text:
    HARRIET D. GREEN, Respondent, v. HARRIET E. GRISWOLD, Impleaded, &c., Appellant.

      Judgment creditor, action by, to recover moneys due to judgment debtor.

    It appeared on the trial that the judgment debtor had deposited the moneys in question with the Union Trust Company ; that the account was with “William N. Griswold in trust,” and there was no designation of any kind as to the trust, nor as to any person for whose benefit the trust was created. It was an obligation on the part- of the Trust Company to the judgment debtor, personally, and would remain such in its character until legally applied to the legitimate claim of a third person. On these facts alone the plaintiff as judgment creditor would be entitled to a judgment, and the appellant was bound to establish, on the trial, affirmatively, that equitably, the moneys should be paid to her, as being the remainder of moneys that belonged to her. The trial judge found that the appellant had not established by credible witnesses that her money had been deposited, but did find that the moneys belonged to the judgment debtor, and it is not material that this finding was found as a conclusion of law. It must be sustained and upholds the judgment.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided May 6, 1889.
    Appeal by defendant from judgment entered on findings of fact and conclusions of law, at special term.

      Royal S. Crane, attorney, and Anthony R. Dyett, of counsel, for appellant.

      George Walton Green, attorney and of counsel, for respondent.
   By the Court.—Sedgwick, Ch. J.

The action was by a judgment creditor of William N. Griswold. The complaint alleged that the defendant, the Union Trust Company, had an account with Griswold, of money deposited by Mm with them, and a certain sum was then due to him on that account; that Harriet E. Griswold, the present appellant, claimed that the said money belonged to her as being deposited in trust for her by William N. Griswold, her husband ; that in fact the money so deposited was the money of the husband, and asked judgment that the Trust Company pay the money due on the account to the plaintiff, in payment pro tanto of the judgment.

William N. Griswold was served, but failed to answer.

The appellant answered, claiming that the money due on the account belonged to her, as representing money belonging to her, deposited in trust for her.

The judgment was for the plaintiff.

The learned counsel for the appellant urged, that the plaintiff was bound to show that no other parties than the judgment debtor were the beneficiaries of the deposit, and that it was not enough to entitle her to judgment, that it appeared that the appellant was not a beneficiary. This proposition has no value in this case, because the defendant’s witness testified, that no one but the appellant was interested in the fund. He declared, in effect, that the balance of the account was wholly of money belonging to her.

It appeared on the trial for the plaintiff that the moneys, with others, had been deposited by the judgment debtor in fact, and that the account was with “ William N. Griswold in trust.” There was no designation of any kind of trust, or of any person for whose benefit the trust was asserted. The chose in action which this action sought to appropriate, consisted of an obligation by the bank to the judgment debtor personally, and would remain such, in its character, until legally applied to the legitimate claim of a third person. If these were all the facts, the plaintiff would be entitled to judgment without further proof. The appellant, therefore, was on the trial bound to establish affirmatively that equitably the balance of the account should be paid to her, as being the remainder of moneys belonging to her.

To support the judgment below, it would be sufficient if the judge found that the appellant had not established, by credible witnesses, that her money had been deposited. The judge did find that the balance represented moneys belonging to the judgment debtor. It is not material that this was found as a conclusion of law. This finding must be sustained and must uphold the judgment. It was supported by the facts which have been referred to as showing, prima faciei a cause of action in the plaintiff. It was further supported by the determination of the judge as to the credibility of defendant’s witness, and by his exercise of the power to accept or reject, wholly or partly, the testimony of the judgment-debtor, called as a witness for defendant. The judge had the right to determine whether the particular -facts that he deemed to be established were consistent or inconsistent with the trust that the defendant claimed existed in her behalf. It was the duty of the judge to consider what was signified by the defendant not testifying as a witness in - her own behalf. She must have known of the existence or non-existence of facts which would show whether or not her husband was a trustee for her.

A question put to the witness Van Pelt was objected to. The answer that was made did not injure the plaintiff, for it consisted of a narration of a conversation between the witness and the judgment-debtor, which contained declarations by the latter in accordance with his testimony as a witness. There was a part of the answer that was irresponsive to the question and for which the plaintiff was not accountable.

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

The order appealed from that amended the complaint was not injurious to the defendant, and was properly granted in the discretion of the Court.

The order. appealed from is affirmed with $10 costs.

Freedman, J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    WILLIAM NETHERCOTT, Appellant, v. JAMES KELLY, Impleaded, &c.. Respondent. .

      Guardian and Ward.—Their relations and liability.—Dismissal of complaint on the trial, on the ground that it does not state facts sufficient to constitute a cause of action.

    An action brought against a guardian and ward based upon a contract with the guardian for the board and lodging of the ward while an infant, cannot be maintained against the infant after he becomes of age, especially after judgment has been recovered against the guardian on such contract. The plaintiff must look to the guardian only for payment.
    The objection that the complaint does not state facts sufficient to constitute a cause of action is not waived if not expressly taken by demurrer or answer, but may be made at the trial. It is an objection every plaintiff is hound to meet at the trial if then and there made.
    ■ Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 6, 1889.
    Appeal by plaintiff from judgment dismissing complaint.

