Davis and Others, Respondents, and Edmund O. Whitney, Appellant.
   Order appealed from affirmed, with ten dollars costs and disbursements, on opinion of Green, J., at Special Term.


text:
    Bridget McCruden, Respondent, v. Rochester Railway Company, Appellant.
   Judgment and order appealed from affirmed, on opinion of Rumsey, J, # at the Circuit.


text:
    Persons S. Barnard, Appellant, v. Mary A. Brown and Another, Respondents.
   Judgment appealed from affirmed, with costs.


text:
    E. A. Childs, as Receiver, etc., of Kirke B. Crane, Respondent, v. Kirke B. Crane and Others, Appellants.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Sylphina Lillie, Appellant, v. John Kepple, Respondent.
   Judgment appealed from affirmed, Charles Curran, Respondent, v. Lewis Galen,, as President, etc., and Others, Appellants.'1 Interlocutory judgment appealed from' affirmed, with costs, with leave to amend answer within twenty days, upon payment of/ the costs of this appeal and of the demurrer,', on the opinion of Adams, J., at the Special Term.


text:
    Robert Y. Bowden, Respondent, v. Lewis Galen, as President, etc., and Others, Appellants.
   Interlocutory judgment appealed from affirmed, with costs, with leave to amend answer within twenty days upon the payment of the costs of this appeal and of the demurrer.


text:
    Floyd C. Shepard and Others, Respondents, v. Watson C. Squire and Another, Appellants.
   Order denying motion to change place of trial appealed from reversed, with disbursements to the appellants.


text:
    First National Bank of Bath, Respondent, v. Sidney B. Roby, Appellant.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Thomas P. McCormick, Respondent, v. John McCormick, Jr., Appellant.
   Order denying defendant’s motion for new trial appealed from affirmed, with costs, and judgment ordered for the plaintiff on the verdict.


text:
    City Dime Savings and Loan Association, Respondent, v. William A. Lobdell and George F. Mings, Impleaded, etc., Appellants.
   Order so modified as to vacate ihe judgment for deficiency, and direct a resale of the premises upon the condition that the defendants, Lob-dell and Mings, within ten days after the service of this order, with notice of entry thereof upon their attorney, file security with the clerk of Erie county, for the payment of the costs and disbursements in the action and the fees and disbursements of the referee who made the sale of April 20,1893? to an amount not exceeding the deficiency, if there be one upon the resale, and that such security be a bond or undertaking executed by the defendants and by a surety to be approved by a judge of this court, and as so modified affirmed, without costs of this appeal to either party. Lewis, J., not sitting.


text:
    Same v. Same.
   Order so modified as to vacate the judgment for deficiency, and direct a resale of the premises upon the condition that the defendants, Lobdell and Mings, within ten day;s after the service of this order, with notice of entry thereof upon their attorney, file security with the clerk of Erie county, for the payment of the costs and disbursements in the action, and the fees and disbursements of the referee who made the sale of April 20, 1893, to an amount not exceeding the deficiency, if there be one upon the resale, and that such security be a bond or undertaking executed by the defendants and by a surety¿to be approved by a judge of this court, and as so modified affirmed, without costs of this appeal to either party, Lewis, J., not sitting.


text:
    Thomas O. French, Respondent, v. The Western New York and Pennsylvania Railroad Company, Appellant.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    City Dime Savings and Loan Association, Respondent, v. William A. Lobdell and Others, Appellants.
   Appeal dismissed unless printed papers are served on or before the second Tuesday of the term.


text:
    Same v. Same.
   Appeal dismissed unless printed papers are served on or before the second Tuesday of the term.


text:
    Ruth A. Brink v. Hiram Armstrong.
   Motion to strike case from the calendar and for affirmance, granted on default.


text:
    Daniel E. Bartlett, Respondent, v. Thomas H. Dowd, as Administrator, etc., Appellant.
   Motion to strike case from the calendar granted.


text:
    Owen Torrey, Respondent, v. David Torrey, Appellant.
   Motion to strike case from the calendar and for affirmance, granted on default, with costs.


text:
    Otis N. Carr, Respondent, v. Charles D. Carr, Appellant.
   Motion to dismiss appeal, on the ground of the non-service of papers granted, without costs to either party.


text:
    Asa W. Russell, Receiver, etc., Respondent, etc., v. George H. Miller, Impleaded, etc., Appellant.
   Motion to strike case from the calendar and for affirmance, granted on default, with costs, and with ten dollars costs of this motion.


text:
    George B. Clarke, Appellant, v. Alice A. Schell, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York ex rel. Michael Scudi, Appellant, v. William Dalton and Others, Commissioners, etc., Respondents.
   Writ dismissed, with costs.


text:
    Michael O’Brien, Appellant, v. Robert J. Smith, Respondent.
   Judgment affirmed, with costs. Opinion Per Curiam, not published by order of the court.


text:
    Edward S. Stokes, Respondent, v. William E. D. Stokes, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of Charles L. Randall, Committee, etc.
   Order reversed, with ten dollars costs and disbursements against the responden: personally, and a reference ordered to ascertain the amount of the attorney’s claim; the referee to be appointed upon the entry of the order herein.


text:
    Frederick R. Coudert and Another v. Blanche H. de Logerot and Others.
   Order affirmed, with ten dollars costs and disbursements on opinion of court below.


text:
    Charles B. Merwin, Respondent, v. John H. Newton, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Manhattan Railway Company v. Sarah E. Youmans.
   Order affirmed, with ten dollars costs and disbursements.


text:
    John T. M. Brewster, Respondent, v. William Barlow and Another, Appellants.
   Order reversed, with ten dollars costs and printing disbursements, unless, within thirty days, the plaintiff obtain an order of the court amending the original summons so as to conform to copy served, and to pay to defendants costs of this appeal and of such motion; in which event the order appealed from is affirmed, without costs.


text:
    Frederick W. Kalbfleisch, Appellant, v. Malvern Hill Marl and Phosphate Company, Respondent.
   Judgment affirmed, with costs, if. m. not published by order of the court.


text:
    Frank A. Connolly, Respondent, v. American Casualty Insurance Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Franz Chwatai, Appellant, v. George Schreiner, Respondent.
   Judgment affirmed, with costs.


text:
    Peter I. Clerihew, Respondent, v. Henry W. Sharpless, Appellant.
   Judgment affirmed, with costs.


text:
    Henry Harbeck, Appellant, v. Sarah K. Pupin and Others, Respondents.
   Judgment affirmed, with costs on opinion handed down on previous appeal.


text:
    Frederick A. Bellevue, Plaintiff, v. Halcyon Skinner, Defendant.
   Motion granted by default, with ten dollars costs and disbursements.


text:
    Samuel P. Dexter and Others, Plaintiffs, v. Louis Adler and Others, Defendants.
   Motion for reargument denied, with ten dollars costs.


text:
    The People of the State of New York ex rel. Equitable Gas Company v. Edward P. Barker and Others.
   Order affirmed, without costs. Opinion by Yan Brunt, P. J.; opinion withdrawn.


author: Per Curiam:

text:
    The People of the State of New York v. St. Nicholas Bank (In re Thomas B. Kerr and Others).
   Order reversed and application denied, with costs.—

Per Curiam:

In accordance with the views expressed in the case of People v. St. Nicholas Bank (In re Petition of Lathrop)) decided herewith, the order appealed from should be reversed and the application denied, with costs. Present — Van Brunt, P. J., O’Brien and Follett, JJ.


text:
    The People of the State of New York v. St. Nicholas Bank (In re Charles B. Quincy).
   Order reversed and application denied, with costs.—

Per Curiam:

In accordance with the views expressed in the case of People v. St. Nicholas Bank (In re Petition of Lathrop), decided herewith, the order appealed from should be reversed and the application denied, with costs. Present — Van Brunt, P. J., O’Brien and Follett, JJ.


text:
    The People of the State of New York v. St. Nicholas Bank (In re Nathan T. Beers).
   Order appealed from in so far as it directed receiver to pay over moneys reversed; in other respects affirmed, with costs,—

Per Curiam:

In accordance with the views expressed in the case of People v. St. Nicholas Bank (In re Petition of Lathrop), decided herewith, the order appealed from, in so far as it directed the receiver to pay over moneys, should be reversed, and in other respects, affirmed, with costs. Present — Van Brunt, P. J., O’Brien and Follett, JJ.


text:
    The People of the State of New York v. St. Nicholas Bank (In re Edward C. Homans).
   Order reversed and application denied, with costs.

