author: By the Court.—Sedgwick, Ch., J.

text:
    KATIE COLLINS, as Administratrix, etc., Respondent, v. THE NEW YORK, NEW HAVEN & HARTFORD R. R. CO., Appellant.

      Contributory negligence-, general rules as to exercise of care and prudence, especially as to duty of looking out, how affected by peculiar circumstances —One on premises of another doing work for him is not a■ mere licensee —Requests to charge based on erroneous assumptions, and requests as to matters upon the doing or not doing of which defendant's liability is not made to rest, are properly refused.

    Plaintiff’s intestate was an employee of one who had contracted with defendant to lay certain water pipes in its yard. In this yard there were many tracks parallel, converging and crossing, on which trains were made up and broken up by the use of engines. At the time of the accident the intestate had been working there about two weeks. Just before the accident he was at work spreading earth which was thrown from a trench crossed by a track and which extended towards another track. lie had stopped work and was standing between the two tracks. The distance between these tracks was nine feet, seven inches; a jiassenger car would overhang the track two feet, three inches, and a freight car one foot, six inches. A p'assenger train on one of these tracks was approaching from a distance of about one hundred and twenty-five feet when McCaffrey, a servant of defendant, who had switched so that a freight car would run on the other, noticed, before the freight car began to run, that the passenger train was in motion, and immediately warned the intestate against that train. At this point the freight car came over its track, but McCaffrey did not notice it until it had got within two or three feet of the intestate, who in the meantime had moved away from the passenger towards the freight track. It was then too late to warn the intestate against the freight train, and consequently McCaffrey did not do so. The outside of the freight car struck the intestate on the shoulder and inflicted the injury from which he subsequently died. The passenger car had not come up and passed him. McCaffrey saw that the intestate looked over his shoulder in the direction of the freight train and tried to get out of the way, but it was then too late. Defendants’ counsel argued in the court below that the intestate was in safety between the two tracks, and that common prudence required him to remain there, or if he moved away he was bound to look on the freight track for any approaching car.

      Held, (1.) The extent to which the mind of a man of ordinary prudence might be affected by the situation above detailed, and by the specific direction of defendant’s servants as to the passenger train, was a question for the jury; and that it was properly left to them to determine whether the intestate was negligent. (2.) That the court properly refused to charge that it was the duty of deceased to have looked for a car on the freight track. (3.) That the intestate was not. a licensee, and that requests to charge based on that assumption were properly refused. (4.) That requests to charge that defendant was not bound to do certain things, were properly refused, as under the charge as given, the liability of defendant was not made to rest on the doing of those things, but on defendant’s want of care in running the car on the intestate, under the circumstances.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided June 23, 1887.
    Appeal by defendant, from judgment entered upon verdict for plaintiff, and from order denying motion for new trial.
    The facts sufficiently appear in the opinion.

      W. E. Barnett, attorney, and Frank Loomis, of counsel for appellant, argued:
    I. The suggestion that decedent’s mind was confused because he was aware of a peril on either hand, is misleading and unfounded in the evidence. It is clear that he forgot and did not consider in his mind the presence of the freight track or any danger from that direction until it was too late. It was his duty to have looked on and along the freight track, and the exercise of his faculty of seeing would have prevented the accident. Wilcox v. Rome & Watertown R. R. Co., 39 N. Y. 361; Beisegel v. N. Y. C. & H. R. R. R. Co.. 40 Ib. 9; Havens v. Erie Ry. Co., 41 Ib. 296; Harty v. Central R. R. of N. J., 42 Ib. 468; McGrath v. N. Y. C. & H. R. R. R. Co., 59 Ib. 468; Salter v. Utica & B. R. R. R. Co., 75
      Ib. 273; Connely v. N. Y. C. & H. R. R. R. Co., 88 Ib. 346; Tolman v. S. B. & N. Y. R. R. Co., 98 Ib. 198.
    II. The court declined to charge each of the following requests of the defendants:
    “ That the license to the deceased to move in and about this yard cannot be construed as restricting the defendants in the use of their tracks in the prosecution of their business.”

      u That the deceased, acting under the license, took the risks incident to the defendant’s business, and of the danger to which he might be exposed from the management of the yard and cars in the usual and ordinary way.”
    “ That the defendants owed the deceased no duty to guard him from accidents.”

      “ That the defendants owed the deceased no duty of active vigilance.”
    “ That the bralceman Gagin not having seen the deceased before he was injured, no special precaution was required of him in the absence of any indication of danger to the deceased.”
    “ That as to this accident the defendants did no affirmative act at the time by which existing conditions were changed and new perils created.”

      “ That the defendants are not liable because of defects, if any, in their system of doing business.”

      a That the defendants were under no obligation to station a man at or near the place where the accident happened, for the purpose of warning the deceased against approaching trains of cars.”
    Each one of these propositions is sanctioned by the decision in Sutton v. N. Y. C. & II. R. R. R. Co., 66 N. Y. 243s
    The charge as made coupled with the refusals to charge as requested, authorized the jury to find that the defendants’ usual and ordinary method of doing business was wanting in proper provision for the safety of Collins and his fellow workmen, and that by the failure to use any of a hundred different methods by which the system would have, in the opinion of the jury, been brought up to the standard of ordinary care, the defendants were negligent. This doctrine as applied to this case was erroneous. Sutton v. N. Y. C. & H. R. R. R. Co., supra.

    III. A deaf man may be about to cross a railroad of two tracks, and, looking at a train going in one direction, omit to look at all in the other direction, and so know nothing of the approach of a train from such other direction. A man standing—say between the roadways of the N. Y. City & Northern and N. Y. C. & H. R. Railroad just north of High Bridge—may look at and have his mind wholly occupied with looking at a train on one of the railroads, and at the same time walk backwards to and on to the track of the other railroad and be hit by a “ train of which he knew nothing, but which was coming from another direction.” It is not for a . jury to say how much prudence a man should have used under such circumstances, or that he used any. The . law has fixed the quality of the act.
    IV. Collins was not paying any attention except to the passenger train. He was and could not have been in any state of uncertainty or confusion as to wha.t he should do as between two perils.

      Ashbel P. Fitch, attorney, and Henry H. Spelman, of counsel for respondent, argued:
    I. It was clearly the province of the jury to say whether under the circumstances the defendant and its servants were negligent, and whether or not the deceased was guilty of contributory negligence, he as it appeared being between two dangers. Courts will not nonsuit where any inference can be drawn from any of the testimony which would relieve from the charge of contributory negligence. Stackus v. N. Y. C. & H. R. R. Co., 79 N. Y. 464; Casey v. Same, 78 Ib. 518. When a person is between two dangers and is obliged to choose between them, a mistake of judgment is not contributory negligence, and if plaintiff acted on a sudden emergency he should not be held to a rigid accountability for his actions. In such case the question is for the jury. Filer v. N. Y. Central R. R. Co., 49 N. Y. 47; Coulter v. Am. Mer. Union Ex. Co., 56 Ib. 585; Salter v. Utica & Black Riv. R. R. Co., 88 Ib. 42; Bucher v. N. Y. C., &c. R. R. Co., 98 Ib. 132 ; Twomley v. C. P. N. & E. R. R. R. Co., 69 Ib. 158. The ride that, as a matter of law, it is negligence in a 'traveler about to cross a railroad track not to look both ways for approaching trains, does not apply to a workman whose employment requires him to remain upon or about the track, but whether he was negligent in a particular case is a question for the jury. Barton v. N. Y. Cent., &c. R. R. Co. 1 Sup. Ct. (T. & C.), 297; affirmed 56 N. Y. 660: Ominger v. N. Y. Cent. & H. R. R. Co., 4 Hun, 159 ; cited and approved in Roll v. Northern Central R. Co., 15 Hun, 503 ; affirmed 80 N. Y. 647; Goodfellow v. B. H. & E. R. R. Co., 106 Mass. 461. The question of defendant’s negligence was for the jury. Bills v. N. Y. Central R. R. Co., 84 N. Y. 5; Fairfax v. N. Y. Central &c., R. R. Co. 40 Super. Ct. 128. Even if there was sufficient evidence at close of plaintiff’s case, if it was supplied afterwards, and enough to go to the jury was subsequently adduced, on appeal the whole evidence in the case will be considered to determine whether there is enough to sustain the verdict. Leslie v. Knickerbocker Ins. Co., 63 N. Y. 27. The Court properly refused to direct a verdict. Smith v. Coe, 55 N. Y. 678.
    II. Those portions of the charge excepted to by defendant were correct in law. It was for the jury to say under the circumstances proved how much prudence the deceased should have exercised. The portion of the charge “ that no man is called upon to exercise the same degree of prudence nor is he held to such strict liability when placed between two dangers,” is sustained by Twomley v. C. P. N. & E. R. R. R. Co., and other cases cited supra. The other proposition excepted to is correct under Bennett v. Louisville &c. R. R. Co., 102 U. S. 577; Barton v. N. Y. Central &c. R. R. Co., supra; Ominger v. Same, supra. Besides, the exception was too general. Part of the proposition excepted to was identical with the defendant’s own request to charge, and the court on appeal will not divide the proposition excepted to, into parts. The exception must be taken as applying to the whole proposition. To render the request effectual it must point out the precise point intended. Schile v. Brokhahus, 80 N. Y. 614; Hamilton v. Eno, 81 Ib. 116.
    III. The requests to charge were properly denied, as the propositions involved in such requests were already sufficiently covered in the charge as made, and to repeat them in the same or different phraseology was unnecessary. Barber v. Marble, 2 Sup. Ct. (T. & C.), 114; Kissenger v. N. Y. & Harlem R. R. Co., 56 N. Y. 538; Doyle v. Scharpe, 74 Ib. 159, 160.
   By the Court.—Sedgwick, Ch., J.

