author: Learned, P. J.:

text:
    M. FRANCIS WAGER, Appellant, v. THOMAS B. LINK and Others, Respondents.

      Deed in which the grantee assumes payment of a mortgage on the premises conveyed — when the grantee (although his gra/ntor was obligated to pay the mortgage) cannot be sued by the mortgagee.

    A mortgagor conveyed the mortgaged premises by a quit-claim deed, and his grantee executed to the holder of the bond and mortgage a bond conditioned to pay the amount thereof; such bond was, by its terms, collateral to the bond and mortgage and required the obligee to first exhaust his remedy against the mortgaged premises.
    The grantee who gave this bond subsequently conveyed the premises, subject to the payment of the bond and mortgage, by a full covenant deed, by the terms of which his grantee assumed and agreed to pay said bond and mortgage as part of the purchase-money.

      Held, that the obligation assumed by the grantee in the last-mentioned deed did not enure to the benefit of the mortgagee, and could not be enforced by him.
    Appeal by the plaintiff M. Francis Wager from an order granted at a Special Term, held in tlie county, of Albany on September 80, 1890, confirming the referee’s report in the above-entitled action, and denying the plaintiff’s motion to charge the defendant Thomas B. Link with the deficiency arising upon a mortgage foreclosure sale in said action, which order was duly entered in the office of the clerk of the county of Columbia on October 21, 1890; and also from that part of a judgment granted on September 30, 1890, and entered in the office of the clerk of the county of Columbia on the 21st day of October, 1890, granting the defendant Thomas B. Link a judgment of $286.69 against the plaintiff, and refusing to grant the plaintiff a judgment for deficiency against the defendant Thomas B. Link. .

      E. B. Harder, for the appellant.

      Orin tiambell, for the respondent.
   Learned, P. J.:

This is an appeal by the plaintiff from that part of a judgment of foreclosure which denied him a personal judgment for deficiency against Link and which gave Link costs.

Jennie Sully, in 1869, executed the mortgage in question to. plaintiff. In June, 1873, she conveyed the premises to Kellogg by a quit-claim deed. In February, 1874, Kellogg executed to plaintiff a bond conditioned to pay the amount of the Sully bond and mortgage, stating therein that his bond was collateral to the bond and mortgage, and requiring the obligee to exhaust his remedy against the premises before suing the bond of Kellogg.

In April, 1875, Kellogg conveyed the premises to Link by full covenant deed, subject to the payment of the bond and mortgage, by the terms of which deed Link assumed and agreed to pay said bond and mortgage as part of the purchase-money. The sole question is whether the obligation thus incurred by Link enures to the benefit of the mortgagee so that he can recover thereon. Link had no knowledge of the bond executed by Kellogg to plaintiff. Mrs. Sully’s deed to Kellogg was on record, and as Link purchased from Kellogg he would be chargeable with knowledge of the contents of that deed, and, conversely, would be entitled to assume from that deed that Kellogg was under no obligation to pay the plaintiff’s mortgage. Link, therefore, cannot be said to have knowingly contracted with Kellogg for the indirect benefit of the mortgagee, being ignorant that Kellogg was under any obligation in respect to the mortgage.

When a mortgagor conveys the premises, and in the deed the purchaser agrees to pay the mortgage, then, equitably, the purchaser becomes the primary debtor and the mortgagor becomes the surety. In such case the purchaser is liable to the mortgagee.

But in the present case Kellogg, the purchaser, did not by the purchase become the principal debtor. Indeed, he did not enter into any agreement with Mrs. Sully, either at the time of the purchase or after-wards. Kellogg’s bond to the plaintiff was a distinct matter, and gave Mrs. Sully no rights against him. In fact, that bond is expressly collateral to the Sully bond and mortgage and cannot be enforced until the obligee has exhausted his rémedy against the premises. Thus Kellogg stands in a very different position from that of a purchaser who, by his deed, has agreed with the mortgagor and vendof to pay the mortgage.

To go one step further, when a purchaser who has thus become the primary debtor himself conveys to one who, by the deed, assumes the debt, then such second purchaser in his turn becomes in equity the primary debtor and liable to the mortgagee. Such liability, however, depends on the fact that his grantor was at the time of the sale the person primarily liable in equity to pay the mortgage.

In. the present case, as has been shown, Kellogg never became the primary debtor. in equity, and never assumed any liability to ’Mrs. Sully, the mortgagor. The mortgagee, in order to hold Link .liable to him, must deduce such liability through the mortgagor. :'If Mrs. Sully could sue Link, then the plaintiff could sue him. But as «Kellogg’s bond to the plaintiff was a personal matter, unconnected «with the sale by Mrs. Sully to Kellogg, and one which gave her no bright of action, it follows that Link’s agreement with Kellogg was .merely personal between them and gave no right of action to any one but Kellogg himself. Kellogg took the agreement from Link for his - own. protection; and, as Kellogg was only a surety, and as üe did not (obtain this security from, the principal debtor, Mrs. Sully, the creditor «•has no claim to it. Of-course, there is no question made here that Link -'is liable to Kellogg on the clause m the deed. The question is, whether ' the plaintiff has any right to the benefit' of that clause. We think he «has not for the reasons above stated. The doctrine which we have set forth is laid down in the cases of Vrooman v. Turner (69 N. Y., 280); Turk, v. Ridge (41 id., 201); Carter v. Holahan (92 id., 498).

We think that the error of the plaintiff is in assuming that the •'liability of Kellogg on his bond to the plaintiff was of such a character that any security which Kellogg took would be for the 'plaintiff’s benefit. But Kellogg, being himself only a surety, could ' take for his individual protection any security except, perhaps, from 'the principal debtor; and the security thus taken would not ofnecessity be for the benefit of the creditors.

The judgment appealed from must be affirmed, with costs against appellant.

LaNDON, J., concurred; Mayham, .L, not acting.

Judgment affirmed, with costs against appellant.


source: Caselaw Access Project

author: Edwaeds, J.

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JASPER W. GILBERT, Respondent, v. EDWARD WEMPLE, as Comptroller of the State of New York, Appellant.

      Supreme Court justice — the pension on his reaching the age of seventy years is not conditional on his having served ten yea/t's of the abridged term.

    It is not necessary, in order to entitle a justice of the Supreme Court to receive the annual sum of $1,200, provided for by section 1 of chapter 511 of the Laws of 1872, after he has retired from office by reason of having reached the age of seventy years, that he should have served ten years during the term of office which is abridged by reason of his reaching the age of seventy years during such term, but said justice is entitled to the pension, where he has served as a justice for ten years, during either one or more terms, prior to such abridgment of his term of office.
    Appeal by Edward Wemple, as comptroller, etc., from an order made at the Columbia County Special Term, and entered in the office of the clerk of that county on the 2d day of September, 1890, by which order a writ of peremptory mandamus was directed to issue commanding the said Edward Wemple, as comptroller, to pay to Jasper W. Gilbert the sum of $6,000, as and for arrears of compensation as a justice of the Supreme Court.

      Charles F. Tabor, for the appellant.

      Stephen P. Fash, for the respondent.
    Order affirmed on opinion of court below, with fifty dollars costs and disbursements.
   OpinioN of Couet Below.

Edwaeds, J.