Per Curiam:

In accordance with the views expressed in the case of People v. St. Nicholas Bank (In re Petition of Lathrop), decided herewith, the order appealed from should be reversed‘and the application denied, with costs. Present — Van Brunt, P. J., O’Brien and Follett, JJ.


text:
    The People of the State of New York v. St. Nicholas Bank (In re Julius A. Kohn).
   Order appealed from, in so far as it directed receiver to pay to petitioner the sum of $9,384.88 and interest;, and in so far as it granted leave to renew any application, reversed, with costs and the motion denied, with costs.—

Per Curiam:

In accordance with the views expressed in the case of People v. St. Nicholas Bank (In re Petition of Lathrop), decided herewith, the order appealed from, in so far as it directed the receiver to pay to the petitioner the sum of $9,384.38 and interest, and in so far as it granted leave to renew any ap plication^ should be reversed with costs, and the motion denied, with costs. Present— Yan Brunt, P. J., O’Brien and Follett, JJ.


text:
    Nicholas Quackenbos, Appellant, v. Grace C. Minton, Respondent.
   Order reversed, without costs and case remitted to Special Term for decision on the merits.


text:
    The People of the State of New York ex rel. Thomas J. Kelly, Appellant, v. Examining Board of Plumbers, etc., Respondent.
   Order affirmed, without costs.


text:
    The People of the State of New York ex rel. Thomas J. Kelly, Appellant, v. Georgo D. Scott and Examining Board of Plumbers, etc., Respondents.
   Order reversed, with ten dollars costs and disbursements; respondents to file return within twenty days from entry of order hereon.


text:
    The People of the State of New York, Respondent, v. Milton W. Doxtator, Appellant.
   Leave granted to appeal to the Court of Appeals on the ground that a question of law is involved which ought to be reviewed by that court.


text:
    The City of Syracuse, Respondent, v. Richard M. Stacey and Others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The City of Syracuse, Respondent, v. Lakeside Paper Company, Appellant.
   Motion granted, with ten dollars costs.


text:
    Mary F. Baxter, Respondent, v. The New York State Mutual Benefit Association, Appellant.—Same v. Same.—Same v. Same.
   Orders reversed, with ten dollars costs and disbursements in each case, and motion granted in each case, with ten dollars costs in one case only.


text:
    The People of the State of New York ex rel. John Hall, Appellant, v. Ira McDonald and Others, Assessors, Respondents.
   Order affirmed, with costs.


text:
    In the Matter of the Final Accounting of Van Buren Gross, as Sole Surviving Assignee of William H. Allen, Appellant, v. James L. Totman, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Application of the Directors of the Binghamton General Electric Company for a Voluntary Dissolution.
   Order modified by striking out that part which modifies the restraining clause in the order of March 1, 1894, without costs to either party.


text:
    Andrew J. Taylor, Respondent, v. Reuben H. Geer, as Executor, etc., Appellant.
   Judgment and order reversed, and a new trial ordered, with costs to abide the event. Held (1), the court erred in admitting evidence of the plaintiff of a conversation with defendant’s testatrix, which he testifies occurred when no one else was present. (See Martin v. Hillen, 142 N. Y. 140.) (2) That the-request to charge as to presumption of owner-snip of the money from the possession of the orders should have been granted.


text:
    Jane E. Wheeler, as Administratrix, etc., Respondent, v. The Watertown Street Railway Company, Appellant.
   Judgment and order affirmed, with costs.


text:
    In the Matter of the Assessment of Damages Sustained by Laying Out a Street, etc., Across the Susquehanna River at the Village of Owego; Gurdon H. Pumpelly, Appellant, v. The Board of Trustees of the Village of Owego, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York ex rel. William J. Supple, Appellant, v. The Common Council of the City of Utica, Respondent.
   Order affirmed, without costs to either party.


text:
    Adelbert G. Sergent, Respondent, v. The Liverpool, London and Globe Insurance Company, Appellant.
   Judgment and order reversed, and a new trial ordered, with costs to abide the event.—

Appeal from a judgment entered in Otsego county on the verdict of a jury June 12,1893, and from an order denying the defendant’s motion for a new trial made upon the minutes of the trial judge, and from an order granting the plaintiff an extra allowance of costs.

Per Curiam:

We are of the opinion that the evidence was insufficient to show that Shievo had. authority from the defendant to adjust the plaintiff’s loss; that there was no such adjustment of his loss as authorized the court in holding that if the plaintiff was entitled to recover, he was entitled to the amount stated in the list or account made by Shievo, and that the court erred in excluding the evidence offered by the defendant as to the value of the property destroyed. Without discussing the other questions presented on this appeal, we think the judgment must be reversed for the errors already pointed out. This conclusion renders it unnecessary to examine the question as to the validity or propriety of the order granting the plaintiff an extra allowance. Judgment and order reversed, and a new trial granted, with costs to abide the event. Present — Hardin, P. J., Martin and Merwin, JJ.


text:
    Ellen Costello, as Administratrix, etc., Appellant, v. The New York, Ontario and Western Railway Company, Respondent.
   Judgment affirmed, with costs.


text:
    Ezra Marion, Respondent, v. The Town of Newfield, Appellant.
   Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event. Held, that the opinion of the witness as to the “ safe life of a wooden bridge ” was improperly received. (See 142 N. Y. 31, and cases cited.)


text:
    Anna Bergin, as Administratrix, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed, with costs.


text:
    Charles A. Pollock, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment and order affirmed, with costs.


text:
    Tracy H. Morse and Others, Appellants, v. Charles J. Freoit, Respondent.
   Judgment of the County Court reversed, with costs, and the judgment of the Justice’s Court affirmed, with costs.


text:
    First National Bank of Syracuse, Respondent, v. Dwight Wilcox, Appellant, Impleaded, etc.
   Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


text:
    Mary Kain, Respondent, v. The City of Syracuse, Appellant.
   Judgment and order affirmed, with costs.


text:
    Mary D. Young, as Administratrix, etc., Appellant, v. New York, Ontario and Western Railroad Company, Respondent.
   Judgment and order affirmed, with costs.


text:
    Moses Latimore, Respondent, v. Moses Lederman and Another, Appellants.
   Judgment and order reversed on the facts, and a new trial granted, without costs of the appeal to either party, upon the payment of costs of former trial, within twenty days; if such, costs are not so paid, judgment and order affirmed, with costs of appeal to the respondent.


text:
    Edward C. Inderlied, Respondent, v. William S. Gray, Appellant.
   Interlocutory judgment affirmed, with costs, with leave to answer within twenty days, upon payment of the costs of the demurrer and the appeal.


text:
    Patrick L. Ford, Respondent, v. Bridget McCarthy and Others, Appellants.
   Judgment affirmed, with costs, upon the opinion of Vann, J., delivered at Special Term.


author: Mem. Per Curiam:

text:
    The People of the State of New York ex rel. Frederick L. Taylor, Relator, v. Gerrit A. Forbes, Justice, etc.
   Writ of certiorari dismissed.—

Mem. Per Curiam:

Without determining whether by certiorari the proceedings are properly before this court, we have looked into the merits involved in the determination made at the Tompkins Oyer and*Terminer, adjudging Taylor in contempt, and find no occasion to disturb the conclusion reached by that court. We, therefore, dismiss the writ, of certiorari, Present — Hardin, P. J., Martin and Merwin, JJ.