The action was under the statute for damages for causing the death of plaintiff’s intestate by negligence.

The intestate had been employed to work in the yard of the defendant, by one who had contracted with the defendant to lay water-pipe in the yard. The intestate was working under that employment at the time he was killed. There were many tracks in the yard, parallel, converging and crossing, on which trains were made up and broken up, with the use • of locomotive engines. The intestate had been working there about one week. At the time of the accident two of his fellows had been digging a trench. A track, on which the freight car that struck the intestate ran, crossed the trench. Part of the trench was between this track and another track on which a passenger train ran. Just before the accident the intestate was between the two tracks, spreading about dirt which was thrown from the trench. He had stopped his work and the place where he stood, within a short time before he was struck, was indefinitely described by the witness, but the distance between the tracks was about nine feet seven inches. Cars running upon the tracks would overhang them, in the case of a passenger car two feet three inches, and in the case of a freight car one foot and six inches. A passenger train was moving on the one track easterly at a distance of 125 feet from . where Collins, the intestate, stood. One McCaffery, a servant of defendants, had at this time switched a track, on which the freight car afterwards ran, so that it might run upon it. The freight car did not run upon the track immediately after the switching. Before it ran McCaffery noticed the passenger train in motion and called out to Collins, as the jury might have found, to be on his guard against the passenger train.' At this point the freight car came over its track westerly, but McCaffery did not notice its. coming until it was within two or three feet from Collins,-who from the time his attention was called to the passenger train by McCaffery, had moved away from the passenger track and towards the freight track. McCaffery saw that he was in danger from the freight car only when Collins was so near the line that the outside of the freight car would take, that the accident was unavoidable. McCaffery therefore did not say anything to Collins, and Collins was struck upon the shoulder by the freight car, and the injury he received caused his death. McCaffery saw that Collins looked in the direction of the coming freight car, over his shoulder, and tried to get out of the way, but when it was too late. The testimony would have justified the jury in finding against McCaffery’s testimony on this point, that Collins was not at any time upon the freight track, and was struck by the overhanging part of the car.

It is maintained, in the first place, by the learned counsel for appellant, that Collins was in safety between the two tracks; that common prudence required him to remain there ; and that if he moved away, as he did, from the place of safety, he was bound to look upon the freight track for any approaching car. At the time Collins was struck the passenger car had not come up and passed him. The general rules on that subject laid down, to be applied to circumstances generally existing, are not to be considered apart from the peculiarity of this case, that it was a question for the jury as to the extent to which the mind of a man of ordinary prudence might be affected by the situation and the specific direction of the defendant’s servant as to the passenger train. When the defendant’s servant, having the whole field of danger in view, turned the attention of Collins solely to the passenger train, a jury might find that it was not a want of ordinary prudence to give so much attention to that train, that it led to a want of ordinary attention to a possible danger from a car on the freight track, especially when McCaffery did not give a warning as to the freight car, and in fact did not notice its coming in time for Collins to be prepared for it. The situation was peculiar. The space between the tracks furnished safety for Collins, certainly, if he were without the nerves and the sensations of persons not engaged in railroad matters. Such persons are not in the habit of standing within three feet of a passing train going very rapidly, with the usual puffing and escape of steam. Six feet away would, the jury might find, be a distance that ordinary persons might seek. I therefore think that the judge was right in leaving to the jury to determine whether the intestate was negligent. For like reasons the court properly refused to charge that it was the duty of the deceased to have looked for an approaching car on the freight track.

The. court was asked to charge certain propositions based upon the assumption that the deceased was a licensee. The deceased was not a licensee. He had been in effect induced and requested by the defendant to come upon the yard and work in it, for defendant’s benefit as well as his own. Cordell v. The N. Y. C. & H. R. R. Co., 70 N. Y. 119. As to one so present, the defendant owed a duty to be ordinarily prudent in the conduct of its business.

Certain requests presented the proposition that the defendant was not bound to do the things described in the requests. The court rightly refused to charge these matters, because, under the charge as made, the liability of the defendant was not made to rest upon the doing of these things, but upon defendant’s want of care in the running the car upon Collins under the "circumstances..

I am of opinion the judgment and order should be affirmed, with costs.

Freedman, J., concurred.


source: Caselaw Access Project

author: By the Court.—Sedgwick, Ch. J.

license: Public Domain

text:
    FREDERICK F. WATERS, Appellant, v. ROBERT K. DAVIES, et al., Respondents.

      Master and servant—Contract between, construction of—Discharge, cause for—Application to a salesman's contract.

    Where an employee agrees to give his undivided time and services in the business of his employer as he may direct, a direction to him to go to a certain place and there devote his time and services to the business of the employer, is within the contract; and a refusal to obey the direction without good grounds therefor, is sufficient cause for his discharge.
    Under a contract by which an employee is for a stipulated sum to give his entire time and services to his employer, as he may direct, the employer impliedly agrees to reimburse the employee for all necessary or reasonable disbursements in carrying out the directions the employer may give him under the contract.

      The nature of a contract whereby an employer agrees to pay his employee for his services a stipulated sum per year, for a stipulated period, implies that payment is not to be delayed until the end of the stipulated period, and the understanding of the parties as to when it should be paid may be the practice adopted by the parties without objection by either of them.
    Applying these principles to the case at bar, it was held: (1) That plaintiff had no right under his contract to refuse to go to St. Paul, as directed by defendants, unless he was paid up to eight dollars a day for his trav_ eling expenses. (2) That defendants’ offer on such demand being made; to pay three dollars a day, was only an expression of a willingness to make an additional arrangement which was ineffectual if plaintiff did not assent to it; but was no evidence that defendants would not perform their part of the contract by paying reasonable expenses if plaintiff performed his by obeying their instructions. (3) That the parties having adopted the practice of paying and receiving salary on the first and fifteenth days of each month, and the plaintiff having been paid up to January 1, and discharged January 12, he could not recover for the value of his services during the intervening period.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 23, 1887.
    Appeal by plaintiff from judgment dismissing complaint entered on direction of judge at trial term before a jury.
    The facts appear in the opinion.

      George Wilcox attorney and of counsel for appellant, on the questions considered in the opinion, argued:—
    I. Upon the face of the contract and without further evidence, the plaintiff agreed to give his services in the city of New York and not elsewhere. The defendants had no right to demand his services in St. Paul, and his refusal to comply with such a demand, would not justify his discharge. The contract was made in this city and recites the place of business of the defendants, as at Nos. 427 and 429 Broadway. It clearly refers to the business carried on there and contains no suggestion of any other place of business or of services to be rendered elsewhere. In Bishop on Contracts, § 1391 (1887), the rule is laid down as follows: “ In the absence of anything indicating the contrary, the place of the making of a contract is presumptively that of its performance.” Wharton on Contracts, § 872. “When an obligation is assumed by a party at his domicil, then his domicil is the place of performance unless the obligation otherwise provides.” Fraser's Master and Servant, page 77. “ In' the case of servants whose work has reference to a place, not to the master’s person, &c., the master cannot remove the servant to any other farm or manufactory at any distance inconvenient to' the servant.” The place where the master has his work at the time of the engagement will be held the place where (in the absence of express stipulation) it is implied that the servant was to labor and having once entered to his service he cannot be removed to any place which may occasion him trouble and expense.”
    II. If the obligation of the plaintiff is to be sought outside the terms of the contract and reference made to the further evidence in the case, it is still insisted, that the requirement of the defendants was unauthorized and the plaintiff’s discharge not justified. This requirement appears to have been that the plaintiff should go to St. Paul and open a sample room there and not travel. It needs no evidence to show that the business of a traveling' salesman is entirely distinct and different from that of a book-keeper, an ordinary local clerk, or the keeper of a fixed sample room'. To withdraw a traveling salesman from his regular customers for six months and practically shut him up in a small sample room at a distance from the centres of trade, would impair his usefulness and destroy his capital. It is therefore submitted that upon the contract and the evidence, the only duty the defendants could require from the plaintiff, was either that he should serve them at their place of business in this city, or as a traveling salesman in the same manner as he had served them so many years before.
    HI. The plaintiff did not in fact refuse to obey any order of the defendants and his discharge was unjustifiable in any view of the case. The result of the whole testimony is that plaintiff repeatedly declared his willingness to go- to St. Paul, and elsewhere, provided his proper traveling expenses were allowed up to $8.00 a day. If the defendants did not recognize the agreement to allow him $8.00 a day, he was entitled to claim his actual expenses even if they exceeded that amount, but to avoid all question, he limits himself to that amount, and if only $3.00 a day is allowed he is ready to go as far as $3.00 a day will carry him. There is certainly no refusal shown in the evidence unless the court is prepared to hold that the plaintiff was bound to go wherever sent and pay his own traveling expenses, a construction of the contract which will hardly be contended for. There is no evidence that the defendants ever offered to pay his actual expenses as they were bound to do. It is submitted, therefore, that the plaintiff' was justified in requiring .the payment of his proper traveling expenses and that no refusal to comply with the demands of the defendants has been shown, which was a sufficient ground for his discharge. If, upon the. evidence, there could be any question upon this point it was error not to submit it to the jury.
    IY. The court erred in dismissing the complaint for the further reason that the evidence showed that the defendants had not paid plaintiff his salary from the 1st to the 12th of January, a term prior to his discharge. Lawrence v. Gullifer, 38 Me. 532 ; Jones v. Jones, 2 Swan, 605; Robinson v. Sanders, 24 Miss. 391; Swift v. Harrison, 30 Vt. 607.