On January 1, 1883, the relator had served as a justice of the Supreme Court for the period of seventeen years, continuously, when his second official term of fourteen years, nine of which had expired, was abridged by reason of his having attained the age of seventy years. His compensation for the remaining five years of his term has been paid to him, except the annual sum of $1,200 provided by section 1, chapter 541, Laws of 1872, which the respondent declines to pay on the ground that the provision of the Constitution which continues the compensation of a justice whose term of office has been abridged by limitation of age is inapplicable to one who has served fewer than ten years of the abridged term. It is now settled that the $1,200, of which payment is sought to be enforced, is part of the compensation provided by section 13, article 6 of the Constitution (Bockes v. Wemple, 115 N. Y., 302), and the only question for our consideration is whether the relator is within the provisions of that section. The portions of the section which are here material read as follows: “The official terms of the said justices * * * who shall be elected after the adoption of this article shall be fourteen years from and including the first day of January next after their election. But no person shall hold the office of justice * * * longer than until and including the last day of December next after he shall be seventy years of age. The compensation of every * * * justice of the Supreme Court whose term of office shall be abridged pursuant to this provision, and who shall have served as such * * * justice ten years or more, shall be continued during the remainder of the term for which he was elected.” Must the “ ten years or more ” be a part of the abridged term to entitle the retiring justice to a continuance of his compensation. This is the sole question to be answered, and its proper determination must be sought for in the language of the section cited. In the interpretation of statutes it is a primary rule that the intent is to be ascertained, but it is also fundamental that, so far as possible, the intent must be derived from the language employed. When this is free from ambiguity or contradiction, it is self-interpreting, or, more accurately speaking, needs no interpretation. When the words used have a definite and obvious meaning, we are not at liberty to resort to those artificial rules of construction which wisdom and ingenuity have been compelled to devise by reason of the infirmity and obscurity of language. The words must be accepted in their plain import, and we are not permitted to add to or take from the language employed, in order to extend or restrict the operation of the statute to what we might conceive to have been the legislative intent. With this familiar principle in view, let us see whether the language of this section .is not so plain, so free from doubt, as to need no extrinsic aids of construction. Concededly, the apparent meaning of the first and second clauses is, that the' official term of a justice of the Supreme Court shall be fourteen years, and in case lie shall become seventy years of age during such'term, he shall not hold the office longer than until the following last day of December, that is, his term is thereby abridged. Unless the framers of this section have chosen inapt words to express their idea, their intent is as clearly discoverable in the language of the following clause, which explicitly declares that the compensation of a justice of the Supreme Court, whose term has been abridged, shall be continued during the remainder of the term for which he was elected, in case he has served as such justice ten years or more. But it is claimed that this clause should be construed as if it read ten years or more of such term,” that is, ten years or more of the term abridged. Why should it be so construed ? The import of the words used is plain, and why should we add to them to change the signification ? The language is not “ who shall have served ten years or more of such abridged term,” but is “ who shall have served as such justice ten years or more.” It seems to me quite clear that it is only by injecting into the clause the additional words, which the respondent claims should be regarded as there, that his contention as to its meaning can be sustained. Without these additional words it is obvious that the language means one thing; with them it is equally obvious that it means another thing. The interpolation of such words into a statute as change the meaning and restrict its operation is a legislative and not a judicial function. Perhaps it would have been wiser if this clause had been so framed as to extend its beneficent provisions to those only who had served ten years of the abridged term. However this may be, it is our province not to reform the law, but simply to declare ita lex sompta est.

The motion for a writ of peremptory mandamus should be granted.

Present — LaNdoN and Mayham, JJ.; Leakned, P. J., not voting.

Order affirmed on opinion of court below, with fifty dollars costs and disbursements.


author: Mayham, <J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THOMAS WILLIAMS, WILLIAM FERGUSON AND THOMAS ROGERS, Appellants.

      Bmdence—trial for petit la/rceny—proof of similrn' transactions homing talcen place elsewhere.

    On a trial upon the charge of petit larceny alleged to have been committed by the accused in stealing ten dollars, the property of one Dayton, it appeared that the defendants went into Dayton's store, asked to purchase some candy and- ' tendered a twenty-dollar bill in payment therefor, for which they received back nineteen dollars and some change. Thereupon one of the defendants, stating that he had found sufficient money to purchase the candy, requested Dayton to hand back the twenty-dollar bill, which was done, and some money was returned, which at the time Dayton supposed to be the money he had given in exchange for the twenty-dollar bill, but which was, in fact, ten dollars less.

      JELeld, that evidence that the defendants, on the same evening and at another place, were guilty of a similar transaction, was competent. ‘
    Appeal by tlie defendants from a judgment of conviction of the crime of petit larceny, rendered against them by the Court of Special Sessions of the city of Albany on the 25th day of March, 1890. The crime was alleged to have been committed in stealing ten dollars, the property of one George A. Dayton.
    The evidence of the complainant showed that on the morning of-the day of the alleged larceny he counted the bank bills kept by him in a package in the inner compartment of the safe in his store, and that there were in that package $224 in bills, the denomination of which he could not state; that he locked the inner compartment where the money was with a key and put it under a shelf ; that the-outer door of the safe was locked by a combination lock; that in his business as confectioner he was assisted by his wife and a Miss Reed; that he did not at any time during the day, from the time of counting the money in the morning until the time of the alleged larceny, interfere with that package, except once to put with it a fcwo-dollar bill and take out a one-dollar bill; that about seven-o’clock in the evening the defendants Ferguson and Williams came into the store and asked to purchase some candy, and, on being served, handed a twenty-dollar bill in payment, and on being asked if they had anything smaller, answered in the negative, whereupon complainant went to the safe, opened the inner compartment, and took out nineteen dollars and handed it with the change-to Ferguson and received, the twenty-dollar bill; defendants then walked towards the front of. the store and complainant towards the safe, when Ferguson, addressing complainant, asked him to return the twenty-dollar bill-as he had found change, and did not like to be carrying about small' change, and pursuant to that request complainant returned to the-defendant the twenty-dollar bill and received back what he, at che time, supposed was the money he had parted with, but which he¡ returned to the safe without counting. Soon after that he was-' asked by a detective if he had lost any money; on examining the package in the safe he found that it contained but $215.
    On his cross-examination the complainant said he paid his help' that day and would not swear positively how many times he put bills-in or took them out of that package that day; don’t remember how many times he went in the safe and made change from these? bills positively
    Miss Reed and Mrs. Dayton, who assisted in the store, both testified that they did not interfere with or take any bills from this package in the inner compartment of the safe that day. This is the substance of the evidence tending to establish the corpus delicti.'

    The prosecution then called as a witness a druggist, who was permitted by the court, under defendants’ objection, to testify that, on' the same evening of the occurrence charged in the complaint, the ■ defendants Ferguson and Rogers bought a cake of soap and ten-'1 dered a twenty-dollar bill in payment, and on being asked if they, had anything smaller answered in the negative, and the bill was; taken and nineteen dollars and eighty cents returned to them in change. Ferguson requested the return of the twenty-dollar bill,; and offered the change for the soap, but was refused, and before; leaving the defendant Rogers bought a stick of licorice and tendered in payment a five-dollar bill, and the clerk refused to change it and told him to pay at some other time.
    The prosecution proved, under like objection, that on the same-evening the defendants, Ferguson and Williams, called at a tea store. and purchased a half pound of tea for twenty-five cents, and Fer-,guson handed in payment a twenty-dollar bill and received in ■ change nineteen dollars and seventy-five cents, and after receiving-it said lie could pay for the tea in change, and requested the return of the twenty-dollar bill, the clerk looked over the money which defendant proposed to return, and then got the twenty-dollar bill and gave it to Ferguson. Defendant Rogers came in the store while the other two defendants were there, and purchased a pound of sugar at seven cents and paid for it, but did not speak to the other defendants.
    Under a similar objection by the defendants, the people also proved that on the same evening Ferguson and Williams went into a restaurant and bought twenty-five cents worth of cigars and handed a twenty-dollar bill in payment and received nineteen dollars and seventy-five cents in change, after which one of them found he had a quarter, and requested the return of the twenty-dollar bill, and it was given to them, they then shoved back the change which was put in the drawer, and on making the account up later in the evening the account was found to be short ten dollars.

      James C. Matthews, for the appellants.

      Andrew Hamilton, for the respondent.
   Mayham, <J.;

We think the evidence sufficient to establish a corpus delicti, and that the finding of the jury that the crime charged was committed is fully sustained by the evidence. The appellants insist that the learned recorder erred in admitting, under objection, the evidence of the acts of these defendants at other stores on the same evening of a somewhat similar character to that at the store of Dayton.