      W. T. Birdsall, for appellant.

      Gibson Putsel and Eustace Conway, for respondent.
   By the Court.—Freedman, J.

On May 31st, 1888, James Kelly obtained an order vacating as against him, and on terms which were complied with, the ' judgment entered against him by default, and leaving the judgment standing as against the guardian of his estate, the defendant Charles A. Hess. The order provided, among other things not necessary to be mentioned, that James Kelly serve a verified answer to plaintiff’s amended complaint, and that the issue so formed be tried as a common law action before a jury, as if the action were served and tried separately as to James Kelly.

A verified answer having been served to the said amended complaint, the plaintiff brought the issue so formed to trial. At such trial the defendant, James Kelly, moved for a dismissal of the complaint on the ground that, as to him, the amended complaint did not state a cause of action. The motion was granted, the complaint dismissed, and judgment entered accordingly, and the plaintiff appealed..

Under § 499 of the Code of Civil Procedure, the objection that the complaint does not state facts sufficient to constitute a cause of action, is not waived if not expressly taken by demurrer or answer, but may be made at the trial. It is an objection which every plaintiff is bound to meet at the trial, if then and there raised. The plaintiff was therefore bound to see to it, at his peril, that his amended complaint was sufficient as against the defendant, James Kelly, and the real question presented by the appeal is whether it was sufficient for that purpose.

In my opinion it is clearly insufficient upon its face, irrespective of the question whether the cause of action attempted to be set forth is one- at law or in equity. The object of the plaintiff is to obtain a money judgment against James Kelly, now of full age, for board and lodging, etc., furnished to him, while an infant, under a contract made between the plaintiff and the guardian of the estate of James Kelly, with the knowledge and consent of the executor of the estate in which James Kelly is interested as a devisee. It appears that by the terms of the will of the deceased mother of James Kelly it became the duty of the guardian and of the executor to apply the rents, and, if necessary, the proceeds of the realty, to the support of the infant, and that the guardian, in the discharge of this duty, contracted with the plaintiff for the infant’s support. In such a case the plaintiff must look to the guardian only for payment. Ryan v. Boltz, 48 N. Y. Super. Ct. (16 J. & S.) 152.

Several considerations have been urged why in this case, an exception should be made to the rule last referred to. They have received careful attention, but have been found to be untenable. Moreover the record shows that the plaintiff did recover judgment in this action against the guardian.

The refusal of the trial judge to allow the amended complaint to be further amended, was discretionary, and upon the facts presented the exercise of that discretion cannot be disturbed.

The judgment should be affirmed with costs.

Sedgwick, Ch. J., and O’Gorman, J., concurred.


text:
    DANIEL M. DAVIDSON, Appellant, v. PERRIN H. SUMNER, Respondent.

      False and fraudulent representations,—Damages for same.

    In an action to recover damages for false and fraudulent representations concerning a certain mine, the defendant denied the fraud, and set up a distinct and separate defence, to the effect that the plaintiff, with full knowledge of all the facts alleged in his complaint, had for a legal consideration, fully released and discharged the defendant of and from all claims and demands arising in any way from any and all of the transactions stated in his complaint, and on the trial the release described in the answer was fully established; and it also appeared that prior to the execution and delivery of said release, that the plaintiff had in his possession a certain affidavit made by a third person as to a number of facts which showed fraud to some extent, ou the part of the defendant, in the original transaction. The trial judge thereupon ruled that, in order to succeed, the plaintiff was bound to show that the release had been obtained by fraud, and also, that the plaintiff had returned or offered to return the money and property received under the release. The counsel for plaintiff admitted that no such return nor offer of return had been made, and upon such admission the court excluded all further evidence offered in support of the claim of fraud in the original transaction, and finally directed a verdict for defendant.

      Held, that in case the compromise agreement was obtained by fraud, the plaintiff had a cause of action by reason thereof, and had an election of remedies. He was not bound to rescind and return or offer to return the consideration received. He had a right to retain the consideration and to sue for the damages he had sustained by reason of the fraud, by means of which he was induced to enter into the compromise agreement. The original fraud had been-released by the compromise agreement, and to recover upon that fraud it was necessary to get rid of the effect of the compromise agreement and release, and to do this it became necessary to prove a fraud in the compromise and a return or offer to return of the consideration received for the same. These results called for an affirmance of the order vacating the order of arrest, in the action.
    Before Sedgwick, Ch. J., Freedman and.O’Gorman, JJ.

      Decided May 6, 1889.
    Exceptions taken by the plaintiff ordered to. be heard at general term in the first instance.
    Also appeal by plaintiff from order vacating order of arrest.