      B. F. Watson, attorney and of counsel for respondents, on the questions considered in the opinion, argued:
    I. The dismissal of the complaint was not only proper but unavoidable. The contract sued on is neither ambiguous nor uncertain in its meaning. Its terms are clearly stated. It gave the plaintiff no claim to anything but $3,500 a year, and his qualified refusal to give his services as directed, amounted to a breach of the contract on his part, and he is not entitled to recover thereupon. Brown Water Furnace Co. v, French, 34 How. Pr. 94.
    II. In any view of the case, proof of a custom allowing traveling expenses, is incompetent to vary the plain terms of an explicit contract. The construction of the contract was a question for the court, especially as the contract was in no degree either ambiguous or uncertain. Glacius v. Black, 67 N. Y. 563.
   By the Court.—Sedgwick, Ch. J.

The action was for damages from an alleged breach of a contract of employment of the plaintiff by defendants, in the latter discharging the plaintiff and refusing to continue the employment.

The contract was in writing, as follows: “ In consideration of Mr. F. F. Waters having agreed to give his undivided time and services in our business, as we may direct, we agree to pay him a salary of thirty-five hundred dollars per year, for a term of two years, &c.” The salary was paid up to January 1, 1886, and not afterwards. The plaintiff had been in the service of the defendants for a long time, and during all the time down to the discharge, he was paid on the 1st and the 15th of each month, unless those dates were of Sundays, when a change was made to an earlier or later day. His service was in traveling over the country widely and selling defendants’ goods, carried about by him. Shortly before January 12, 1886, the defendants directed the plaintiff to go to St. Paul with samples and' to take a room and sell in and from it. In my opinion the service demanded was within the contract. The plaintiff did not go, and when asked if he refused to go, said he did not refuse, but would go if they would pay him, or agree to pay him, beside his salary, up to $8.00 a day for his expenses of traveling. In substance, the plaintiff demanded that, before he should follow the directions of his employers, they should make an oral agreement as to his expenses in addition to the written agreement which had, by implication, settled the obligation of defendants as to the expenses. They had already impliedly agreed to reimburse him for all necessary or reasonable disbursements he should make in carrying out any direction they might give him under the contract. He could not legally call for any further agreement.

It may be suggested that, in response to plaintiff’s claim for expenses up to $8.00 a day, the defendants said they would agree to pay $3.00 a day, and therefore they notified the plaintiff that they would not carry out the written contract, their obligation being to pay reasonable expenses, even if they should exceed $3.00 a day. In reality, however, this was only an expression of their willingness to make an additional arrangement on the terms they proposed, which was ineffectual if the plaintiff should not assent to it. But if no additional arrangement were made, there is no evidence tending to show that defendants declared if plaintiff should obey instructions and make the reasonable disbursements intended by the contract, the defendants would not perform their part. I therefore think that the learned judge correctly held that the defendants were justified in discharging the plaintiff.

It is claimed that the plaintiff was entitled to a verdict for the contract value of his services from the 1st to the 12th of January, when he was discharged. The nature of the contract implied that payment was not to be delayed until the end of the two years, and the understanding of the parties as to when it should be paid was ascertained by the practice, objected to by neither, of paying on the 1st and 15th of each month. As the plaintiff was discharged for cause before the 15th, and no new instalment would fall due before that time, the plaintiff was not entitled to salary for the time now in question.

In my opinion the judgment should be affirmed, with costs.

Freedman and Tritax, JJ., concurred.


text:
    JAMES BRADY, Respondent v. THE MAYOR, &c., OF THE CITY OF NEW YORK, Appellant.

      City of New York—Contracts involving more than $1,000—A contract for the substitution for one material and work thereon, as provided for in an original contract, of another material and work thereon, at a cost exceeding $1,000, is obnoxious to § 64, ch. 410, Laws 1882—Sufficiency of finding as to expenditu/re exceeding $1,000.
    The Department of Public Parks in the city of New York awarded to plaintiff as the lowest bidder under § 64 of the Consolidation Act of 1882, a contract for the construction of and furnishing the materials for a public building, for which plaintiff was to receive $29,740. Under that contract the wood to be used in the first floor was to be pine. Before the pine was furnislied, or any work done on it, the department, or its officers, desired to substitute cherry for pine. The plaintiff estimated that to furnish and set in cherry would cost $975 more than the furnishing and setting in of pine would. This sum he arrived at by estimating the cost of doing the job with cherry and deducting from it the amount which he estimated he would receive under the contract for the job if done with pine. The department contracted with him to make the substitution, and agreed to pay him therefor $975, in addition to the contract. The plaintiff made the substitution, and brought this action to recover $975. There was no finding by the court below of the value of the pine material, but there was a finding that the value of furnishing pine and the work on it was about $325.

      Held, (1) That the value of the pine, from the obligation to furnish which the plaintiff was released, was a part of the consideration to plaintiff for the substitution of the cherry and the work done thereon, and as that value added to the $975 exceeded $1,000, the contract for the substitution was, in violation of § 64, chap. 410 of the act of 1882. (2) That from a finding that the value of furnishing pine and the work upon it was about $325, it sufficiently appeared in the case that the pine mentioned was worth more than $25.
    Before Sedgwick, Ch. J., Freedman and Tritax, JJ.

      Decided June 23, 1887.
    Appeal by defendants from judgment entered upon findings and conclusions made by a judge, in a case tried by consent before him without a jury.
    The facts appear ill the opinion.

      E. Henry Lacombe counsel to the corporation, and John J. Toionsend, Jr., of' counsel for appellants, on the questions considered in the opinion, argued:
    If the change from white pine to cherry wood be deemed work necessary to complete or perfect the particular job of erecting the refreshment-house, such work involved the expenditure of more than one thousand dollars, and not having been done by contract under the regulations prescribed by ordinance, there can be no recovery. “ The work ” ordered, was the cherry woodwork as a complete whole, distinct by itself. “The work” was not the extra labor and materials over and above that involved in white pine wood, but “the work” was the furnishing the material and labor of constructing ab initio cherry wookwork. The price of this woodwork was made up of two factors:
    The price white pine woodwork would have cost ....... $325 00
    Additional value of the cherry wood and labor in working it . . . . ' . . 975 00
    Cost of the work . . $1,290 06

      De Witt, Lockman & De Witt attorneys, and Theodore De Witt and George G. De Witt, Jr., of counsel for respondent, on the questions considered in the opinion, argued:
    I. The requisition of April 14, 1884, involved an expenditure of less than $1,000, and is therefore valid as a separate contract. The defendants are in error as to the subject-matter of the requisition as a separate contract. It was not a contract to furnish labor and materials, and-construct in cherry wood the doors, architraves, &c., but a contract to substitute cherry wood for pine. By the first contract plaintiff was required to furnish labor and construct the whole house. And the requisition was to provide for what was not required by the first contract. Under the second contract plaintiff furnished the cherry wood and the additional labor, if any, required to put it up, there being no substitution of labor. It is immaterial that the difference between the cost of construction in the two materials was taken as the measure of the price—the price agreed upon was $975. While plaintiff was paid the whole contract price of $29,740, without putting in any pine wood, the same thing would have been done if a contract for putting in the cherry wood had been awarded to some other person at public letting. It must be considered that the substitution of cherry wood being necessary, the pine woodwork became a dead loss to the city.
    II. There is no proof of an expenditure exceeding $1,000 for the labor and materials furnished under the requisition of April 14, 1884. 1. If it be claimed that the sum of $975 is not the true expenditure under the second contract, all that can be added is the cost of the pine wood, exclusive of the cost of the labor on it, there having been no substitution of labor. There is no proof, that such cost exceeded $25. The plaintiff testified that the value of the pine and the labor on the pine was about $325. There is no evidence of the cost of either material apart from the labor. 2. The evidence only shows the value of the two kinds of material inclusive of the labor. This does not determine the expenditure for any part of the work. 3. As defendants endeavor to avoid liability for a just claim by alleging a violation of statute, they should be required to prove strictly the facts constituting their defense.
    111. The substitution of cherry wood for pine was necessary and proper. The defendants claim that the use of pine wood constitutes a “perfect form of construction of its kind,” and that the substitution of cherry was not necessary to complete or perfect the job. Plaintiff’s testimony shows that pine wood is subject to very serious objections with regard to its use for purposes where durability as well as ornament are desirable. It might constitute a perfect form of construction of its kind; but so would a house built of unhewn timbers, and such houses have been built. The park commissioners decided that it was not the kind of construction required.
   By the Court.—Sedgwick, Ch. J.

was an action upon a contract, for damages, tried by consent without a jury.