This evidence was doubtless offered by the people for the purpose of showing the motive of the purchasers in tendering the twenty-dollar bill and receiving other and necessarily smaller bills in exchange, so that they might abstract one or more of the smaller bills and return the balance unobserved, in exchange for the twenty-dollar bill and thus steal the bill or bills so abstracted ; .such a device, artfully jiracticed by a shrewd operator, might easily deceive the unsuspecting tradesman in the hurry of business, and there is some evidence in this case that it has become one of the methods of larceny under the name of “ flim flam.” The defendants’ counsel relies upon the People v. Corbin (56 N. Y., 363), and Coleman v. People (55 id., 81), as authorities in support of his objections to this evidence.

In the case first above cited the court held that it was not proper on the trial of an indictment for forgery to prove that the defendant had admitted that lie had committed other forgeries; and in the latter case that it was not competent, on the trial of an indictment for receiving stolen goods, to show, for the purpose of proving the eeienter, that the prisoner had received other stolen property. Neither of these cases come entirely within the principle under which the evidence in the case at bar was offered and received. They were not offered to be shown proximate in time nor precisely identical in character with the crimes charged in the indictment. We think the case now before this court is more nearly in principle like the case of Weyman v. The People (4 Hun, 517; affirmed, 62 N. Y., 623, and the cases there cited.)

In that case it was held to be competent for the people to show that on the day of the alleged commission of the crime charged, and on the next day the prisoner in the same way and by the same means procured similar articles of other persons, and the court says such evidence “ is competent to show that the party accused was engaged in other similar frauds about the same time, provided that the transactions are so connected as to time, and so similar in their other relations that the same motive may reasonably be imputed to them all.” (See, also, Hall v. Naylor, 18 N. Y., 588; Hennequin v. Naylor, 24 id., 139.)

This kind of evidence is frequently resorted to in the trials of indictments for passing counterfeit money, and the object of such testimony is to prove that the act is not an isolated or accidental occurrence, hut that it was done by deliberate design. We think this evidence, under the circumstances of this case, was proper, and that the exception to its admission was not well taken.

We discover no error in the admission of evidence or in the charge of the recorder to the jury, and the jury having found the defendants guilty upon evidence sufficient, to uphold the verdict, we think the judgment of conviction and sentence pronounced were proper. It is quite true, as is urged by the counsel for the defendants, that the right of trial by a jury is guaranteed to the defendants and they are in no way responsible for the failure of two previous juries to agree, and that fact alone should not aggravate their punishment.

But the judgment and sentence pronounced were within the limits of the jurisdiction of the court which pronounced them, and we do not think it is the province of this court on this appeal to criticise or interfere with them.

The judgment of conviction is affirmed.

Learned, P. J., and Landon, J., concurred.

Judgment and conviction affirmed.


author: Mayham, J.:

text:
    RAYMOND CHRISTMAN, Appellant, v. JOHN M. PHILLIPS, as Overseer of the Poor of the Town of Amsterdam, Respondent.

      Overseer of the poor in Montgomery county — the sole judge as to who are paupers — a/udit by town auditors, at what time proper.

    In an action brought against the overseer of the poor of the town of Amsterdam to recover the value of services, rendered by his direction, in the care of a transient pauper, it appeared that the overseer of the poor employed the plaintifE’s assignors to nurse one Murphy, which they did, and thereafter gave them orders on the town board in payment for such services; that these orders had been presented to the town board of auditors, and had been disallowed by that board on the ground that they were not proper charges against the town, whereupon the court directed a verdict for the defendant.

      Held, that the overseers of the towns in the county of Montgomery, under section 3 of chapter 42 of the Laws of 18C3, were the sole and exclusive judges as to who were paupers of their towns, and should be relieved by them, and that the exercise of that power could not be reviewed collaterally either in the Supreme Court or by the town auditors.

      Semble, that the town auditors had no authority to examine and adjudicate upon the accounts of the overseers of the poor at any other meeting than that held on the last Tuesday preceding the annual town meeting of their town under section 1 of chapter 172 of the Laws of 1863.
    By chapter 3 of said act it is made the duty of the town board of auditors to make a statement of such accounts and append thereto a certificate, to be signed by a ' majority of the board, showing the state of the accounts of said oflicers to the date of the certificate, which statement and certificate are to be filed in the town clerk’s office.

      Semble, that before parol evidence could be given as to what took place at such meeting, the absence of the statement and certificate should be accounted for in such manner as to let in secondary evidence of its contents.

      Appeal by the plaintiff Raymond Christman from a judgment of the Supreme Court, entered in the office of the clerk of the county of Montgomery on the 19th day of February, 1890, after a trial before the court and a jury at the Montgomery Circuit, at which a verdict was rendered by direction of the court in favor of the. defendant; and also from an order denying a motion made for a' new trial on the exceptions in the case, and to set aside the verdictj on the ground that it was contrary to evidence, entered' in said clerk’s office February 22, 1890.

      G. S. JLisbet, for the appellant.

      Peter J. Lewis, for the respondent.
   Mayham, J.:

This action was prosecuted against the overseer of the poor of the town of Amsterdam on an alleged contract made with that officer for .the care and attention rendered by plaintiff’s assignors to a transient pauper, supported at the expense of the overseer of that town.

The case shows that one Edward Murphy was found along the railroad track in Amsterdam seriously injured, of which injury he subsequently died; that he was without means of support, and was taken care of by the overseer of the poor of that town; that the overseer of the poor employed plaintiff’s assignors to nurse and care for Murphy, which they did, one nursing during the day and the other during the night.

These nurses both swear that the overseer of the poor employed them and agreed to pay them or see them paid. One of these parties was employed twenty-five days (25) and' the other twenty-one (21) nights. They commenced service about the 21th of September, 1887.

On the eighth day of October the acting overseer of the poor of Amsterdam gave to these persons orders in the following forms :

No.- “ October 8, 1887.
“Town board pay A. Van Auken, a nurse, for nursing Edward Murphy, a town charge, the amount of fifty dollars for 25 days services, and charge the same to the town of Amsterdam.
“JOHN W. THATCHER,
Overseer of Poor.”
No.- “October 8, 18S7.
“ Mr. Daniel Martin, a nurse for Edward Murphy, let him have forty-two dollars for 21 days services, and charge the same to the town of Amsterdam.
“JOHN W. THATCHER,
Overseer of the Poor.”

To each of these orders was attached an affidavit of the plaintiff, as assignee, that he was the owner of the claim, and that no part of the same has been paid.

On the trial the defendant proved, under objection by the plaintiff, by several officers constituting the board of town auditors, that the overseer of the poor liad presented these bills to the town auditors, and they were disallowed by that board on the sole ground that they were not proper charges against the town. No record of the action of these town auditors on these claims, or minutes in writing of their action, was made by said board.

Upon these facts the court directed a verdict for the defendant, and the plaintiff appealed.

Section 1926 of the Code of Civil Procedure enumerates certain officers who may maintain actions in their official capacity upon contracts lawfully made with them, etc., and names overseers of the poor among such officers.

Section 1927 provides that “an action or special proceeding may be maintained, against any of the officers specified in the last section, upon any cause of action which accrues against them, or has accrued against their predecessors, or upon a contract made by their predecessors in their official capacity and within the scope of their authority.” Under this provision a party may recover upon a contract lawfully made with an overseer of the poor or his predecessor in office. By section 3 of chapter 42 of the Laws of 1863, “ the powers and duties heretofore conferred upon and exercised by the supervisors of the respective towns in said county of Montgomery, so far as relates to the adjudication in relation to ánd the relief and support of the poor, are hereby conferred upon the overseers of the poor of the respective towns in said county.”