text:
    John F. Hughes, Respondent, v. Michael F. Kelley, Appellant.
   Judgment and order reversed on exceptions and a now trial ordered, with costs to abide the event. JETeld> there was error in admitting evidence of the entries by plaintiff in his books of account.


text:
    Mary M. White, Administratrix, etc., Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   Judgment- and order affirmed, with costs.


text:
    Janette J. Lee, as Executrix, etc., Respondent, v. Thomas Petrie and Others, Appellants.
   Judgment affirmed, with costs.


text:
    Abner P. Gay, Appellant, v. Jerome R. Platt, Respondent.
   Judgment of the County Court-affirmed, with costs.


text:
    Otis E. Wood and Others, Trustees, Respondents, v. Alonzo B. Cornell, Appellant.
   Interlocutory judgment affirmed, with costs.


text:
    Alvah N. Updike, Respondent, v. The Elmira Building Company and Others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    George L. Rood, Respondent, v. Rollin L. Weaver, Appellant.
   Order affirmed, with costs.


text:
    Otis E. Wood and Others, as Trustees, Respondents, v. Franklin C. Cornell, Appellant.
   Interlocutory judgment affirmed, with, costs, and leave granted to defendant to answer, upon payment of the costs of the demurrer and of the appeal within twbnty days.


text:
    Hugh McGuckin, Appellant, v. Mrs. Ellis Chorley, Respondent.
   Judgment of the County Court affirmed, with costs.


text:
    Anna C. Shumway, Appellant, v. Fred Beley, Respondent.
   Judgment of the County Court reversed, with costs, and the judgment of the Justice’s Court affirmed, with costs.


text:
    Wilfred Eames and Others, Appellants, v. Judson P. Morgan and Others, Respondents.
   Judgment affirmed, with costs.—

Mem. Per Curiam:

Action by certain heirs of a deceased ancestor to set aside several deeds and a mortgage covering some real estate in the city of Watertown, known as Beebe’s Island. The main questions presented for review by this appeal were so fully and satisfactorily considered by Mr. Justice Williams in his opinion, written in. deciding the case at Special Term as to require no further discussion. The other questions urged upon our attention relate to rulings affecting the admission or exclusion of evidence ana the like. We have carefully considered them, but find no error requiring a reversal of the judgment, which should, therefore, be affirmed, with costs. Present— Hardin, P. J., Martin and Vann, JJ.


author: jMIayham, P. J.: Putnam, J.:

text:
    James Walsh, an Infant, by Sarah Walsh, his Guardian ad Litem, Suing as a Poor Person, Respondent, v. Fitchburg Railroad Company, Appellant.

      Permitting children to play in the street — not negligence per se- — damages sustained by trespassing children — the enticement of the children, by the landowner, on a railroad turntable, a question for the jury — when a verdict will not be interfered with.

    It is not negligence per se to allow children non sui juris to play in the public street; whether it is or not depends upon circumstances which must be submitted to the jury.
    A person who has lawfully placed upon his own premises something by which another is injured while trespassing thereon is not liable therefor, as he owes no duty to a trespasser.
    In an action brought against a railroad company to recover damages alleged to have been sustained by a child five years of age, while playing on a turntable upon the premises of such corporation, it is a question for the jury to determine whether, under the circumstances of the case, the railroad company had invited, lured or enticed young children upon its premises to play with the turntable, and, if it had, whether such turntable was left in such a condition as to charge the railroad company with any resulting injury.
    If a corporation erects and maintains upon its own land for its own use a structure capable of inflicting injury on persons, and by its appearance and operation calculated to attract or allure children non sui juris, and to endanger their life nr limbs, and leaves the same unguarded and injury results therefrom to sucu children, without the fault or negligence of their parents or guardians, it constitutes negligence on the part of such, corporation for which a recovery may be had; under such circumstances the party erecting and maintaining such dangerous structure owes a duty to society to so guard the same that young children shall not be lured thereto to their destruction.
    It is ordinarily the province of jurors, under proper instructions, to regulate the amount of damages to be awarded in a given case, and the court should not usurp that prerogative of the jury unless the damages are so disproportionate to the amount of the injury suffered as to evince bias, prejudice or passion on 'the part of the jury.
    Appeal by the defendant, the Fitchburg Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 28th day of November, 1893, upon the verdict of a jury rendered on a trial at the Rensselaer Circuit, and also from an order entered in •said clerk’s office on the 28th day of November, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      T. F. Haonilton, for the appellant.

      Henry T. Nason, for the respondent.
   jMIayham, P. J.:

The plaintiff, James Walsh, aged about five years, went upon the premises of the defendant in company with other children, and while playing upon a railroad turntable of the defendant was injured. The turntable was located on the line of the defendant’s railroad in an open space in the city of Troy, and pedestrians were in the jiabit, without any special consent or objection of the defendant, of passing over this space near the turntable in going from one point or street in the city to another.

It is also in proof that children were in the habit of playing upon •the turntable, some riding upon it while others revolved or turned it. by getting into the pit in which it was located and pushing it around. The table was of the ordinary construction and of the same kind in use by the defendant at various other points on the line of the defendant’s railroad.

It revolved easily upon a pivot in the center upon which it rested, and at the time of the injury was being pushed around by a lad fifteen or sixteen years old. It was not kept locked or bolted when 3iot in use by the defendants.

The evidence showed that the plaintiff, who resided with his mother, about 300 feet from the turntable, had been forbidden going onto or playing on the same, and that at the time of the injury had eluded his mother’s vigilance and gone upon the table without her knowledge or consent. This case has once before been before this court on an appeal from a judgment of nonsuit, and was sent back for a new trial on the ground that the question of the negligence of the mother in permitting this child to-escape upon this turntable, and also the question of the negligence of the defendant in allowing this table, without being bolted or locked, to be open and accessible to children who desired to play upon it, were questions of fact for the jury. ( Walsh v. Fitchburg R. R. Co., 67 Hun, 604.)

This court then held upon the authority of Kunz v. The City of Troy (104 N. Y. 344) that it was not negligence per se to allow children non sui juris to play in the public street, and whether or not it was negligence depended upon circumstances which must be submitted to the jury.

But it is claimed by the learned counsel for the appellant that there is a distinction between a public street where all may lawfully be, and private property which is lawfully open to the entry of the owner and his servants only, and that so long as the turntable was properly constructed for the use of the defendant on its own premises, the defendant owed no duty to the plaintiff, who, at most, was there only under an implied license, growing out of the frequenting of this place by children for play without objection. In support of this doctrine he cites Larmore v. Crown Point Iron Co. (101 N. Y. 391); Splitiorf v. The State (108 id. 205); Cusick v. Adams (23 N. Y. St. Repr. 548); Murphy v. The City of Brooklyn (118 N. Y. 575).

All of these cases proceed upon the theory that a defendant who has lawfully placed upon his own premises something by which another is injured while trespassing thereon, is not liable therefor on the ground that he owes no duty to such trespasser, a doctrine well established by authority, and which, in the abstract, cannot be questioned.

But the evidence in this case seems to disclose an element not found in any of the cases cited. That element was the allurement and attraction furnished by this revolving table to the playful instincts of children, against which the defendant seems not to have furnished any protection, and by indulging children in the use of which the defendant seems to have extended to them an implied license, without the revocation of which it could not have treated their entry as trespass.