The Department of Public Parks had awarded to the plaintiff, as the lowest bidder under section 64 of the Consolidation Act, chap. 410, laws of 1882, a contract for the construction and materials of a public building in a public park. By the contract, the wood to be used in the first floor was pine. The plaintiff was to receive for all work and materials $29,740. Before the wood for the first floor was furnished or any work done upon it in the building, the department, or the officers composing it, considered that cherry wood was, in use and appearance, a better material than pine, and procured an estimate from the plaintiff of how much more than the $29,740, the city would have to pay him if he furnished and set in cherry in the stead of the pine. He, in his calculations fixed upon an amount he would charge for a job of that kind done with cherry, and also fixed upon the amount he considered he would receive under the contract for the pine and the work upon it, if he should proceed to complete the contract according to the specifications, and offered to furnish the cherry and put it in, for the difference between these two amounts, that is for $975.

Section 64 commands that when any work is necessary to be done to complete or perfect a particular job, and the several parts of the work shall involve the expenditure of more than $1,000, the same shall be by contract, which shall be awarded to the lowest bidder upon proposals to be made, as provided in the section. An important question in the case is, did the furnishing and putting in the cherry xvood mvolve an expenditure of more than $1,000 for it. It is certain that it involved an expenditure of more than $975; because a part of the consideration to the plaintiff xvas that he xxms to receive the xvhole amount fixed by the contract, as if he furnished pine and the work upon it, and yet he xvas released from the obligation of furnishing ¡fine. The city was to pay the value of the pine in addition to the estimate of $975. There was no finding as to the value of the pine material, but as there was a finding that the value of furnishing pine and work upon it as required by the contract, was about $325, it sufficiently appears in the case that the pine material was worth more than $25. As in my judgment the work in question involved an expenditure of more than $1,000, the contract for it was in violation of the statute, as it was not made with a loxvest bidder, after the publication of proposals, as required by the statute.

There are other serious questions in the case, but xVhat has been already said requires the reversal of the judgment.

Judgment reversed and a new trial ordered with costs to appellant, to abide the event.

Freedman and Truax, JJ. concurred.


text:
    ANN CRAWFORD, Respondent v. THE DELAWARE, LACKAWANNA & WESTERN R. R. CO., Appellant.
    . Negligence—Flagman, presence or absence at crossing, as bearing on.

    It is error to charge the jury that it is for them to determine whether there is negligence in not having a flagman at a crossing at the particular time, and under the particular circumstances when, and under which the accident complained of occurred.

    In this case the court reversed judgment entered on verdict for plaintiff, on the above ground.
    Before Sedgwick, Cli. J., Freedman and Trttax, JJ.

      Decided June 23, 1887.
    Appeal by defendant from a judgment entered upon a verdict rendered by the jury in favor of the plaintiff, on a second trial'of the action.
    On the first trial a verdict was rendered for defendant under the direction of the court. Upon plaintiff’s appeal from the judgment entered on that verdict, the judgment was reversed and a new trial ordered. (For the report of the case see 54 Super. Ct. 262.) The plaintiff was injured, as appears by the report, by the vehicle in which he was riding being collided with by a train of defendant’s, at a crossing. On this second trial it was conceded that there was no flagman at the crossing. Defendant’s counsel requested the court to charge that defendants were not guilty of negligence in not keeping a flagman there. This the court refused; but charged: “They were not guilty of negligence in not keejDÍng a flagman there at all times and under all conceivable circumstances. The jury must determine whether at this particular time, or under these particular circumstances they were negligent in not having a flagman there.” Defendant’s counsel excepted to the refusal to charge as requested, and to the charge as given.
    The plaintiff had a verdict from the judgment entered, on which defendant appealed.

      Hamilton Odell, attorney and of counsel for appellant, argued:
    This charge was at right angles with the settled law of the state. Biesiegel v. N. Y. Central Co., 40 N. Y. 0 ; Grippen v. N. Y. Central Co., 40 Ib. 34; McGrath v. N. Y. Central Co., 63 Ib. 522; Houghkirk v. D. & H. Canal Co., 92 Ib. 226.

      Holmes & Adams, attorneys, and Artemas H. Holmes of counsel for respondent, on the question decided on the opinion, argued:
    The submission to the jury of the question whether, under all the circumstances of this case the defendant was negligent, was proper. Biesiegel v. N. Y. Central Co., 40 N. Y. 13; Webber v. Same, 58 Ib. 458 ; Barry v. Same, 92 Ib. 295; Finkerstein v. Same, 2 N. Y. State Rep. 680; Dyer v. Erie R. R. Co., 71 N. Y. 228; Crawford v. D. L. & W. R. R. Co., 54 Super. Ct. 262.

       Compare same case 54 Super. Ct., 262.

   By the Court.—Sedgwick, Ch. J.

I am of opinion there was error in charging that the jury was to say if, under the circumstances of the case, the defendant was negligent in omitting to place a flagman at. the crossing, and that for this reason the judgment and order should be reversed, and a new trial ordered with costs to abide the event.

Freedman and Truax, JJ., concurred.


text:
    WILLIAM JEX, et al., Appellants, v. ADOLPH D. STRAUSS, et al., Respondents.

      Letter of introduction—Party procuring not liable to party giving, for damages flowing from acts and transactions which are not the legitimate, natural and approximate consequences of the letter—Acts and transactions not the legitimate consequences of a certain letter—Damages, remoteness of.

    The defendants procured from plaintiffs a letter introducing to their agent, at Corn Island, one Delgado, upon the representation that he was their friend, unacquainted with Central America, and about to visit various places on the coast on a pleasure trip, and concealing that Delgado was not so unacquainted, hut in conjunction with others was preparing a hostile expedition against the Sp;mish government, and that they were privy thereto. Defendants having procured this letter of introduction, despatched the “ City of Mexico ” to Com Island, Delgado being on board, furnished with the letter and with a letter written by themselves to such agent advising him that they had shipped goods to him, and requesting him to hold them subject to Delgado’s disposition, to carry out his instructions as to their re-shipment per “ City of Mexico,” and to furnish supplies to that vessel, drafts for winch, drawn on them by the captain, they would honor in New York. The goods referred to in defendants’ letter were in fact arms and ammunition for the hostile expedition. The vessel arrived at Corn Island, having Delgado. on board, but without the arms and ammunition, their shipment having been prevented at the port of New York. All that plaintiffs’ agent did, in consequence of the letter presented by Delgado, was to supply provisions to the vessel and make certain advances, the total amount of which was about $300.
    But Delgado, the captain and some of the vessel’s crew, forcibly entered plaintiff’s building, and made speeches of hostility against Spanish Honduras. The “City of Mexico” subsequently left Corn Island. Shortly afterwards United States vessels arrived there, and the commander of one of them, suspecting that plaintiffs’ agent had some complicity with Delgado’s illegal expedition, forcibly entered plaintiffs’ premises and did sundry acts therein by force, and forcibly took possession of one of plaintiffs’ schooners. Soon after, said commander becoming satisfied of plaintiffs’ innocence, released the schooner and withdrew from Corn Island,

      Held, on demurrer to a complaint based on above facts, claiming to recover damages by reason of the fraud perpetrated on them in procuring the letter of introduction and of reckless, wanton and wicked acts of the defendants, that the complaint did not state facts sufficient to constitute a cause of action; because: 1st. The advances could not be regarded as the natural or proximate result of the letter of introduction ; and the action being based on fraud, the amount of those advances could not be recovered as an ordinary indebtedness depending on the breach of an ordinary implied contract or actual promise to pay. 2d. The acts of Delgado .and the crew of the steamship “City of Mexico," and the acts of the United States officers, could not be regarded as a legitimate consequence of that letter; and the damages alleged to have been incurred by those acts were too remote and inconsequential and unconnected with their alleged origin.—the obtaining the letter of introduction—to form a ground of an action.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 23, 1887.
    Appeal by plaintiffs from order sustaining demurrer to the complaint and from interlocutory judgment entered thereon.
    The defendants demurred on the ground (with another) that the complaint did not state facts sufficient to constitute a cause of action. The judge at special term in sustaining the demurrer, wrote the following opinion:
    “ O’Gorman, J.—This is a demurrer to the complaint on the grounds, 1st, that causes of action have been im- ' properly joined; 2d, that the facts as stated in the complaint, did not constitute a cause of action.
    “ The material facts as stated in the complaint and admitted by the demurrer are these: In December, .1885, the plaintiffs were merchants doing business in New York under the firm name of William Jex & Co., and the defendants also carried on business in New York under the firm name of A. D. Strauss & Co.
    “ The plaintiffs have been engaged in trade between New York and British Honduras, the Mosquito coast and the Central American states, and had warehouses, stores, vessels and other property at Corn Island, which is under the jurisdiction of the Mosquito government.