Under this statute the overseer of the poor of the town of Amsterdam, one of the towns in that county, is the sole and exclusive judge (subject, perhaps, to review for abuse of that power) as to who are paupers of said town, and consequently who may be relieved by him. In furnishing such relief he must necessarily be invested with the power to make contracts for the care of such as he may have adjudged paupers, and the exercise of that power could not be reviewed collaterally either in this court or by the town auditors. The trial judge held that it was conclusive as to this court, and its exercise could not be reviewed on the trial. But he held that the plaintiff having submitted his claim to the determination of the board of town auditors, their determination was final and, until reviewed and reversed in a direct proceeding, it was conclusive upon the parties.

This would, doubtless, be sound, if the board of town auditors had power to pass upon this claim in the first instance, and had, in the exercise of that jurisdiction by a valid act, with the parties interested legally before them, made a determination. • But that is not this case. The plaintiff and defendant never submitted to the board of auditors the question whether the defendant, as overseer of the poor, was liable to the plaintiff for the value of their services, which had been rendered by the plaintiff’s assignors for the defendant as overseer of the poor under a valid contract.

Clearly the board of auditors had no power to pass' upon that question. If the defendant had paid the money under this contract, and had presented it as a disbursement of his office to the board of town auditors, they might then have had jurisdiction to pass upon it, and then, if they had rejected it, they would have been required to make a certificate as required by section 3 of chapter 305 of the Laws of 1810, and which might be reviewed on certiorari, or its allowance compelled by mandamus if improperly rejected.

But this plaintiff or his assignors had no claim that they could enforce directly against the town had the board made a record refusing to allow the claim, even if presented by the plaintiff. We do not see how that would have barred the plaintiff’s claim against the overseer of the poor as such. The legal effect of this transaction was, that the overseer, by drawing his draft for this amount, acknowledged the existence of his liability to the payee, even if the payee presented it in person to the drawer, who refused to accept or pay the same; it would not exonerate the drawer, but rather tend to charge him for its payment. It matters not what excuse for non-payment is made by the drawer. It may be want of funds, or it may be a denial of tbe validity of tbe claim; the drawee’s refusal, and the ground upon which the refusal is placed, in no way relieves the maker from his liability to the payee. The fact remains that the debt exists and has not been paid. "We do not think that the plaintiff is concluded by the action of the town board for the -reasons above stated.

The plaintiff insists that it was error to receive the evidence of .the town auditors as to their recollection of what occurred at the time it is alleged the account or claim in question was presented to them or their action upon the same, on the ground that if there was any legal action taken before them, and any determination by them, it should have been reduced to writing in the form of a certificate and filed in the town clerk’s office, and that would have been the best evidence ; and that that certificate or record should be produced, or its loss or destruction proved before parol testimony in the action could be received.

Section 1 of chapter 112 of the-Laws of 1863 provides as follows : “ The town auditors of the several towns of this State, shall examine the accounts of the overseers of the poor "* * * of such town for all moneys received and disbursed by them, and shall meet for the purpose of examining the same, annually, in each town of this State on the Tuesday preceding the annual town meeting to be held iu each town.”

Section 2 -of the same chapter provides: “All town officers who receive or disburse any moneys belonging to their respective towns, shall on the last Tuesday preceding the annual town meeting of their town, account with the board of town officers of such town for all moneys received and disbursed by them by virtue of their offices.”

Section 3 of the same act makes it the duty of the town board of auditors to “ make a statement of such accounts and append thereto a certificate to be signed by a majority of the board showing the state of the accounts of the said * * * and other officers at the date of the certificate; which statement and certificate shall be filed with the town clerk of the town.”

No statute has been referred to, nor are we able to find any that confers on the town auditors authority to examine or adjudicate the accounts of overseers of the poor at any other time or at any other meeting. The meeting in November was the one which preceded the meeting of the board of supervisors, and not the one preceding the annual town meeting, and it does not appear that the town auditors had any authority at that meeting to audit or examine the overseer’s account. But if we are to assume that it was the regular meeting to examine such accounts, then we think that the certificate required by statute to be made and filed would be clearly the best evidence, and its absence should be accounted for in such a manner as to let in secondary evidence of its contents. That was not done or offered to be done by the defendants.

The rule that records when required to be kept are the best evidence, and must be produced or their absence properly accounted for, before resort can be had to secondary evidence, is too elementary to require citation of authorities. We think the admission of that kind of evidence in this case was error, and that its admission affected prejudicially the rights of the plaintiff.

The judgment is reversed and a new trail ordered, costs to abide the event.

Learned, P. J., and Landon, J., concurred on the first ground, that if the action of the auditors is not binding, it is immaterial whether it was properly proved.

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


text:
    In the Matter of the Application of the SARATOGA ELECTRIC RAILWAY COMPANY to Acquire a Certain Crossing of the Railroad of the PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY.

      Appeal from orders in proceedings for railroad crossings—allegation of the petition as to the consent of property owners —effort to agree.

    An order of the Supreme Court, appointing commissioners in proceedings to ascertain and determine the points of the crossings and intersections of the tracks of one railroad by another, affects a substantial right within the meaning of sec. tion 1356 of the Code of Civil Procedure. Such proceedings are not regulated by chapter 140 of the Laws of 1850.

      The petition of a railroad company, incorporated under chapter 252 of the Laws of 1884, asking for the appointment of commissioners to ascertain the points of crossing another road, must allege that it has acquired the consent of one-half in value of the adjoining property owners and of the local authorities, to the construction of its road, in order to confer jurisdiction on the court to act thereon.
    Negotiations relative to the crossing of one road by another, had with the general manager, vice-president and attorney of the road sought to be crossed, when such officers assume to negotiate for their company, and no notice is given to the person with whom they confer that they have not authority to act, constitute an effort to agree with such company within the requirement of the statute relating thereto.
    Appeal by the President, Directors and Company of the Delaware and Hudson Canal Company from an order made at a Special Term of the Supreme Court held in Saratoga county on April 15, 1890, which appointed commissioners to ascertain and determine the matters referred to in the application in the above-entitled matter.

      Edgar T. Brackett, for the petitioner.

      Edwin Young, for the appellant.
   Mayham, J.:

This is an appeal from the order of a Special Term of this court appointing three commissioners on behalf of the Saratoga Electric Railroad Company to ascertain and determine the points of the crossings and intersections of the track of the electric railroad of said company, over and across the track of the Rensselaer and Saratoga Railroad, leased and occupied by the Delaware and Hudson Canal Company, also fixing the time and place of the first meeting of such commissioners.

The order was made upon the petition of the Saratoga Electric Railway Company, duly verified, the verified answer of the President, Managers and Company of the Delaware and Hudson Canal Company, and the proofs taken on the hearing of the motion before the Special Term. On the hearing of the motion the appellant filed various objections, which were overruled by the court.

The points urged on this appeal, upon which a reversal of the order is asked, are:

Eirst. That the petition does not state facts sufficient to authorize the court to make the order.

Second. That the act of the legislature under which the petitioner claims to have been organized, and under which it claims the right to have commissioners appointed, is unconstitutional and void.

The respondent insists that the order of the Special Term in appointing commissioners is not appealable, and in support of that contention urges that the proceedings on this application are regulated by chapter 140 of the Laws of 1850, and the amendments to the same, which, it is claimed, form a complete system of procedure in cases of this character, which are in no way affected by the provisions of the Code relating to appeals from orders. No motion has been made to dismiss this appeal; and as an appeal has been taken in due form, and regularly brought on in this court for hearing upon the merits, it should not be dismissed unless it is entirely clear that this class of cases is excepted from the provisions of the Code relating to appeals to the General Term from orders of the Special Term.

Section 1356 of the Code of Civil Procedure provides that “ an appeal may be taken to the General Term of the Supreme Court * * * from an order affecting a substantial right made in a special proceeding at a Special Term or a Trial Term of the same court.”