This element the learned trial judge submitted to the jury to say whether the defendant, under all the circumstances, had invited, allured or enticed the plaintiff upon the premises to play with the turntable, and if it had, whether such turntable was left in such a condition as to charge it with any resulting injury. This ruling follows the determination of this court, when the case was here on a former appeal. (67 Hun, 604, sura)

It is also in harmony with the decision of the United States Supreme Court in Railway Co. v. Stout(17 Wall. 657). In that case Henry Stout, a hoy six years old, without the knowledge of his parent, went in company with two other boys, one nine and the other ten years old, to the defendant’s railroad depot, and from there, at the suggestion of one of their number, to the defendant’s railroad turntable to play. The turntable was a heavy structure composed of wood and iron, but so balanced as to turn easily upon its center pivot or axle. It was not locked or bolted nor was it watched or guarded by any employee of the company. While the other two boys were turning or revolving the table, the plaintiff attempted to climb upon it, when one of his feet was caught between the end of the rail on the turntable and the end of the rail on the stationary track and was crushed. For this injury the plaintiff sued the railway company and recovered a judgment.

Two cases could scarcely be more nearly alike than that case and the one at bar.

In delivering the opinion of the Supreme Court of the United States, on appeal to that tribunal, Justice Hunt uses this language: “That the turntable was a dangerous machine which would be likely to cause injury to children who resorted to it, might fairly be inferred from the injury which actually occurred to the plaintiff. There was the same liability to injury to him, and no greater than existed with reference to all children.

“When the jury learned from the evidence that he had suffered a serious injury by his foot being caught between the fixed rail of the roadbed and the turning rail of the table, they were justified in believing that there was a probability of the occurrence of such accidents. So, in looking at the remoteness of the machine from inhabited dwellings, when it was proved to the jury that several boys from the hamlet were at play there on this occasion, and that they had been at play upon the turntable on other occasions, and within the observation and to the knowledge of the employees of the defendant, the jury was justified in believing that children would probably resort to it, and that the defendant should have anticipated that such would be the case.

“ As it was the fact on this occasion, so it was to be expected that the amusement of the boys would have been found in turning this table while they were on it or about it. This could certainly have been prevented by locking the turntable when not in use by the company. It was not shown that this would cause any considerable expense or inconvenience to the defendant. * * * The jury may well have believed that if the defendant had incurred the trifling expense of replacing this latch, and had taken the slight trouble of putting it in its place, these very small boys would not have taken the pains to lift it out, and tfius the whole difficulty have been avoided. Thus reasoning, the jury would have reached the conclusion that the defendant had omitted the care and attention it ought to have given, that it was negligent and that its negligence caused the injury to the plaintiff.”

In Mullaney v. Spence (15 Abb. [N. S.] 319) it was held that the defendant, who operated a coal elevator upon his own land by machinery calculated to attract the curiosity of children, was liable for injury to a child non sui juris who was attracted into and upon the defendant’s premises, which were not guarded or protected, and was injured, although the child was technically a trespasser upon the defendant’s land, and although this was the determination of the General Term of the City Court of Brooklyn, it seems to have been well considered, and the learned judge cites Linch v. Nurdan (1 Ad. & Ell. [N. S.] 31 [41 Eng. C. L. 422]); Vale v. Bliss (50 Barb. 358); Birge v. Gardiner (19 Cow. 506); Whirley v. Whiteman (1 Head [Tenn.], 610); Mangam v. Brooklyn (38 N. Y. 455); Cosgrove v. Ogden (49 id. 255).

While the question cannot be regarded as entirely free from doubt, the weight of authority seems to be that, if a defendant erect and maintain upon Ins own land for bis own use a structure capable of inflicting injury to persons, and by its appearance and operation calculated to attract or allure children non sui juris, and to endanger their life or limbs, and leaves the same unguarded, and injury results therefrom to such children, without the fault or negligence of their parents or guardian, it is negligence on the part of the defendant for which a recovery may be had; that under such circumstances the party erecting and maintaining such dangerous structure owes a duty to society to so guard the same that young children shall not be lured thereto to their destruction.

If we are right in this the only remaining question is as to the amount of damages in this case.

While the damages in this case are larger than we, sitting as jurors, might have awarded, we must recognize the fact that ordinarily it is the province of jurors under proper instructions to regulate the amount of damages to be awarded in a given case, and that the court should not usurp that prerogative of the jury, unless the damages are so disproportionate to the amount of injury suffered as to evince bias, prejudice or passion on the part of the jury.

We fail to see in the amount of this verdict any evidence of the presence of such improper emotions on the part of the jury.

We think the trial judge was right in denying a motion to set aside the verdict as excessive.

The judgment and order denying a motion for a new trial should be affirmed, with costs.

Herrick, J., concurred.

Putnam, J.:

The decision of the court in Walsh v. Fitchburg R. R. Co. (67 Hun, 604) renders an affirmance of the judgment necessary, and I, therefore, concur.

Judgment affirmed, with costs.


author: Russell, J.:

text:
    James Shaw, as Trustee, etc., Respondent, v. Saranac Horse Nail Company, Defendant; Harriet H. Vilas and Others, as Administrators, etc., Appellants.

      Payment by a stockholder of the bonds of the corporation — not a purchase of an equity in surplus money resulting on a mortgage foreclosure sale — hypothecation of bonds, not a payment of the debt for which, they a/re pledged — a person diverting bonds cannot; acquire a good title thereto.

    An agreement was made between two of the stockholders of an insolvent corporation, organized under chapter 611 of the Laws of 1875, which recognized the insolvency of the company and the liability of the stockholders for -its debts, and whereby the parties thereto agreed to pay the debts of the company (included in which were certain mortgage bonds), such parties taking assignments of all evidences of such debts for the purpose of enforcing contribution from the other stockholders. It was also agreed that a mortgage given by such corporation should be foreclosed and the proceeds of the sale had thereunder, together with all moneys realized from the personal property of such corporation, should be applied to the satisfaction of the debts.

      Held, that, in executing the arrangement, it was impracticable for such persons to turn their payments of obligations (in which were included certain bonds secured by the mortgage) into a purchase of an equity in the proceeds of the funds, realized by the sale under foreclosure of the mortgage which was given to secure the corporate mortgage bonds, as against holders of other similar bonds, who had purchased the same for value.
    The hypothecation of bonds to secure the payment of the debts of a corporation, does not pay the debts, but it does subject the bonds to the risk of their transfer at a price less than par, as a sale upon pledge would be to the highest bidder without regard to the limit of any resolution of the company prescribing the selling price.
    A person cannot acquire a good title to bonds, which were originally diverted from their purpose by being pledged by him to an innocent holder, by thereafter taking upon himself the obligation for which such bonds were improperly pledged.
    Appeal by the defendants, Harriet H. Yilas and others, as administrators, etc., of Samuel F. Yilas, deceased, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of Clinton on the 19th day of January, 1893, modifying the report of a referee.

      G. W. Bechwith, for the appellants.

      T. F. Conway, for the respondent.
   Per Curiam :

We have carefully examined the evidence in this appeal, the report of the referee, the opinion of the learned judge at Special Term, and the order made by the Special Term, and think the order should be affirmed on the opinion of the judge at Special Term.

Present — Mayham, P. J., Putnam and Herrick, JJ.

Judgment affirmed, with costs.

The opinion of the judge at Special Term referred to, was as follows:

Russell, J.:

The point to be decided arises out of the claim of different bondholders to the money arising upon the foreclosure of the mortgage upon which this action was brought. The method by which these proceeds were realized was practically a plan for marshaling of the remaining assets of the company for distribution to the proper persons. The administrators of S. F. Yilas, deceased, claim to hold the bonds secured by the mortgage, amounting with interest to the sum of $23,558.23. Mrs. Foote and others, opponents of the Yilas claim, concededly hold bonds secured by the mortgage, amounting with interest to $8,496.25. The proceeds of sale amount to $12,030.58, and the question to be decided is whether that sum shall be paid pro rata to all of the persons claiming to be bondholders, after deducting the trustee’s costs of a previous litigation and his commissions.

The Saranac Horse Nail Company was a corporation organized under the Full Liability Act (Chap. 611, Laws of 1875), by which it is provided that all the stockholders shall be severally individually liable to the creditors of the conqiany for all debts and liabilities, and may be joined as defendants in any action against the company, but no execution shall be issued against a stockholder individually until after execution against the company has been returned unsatisfied. (§ 34.) Section 25 also provides 'that no stockholder shall be liable personally for debts not to be paid within two years from the time they are contracted.