      “ The agent of the plaintiffs at Corn Island was named Henry Nelson.

      “ The defendants, being known to the plaintiffs as merchants for a number of years, requested plaintiffs to give them a letter introducing one Delgado to Nelson, the plaintiff’s agent at Corn Island, and represented to the plaintiffs that he was their friend, unacquainted with Central America and about to visit various places on the coast on a pleasure trip. Relying on these statements the plaintiffs did write and deliver to the defendants a letter of introduction of Delgado to Nelson. These representations of defendants do plaintiffs were false. Delgado was not a stranger visiting Central America for the first time, but was there, in conjunction with one Soto and other conspirators, preparing a hostile expedition' against the Spanish government and Spanish Honduras, and defendants were privy to and aiding in this expedition by purchasing or chartering the steamship “ City of Mexico ” for the use of Soto and his confederates, and also supplying arms and ammunition for said ship.

      “ These facts the defendants concealed from the plaintiffs, and they falsely and fraudulently represented to the plaintiffs that the trip of Delgado was of an entirely private nature.
    “ The defendants on receiving from the plaintiffs this letter of introduction to Nelson in favor of Delgado, wrote a letter themselves to Nelson in which they stated that they had shipped goods to him, and requested him to hold the goods subject to the disposition of Delgado, and requested him (Nelson) to carry out the instructions of Delgado as to re-shipment of these goods per the u City of Mexico.” And they also requested Nelson to furnish supplies to the “ City of Mexico,” and they promised that they would honor the drafts of the captain of the ship on them, the defendants, in New York.

      “About December 31, 1885, the “City oí Mexico” arrived at Corn Island from New York with Delgado on board, but without any goods or freight on board, the shipping of the goods, which were in fact arms and ammunition, having been prevented by the customs authorities at the port of New York.
    “ The arms and ammunition, notwithstanding various plans and efforts on the part of the conspirators, never did reach Corn Island, but were finally captured by the officers of the British navy in Kingston, Jamaica, and all that Nelson, the plaintiffs’ agent, did in consequence of the letters presented to him by Delgado—that is to say, the letter from plaintiffs introducing Delgado and also the letter from the defendants to him, Nelson—was to supply provisions for the steamship and make certain advances, for which the defendants are still indebted to the plaintiffs in about $300.
    “Nelson, the plaintiffs’ agent, never by any act gave encouragement or aid to the projected hostile expedition —he refused to give Delgado the use of one of plaintiffs’ schooners, and the correspondence which took place between him and the defendants was without the knowledge of the plaintiffs and was in itself harmless and blameless.
    “Delgado, however, and the captain of the “City of Mexico,” and some of the partially armed crew forcibly entered plaintiffs’ buildings at Corn Island, and held meetings and made public speeches there, announcing their intention to carry on hostilities against Spanish Honduras, and plaintiffs aver in their complaint that but for the letter of introduction procured for Delgado from the plaintiffs, none of such persons would have been allowed peaceably to land or visit the premises of the plaintiffs.
    “ The plans of Delgado to cause the delivery of the goods in Corn Island having wholly failed, he departed from Corn Island in the steamship “ City of Mexico,” which was subsequently captured by vessels of the United States navy.

      “ Shortly after her departure, vessels of the United States navy arrived at Corn Island, and the commander of one of them suspecting that Nelson had some connection or complicity with the illegal expedition of Delgado, entered the plaintiffs’ premises at Corn Island by force and without permission of plaintiffs and made search therein and examined their books, &c., there, and took temporary possession of one of ‘ their schooners there, subjecting them to unjust and unfounded suspicion and greatly injuring their credit and business.
    “ Soon afterwards, however, becoming satisfied of the innocence of the plaintiffs, the said commander released the schooner and withdrew from Corn Island.
    “ The plaintiffs claim that by reason of the wanton frand perpetrated on them by defendants in procuring the letter of introduction and the reckless, wanton and wicked acts of the defendants, plaintiffs have been injured and damaged in the sum of ten thousand dollars.

      “ The question first to be considered is whether, admitting, as this demurrer does admit, all the facts above stated, any cause of action is made out against the defendants.
    “ The wrongful act of the defendants, from which all the alleged injuries and damages are claimed to have been consequences, was the procuring from the plaintiffs the letter of introduction of Delgado to Nelson by means of fraudulent concealment of the truth and fraudulent representation of what was false.
    “ Is there any real connection between that act of the defendants, however blamable, and any injury, real or supposed, incurred by the plaintiffs ?

      “ The only injuries incurred by the plaintiffs which can be imputed as the direct consequence or result of that letter are the making by Nelson of the advances on account of the defendants to the amount of three hundred dollars, for the recovery of which sum an action would lie against the defendants.

      a It may be argued that but for the influence of that letter of introduction to Nelson the advances would not have been made. Yet there is nothing -to show that such advances were directed or allowed or referred to in that letter, or that there was anything in that letter to warrant Nelson as agent of the plaintiffs in having any business dealings or transactions with Delgado or with the defendants. The complaint is silent on that subject.

      “ As to the forcible occupation of the premises of the plaintiffs by Delgado and the crew of the steamship, it was a trespass and a wrong, wholly unwarrantable, which cannot be regarded as the natural or approximate consequence or result of that letter. As Avell might a burglary committed by Delgado and the others be claimed to have been a consequence.

      a Neither can the forcible occupation of the plaintiffs’ premises or the temporary possession of plaintiffs’ schooner by the commander of a United States man-ofAvar be regarded as a legitimate consequence of that letter. After all that appears, that Avas also a trespass and a wrong, without fraud or justification of any laAV, and for any damages incurred by the plaintiffs which could be legitimately traced to that Avrong, legal remedy by way of action for damages would no doubt exist. The damages alleged to have been incurred by the plaintiffs by these acts of United States naval officers are in my opinion too remote and inconsequential and unconnected Avith their alleged origin and cause—the obtaining of the letter of introduction—to form the grounds of an action.
    “ The plaintiffs failing to sustain their action on the ground of fraud cannot recover in this action the three hundred dollars due them by defendants as an ordinary indebtedness, depending on the breach of an ordinary implied contract or actual promise to pay.

      “ In considering this case I have not failed to avail myself of the able briefs submitted to me by the learned ' counsel on both sides.

      “ The facts, as they now stand admitted by demurrer, are such as might create in the minds of the plaintiffs a not unnatural sense of wrong inflicted on them. But the law is and of necessity must be, at its best, incomplete and imperfect, and unable to cope with all complicated and minute offenses which occur from time to time in the dealings between man and man. With all its scrutiny, some will still elude its grasp from the impossibility of fixing the responsibility with that reasonable certainty which the law properly requires.

      “ After giving this case careful attention, I have come to the conclusion that the demurrer must. be sustained with costs.”

      Smith & Dougherty, attorneys, and J. Hampden Dougherty of counsel for appellants, on the questions considered in the Special Term opinion, among other things, argued
    I. Both the plaintiffs and the defendants reside here. The letter of introduction was solicited and obtained here. The defendants’ letter to the plaintiffs’ agent was written here. The defendants sent the “ City of Mexico ” from this port to Corn Island. The complaint alleges that these several steps were taken by the defendants in the execution of a plan to arm a filibustering steamship against the government of a friendly republic, and it further alleges that the injuries which resulted to the plaintiffs were consequences of the defendants’ wrongful acts. All the acts of the defendants cluster about, and were done in pursuance of a purpose to arm the steamship, and they present but one cause of action, Under the common law system of pleading, such an action would have been denominated an action upon the case, as.the injuries are in part consequential. 1 Chitty Pleading, 151. But to sustain the complaint does not require proof of actual damage resulting from defendants’ tort, for “ it is a well established principle of the common law that in actions of trespass and in all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon the defendant in having in view the enormity of his offense rather than the measure of compensation to the plaintiffs. ..... By the common as well as by the statute law, men are often punished for aggravated misconduct or lawless acts by means of a civil action, and the damages inflicted by way of penalty given to the party injured. So also exemplary damages are given to vindicate a right and protect it against future similar invasions. Day v. Woodworth, 13 How. U. S. 363; Barry v. Edmonds, 116 U. S. 550; The Amiable Nancy, 3 Wheaton, 546; Philadelphia, Wil. & Balt. R. R. Co. v. Quigley, 21 How. 202; Milwaukee & St. Paul R. R. Co. v. Arms, 91 U. S. 489; Missouri Pacific Railway Co. v. Humes, 115 U. S. 512; Voltz v. Blackmar, 64 N. Y. 440; Cook v. Ellis, 6 Hill, 466; Wilde v. Hexter, 50 Barb. 448; Chrysler v. Canaday, 90 N. Y. 272; Oliver v. Chapman, 15 Texas, 400 ; Hamilton v. Third Avenue R. R. Co., 53 N. Y. 28 ; Etchberry v. Levielle, 2 Hilton, 40; McAfee v. Crofford, 13 How. U. S. 447; Lane v. Wilcox 55 Barb. 615; Thomas v. Harris, 27 Law J. Exch. 353 ; Welsh v. Durand, 26 Conn. 182; Nye v. Merriam, 35 Vermont, 438; Emblen v. Myers, 30 Law J. Exch. 71; Ellsworth v. Potter, 41 Vt. 685; Field, Law of Damages, (1876), § 32; 1 Addison on Torts, (Dudley & Baylies’ ed.) 8; Bolivar Manufacturing Co. v. Neponset Manufacturing Co., 16 Pick. 235; Rounds v. L. & W. R. R. Co., 3 Him, 335; Denton v. Spear, 4 Mason, 115.
    H. The plaintiffs could maintain their cause of action upon one of several grounds, which is conclusive proof that the complaint sets forth a cause of action. (1) The plaintiffs clearly show a conversion of personal property. The complaint alleges the taking by Delgado and the crew of the “ City of Mexico,” upon the authority of the defendants, of supplies and provisions which were the property of the plaintiffs, for which no payment has been made. The circumstances under which the plaintiffs’ agent parted with the possession of these goods of the plaintiffs, which are pleaded in the complaint, would be admissible in evidence in aggravation of the' taking, or in support of the claim that the taking was unlawful. As it has been held that in actions for trespass to personal property exemplary damages could be obtained, the proof of the circumstances under which these provisions were obtained by the crew of the “ City of Mexico,” would lay a foundation for exemplary damages. It is no answer to say that the plaintiffs could recover the value of these provisions in an action upon contract. Under well-settled rules they are at liberty to sue for conversion. They cannot be forced to proceed in assumpsit. (2) The complaint establishes an injury in the nature of a trespass to other personal property of the plaintiffs, which was entirely due to the wrongful acts of the defendants. The seizure by the United States naval officers of the plaintiffs’ schooner “ Transport ” and of plaintiffs’ books and papers, constituted an injury to personal property of the plaintiffs, and as the naval officers were but obeying the law and the orders of their superiors, they were not liable for the wrong, but the defendants were responsible therefor. Amiable Nancy, 3 Wheaton, 546. (3) The plaintiffs’ cause of action might be rested as well upon another ground, the injury to their character and reputation, in which case the general circumstances narrated in the complaint would be proper as furnishing an estimate of the extent of the injury they had suffered. (4) Again the plaintiffs might rest their action upon a reckless or malicious conspiracy on the part of the defendants to procure the letter and to interest the plaintiffs’ agent in their plans, with resulting damages to the plaintiffs.
    III.. The injuries sustained by the plaintiffs, so far as they are consequential, are not too remote. They are the proximate result of the defendants’ tort. Field’s Law