This provision seems applicable to all orders in special proceedings affecting a substantial right, and if the appointment of commissioners, clothed with authority to hear and determine disputed questions between parties, affects a substantial right, then the order appointing them is, within this provision, appealable, unless restricted by the provisions of the general railroad act (chap. 140, Laws of 1850), which provides that the determination of the General Term of the Supreme Court upon appraisal of damages to land owners, shall be final and conclusive under that provision. Under that provision it has been held that no appeal lies from the judgment of the Supreme Court to the Court of Appeals. (Matter of Delaware and Hudson Canal Company, 69 N. Y., 209.) The same was held in Matter of Prospect Park and Coney Island Railroad Company (85 N.Y., 489). But it will be observed that these cases arose upon judgments of the General Term of the Supreme Court, on appeals from orders confirming reports of commissioners on appraisal of damages, which was made final by section 18 of chapter 140, Laws of 1850, and in neither of the cases cited was the right of a party to appeal to the General Term, from an order of the Special Term appointing commissioners, discussed or decided, and except, in so far as the right to appeal is expressly, by the act of 1850, prohibited or abridged, it should be governed by the provisions-of the Code of Civil Procedure, relating to appeals from orders, especially where no motion has been made to dismiss the appeal.

This conclusion brings us to the consideration of the question raised upon the merits in this motion, as we think the appointment of commissioners affected a substantial right within the meaning of section 1356 of the Code.

In the Matter of Lockport and Buffalo Railroad Company (77 N. Y., 558), the General Term and Court of Appeals entertained an appeal from the report of commissioners on a contest between railroads as to a crossing.

The allegation of the incorporation of the petitioner was sufficient, especially as the answer was not so framed as to put in issue the existence of the corporation. (Chap. 508, Laws of 1875.)

But the appellant insists that the petition of the relator was defective, in that it did not affirmatively appear from the same, that the relator had complied with the provisions of chapter 252 of the Laws of 1884, under which it claimed to have been incorporated. Section 1 of that act provides that “ such corporation shall also have all the powers and privileges granted, and .be subject to all the liabilities imposed by this act, or by the act entitled £An act to authorize the formation of railroad corporations and to regulate the same,’ passed April 2, 1850, and the several acts amendatory thereof, except as the said acts are hereby modified.”

Tinder this provision of the act of 1884 it is insisted by the appellant that as the act of 1850 does not require the railroad corporation to acquire the consent of one-half in value of the adjoining property owners before it could construct, maintain or operate its road, and that that additional requirement is imposed by section 3 of chapter 252 of the Laws of 1884, that it is incumbent upon the relators, organizing under the last-mentioned act, to allege and prove that the requisite consents have been obtained as prescribed in that act, and that the procuring of such consent is a condition precedent to the construction, maintenance, operation or use of such railroad, and that the appointment of commissioners is an act affecting the construction, maintenance and operation of the relator’s railroad, and that the relator is not authorized to take that initial step towards construction without first obtaining that consent, proof of which must appear in the petition to confer jurisdiction upon the court to make any order condemning the land or affecting the rights of the appellant.

The provision relied upon reads as follows: “Any company organized as aforesaid, or any existing street surface railroad company or corporation heretofore organized for the purpose of building and operating a street railroad, may construct, maintain and operate, use and extend a railroad or branches on the surface of the soil through, upon and along any of the streets, avenues, roads or highways of such cities, towns and villages, and also through, along and upon any private property which said company may acquire for the purpose, and may also construct such switches, sidings, turnouts and turntables and suitable stands as may be necessary for the convenient working of such road, provided that the consent in writing of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be, after the passage of this act, first obtained.”

"Was the allegation that the petitioner had obtained the requisite consent under the provisions a necessary and material allegation to authorize the appointment of commissioners in this case ?

Clearly the petitioner would not be authorized to construct and operate its road until such consent was obtained. The company may construct and operate its road through and along such streets and avenues or highways of such city, town or village and also through, along and upon private property which said company may acquire for the purpose * * * £f provided that the consent in writing of the owners of one-half in value of the property bounded on, * * * be after the passage of this act first obtained.”

If the appointment of these commissioners for the purpose of condemning and getting the possession of the right to cross the appellant’s road-bed, is a part of the petitioner’s act of constructing or operating its road, then this consent was as much a necessary prerequisite as the organization or incorporation of its company, and an allegation of that fact in the petition would be as material ’ as an- allegation of an incorporation or the location of the route or a failure to agree upon the terms of crossing, each of which are conceded to he necessary averments in the petition. (Matter of Lockport v. Buffalo Railroad Company, supra.)

It may be conceded, as it is doubtless true, that the appointment of these commissioners is no part of the physicial construction or operation of the road, but it is a preliminary prerequisite to the physicial construction without which no physicial construction or operation of the road can be legally effected.

It is the initial step under the exercise by the legislature of the sovereign power of eminent domain by which the rights of one may be taken and used by another for a public purpose; and the steps prescribed by the legislature which are necessary to invest the applicant with authority to invoke that power should clearly appear as the foundation of the proceedings.

If before the petitioner can exercise the franchise conferred by its charter the legislature has imposed conditions and restrictions, it must comply with such conditions as a preliminary to its enjoyment of the grant.

It is true that the general railroad act as amended, provides a statutory method of compelling the connection and crossing of railroad tracks by different companies; and corporations formed under chapter 252 of the Laws of 1884, are given by a section of that act the following powers :

“ Such corporations shall also have all the' powers and privileges granted, and be subject to all the liabilities imposed by this act, or by the act entitled ‘ An act to authorize the formation of railroad corporations, and to regulate the same,’ passed April 2,1850. and the several acts amendatory thereof, except as' the said acts are herein modified. ” (Sec. 1, chap. 252, of 1884.)

One of the essential modifications applicable to the construction and operation of a railroad constructed under the act óf 1884 is the condition above referred to, which is not found in the general railroad act, and before the petitioners can avail themselves of the provisions of the general railroad act that' condition must be complied with. That provision did not exist in'the statute finder which the decisions in the Matter of Lockport and Buffalo Railroad Company (supra) was made, and hence what the court in that case held to be sufficient in the petition does not control in this case.

In that case it was not essential that the petitioners obtained the consent of the one-half in value of the adjoining property owners. It was, therefore, quite enough for the petition to show the incorporation, the location of the road, and that it crossed the other road, and that terms of crossing could nqt be agreed upon between the parties.

In that case the corporation, the location of the route and the failure to agree, authorized the condemnation of property and 'the construction of the road.

In this case another and additional prerequisite exists,. just as essential to the enjoyment of the right, which is not alleged.

In that case it was held that the omission to allege in the petition that the parties had failed to agree would be fatal to the petitioner’s case, and the court says : “ The petitioner had no right to resort to the court, until a failure to agree as to the matter specified. Such failure was a condition precedent to any standing in court; and there could be no failure or inability to agree, within the meaning of the statute, until some efforts to agree had in good faith been made.” (Matter of Lockport and Buffalo Railroad Company, supra, 563.)

If an allegation in the petition of failure to agree in that case was a condition precedent to any standing in court ” for an equally strong reason, it would seem that the allegation of the consent required by the statute should be contained in the petition in this case, for in this case the petitioner can avail itself of the statutory privileges, provided it shall, after the passage of the act of 1884, procure the consent in the manner prescribed by that act.

This condition does not appear from the petition or proof to have been complied with, and, without a compliance with it, it would seem that the petitioner acquired no standing in court which would authorize the court to appoint the commissioners against the appellant’s objection. The Matter of the Peoples Railroad Company (112 N. Y., 578) was an application to the court for leave to construct the railroad without the requisite consent, and for the appointment of commissioners to determine that question, and does not seem to apply to a case like the one at bar.

It is also insisted in this case by the appellant that the petitioner made no effort to agree with the appellant; in fact, that the negotiations with the general manager, vice-president and attorney was not an effort to agree with the company. We cannot agree with the appellant in this contention.

The public are compelled to deal with corporations through their ostensibly authorized officers and agents; and while there are many acts which can only be done by the board of directors or executive committee, still, in a matter of this kind, when the officers and agents assume to negotiate for the company and give no notice to the person with whom they confer that they are wanting in authority to act; the company having allowed them to act for it, have invested them with apparent authority, upon which the public have a right to rely.