S. F. Yilas, deceased, and Andrew Williams, through whom the administrators of Yilas claim, were stockholders in the Saranac Horse Nail Company, Williams being its ■ president. The othér bondholders were not stockholders in that company.

The bonds were authorized in the year 1883 upon a resolution of the company as follows: “ That the president and secretary are hereby authorized to execute a mortgage on the property of the company to Greorge W. Watson, as trustee, to secure the sum of thirty thousand dollars, in coupon bonds of the company, to be issued by them for the purpose of raising money to pay the floating debts of the company, etc. * * * That the Hon. Andrew Wil- • liams be authorized to negotiate the $30,000 bonds this day authorized to be issued, at a price not less than par and accrued, interest.”

The first of the bonds to mature was not payable until the year 1886, so that the stockholders were not liable upon the debt created by the issuing of these bonds, but were liable upon other outstanding obligations of the company, consisting of notes owing the two banks of which Yilas and Williams were presidents and the Keeseville Rank.

Mr. Williams sold of these bonds at once $6,500 to Mrs. Foote and the other claimants, and later to Mrs. Town $2,000, which last-mentioned bonds Mr. Yilas obtained from Mrs. Town; later still Williams sold $1,000 worth to William Farrell, which he afterwards took from Farrell and subsequently transferred to the administrators of Yilas upon the arrangement hereinafter referred to. Williams afterward sold to Stephen Mofiitt $1,000 of the bonds, which he also transferred to the administrators of Yilas upon the arrangement referred to, and a year later Williams sold Mrs. Ellis $3,000 worth, which the administrators of Yilas took from Mrs. Ellis upon the said arrangement.

The remaining bonds, instead of being sold by Williams, were pledged by him to various banks, including two banks of which Williams and Yilas were presidents, as security for past due or maturing notes of the company.

About the 18th of May, 1886, it having been discovered that the Saranac Company was insolvent, an agreement was made between Williams and the Yilas administrators which recognized the insolvency of the company, the liability of the stockholders and agreed to pay the debts of the company, one-third by Williams and the other two-thirds by Tilas’ administrators, the parties taking assignments of all evidences of debt for the purpose of contribution from the other stockholders. And it was also agreed that a mortgage should be foreclosed and the proceeds, with all moneys realized from the personal property, applied to the satisfaction of the debts.

It will thus be seen that this agreement provided that the remaining property of the company should be applied to the payment of the debts of the company, and that those debts which were paid by Williams and Tilas’ administrators were to be held only for the purpose of contribution, so that impliedly Williams and Tilas’ administrators did not intend to hold the evidences of debts collected by them for any other purpose than that of contribution from the other stockholders. The provision that’ if Williams and Tilas’ administrators purchased the property, it was to be held by them in the proportion of one-third to Williams and two-thirds to the estate of Tilas, does not conflict with this presumption, for the agreement itself presupposes the entire debts of the company were to be paid, so that there would be no other claimants to that property except the two parties immediately interested.

But that agreement was not carried out in full. About $10,000 of the debts of the company, including the bonds to Mrs. Foote and others, were not paid owing to the insolvency of Williams and his inability to complete the agreement.

Under these circumstances who has the superior equity to the proceeds realized from the foreclosure of the mortgage given to secure the bonds ? Mrs. Foote and the other claimants who j)aid money on a direct and plain purchase, were, confessedly holders for value whose obligations would have been paid had the agreement between Williams and the administrators of Tilas been carried into effect.

This is the case also with the other bonds sold by Williams and not pledged to the banks had they remained in the hands of the original holders. With the exception, however, of the bonds of Mrs. Town purchased by Tilas in his lifetime, the remaining bonds came into the hands of Tilas’ administrators in carrying out the arrangements by which those bonds were to be retired, except as they might be held for the purpose of contribution by the other stockholders.

A few of the bonds were paid by Williams, as he expresses it in his testimony, before the arrangement of May, 1886, because the holders wanted the money, and these bonds formed part of the number transferred to the Yilas administrators in execution of that arrangement of May, 1886.

I am inclined to believe that in executing the arrangement it was impracticable for the Yilas administrators to turn their payments of obligations into a purchase of an equity in the proceeds of funds realized by the foreclosure of the mortgage which was given to secure the bonds.

The interests received by the administrators of Yilas from the transfer by Williams to them to secure his obligation for the sum of $3,300 was also in pursuance of this arrangement, and at the time it appears to me it was not intended that these bonds should be held as live obligations coequal and coexisting with the bonds held by the outside narties.

Williams and Yilas’ administrators upon entering into the agreement of May 18, 1886, contemplated the entire payment of the $90,000 of obligations of the company, and with that view had no thought or intention of holding any .securities as against the bondholders who had purchased bonds in good faith for value. Assuming that the evidence justifies the conclusion that at that time Williams and Yilas’ administrators held some bonds which had been issued to Mrs. Town and others for value, the agreement of May, 1886, spoke with reference to those bonds as well as the others and operated in its force upon them as a portion of those bonds taken up or to be taken up by the two contracting parties.

There is another reason why the bonds not sold outright by Williams are not valid obligations in the hands of the Yilas administrators. The resolutions under which Williams acted were plainly for the purpose of raising money to pay the debts of the company, and his power to sell was limited to a sale at not less than par. The power conferred is to be judged by the intent of the resolution. The limit upon the price and the provision that the bonds are for the purpose of paying the debts of the company leave no room for argument. Hypothecation of bonds in such a case does not advance one step towards the payment of debts of the company and does, incur the risk of the purchase of them at a price far less than par,. for a sale upon pledge would be to the highest bidder without regard to the limit of the resolution, provided the original pledge was. valid.

Of course it may be that, independently of any resolution empowering Williams to sell, the possession of apparently fully executed bonds by the president of a company would give the implied power to bona fide ■ purchasers for value to take them irrespective of the limitations upon that apparent power. But the banks parted with nothing of value, nor does it appear from the evidence, so far as I can discover, that the pledging of the bonds was simultaneous with the extension of credit.

However that may be, Williams and Vilas were arranging the placing of the bonds of the company in such a manner as to wholly or partly free themselves from the obligations upon which they were personally liable, and it was their duty to see that those bonds were not diverted from the plain purpose for which they were issued. 'They cannot nor can either of them claim to be bona fide holders of bonds, which claim they could not successfully maintain had the bonds been issued directly to them, they having taken up the securities for which they were to be pledged; nor can they acquire a good title, because the bonds were originally diverted from their purpose into the hands of an innocent holder by their own action and thereafter taking upon themselves the obligation for which those bonds were improperly pledged.

I am satisfied from the evidence and all of the inferences to be drawn from the acts of all the parties, that Williams and Vilas were familiar with the disposition of the bonds, the purpose for which they were, given, and that, therefore, they cannot as to those bonds by any series of circumstances stand as bona fide holders for value of that portion which was pledged for the payment of the antecedent debts on which Williams and Vilas were personally liable, even if the agreement of May, 1886, had not made them voluntarily obligated to pay the debts of the .company.

These views upon the effect of the stockholders’ liabilities, the ■agreement of May, 1886, and the effect of the resolution upon which the bonds were issued, lead to the subordination of the claims of the Vilas administrators to the proceeds as against Mrs. Foote and the other bona fide holders.

I see no reason wby Mr. Yilas, although a stockholder of the company, could not lawfully purchase and hold the bonds of the-company if the purchase was uncomplicated with other modifying' circumstances.

The report will be modified by striking out the provisions for a fro rata disposition of the proceeds, and by inserting a direction that tire bonds of Mrs. Foote, Miss Parker, Ryan and Mrs. Purdy be first paid out of the proceeds. Otherwise the report is-confirmed.


author: Mayham, P. J.:

text:
    William Francisco, Respondent, v. The Troy and Lansingburgh Railroad Company, Appellant.