      of Damages, 32 ; McAfee v. Crofford, supra; Putnam v. Seventh Ave. R. R. Co., 55 N. Y. 108; Insurance Co. v. Tweed, 7 Wall. 44; Guille v. Swan, 19 Johns. 381; Vandenburgh v. Truax, 4 Den. 404 ; 1 Addison on Torts, (D. & B.’s ed.,) 6; Blewitt v. Hill, 13 East, 14; Scott v. Shepherd, 2 W. Bl. 892; Kellogg v. Chicago N. W. R. R. Co., 26 Wis. 223; Hill v. New River Co., 9 B. & S. 303; Addison on Torts, 8; Sedgwick Measure of Damages, 50, 81, 90.
    Ryan y. N. Y. C. R. R. Co., 35 N. Y. 210, cited by respondent, is distinguished in Lowry y. Manhattan R. R. Co., supra.

    IV. It cannot be justly contended that the action of the naval officers of the United States was not the natural consequence of the defendants’ conduct. It has been argued for the defendants that the proceedings of the commanders of these vessels were unwarrantable, arbitrary and illegal, and constitute a separate and independent wrong for which the defendants are not liable. If the acts of these commanders do not amount to a separate wrong, the defendants are liable therefor. If the naval officers were acting in obedience to law or the lawful instructions of their superiors, and in pursuance of such instructions did what they had reasonable cause for doing, they would not be personally liable, but the responsibility for their acts would attach to the defendants as the persons who set the whole train of consequences in motion. Justification for the course of these naval cruisers may be found in the principles laid down in the following cases, and in the .following sections of the United States Statutes: 1 Atty. G. Opinions, 249 ; U. S. v. Malek Adhel, 2 How. (U. S.) 210; U. S. v. Smith, 5 Wheat. 153; U. S. v. Holmes, Ib. 412; The Ambrose Light, 25 Fed. R. 408; U. S. R. S., §§ 4293 to 4298, inclusive; The Mariana Flora, 11 Wheaton, 40; Naval Regulations, (1876), c. 20, § 18; The Palmyra, 12 Wheaton, 1; U. S. R. S., § 5287; U. S. v. Mary Ann Hogan, 18 Fed. R. 529; Seward's Works, vol. 5., 452; U. S. R. S., § 1534; Act April 21, 1806, § 2; Naval Regulations (1876), c. 20, § 18. If the naval commanders were acting under proper commissions they could not be personally held liable for a seizure or capture made in good faith. As the plaintiffs could have no redress, either against them or against the government, in such a case they would be remediless unless the defendants, the real cause of the seizure, were liable. It has been repeatedly decided that a government officer is protected from liability for acts of such a nature, done in good faith, and in obedience to authority. Stacy v. Emery, 97 U. S. 642; Locke v. U. S., 7 Cranch. 339; Stoughton v. Dimick, 3 Blatch. 356; City of Mexico, 25 Fed. Rep. 924. See also 24 Federal Rep. 40; U. S. R. S. § 970. The action of the commanders is to be considered proper, if it was in conformity with the law, in the performance of their duties and under circumstances reasonably justifying it. The complaint alleges all that is necessary to lead to this conclusion, and it will become a question for the court or jury, after hearing the evidence, whether the proceedings of these officers were justifiable.
    V. The argument of the defendants’ counsel that these officers exceeded their powers in entering upon plaintiffs’ property situated in a foreign jurisdiction, is untenable. Property may be "seized for violation of the revenue or navigation laws of a nation, wherever it can J>e found, and no objection can be made to such a seizure except in behalf of the power whose rights or jurisdiction have been invaded. It is not open to the claimant of the captured property to make such an objection. 1 Kent's Com. star paging, 121; The Sir William Peel, 5 Wall. 517 ; The Adela, 6 Wall. 266 ; The Purisima Concepcion, 60 Rob. 45; 4 Atty. Gen. Opinions, 285; 8 Opinions Atty. Gen., Sept. 5, 1856; 3 Atty. Gen. Opinions, 405.
    YI. The learned judge at special term assumes that the only wrongful act of the defendants was their procurement by false and fraudulent representations of the letter of introduction for Delgado. This is but one of the wrongful acts on the part of the defendants. It is not the only act of which the plaintiffs complain. The procurement of this letter was the inception of a series of unlawful and malicious proceedings on the part of the defendants to the plaintiffs’ injury. The letter of introduction was obtained to enable them to consummate the plan into which they had entered with Delgado and Soto, of equipping and arming the steamship “ City of Mexico ” against the republic of Spanish Honduras.