The conclusion we have reached seems to render it unnecessary for us to consider the remaining and, perhaps, the graver question raised by the appellant of the constitutionality of the act of 1884, so far as it purports to.import into its provisions, the provisions of the general railroad act relating to the acquiring of privileges under the right of eminent domain by the condemnation of property of the right to its use.

Without determining the constitutional question raised, we are of the opinion that the order should be reversed.

Learned, P. J., and Landon, J\, concurred.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.


text:
    WILLIS G. POPE, Respondent, v. LOTTA McGILL, Appellant, Impleaded with CHARLES McGILL.

      Physician — cannot testify on wTurn he relied for payment of his services.

    In an action by a physician to recover for medical services to a wife, against the husband and wife, the wife alone answered, setting up her coverture, alleging that the services were rendered for her husband. On the trial the plaintiff was asked: “When you rendered the services, to recover for which this action is brought, on whom did you rely for your pay?” To which the defendant objected. The objection was overruled and the plaintiff answered: " On the defendant Lottie McGill.”

      ,Held, that the question was inadmissible; that the real question in the case was as to who was liable for this bill, the wife or the husband, which must depend upon the facts constituting the contract under which the services were rendered.
    That it did not lie with the plaintiff to determine these questions, or fix the liability by any intention on his part, as to the person upon whom he relied for the payment for his services.
    Appeal by the defendant Lotta McGill from a judgment of the Supreme Court, entered in the office of the clerk of the county of Essex on the 26th day of May, 1890, upon the report of a referee, who found, among other things, that the plaintiff was entitled to judgment against the defendant Lotta McGill for services rendered by the plaintiff as a physician.

      Hewitt dk Morey, for Lotta McGill, appellant.

      A. W. Boynton, for the respondent.
   Mayham, J.:

This is an appeal from a judgment entered upon the report of a referee. The action was prosecuted against the defendants jointly to recover for medical services rendered by the plaintiff as a physician. The defendant Charles McGill failed to answer. The defendant Lotta McGill, who was his wife, answered setting up her coverture and alleging that the services were rendered for her husband in furnishing medical attendance for his family and denying any liability for the same on her part.

The evidence shows that the defendants were husband and wife, and that the services were rendered the family while they occupied that relation, and while Charles McGill, the husband, supported the family. The plaintiff testified that he treated Lotta and furnished her medicines from June, 1888, until June, 1888, and that during the same time he treated the defendant’s children. That the services were worth $205.25, and that he had been paid by the defendant, Lotta McGill, sixty dollars on that amount, and that he rendered the services to her at her request. On the trial the plaintiff was asked this question: “ When you rendered the servicss, to recover for which this action is brought on whom did you rely for your pay ? ” This question was objected to by the defendant and the objection was overruled by the referee, and the plaintiff answered “On the defendant Lotta McGill.” Plaintiff also testified that the defendant Lotta promised to pay this balance, and also to sign a note with her husband for the same, but did not do so.

The defendant proved by the defendant, Charles McGill, that he employed the plaintiff to attend his wife and family as a.physician; that the account for such services was presented or sent to him for payment, made out against him personally and in the plaintiff’s hand-writing, and that the payments on the same were with his money; that he supported his family, wife and child.

The defendant Lotta McGill also testified that she did not employ the plaintiff, and that she never paid him but five dollars, and that was her,husband’s money; that plaintiff doctored her, but that she never employed him or promised to pay him for his services, and never agreed to sign a note with her husband for the amount of the bill; that her husband had always supported her and that she had no separate estate.

Bills of plaintiff’s account proved to have been rendered by plaintiff, charging the account against Charles McGill, one dated June 14, 1888, stating the balance at $146.25, accompanying which was a joint and several note dated the same day for the amount, and payable to W. G. Pope and not signed, are m evidence. The defendant insists that the admission of the answer of the plaintiff to the question, “ On whom did you rely for your pay ? ” was error, for which this judgment should be reversed.

The real question in controversy in this action was, who was liable for this bill; was it the husband or was the transaction such as to charge this debt upon the wife ? The answer to these questions must depend upon the facts constituting the contract under which the services were rendered; and it does not lie with the plaintiff to determine these questions or fix the liability by any expressed intention of his as to whom he relied upon for payment. That would be allowing a party to place himself in the position of the referee and testify to a conclusion which it was the province of the referee to determine from the whole evidence. That is never allowable. 'Witnesses must state facts, and courts and jurors must draw conclusions from the facts proved. (Nicolay v. Unger, 80 N. Y., 54.)

It is quite immaterial on whom the plaintiff relied for his pay, unless that reliance grew out of or was founded upon a valid agreement, either expressed or implied; and when the party was permitted to state that he relied on Lotta, it was another way of saying that his agreement was with her,' and that he had a legal right to look to her for his pay, and the referee must have so regarded it, or he would have excluded the evidence as wholly immaterial. But there is another ground of objection which was raised by the defendant; that the question called for a conclusion of the witness. "We think the admission of this evidence was error, which might have affected, and probably did affect the decision and determination of the referee upon the question of fact in the case.

In Kellar v. Richardson (5 Hun, 352) this court held that the question “To whom did you look for performance of the contract ? was improper; that the answer showed merely the thought, and not the act of the party,' and was not competent evidence.

In Betjemann v. Brooks (39 Hun, 649), the question was : “ In delivering the goods which were delivered during the administration of Mrs. Clapp, did you give the credit to Mrs. Clapp personally or to Mrs. Brooks. * * * Not on paper, but in your mind?” This question was objected to and allowed under the objection. Held, error.

In Merritt v. Briggs (57 N. Y., 652) the question was: “State on whose credit the cattle were bought ? ” Held, that the question was improper.

This error being fatal to this recovery, we do not feel called upon to examine the other questions raised as to the liability of Lotta McGill, as a married woman, upon the facts proved. The judgment must be reversed.

Learned, P. J., and Landon, J., concurred in result.

Judgment reversed, referee discharged, a new trial granted, costs to abide event.


author: Martin, J.:

text:
    DANIEL B. WOOD, Respondent, v. THE CITY OF WATERTOWN, Appellant, Impleaded with Others.

      Master and servant — sub-contractor, of one contracting with a city to do the entire work—the city is not liable for Ms negligence—proof of damage resulting from, loss of time.

    In an action to recover for injuries alleged to have been sustained through the negligence of the city of Watertown in the work of repairing a bridge over a branch of the Black river, within the limits of that city, it appeared that the bridge was out of repair, and that by reason of repairs being made thereon it was rendered impassable for teams, although it was used during the daytime by foot passengers; that, a few days before the accident, an alderman of the city, discovering that one of the shoes of the bridge was broken, directed the Bagley & Sewell Company to have new shoes put on. The shoes for the bridge were cast by that company, which employed Henderson and Hill, who were competent and skilled mechanics and fully qualified to do the work, to remove the old shoes and replace them with the new ones. While Henderson and Hill were engaged in this work the accident occurred, and the evidence tended to show that it was caused by their negligence.
    Upon the trial the court in its charge, in substance, instructed the jury that the city of Watertown was chargeable with any negligence of which the Bagley & Sewell Company, or its employees, Henderson and Hill, were guilty, and refused to charge that if the Bagley & Sewell Company was employed to do the job of taking off the eld and putting on the new shoes with its own men and its own means, and employed Henderson and Hill to help execute the work under its control, that the Bagley & Sewell Company was the superior and responsible for tbe conduct of tbe men, although the Bagley & Sewell Company was doing the work for the defendant, and that there could be no recovery against the city of Watertown for any accident happening by reason of the taking off of the shoes by the men in the employment of the Bagley & Sewell Company.