      Electric street railway — notice of the approach of the can' to a curve — negligence in running too fast — the absence of contributoi'y negligence must be proved — opinions of witnesses as to the rate of speed — experts.
    There is no duty resting upon a street railroad company, operated by electricity, to warn passengers of the approach of a motor to a curve in its tracks, in the-absence of proof that the curve in the track is a dangerous and improper one for such railroad, or that there is any defect in the car or track which renders it dangerous.
    In order to authorize a jury to find a street railroad company, operated by electricity, guilty of negligence by reason of the running of a motor car at too high a rate of speed, there must be some evidence that the rate of speed is unusual, improper or dangerous, and the jury is not permitted to speculate as to the duty of the railroad company, in regard to the rate of speed at which it may run its cars, nor to capriciously fix such rate without evidence.
    A person is guilty of contributory negligence who, being an habitual passenger of a street railroad, at the time of an accident is riding on the steps of the front-platform of an electric car on such street railroad, when there is ample accommodation for him within the car, and he is riding on such platform, by the permission of the conductor of such car, in order that he may smoke.
    Upon the trial of an action brought to recover damages for personal injuries, the absence of contributory negligence on the part of the plaintiff cannot be presumed ; it must be proved, and the verdict of the jury cannot stand upon conjecture, however plausible the same may be, if the plaintiff cannot furnish the-requisite evidence to sustain the affirmative burden cast upon him by law.
    Opinions of witnesses not experts are ordinarily inadmissible, and such rule applies to all questions where the facts are susceptible of actual statement; where they are not, and resort must be had to opinions, such opinions can only be received in evidence when given by experts.

      The rate of speed at which a motor car was traveling, which is not actually measured, can be given only by the opinions of witnesses, and such opinions are only allowable when given by persons peculiarly skilled on the question upon which they are called to give evidence.
    Appeal by the defendant, The Troy and Lansingburgli Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sara-toga on the 12th day of October, 1893, upon the verdict of a jury rendered on a trial at the Saratoga Circuit, and also from an order entered in said clerk’s office on the 13th day of October, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Thomas 8. Fagcm, for the appellant.

      Isaiah II Fellows, Jr., for the respondent.
   Mayham, P. J.:

There are two grounds upon which the defendant asks a reversal of this judgment independently of the exceptions taken to rulings as to the receipt of evidence and to the judge’s charge:

First. That the plaintiff failed to prove that the defendant was guilty of negligence.

Second. That the plaintiff entirely failed to prove that he was free from contributory negligence.

Upon the first proposition, as to evidence of the defendant’s negligence, it seems that the only ground upon which the plaintiff seeks to establish the negligence of the defendant is the allegation that the motor car was run at too high rate of speed in rounding the curves in the track, and that the rate of speed was negligence per se.

Upon this branch of the case, resting, as it does alone, upon the rate of speed as proved, in the absence of any evidence that such a rate of speed was negligence, we do not think that the jury should have been left to speculate. There was no duty resting upon the defendant to warn passengers of the approach of the motor to a curve in the track. There is no proof that the curve in the track was a dangerous or improper one for this class of railroads, or that there was any defect in the car or track which rendered it dangerous, so far as disclosed by the evidence or urged by the plaintiff.

All that appears to be claimed by the plaintiff was the high rate of speed at wliicli the motor was run. at the time of the accident. The car was not derailed or, capsized, and it would seem that under such circumstances, to authorize a jury to find the defendant guilty of negligence, there should be some evidence that the rate of speed was unusual, improper or dangerous. Any other rule would allow a jury to speculate as to the duty of a railroad company as to the rate of speed at which they might run within the danger line and capriciously fix that rate without evidence.

It would be no hardship or improper burden upon a plaintiff claiming damages, under such circumstances, to require him to prove, by competent and experienced witnesses, the maximum rate of speed which can be attained by these motor cars without hazard to passengers, and in establishing the negligence of the defendant to prove that that safe maximum was exceeded in a given case, and we think that in this case the plaintiff was called upon to furnish such proof, and thus relieve the jury from entering the domain of conjecture or speculation.

That question was distinctly raised by the defendant’s motion to dismiss the complaint at the conclusion of the plaintiff’s case, folio 310, and also at the conclusion of all of the testimony, and we are inclined to think that the denial of the defendant’s motion was error.

Nor do we think the evidence in this case shows that the plaintiff was free from contributory negligence. lie knew the condition of this road; the existence of curves in the track; was habitually a passenger on the same, and must and should have known that the swaying of a car in passing around the curve was liable to affect the equilibrium of persons standing in the car or on the platform. He knew, or should have known, that the inside of the car was an entirely safe position for a passenger from an accident such as happened to him. He was voluntarily upon the platform, a place not provided by the defendant for the accommodation of passengers, when there was an abundance of room in the body of the car to seat all the passengers on that train.

It is true that the plaintiff swears that the conductor gave the plaintiff permission to go to the platform to smoke, but he gave him no permission to stand on the steps of the platform. Nor do we think that the defendant assumed any additional risk by permitting the plaintiff to stand on the front platform of the car. The rule is-quite universal on railroads not to permit passengers to smoke in cars adapted to all classes of passengers, and, while there is no evidence upon this subject, it is reasonable to infer that the permission of the conductor to the plaintiff to smoke on the platform was in reference to that rule or custom.

' If the plaintiff had been willing to forego his desire to smoke there was abundance of sitting room for him in the body of the car, where, for his own personal safety, it was his duty to locate..

In Clark v. Eighth Ave. Railroad Co. (36 N. Y. 138) Grover, J., in discussing this question, says: “ It is the duty of the passenger, on getting on board of a car, to place himself in a safe position therein, if he is able to obtain such position, and it is no excuse for him to place himself in an unsafe one that the persons in charge know that he is unsafe and do not drive him therefrom when the unsafety is known to the passenger. That the riding upon the steps of a street car is less safe than a seat inside requires no proof. It is obviously so.”'

It is true that in Nolan v. Brooklyn City & Newtown R. R. Co. (87 N. Y. 63) it was held not to be negligence per se to ride on the platform of a car. But in that case the court recognizes a difference between riding on the steps of a car or on the platform, and clearly by implication holds the former negligence per se.

In Chave Admx., v. N. Y. & H. R. R. Co. (15 N. Y. St. Repr. 966) it was held that a boy eleven years old, and, therefore, sui juris, was guilty of contributory negligence for riding on the steps of a car while there was room enough to ride on the platform. "We think, therefore, that the learned trial judge erred in refusing to charge as requested by the defendant’s counsel in his thirteenth and fourteenth request to charge.

“13. That if the jury find that the plaintiff was riding at the time of the accident on the steps of the front platform, then plaintiff was guilty of contributory negligence and the verdict should be for defendant.

“ The Court.- — • I decline to charge that, or further than as I have.

“ 14. That there is nothing going to show that fifteen or sixteen miles an hour is a negligent rate of speed.

The Court.— I decline to charge that, but the jury may take the rate of speed into consideration as a circumstance in determining whether there was or was not negligence on the part of defendant.”

There was proper exception to these refusals. Again, the absence of contributory negligence cannot be presumed; it must be proved ( Weston v. City of Troy, 139 N. Y. 281), and the verdict must stand, not upon conjecture, however plausible, if the plaintiff cannot furnish requisite evidence to sustain the affirmative burden cast upon him by the law. (Babcock v. Fitchburg R. R. Co., 140 N. Y. 311.)

The rate of speed at which this motor at the time of the accident was running, as we have seen, is one of the principal grounds of the plaintiff’s charge of negligence by the defendant. The admissibility of the evidence offered by the plaintiff is a matter of vital importance.