      Macfarland, Boardman & Platt, attorneys, and W. W. Macfarland, of counsel for respondents, on the question considered in the special term opinion, among other things, argued:
    I. It is of no moment that the conduct of the defendants may have been reprehensible from a moral or ethical point of view. It is essential to a recovery in a court of law that the alleged damages be shown to have followed as the natural, direct and proximate result of the wrong complained of, according to the rules of law for determining that question; otherwise the case is one of damnum absque injuria. Hutchins v. Hutchins, 7 Hill, 104. The rules of law on this subject and the rigorous relation between cause and effect which they demand are illustrated in the following cases: Knight v. Wilcox, 14 N. Y., 413; Boyle v. Braddon, 13. M. & W. 738; Moore v. Adams, 2 Chitty, 198; Anthony v. Slade, 11 Met. 290; Lynch v. Knight, 9 H. L. Cases, 577; Ward v. Weeks, 7 Bing. 211; Stevens v. Hartwell, 11 Met. 542; Hovey v. Fulton, 11 C. B. (N. S.) 142; Boyce v. Bailiffe, 1 Camp. 58; Brown v. Cummings, 7 Allen, 507; Chidsey v. Canton, 17 Conn. 475 ; Eames v. N. E. Worsted Co., 11 Met. 370 ; Hutchins v. Hutchins, 7 Hill, 104; Alsop v. Alsop, 5 H. & N. 534; Kelly v. Partington, 5 B. & A. 645; Vicars v.
      Wilcox, 8 East, 1; 2 Smith’s Leading Cases, 484; Collins v. Cave, 4 H. & N. 225.; 6 H. & N. 131; Hoadly v. Transportation Co., 115 Mass. 304; Patch v. City of Covington, 17 B. Monroe, 722; Ashley v. Harrison, Peake, N. P. 194; Ryan v. N. Y. Cent. R. R. Co., 35 N. Y. 210.
    II. There is nothing in the complaint to show that the giving of a letter of introduction, the contents of which are withheld, had anything to do with Delgado’s going to Corn Island, or anything to do with his conduct after he arrived at that place, nor that it had any, even the remotest, relation to the conduct of those who accompanied him on the alleged expedition, or to the proceedings of the master of the ship; indeed, we are left without the means of judging as to the possibility of any such relations by the omission of the. pleader to inform us what sort of a letter it was that the defendants obtained by their alleged false pretensions. Nothing could be more absurd than to take the pleader’s conclusions on this subject, for they are utterly worthless for all legal purposes. The letter was not the cause of the alleged expedition against Honduras; it was not the cause of Delgado’s going to Corn Island; it was not the cause, so far as appears, of any event that occurred there. The complaint does not inform us as to the laws of that region, and hence it does not appear that they were violated in any particular, much less that any infraction of local law was the natural, necessary, and proximate consequence, in making Delgado known to Nelson in terms with which we are unacquainted.
    III. («). The pleader’s supposed legal relation between cause and effect results from two sources: 1. Inattention to the rule, as exemplified in the cases above mentioned, the strict observance of which is necessary to prevent our law from going altogether astray and wandering from the domain of logical sequence and necessary connection into the wilderness of sentiment and remote cause; and 2. To the radical misconception of the rules of public law supposed to be involved in the controversy. As to the first, enough has already been said; as to the second, some general observations may not be out of place. (b). The pleader would have us understand that the letter gave rise to the train of events mentioned, and was harmful because Delgado was engaged in a hostile expedition against Honduras; and he assumes that in this affair Delgado Avas violating some la.w. While if this assumption were true there Avould be no legal connection apparent betAveen anything the defendants did and the cause of action, there is really no apparent basis for the assumption. The idea that there is any common law against organizing in one state or country a hostile expedition against another is simply erroneous. Hall’s International Law, §§ 24, 208; pp. 79, 80, 555, 564, 566, 568, 571, 572; Yorris v. Scott, L. R., 9 Exch. 125; U. S. v. Quincy, 6 Pet. 445.
    IV. The alleged grounds of damage are wholly insufficient. They are as follows: 1. That the master of the steamship u City of Mexico” obtained from the plaintiffs’ agent, Nelson, by force or fraud, provisions, supplies, and advances of money to the amount of three hundred dollars. The utter want of relation here between premises and legal conclusion is very manifest. In the first place the letter of introduction has no conceivable relation to the master of the steamship nor to his conduct. But, in the next place, the master of the steamship was not the defendants’ agent; his force or fraud was not their force or fraud. 2. The landing of Delgado at Corn Island. Concerning this matter, it is enough to say his going there or landing does not appear to have relation, in any legal sense, to the letter of introduction ; that his landing >vas lawful, permissive, peaceful and harmless, and so far as appears from the allegations of the complaint, not the cause of any damage in any sense, near or remote. There is neither illegality, fraud, force or guile in this part of the affair. 3. As go this letter written by them directly to the plaintiffs’ agent, Nelson, the plaintiffs’ complaint on that point is trivial and idle. It was a mercantile matter in the ordinary course of mercantile business. It sustained no relation whatever to the letter ofa introduction. 4. There remains only one other alleged ground of damage which is claimed to arise out of the acts of certain naval people in landing a.t Corn Island and invading the plaintiffs’ premises. We have seen—1. That the unlawful acts of third persons, though directly induced by the original wrong of the defendant, are never to be attributed to the original wrong as a proximate cause of the damage for which a recovery can be had. Knight v. Wilcox, 14 N. Y. 416 ; Lynch v. Knight, 9 H. L. Cases, 577; Moore v. Meagher, 1 Taun. 39; 1 Smith’s Leading Cases, 482; Vicars v. Wilcox, 8 East, 1; 2 Smith’s Leading Cases, 484; Collins v. Cave, 4 H. & N. 225; 6 Ib. 131; Crain v. Petrie, 6 Hill, 522. 2. The action of these people in landing at Corn Island and invading the plaintiffs’ premises was flagrantly unlawful. It exposed the officers to both civil and criminal proceedings at the suit of the plaintiffs’ agent if any law existed in that place ; it exposed the invaders themselves to public prosecution if there were any penal laws in that region for the protection of the place against .unlawful invasion ;■ and it exposed the government of the United States to reclamation for the wrong, by the Mosquito government whose sovereignty was thus invaded. Neither a naval nor a military force of the United States would dream of so trespassing upon the frontiers of Canada or of Mexico, nor would a naval officer think of landing -a force in the port of Liverpool and overhauling a mercantile establishment under like circumstances; and yet the same legal principles apply in the one case as in the other. Moreover, even seizing the “ City of Mexico ” on suspicion of being a guilty ship, was itself without lawful warrant, and in the beginning a mere trespass, for which the seizing officers were liable and would remain so unless the act of seizure were afterwards adopted by their government; nor even then would they be free; they would still remain liable for all the damages, unless in an action brought to recover them they were able to obtain from the court a certificate of probable cause for the seizure. Waples on Proceedings In Pern §§ 45 and 46; Gelston v. Hoyt, 3 Wheat. 246; Richmond v. U. S., 9 Cranch 102 ; The Apollyon, 9 Wheat. 362. 3. Moreover, there is not the remotest relation, legal or otherwise, for that matter, between the alleged letter of introduction fraudulently obtained, and the acts of these people.
   By the Court.—Sedgwick, Ch. J.

In my judgment the learned judge below gave the correct construction of the complaint.

The judgment and order should be affirmed with costs.

Freedman and Truax, JJ., concurred.


text:
    WARNER VAN NORDEN, Respondent, v. JAMES R. KEENE, Appellant.

      Agency.—Contract giving option to call or deliver stock, meaning of word, “ bearer ” therein.

    ' In case of a contract to receive or deliver stock at certain fixed prices, within a specified time, a settlement of rights thereunder between the owner and the party obligated thereby, prior to the expiration of said period, is binding and effectual, and the owner will be deemed to have accepted, in satisfaction of his rights, the promise to pay a fixed sum.
    The term “ bearer,” as used in such a contract, means not simply a person having the paper in his individual custody, but a person apparently exercising an individual dominion thereof as owner.
    This would be proved in most cases by showing individual custody of the paper, but if it contemporaneously appeared that he who had the paper procured it wrongfully from the owner, he would not be the “bearer.”

      Where a party publishes a general request that such contracts be presented at his office for registry only to enable him to ascertain the extent of his liabilities, in making a settlement with one claiming to be the owner of the contract in question, but who was in fact entrusted therewith for purposes of registry, &e., only, such party is held to the risk of the person having in charge the contract, not being the real owner thereof.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 23, 1887.
    Appeal by defendant from judgment entered upon report of referee.
    The facts ajtpear in the opinion.

      B. F. Dos Passos, for appellant.
    I. Settlement with Heath was binding upon plaintiff. (a.) The privileges being payable to béarer, Heath ivas the bearer within the terms of the contract. (5.) If Heath was plaintiff’s agent, and plaintiff voluntarily parted with the privileges, he conferred upon Heath the apparent ownership, and the defendant was justified in dealing with him. It was the duty of the plaintiff, in the first instance, had he desired to restrict any transactions by the defendant, to have notified him of his ownership, (e.) The defendant parted with value when he fixed his liability in the sum of $4,762.50 as his indebtedness upon the privileges. This indebtedness was fixed by Heath, as bearer, by the market price of the stock then prevailing, and the whole transaction, as appears by the defendant’s books, was a legitimate and bona fide settlement, (d.) The familiar rule applies to this case that where one of two innocent persons is to suffer, the person who is the cause of the injury is the person upon whom the loss should fall. So far as Keene Avas concerned, he had the right to deal, in the absence of notice, Avith any person Avho presented the privileges at his office. Wharton Agency, § 465 ; Story Agency, § 390; Voorhis v. Olmstead, 66 N. Y: 117; McNeil v. Tenth Natl. Bank, 46 Ib. 325; Allen v. Witherspoon, 50 Super. Ct. 417.
    II. The following cases relied upon by plaintiff are distinguishable : Booth v. Pierce, 38 N. Y. 463; Downer v. Carpenter, 1 Hun, 591.
    III. In the present case the adjustment between defendant and Heath—plaintiff not being known—is binding upon the plaintiff in the absence of fraud, where the latter voluntarily entrusted the privileges out of his possession and conferred upon Heath the apparent ownership. Voorhees v. Olmstead, 66 N. Y. 117; McNeil v. Tenth Natl. Bk., 46 Ib. 325; and cases cited, supra. Injustice would be entailed by the fact that although the instrument be in the name of bearer, and pass from hand to hand, yet the maker must, whenever the privilege is adjusted or presented for adjustment, find out at his peril whether the bearer is in reality the true owner. The contract does not cast such a burden upon the defendant. It will result in fraud, because if such a rule were adopted one party could present the privilege to the maker, fix the amount due upon it, and after waiting for either an advance or decline in the market could send another person to repudiate the first settlement, and, claiming to be the real owner, insist that it was without authority, and that a new adjustment should be made upon the higher or lower valuation. The rules which are applied to promissory notes, bonds and checks payable to bearer uphold the contention that the defendant had the right to settle and adjust his liability with Heath. Daniels Negotiable Instr., 3d ed., p. 516, § 593; p. 759, § 812.

      Sullivan & Cromwell and Algernon S. Sullivan, for respondent.
   By the Court.—Sedgwick, Ch. J.