      Held, that as the act which the Bagley & Sewell Company was employed to perform was not in any way wrongful, and the plaintiff’s injury was not a necessary consequence of the direction to have such act performed, that the city of Watertown could not be held liable for the negligence of Henderson & Hill on the sole ground that they were acting in the employment of the Bagley & Sewell Company which was employed by the defendant.
    That the relation of master and servant did not exist between the city of Watertown and Henderson and Hill in this case.
    Where loss of time is claimed as an item of damage for personal injury occasioned by negligence, if the party fails to prove the value of the time lost, or facts upon which an estimate of such value can be based, only nominal damages can be given to him.
    Appeal by the defendant, tbe City of Watertown, from a judgment of tbe Supreme Court, entered in the office of tbe clerk of tbe county of Jefferson on tbe 15th day of November, 1888, in favor of tbe plaintiff and against tbe defendant, tbe City of Water-town, and from an order of tbe court denying a motion for a new trial, made on tbe minutes of the court, dated September 19, 1888.
    Tbe case came on to be tried at a Circuit Court held at tbe city of Watertown, Jefferson county, on tbe 10th day of September, 1888, before tbe court and a jury, at which tbe jury found a verdict for tbe plaintiff and against tbe defendant, tbe City of Water-town, for $1,000 damages

      Henry Purcell, for tbe appellant.

      S. O. Huntington <& Son, for tbe respondent.
   Martin, J.:

This action was founded on tbe alleged negligence of the appellant. On October 3, 1887, a bridge, which bad been erected over a branch of tbe Black river at a point within tbe corporate limits of tbe city of Watertown, fell into tbe river below. Tbe plaintiff was crossing it at tbe time and was injured by its fall. Tbe plaintiff’s claim of negligence was two-fold: 1. That tbe defendant was negligent in not warning the plaintiff, by notice or otherwise, of the dangerous condition of tbe bridge. 2. That its agents and employees carelessly and negligently performed the work of repairing the bridge which they had in charge, and that by reason of such negligence the plaintiff was injured.

The evidence disclosed that this bridge was out of repair, and that the city had employed the firm of Cleveland Bros, to repair its abutments; that, by reason of such repairs, the bridge was rendered impassable for teams while they were being made. The evidence, however, tended to show that it was used during the daytime by foot passengers; that the building of the abutments did not render it particularly unsafe for that purpose; and that the accident to the plaintiff was not in consequence of the repairing of the abutments.

A few days before the accident one of the defendant’s aldermen, John W. Spratt, who was also a member of the street committee of the board of aldermen, was at the bridge with the foreman of the Bagley & Sewall Company of Watertown, N. Y., when it was discovered that one of the shoes of the bridge was broken, and it was thought best to have new and heavier shoes put on each of tlm corners of the bridge at the northerly end. Spratt told the foreman of the Bagley & Sewall Company to have such shoes cast and put on. The Bagley & Sewall Company did an extensive business in furnace and machine work, molding and casting, in iron mainly, and in doing all kinds of iron job work. In pursuance of such direction the Bagley & Sewall Company cast shoes for this bridge, and then undertook to remove the old ones and replace them with the new. It employed for this purpose Henderson and Hill, who were competent and skilled mechanics and fully qualified to do the work. While the men thus employed were engaged in removing one of the old shoes the accident occurred. The evidence tended to show that it was caused by the negligence of the persons thus employed by the Bagley & Sewall Company.

On the trial the court charged: “ If the party who was engaged in repairing that truss was guilty of any omission of duty upon his part necessary to maintain the bridge in its place and to guard against accidents to those who might be upon it rightfully at the time, then, gentlemen of the jury, that omission would be an act of carelessness on the part of the defendant, represented by that party, for which it would be chargeable in this case. If, on the contrary, your own good judgments commend to you the conclusion that this skilled mechanic, in performing the work in the manner that he did, exercised that care and prudence which an ordinarily careful man, doing the same work, would have done, although this accident happened by reason of the breaking of the bolt, there was no carelessness on the part of the defendant or its representatives, and the defendant is entitled to your verdict.”

At the conclusion of the charge the appellant’s counsel requested the court to further charge: “ That if the jury find the accident in question resulted from the taking off of the shoe at the north-east corner, and that the defendant was guilty of no negligence in employing the Bagley & Sewall Company in taking it off and putting a new one in its place the negligence of the Bagley & Sewall Company, if any, cannot be imputed to the defendant.”

To this request the court replied: “ The negligence of the Bagley & Sewall Company as an independent firm can hardly be attributable to the defendant. The party employed in taking off the shoe, being in the employ of the defendant, if he was guilty of any act of negligence, the defendant is chargeable with that, irrespective of the Bagley & Sewall Company.”

Defendant’s Counsel — I understand that your honor declines to charge the proposition as requested.

The Court — I don’t think I will say any more than I have said upon that proposition.

Defendant's counsel duly excepted to the refusal to charge as requested.

Defendant’s counsel also asked the court to charge “ that it does not appear that the Bagley & Sewall Company was the servant of the defendant in taking off the old and attempting to put on the new shoe, and asked the court to charge the jury that, upon the undisputed evidence, the relation of master and servant did not exist.”

The Court — “No, I cannot charge that. If the jury find the evidence of Spratt to be true, that he engaged the Bagley & Sewall Company to put on the new shoe, and they confided the work to their subordinate, the party who was engaged in it, and the Bagley & Sewall Company, as well as the subordinate, would occupy the position of servant to the defendant.”

Defendant’s Counsel — “ To your honor’s qualification I desire to except, and to the charge, as made, I also desire to except.”

Defendant’s counsel also requested tbe court to charge the jury : “ That, upon the undisputed evidence, the persons actually engaged in taking off the shoe in question, to wit, Henderson and Hill, at the time of the accident, were the servants of the Bagley & Sewall Company, and not of the defendant,” which the court declined to charge, and defendant’s counsel duly excepted, and also excepted to the chai'ge as made.”

Defendant’s counsel also requested the court to charge the jury: “ That, if they find that the Bagley & Sewall Company was employed to do the job of taking off the old and putting on the new shoe, with its own men and its own means, and employed others, to wit, Henderson and Hill, to .help to dp or to execute the work for and under its control, the Bagley & Sewall Company is the superior, and responsible for the conduct of the men, nothwithstanding the Bagley & Sewall Company was doing the work for the defendant, and that there can be no recovery for any accident occurring because of taking off the shoe by the men in the employ of the Bagley & Sewall Company.”

The court refused to charge the proposition as stated, to which refusal the defendant duly excepted.

The court by its charge instructed the jury that the city oí Watertown was chargeable with any negligence of which the Bagley & Sewall Company, or its employees, Henderson and Hill, were guilty, and refused to charge that if the Bagley & Sewall Company was employed to do the job of taking off the old and putting on the new shoes, with its own men and its own means, and employed Henderson and Hill to help execute the work under its control, that the Bagley & Sewall Company was the superior and responsible for the conduct of the men, although the Bagley & Sewall Company was doing the work for the defendant, and that there could be no recovery for any accident by reason of taking off the shoe by the men in the employ of the Bagley & Sewall Company. It is claimed by the appellant that this was error.

In examining the validity of these exceptions, without deciding the question, we will assume that the alderman who employed the Bagley & Sewall Company to do this work had power to act for the defendant in thus employing it. Assuming that such power existed, did the employment proved render the defendant liable for the negligence of tbe persons furnished by tbe Bagley & Sewall Company to do tbe work ? It cannot be pretended that tbe act wbicb this company was employed to perform was in any way wrongful, nor that tbe plaintiff’s injury was the necessary consequence of tbe direction to have such act performed. Tbe most that can be claimed in this case is that Henderson and Hill, who were doing tbe work on tbe bridge for tbe Bagley & Sewall Company, were negligent, and plaintiffs injury resulted from such negligence.

Tbe appellant’s claim, that the above exceptions to tbe charge and refusals to charge were well taken, must be sustained, unless tbe relation of master and servant existed between tbe defendant and the persons who were guilty of tbe negligence wbicb caused the accident, if tbe accident was tbe result of negligence.