Plaintiff offered as evidence the opinions of witnesses not shown to have had any special experience in determining the rate of speed at which the motor was running at the time of the injury. This kind of evidence was objected to by the defendant on the ground that the witnesses were not shown competent to give opinions on that subject. In overruling these objections, or some of them, we think the court erred.

Opinions of witnesses, not experts, are ordinarily inadmissible.

This rule applies to all questions where the facts are susceptible of actual statement; where they are not, and resort must be had to opinions, such opinions can only be given in evidence by experts. Applying this rule to the ease at bar, the rate of speed, which was not actually measured, can be given only by the opinions of witnesses, and such opinions only are allowable when given by persons peculiarly skilled on the question upon which they are called to give evidence. (Rice on Evidence, 326, 327.) Tested by the above rule, we think the opinions asked for and received ought to have been excluded. The judgment, for the above reasons, should be reversed.

Putnam, J., concurred ; Herrick, J., concurred in the result.

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


author: Mayham, P.. J.:

text:
    Peter A. Delaney, Respondent, v. Charles Miller, Jr., Appellant.

      Undertaking given upon an appeal from, a judgment of the City Court of Albany — counterclaim, — when not demurrable — an undertaking is a contract — Code of Civil Proa. §§ 501, 503.
    The legal title to any right of action on an undertaking, given upon an appeal from a judgment of the City Court of Albany, where the appellant was unsuccessful upon such appeal, is in the respondent, against whom the appeal was brought, and for whose indemnity the undertaking was given.
    While the attorney for such respondent has a lien for his costs upon the judgment, and any available security for its payment, yet, so long as the legal title to the undertaking remains in the respondent, an action at law can be maintained by him on such undertaking. In such action, if prosecuted in the respondent’s name, any valid defense to a recovery existing between the original parties to the undertaking may be interposed by the defendant therein.
    By an assignment of the undertaking to the attorney of such respondent, the right of the original obligee passes to the attorney, added to which is his lien for services, but until the value of such services is liquidated and ascertained it cannot, as matter of law, be said that it is sufficient in amount to equal the defendant’s liability on the undertaking, when such undertaking is given as well to secure damages as costs, and any valid defense, as to any excess of claim or obligation existing between the original parties, will be good as against the assignee of the undertaking..
    A pleading setting up any valid defense by way of counterclaim to the claim on the undertaking not covered by such attorney’s lien, which would have been available as between the original parties to the undertaking, is not demurrable if interposed as against such attorney to whom the rights of such respondent in such undertaking have been assigned.
    An undertaking given on the making of an order of arrest or on an application for an attachment, or for an injunction, and all of that class of undertakings given to indemnify a party in the progress of an action, may be regarded as contracts within the meaning and intent of sections 501 and 503 of the Code of Civil Procedure, and in an action thereon a counterclaim may be interposed although the party is not voluntarily connected with the obligation which he seeks to enforce.
    Appeal by the defendant, Charles Miller, Jr., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 22d day of January, 1894, upon the decision of the court rendered at the Albany Circuit sustaining the plaintiff’s demurrer to the counterclaim contained in the defendant’s answer, and also from the order upon which said judgment was entered.

      Wm. T. Mwrra/y, for the appellant.

      Peter A. Pelcmey, for the respondent.
   Mayham, P.. J.:

This action is brought upon an undertaking signed by the defend ant as surety on an appeal from a judgment of the City Court of Albany to the Albany County Court, on the trial of which the appellant was defeated, and judgment was entered against him for costs only, on which judgment execution was issued and returned wholly unsatisfied.

The respondent in whose favor the judgment on appeal was entered assigned the judgment to this plaintiff, who is an attorney of this court, and was the attorney for the respondent on the appeal, and who claims in the complaint in this action that he has not been paid for his services as attorney.

The answer admits the execution of the undertaking, and denies all other allegations of the complaint. As a second defense the answer alleges an indebtedness from the plaintiff to the defendant in the action which he seeks to counterclaim against the alleged liability on the undertaking in suit. To the separate defense and contention the plaintiff interposes this demurrer upon the ground that it is insufficient in law upon the face thereof.

The legal title to any right of action on this undertaking was clearly in the respondent, against whom the appeal was brought, and for whose indemnity it was given. And while the attorney of the respondent had a lien for his costs against the judgment, and all available security for its payment, yet so long as the legal title to the bond remained in the respondent an action at law could be maintained by her on such bond, and in such action, if prosecuted in her name, any valid defense to a recovery existing between the original parties to the undertaking might be interposed by the defendant.

By the assignment to the plaintiff in this action the right of the original obligee passed to him, added to which was his lien for services, but until the value of such services were liquidated and ascertained it could not as matter of law be said that they were sufficient in amount to equal the defendant’s liability on the undertaking, which was as well for damages as costs, and any valid defense as to any excess existing between the original parties would be good as against the assignee of the bond.

It would seem to follow that, as to any valid defense to the claim on the bond, not covered by the plaintiff’s lien, which would have been available between the original parties to the undertaking, would not.be demurrable, when interposed as against the plaintiff who holds as assignee.

We are thus brought to the consideration of the question as to whether an undertaking like the one in suit is a contract.

Whether the counterclaim is allowable as pleaded in this case, must, we think, be determined under the provisions of section 502 of the Code of Civil Procedure. Subdivision 1 of that section is as follows: If the action is founded upon a contract which has been assigned by the party thereto, other than a negotiable promissory note or bill of exchange, a demand existing against the party thereto, or an assignee of the contract, at the time of the assignment thereof, and belonging to the defendant in good faith before notice of the. assignment, must be allowed as a Counterclaim to the amount of the plaintiff’s demand, if it might have been so allowed against the party or the assignee, while the contract belonged to him.”

The only question, therefore, for us to determine in passing on the demurrer is whether this action is founded upon a contract.. The learned judge who sustained this demurrer at the Special Term put his decision upon the case of Furber v. McCarthy (18 N. Y. Civ. Proc. Rep. 69). In that case the defendant, who was sued on an undertaking given by him on an order of arrest, sought to counterclaim a note held by'him against the obligee in the undertaking, and. the court, by Yan Brunt, J., held that the undertaking was not a contract within the provisions of section 502 of the Code. In that decision the court relied upon the authority of MoCoun v. N. Y. C. & H. R. R. R. Co. (50 N. Y. 176), and adopted the definition therein given of a contract to be “ A drawing together of minds until they meet, and an agreement is made to do or not to do some particular thing.” The opinion above referred to is in direct opposition to the decision of the General Term in the second department in Atwater v. Spader (12 N. Y. St. Repr. 506), where it was held, Dykman, J., writing the opinion of the court, that in an action upon an undertaking given on an order of arrest, the defendant might counterclaim an indebtedness to him from the obligee under the provisions of sections 501, 502 of the Code of Civil Procedure.

This decision was not referred to by Yan Brunt, J., and the two decisions of equal authority stand directly opposed to each other.

Under these circumstances, we are called upon to determine in this case the same .question as to which they so radically differ.

Erom a careful examination and analysis of sections 501 and 502 and the decisions bearing upon their interpretation, we are inclined to the opinion that an undertaking given on an order of arrest on an application for an attachment, or for an injunction and all that class of undertakings given to indemnify a party in the progress of an action, may be regarded as contracts within the meaningxand intent of those sections.

Clearly an Undertaking is an agreement to do an act, the doing of which is a matter of personal interest and advantage to the promisee or obligee therein; and while there is no consideration of benefit to the promisor or obligor, when he signs only for the accommodation of the plaintiff, there is clearly a consideration of harm to the promisee if the obligation is not performed; such a consideration is deemed sufficient to uphold a contract, and although the party' to whom the obligation is given, and for whose protection it is made, may not be and is not a voluntary party to it, still, as in this case, he or his assignee may sue upon it and it inures to his benefit. (Lawrence v. Fox, 20 N. Y. 268.)