The action was for damages for the breach by the defendant of his contract to pay certain moneys for shares of stock under four agreements in writing made by him. These had similar terms, and it is not necessary to describe more than one of them. On January 10, 1884, the defendant signed the instrument of the following tenor : For value received, the bearer may deliver me or call on me, on one day’s notice, exc'ept last day when notice is not required, five hundred shares of the Union Pacific Railroad Co., at sixty-seven per cent, if put, or at eighty-seven per cent, if called, at any time in six months from date.”

Before April 30, 1884, the plaintiff for value paid by him, became the holder and owner of the four agreements, and remained such during the time in controversy.

About June 20, 1884, having elected to deliver, the plaintiff in due time tendered to the defendant the shares named in the agreement, and demanded the sums of money agreed to be paid according to the terms of those " agreements. The defendant refused to receive the shares or pay the money. The action was brought to recover this money, less the proceeds of the shares, which were duly sold.' The difference, for which the plaintiff recovered judgment, was about the sum of $49,000.

One defence was, that before the time for which the contracts might run, at the option of the bearer of them, had ended, and on May 2, the bearer of the contracts, one Heath, had settled with the defendant the rights of the bearer, that is, had agreed with the defendant to ascertain and liquidate the amount due by defendant, at the sum of $4,762.50.

If Heath were the owner of the contracts, there is no reason to deny that the settlement made discharged the defendant from further liability. The facts would have been that the owner had made his election, the parties had waived a tender or delivery of the stock, had agreed that it should be deemed to have been tendered or delivered, and the defendant had promised to pay a fixed sum, which promise the owner had received in satisfaction of his demand. The owner could not make another election or another tender.

The referee found, in accordance with the testimony, that Heath was not the owner, but that in fact the plaintiff was. Nevertheless, as the contract ran to bearer, Heath, although not owner, was, if he were the bearer within the meaning of the contract, competent to deal with the defendant so as to discharge the latter from the contract.

In my judgment the term “ bearer ” in the contract does not mean simply a person having the paper in his individual custody. It means .a person apparently exercising individual dominion of the paper as owner. This would be proved in most cases, by showing individual custody of the paper. If it contemporaneously appeared that he who had the paper procured it wrongfully from the owner, he would not be the bearer. The “ bearer ” in the legal sense, is as against the owner, supposed to have become possessed by transfer from the owner. In case there has been no transfer,* the party bound by the instrument ought not to suffer from the negligence of the owner, or his misfortune, after it has passed from his control to the apparent ownership of another.

But, in fact, the settlement referred to was not made in open market or under usual circumstances, so far as the defendant was concerned. It was made in his office under peculiar circumstances. He had stopped business, on account of losses, about April 30. He published in the newspapers a card that his books were very much confused; that he was unaware of the extent of the privileges which he had outstanding, having failed to keep a memorandum of them as they were issued; and that it would be a favor to him to present the same for registry, so that he might know the extent of his liabilities. In accordance Avith this request, the plaintiff handed the contracts to one Ransom, to be taken by him to defendant’s office to be registered. Ransom handed them, to Heath, and Heath took them there and made the settlement as claimed.

Under such circumstances, the defendant having asked owners generally to present their contracts only for registry, as he called it, he was bound to those owners who acted on his request, not to turn a special agency by the owner to a third person, into a general transfer of ownership. Such a transaction as his cards called for, in the ordinary course of business, might competently be done through an employee without a transfer of ownership to the employee. The defendant was not justified in thinking that every one taking a contract to his office was a transferee of the chose in action. He was bound to consider that he might only be the representative of the true bearer, for the special purpose of registry. The consequence of the card and the plaintiff’s action upon it was, that the defendant was held to the risk of the person having in charge the contract not being the transferee of the contract.

For these reasons my opinion is that the settlement did not bind the plaintiff.

The other defences have been examined. Their validity depends upon proof of facts, as to which the referee has found, upon sufficient evidence, against the defendant.

The judgment should be affirmed with costs.

Freedman and Teuax, JJ., concurred.


author: By the Court.—Sedgwick Ch. J.

text:
    HENRY HOLTHAUSEN, Respondent v. JOHN PONDIR, Appellant.

      Money had and received—Evidence—Copy Affidavit—Proof of handwriting by counsel.

    The firm of II. B. & Co., after their discharge in bankruptcy, realizing more from certain assets than estimated prior to said discharge, proceeded to make a dividend thereof, to which end they made enquiries of defendant concerning plaintiff as one of their former creditors, and in reply were informed by defendant that he, defendant, was at the time said firm’s indebtedness accrued, a partner of plaintiff: that he had the firm books, &c. Said firm of H. B. & Co. drew their check for the amount of the dividend, as follows : “ Pay to the order of John Pondir [defendant] for the use of Holthausen & Co., [plaintiff] ”...... and delivered the same to defendant. Defendant was not a partner of plaintiff, but was employed by the latter at a compensation of part of the profits.

      Held, That an action for money had and received could be maintained by plaintiff for the recovery of the amount of said payment from defendant.
    It is not a good objection to the introduction of an affidavit in evidence, that the original is not produced, when it appears that the said original is out of the state and camiot be produced under subpoena.
    A counsel is not forbidden by the rule of privilege Horn testifying as to his client's handwriting.
    Before Sedgwick, Ch. J. and Tbit ax, J.

      Decided June 23, 1887.
    Appeal by defendant from judgment entered upon verdict of jury for plaintiff, and from order denying motion for a new trial, made upon the minutes.

      B. F. Dos Bassos, for appellant.

      Henry H. Broione, for respondent.
   By the Court.—Sedgwick Ch. J.

In 1855, the plaintiff was in a business, which he continued until 1863 or 1864. That business was done in his name, H. Holthausen. The defendant claimed in this action that he was a partner in the business. The jury, under proper instructions have found that he was not a partner. If he was not, he was employed by the plaintiff at a compensation of receiving a part of the profits of the business. His employment was of such a kind that he appeared to third parties doing the business, and the plaintiff did not so appear.

In 1861, a firm of honorable men, Hood, Bonbright & Company, debtors of the plaintiff, failed in business from losses at the South due to the rebellion. They compromised with their creditors including the plaintiff. As a result the firm was discharged from their indebtedness.

In 1881, some assets of the firm having yielded, unexpectedly, more than in. 1861 it was estimated that they would, the firm prepared to pay their former creditors the percentage of indebtedness which was not paid by the compromise. The firm, knowing or thinking that the plaintiff was in Europe, after enquiry for the defendant, wrote to him a letter of November 14, 1881. The contents of this letter are only to be inferred from a part of the defendant's answer to it which says: a I was the partner of Mr. Holthausen the year you name in your letter, &c.” The defendant was then or forthwith after, acquainted with the circular of Hood, Bonbright & Co., which informed their former creditors of their intention to make the further payment. On November 17, they wrote to defendant: “ Is H. Holthausen still living ? If so where ? Was there ever any assignment or failure in their business ? Who was his partner in 1861 ? Will you please inform us fully on this subject, and oblige your old friends.” The defendant answered: I went into partnership with Mr. Holthausen, December, 1855, and dissolved with Mr. Holthausen after we moved to New York on March 1, 1864. Holthausen & Co. never made any assignment. I have the books of H. Holthausen & Co. I have been absent in Europe for five years and have just returned.”

Although Hood, Bonbright & Co., had believed from the defendant’s active services in plaintiff’s business that they were partners, yet they were not certain of it or en- » tirely persuaded by the defendant’s letter, for, on the 21st of November the check they gave was neither to the order of defendant absolutely, or of H. Holthausen & Co. Its form was: “ Pay to the order of John Pondir, Esq., for the use of Holthausen & Co., $2,083.76.” The stub opposite this check “is John Pondir, Esq., for the use of Holthausen & Co.”

From these facts considered in connection with other testimony, I am of opinion that the defendant received the money upon the check for whoever was in reality the creditor of the firm of Hood, Bonbright & Co., and therefore for the use of the plaintiff, inasmuch as the jury have found that the defendant was not his partner.

The only embarrassing question relates to the sufficiency of the complaint as setting forth a cause of action for money had and received. There are in it, many allegations that are pointed at the defendant’s obtaining the check fraudulently, by means of a false representation that he was a partner of the plaintiff. If the plaintiff’s cause of action rested upon this, it would be doubtful that he was entitled to recover. The plaintiff had no legal or real interest in the amount of the check before it was delivered to the defendant. Hood, Bonbright & Co. were not bound to pay the plaintiff anything. But the complaint states other facts, and take it altogether under the liberal construction of pleading, enjoined by the Code, it may be held, that there is enough to charge the defendant for money had and received.

Upon the trial the plaintiff was allowed to introduce in evidence a copy of an affidavit on file in the office of the clerk of the Court of Common Pleas for Philadelphia, by which the defendant swore that at the. time here in question, he was in the employ of Henry Holthausen as his chief salesman. So far as the objection to this was that the original was not produced, it is enough to say that the original was out of the state and could not be produced under subpoena. So far as the objection was to the defendant’s signature being proved on this trial by the former counsel of defendant, it is sufficient to say that a counsel is not forbidden to testify to his client’s handwriting, as a knowledge of that may be gained without a confidential communication from the client.

The judgment and order should be affirmed with costs.

Tetjax, J. concurred.