Tbe defendant cannot be held liable for tbe negligence of Henderson and Hill on tbe sole ground that they were there acting in pursuance of an employment of tbe Bagley & Sewall Company by tbe defendant. “ It is not enough, in order to establish a liability of one person for tbe negligence of another, to show that tbe person whose negligence caused tbe injury was at tbe time acting under an employment by tbe person who is sought to be charged. It must be shown, in addition, that tbe employment created tbe relation of master and servant between them.” (King v. N. Y. C. and H. R. R. R. Co., 66 N. Y., 181, 184.)

Did tbe relation of master and servant exist between tbe defendant and Henderson and Hill ? In examining this question it will be remembered that tbe only evidence of any action on the part of the defendant was, that one of its aldermen, who was a member of its street committee, directed tbe Bagley & Sewall Company to have new and heavier shoes cast and placed under tbe bridge. There were no directions as to tbe manner in which tbe work was to be done, as to tbe persons who should be employed to do it, as to tbe means to be used in removing tbe old shoes and replacing them with tbe new ones, nor as to the manner in which tbe bridge should be supported while this was done. Henderson & Hill were not selected by tbe defendant to do this work, nor were they in any way under its control. The work was to be done and the materials funished by the Bagley & Sewall Company: The services were to be rendered and the materials furnished in the course of an independent occupation, which represented the will of the defendant only as to the result of the work, and not as to the means by which it was to be accomplished. The important question presented here is whether, under these circumstances, it could be properly held that the relation of master and servant existed between the defendant and the persons employed by the Bagley & Sewall Company to do this work, or whether the Bagley & Sewall Company was an independent contractor.

“As a general rule, where a person is employed to perform a certain kind of work, in the nature of repairs or improvements to a building, by the owner thereof, which requires the exercise of skill and judgment as a mechanic, the execution of which is left entirely to his discretion, with no restriction as to its exercise and no limitation as to the authority conferred in respect to the same, and no provision is especially made as to the time in which the work is to be done, or as to the payment for the services rendered, and the compensation is dependent upon the value thereof, such person does not occupy the relation of a servant under the control of the master, but he is an independent contractor, and the owner is not liable for his acts or the acts of his workmen who are negligent and the cause of injury to another. If the owner of a building employs a mechanic to make repairs upon the same without any specific arrangement as to the terms and conditions, such employment is in the nature of an independent contract which imposes upon the employee the responsibility incurred by acts of negligence caused by himself or those who are aiding him in the performance of the work.” (Hexamer v. Webb, 101 N. Y., 377, 383; see, also, Blake v. Ferris, 5 id., 48; Pack v. Mayor, 8 id., 222; Kelly v Mayor, 11 id., 432; McCafferty v. S. D. and P. M. R. R. Co., 61 id., 178; Ham v. Mayor, 70 id., 462; Town of Pierreport v. Loveless, 72 id., 211; Devlin v. Smith, 89 id., 470; Herrington v. Village of Lansingburgh, 110 id., 145.)

We think the authorities cited decisive of the question under consideration, and that it must be held that the relation of master and servant did not exist between the defendant and the Bagley & Sewall Company, or between the defendant and the persons assigned by the Bagley & Sewall Company to repair this bridge, but that the Bagley & Sewall Company was an independent contractor to make tbe repairs directed. It, therefore, follows that the defendant’s exceptions to the charge, and to the refusal of the court to charge as requested, were well taken.

But it is said that the defendant was negligent in not preventing the use of this bridge or giving travelers notice of its dangerous condition. The learned counsel for the respondent, in his brief¿ concedes that “ when plaintiff and son commenced crossing, and until they had got about two-thirds of the way over, and until the last fatal blow was given upon the nut, the bridge was, in fact, safe.” If that was the case, it is difficult to discover how or in what manner the defendant was negligent. It had no notice, either actual or constructive, that the bridge had or was about to become unsafe. It had a right to assume that the work would be done by its contractor in a careful and proper manner. The learned counsel for the respondent, in his brief, again says: To all appearances the bridge was unsafe (for teams) or unfit • for teams, but safe for footmen to cross.” If this was so, it cannot be readily perceived how the defendant was negligent in not preventing the use of the bridge by persons desiring to pass over it on foot.

If, however, we were to assume that it was a question of fact for the jury whether the defendant was negligent in not preventing the use of the bridge, or in not giving notice to travelers that it was unsafe, that would not justify us in disregarding the error of the court in charging that the defendant was liable for the negligence of Henderson and Hill, as the jury may well have based its verdict solely upon the theory of such liability.

The court also charged : “ He (the plaintiff) is entitled, by way of remuneration, to recover the value of the time which he has lost by reason of this accident, if he can recover at all. What that is worth is left entirely to speculation. There is no evidence that he was engaged in any particular pursuit, or that he was enabled to earn any particular wages. Indeed, what his business was, or what his capacity was, for earning at the time of the accident, seems to have been left entirely out of the case. But he was forty-six years of age; his own evidence shows he was enjoying good health* capable of laboring, and whatever, in your good judgment, his time is worth, founded upon the evidence in the case, which he lost by reason of the immediate results of the injury which he sustained, he is entitled to recover as damages in this case.” To this portion of the charge the defendant’s counsel excepted as follows:

DepeNdaNt’s Counsel—“We also except to so much of your Honor’s charge as submits to the jury the question of the value of the plaintiff’s time as an element of damages, for the reason that there is no evidence to show what the value of his time was.”

The Ocukt — “• I think I will leave the question as I have suggested it, upon the evidence of the age of the party; that he was a mason by trade, and that up to the time of the injury he was enjoying good health, and, for aught that appears, was of good habits. Upon the evidence the jury have some basis upon which they can ascertain the value of his services at the time.”

Defendant’s Counsel — “We also except to the supplemental charge.”

Where loss of time is claimed as an item of damages for personal injuries occasioned by negligence, if the plaintiff fails to prove the value of the time lost, or facts on which an estimate of such value can be found, only nominal damages for that item can be given. (Leeds v. Metropolitan Gas-Light Co., 90 N. Y., 26.) In the case cited it was proved that the plaintiff was engaged in business at the time of the injury, but had not been able to attend to it since. It was not shown what his business was or the value of his time, or any facts as to his occupation, from which the value could be estimated. The court charged that plaintiff, if entitled to a verdict, was entitled to recover compensation for the time lost. Held, error, as the jury was left to guess or speculate upon the value of the lost time without any basis in that respect for the judgment to rest upon. We think the case cited is decisive of this question, and that it was error to charge that the plaintiff was entitled to recover the value of the time which he had lost by reason of this accident. As was well said by the judge in his charge, what that time was worth was left entirely to speculation. There was no evidence that he was engaged in any particular pursuit or that he was enabled to earn any particular wages. Indeed, what his business was, or what his capacity was, for earning at the time of the accident, seems to have been entirely left out of the case. The effect of the instruction was to leave it to the jury to speculate as to the value of tbe time wbicli was lost by reason of this accident. We think the charge was clearly within the principle of the decision of the case above cited, and that it was erroneous. The doctrine of the Leeds Gase, so far as applicable to the case at bar, is in no way affected by the doctrine of the People ex rel. Deverell v. M. M. P. Union (118 N. Y., 101), as in the latter case there was evidence upon which to base an estimate of the damages. As was said by the learned judge who delivered the opinion in that case: The question in this respect differed from that in the Leeds Gase.”

An examination of the appeal book upon which the case in 118 New York was heard in the Court of Appeals shows that the relator’s evidence was to the effect that while he was a member of the respondent union his income was from twenty-five to thirty dollars per week, and that after he was expelled it did not exceed five dollars a week. Therefore, in that case, there was evidence upon which a claim for damages could be based with some degree of certainty. In the case at bar there was no such evidence. The value of the plaintiff’s time was left to the mere guess or speculation of the jury.

For the errors pointed out we think the judgment and order appealed from should be reversed.

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

HaediN, P. J., and MeewiN, J., concurred.

Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.