In Wickham v. Weil (43 N. Y. St. Repr. 155) the New York Common Pleas, at General Term, held that in an action against sureties on an undertaking given on an attachment, a counterclaim could be properly set up in the answer on the ground that such an undertaking was a contract within subdivision 2 of section 501 of the Code of Civil Procedure. In this case, Pryor, J., in an able and exhaustive review of all of the authorities, including Furber v. McGarthy (supra), reaches the conclusion that an undertaking required by statute and given in a legal proceeding in a civil action, is a contract which, when sued upon, is subject to counterclaim.

It is true that it has been held in McCoun v. R. R. Co. (50 N. Y. 176) that an action on a bond for a-penalty given by statute is not an action on contract. But there seems to be a manifest distinction between a bond given by statute for a penalty and a bond given in a proceeding by one party to another to indemnify the party for whose benefit it is given from some injury which he may suffer by reason of the acts of the other party to the action. (Coit v. Stewart, 50 N. Y. 17.)

In Taylor v. Root (4 Keyes, 335) "Woodruff, J., in discussing the right to interpose a counterclaim to an action on a judgment under a provision of the Code of Procedure substantially like the provision of the Code of Civil Procedure in question, defines contracts to be of three kinds, simple contracts, contracts by specialty, and implied contracts, and he adds: “ A judgment is a contract of the highest nature known to the law. Actions upon judgments are actions on contract. The cause or consideration of the judgment is of no possible importance.”

While this may not be an authority bearing directly upon the question of the bond under consideration, it is a plain indication that a counterclaim may be interposed in cases where the party is not voluntarily connected with the obligation which he seeks to enforce. We are of the opinion that the weight of authority is in favor of the contention that the bond in suit is a contract as to which a counterclaim may be properly interposed by answer, and that the judgment on demurrer must be reversed.

Putnam, J., concurred; Herrick, J., not acting.

Judgment reversed, with costs of the demurrer, and costs and disbursements of this appeal to the defendant, on the payment of which, within twenty days after notice of the taxation of same, the plaintiff' may reply to the answer.


author: Pee Cueiam :

text:
    John S. Hutt, Respondent, v. Abram Zimmer, Appellant.

      Contract pa/rtially written and partially printed — rule for the construction thereof.

    In construing instruments which, are in part printed and in part written on printed blanks, a preference should be given to the written part. But if the whole contract can be construed together so that the written words and those printed make an intelligible contract, such construction should be adopted, because the intention of the parties is presumed to be alive and active throughout the whole instrument, and it is presumed that no averments are anywhere inserted without meaning and without use.
    A contract was entered into which contained the following provision: ‘' The party of the first part hereby agrees to sell and does hereby sell and agrees to deliver or cause to be delivered to the party of the second part, or their authorized agent, all of the hops grown on his farm, not to exceed fifteen acres, now under cultivation for the term of three yea/rs ” — the words in italics being written and the remainder of the provision printed.
    At the time of the making of ¡such contract the vendor had eight acres of hops under cultivation. The last year of the contract he had more than eight and less than fifteen acres of hops under cultivation, and produced 3,405 pounds of hops, not raised on the eight acres under cultivation when the contract was executed, which 3,405 pounds he refused to deliver to the purchaser named in the contract, claiming that under the same he was only bound to deliver the product of the eight acres under cultivation at the time the contract was made.

      Eeld, that the purchaser was entitled to all of the hops grown by the vendor on his farm in the last year of the continuance of the contract, including the 3,405 pounds of hops not raised on the eight acres under cultivation at the time of the making of the contract of sale.
    Appeal by tbe defendant, Abram Zimmer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schoharie on the 24th day of April, 1893, upon the verdict of a jury rendered on a trial at Schoharie Circuit, and also from an order entered in said clerk’s office on the 19th day of April, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      G. W. Hinrnan, for the appellant.

      John S. Pindar, for the respondent.
   Pee Cueiam :

The parties on December 20, 1889, entered into a written contract for the sale of hops by the defendant to plaintiff for the three years next ensuing. A printed blank was used in drawing tbe contract, which was thus partly in print and partly in writing. It contains the following clause, of which the part in italics was written and the residue printed:

“ The party of the first part hereby agrees to sell, and does hereby sell and agrees to deliver or cause to be delivered to the party of the second part, or their authorized agent, all of the hops grown on his farm, not to exceed fifteen acres, now under cultivation for the term of three years.”

The question in the case is as to the construction to be given to this clause. On December 20, 1889, at the time of the making of the contract, defendant had but eight acres of hops under cultivation. In the last year of the contract defendant had more than eight acres of hops, but not over fifteen, under cultivation, and produced 3,405 pounds of hops not raised on the eight acres under cultivation when the contract was executed, which he refused to deliver to plaintiff, claiming that under the writing he was only bound to deliver the product of the said eight acres.

The rule which must govern us in construing such a contract as the one under consideration is well stated in 2 Parsons on Contracts (7th ed.), 647, 648, as follows: “Instruments are often used which are in part printed and in part written; that is, they are printed with blanks, which are afterwards filled up; and the question may occur, to which a preference should be given. The general answer is, to the written part. What is printed is intended to apply to large classes of contracts, and not to any one exclusively; the blanks are left purposely that the special statements or provisions should be inserted which belong to this contract and not to others, and thus discriminate this from others. And it is reasonable to suppose that the attention of the parties was more closely given to thosq, phrases which they themselves selected, and which express the especial particulars of their own contract, than to those more general expressions which belong to all contracts of this class. But if the whole contract can be construed together, so that the written words and those printed make an intelligible contract, this construction should be adopted. Because the intention of the parties is presumed to be alive and active throughout the whole instrument, and that no averments are anywhere inserted without meaning and without use.’ ” (And see Hill v. Miller, 76 N. Y. 32; Bryant v. Poughkeepsie Mutual Ins. Co., 17 id. 200; Miller & Ors. v. Han. & St. Jo. R. R. Co., 90 id. 430.)

It follows that if the written and printed portions of the clause of the contract above quoted can be reconciled by any reasonable construction, such a construction must be given. But if the written and printed parts of said clause are, in fact, irreconcilable, effect must be given to the written portion.

Under the written part of the clause of the contract in question, omitting the printed words “now under cultivation,” defendant agreed to sell and deliver to plaintiff “ all of the hops grown on his farm, not to exceed fifteen acres,” for the term of three years. But at the time of making this contract, there being only eight acres under cultivation, under the printed words in said clause “ now under cultivation,” defendant was only bound to deliver to plaintiff the hops grown on eight acres during the three years. It, therefore, appears that the written and printed parts are repugnant to each other. If the construction placed on the contract by the appellant is the true one, the words “ not to exceed fifteen acres ” are surplusage. The contract should have simply contained an agreement to sell and deliver to the plaintiff all the hops grown on his farm on the part under cultivation.

The learned counsel for appellant suggests that the printed and written parts of the clause in question can be reconciled and should be read as follows, viz.: “ Defendant is to deliver to plaintiff all the hops grown on his farm now under cultivation, not to exceed fifteen acres, for the term of three years.” We are unable to agree with this contention of the appellant. Such a construction of the contract is inconsistent with the language used in the written portion. If the intent of the parties was as suggested by the appellant the words “not to exceed fifteen aci'es” would have been omitted, and in any event the natural language would have been not exceeding instead of “ not to exceed,” and as defendant doubtless knew how many acres he had in hops the contract would, after the words not exceeding, have contained the words “ eight acres.” The written part of the contract, in using the words “not to exceed fifteen acres,” was apparently so drawn because the parties did not know how many 'acres the defendant would put in hops for the three years during which the contract was to last. It was not the natural or proper language to use if it was the real intention of the parties that defendant should only deliver to plaintiff under the contract the hops grown on the eight acres then in cultivation.

We conclude, therefore, that the case was properly disposed of at Circuit, and that the judgment should be affirmed, with costs.

Present — Mayham, P. J., Putnam and Herrick, JJ.

Judgment affirmed, with costs.