      Charles Howard Williams, attorney for appellant, argued:—
    I. The evidence shows, and the court assumed for the purposes of argument, that the fraud alleged in the complaint was proven. The allegations of the complaint and the testimony of the plaintiff are to the effect that defendant while acting as the agent and trustee of plaintiff, made false representations to plaintiff, knowing them to be such, and thereby induced plaintiff to part with property from time to time to the defendant, until the latter had stripped the former of every dollar he had. These facts are assumed by the court to be proven.
    II. The exclusion of testimony as to the relations of the defendant and his accomplice in the fraud perpetrated upon plaintiff as shown by the admissions of the' accomplice made to the plaintiff was error.
    III. The release is void, and the plaintiff cannot be required as a condition precedent to giving evidence tending to show the nullity of the release, to return to defendant what was already the plaintiff’s, and the plaintiff has the further right to show under the contract and release—contemporaneous instruments —that he received nothing else than what belonged to him. (1) A release is “ presumptive ” only, on its face ; it is not “ conclusive.” Anthony v. Harrison, 14 Hun, 196. (2) The release is void, because it was executed under duress—plaintiff and his family being upon the verge of starvation—and the evidence offered, showing constraint amounting to duress, should have been received. Thomas v. McDaniel, 14 Johns., 185; McPherson v. Cox, 86 N. Y., 472. Solinger v. Earle, 82 Ib., 393. (3) The release is void, because it was executed by plaintiff without full knowledge of the prior frauds of defendant concerning the claims released. (4) The release is void, because the relation of trustee and cestui que trust between defendant and plaintiff has been shown and uncontradicted, and fraud also shown. The release becomes a nullity until the defendant shows a contrary state of facts to exist, the onus being thus shifted upon him. It is clear that where a fiduciary relation exists, as that of “ agent and trustee ” as the case at bar, there is practically no such thing as a “ release,” except where it is shown that not the slightest suspicion of fraud or undue influence exists. Dunn v. Chambers, 4 Barb., 376.
    IY. Rescission or disaffirmance of a contract or release and tender back is not necessary to recover damages for fraud. A plaintiff has the choice of two remedies. He may sue for a rescission, or he may treat the whole as a fraud, retain what he has received, and recover a balance for the damages sustained. Krumm v. Beach, 96 N. Y., 398; Gould v. Cayuga, etc., Bank, 99 Ib., 333; Pearse v. Pettis, 47 Barb., 276; Hubbell v. Meigs, 50 N. Y., 480.

      Miller & Savage, attorneys, and George W. Miller of counsel, for respondent, argued :—
    The ruling of the court was correct, and the exceptions should be overruled and judgment directed for the defendant upon the verdict, with costs. (1) The agreement and release were perfect answers to the action upon their face. This is too plain to admit of argument. (2) The effect of these papers could only properly have been destroyed by allegations in the complaint, and proof upon the trial, sustaining such allegations to the effect that they had been obtained by fraud, and that the money and property received by the plaintiff in consideration of their execution, had been duly returned or tendered to the defendant before the commencement of the action. Although there were no such allegations in the complaint, yet the court at the trial offered to allow, and did allow plaintiff to show, if he could, such facts. But they were not shown, and it was admitted on the part of the plaintiff that they did not exist, and that no offer to return the money or property had, in fact, been made. (3) It is too well established to admit of discussion that, where a party seeks to rescind a transaction on account of fraud, he must restore to the opposite party what he received in consideration of the transaction. Cobb v. Hatfield, 46 N. Y, 533 Dambman v. Schilling, 75 Ib., 61; Baird v. The Mayor, &c., 96 Ib., 598. (4) But in this case the parties having deliberately compromised the disputed claim, and executed solemn release, each to the other, neither could rescind or avoid the effect of the releases on the ground of fraud without acting promptly upon the discovery of the fraud and restoring or offering to restore to the other party whatever he had received by virtue of it, if of any value, and a tender must be without qualifications or conditions. This was expressly held, and the law upon the whole subject thoroughly reviewed in Gould v. Cayuga County Bank, 86 N. Y, 75.
    In the case cited the trial court found that the bonds claimed by the plaintiff had been lent to the defendant, as alleged, and not returned. That the compromise agreement which was set up in the defence by defendant, was made, and that the plaintiff was induced to enter into it by the fraud of the defendant. But it decided that the plaintiff could not recover solely because he did not before the commencement of the action return or offer to return the money paid to him under the compromise agreement, and therefore it dismissed his complaint. The same view of the case was taken at general term and affirmed in the Court of Appeals. On page 79 (86 N. Y.) after stating the above facts, Earl, J., says : “ The compromise agreement unless annulled, is an absolute bar to this action. It is a general rule laid down in the text books and reported cases that a party who seeks to rescind a contract into which he has been induced to enter by fraud must restore to the other party whatever he has obtained by virtue of the contract. He cannot retain anything he received under the contract, and yet proceed in disaffirmance thereof.” He then proceeds to review the cases, and refers particularly to all the exceptions to the general rule.
   By the Court.—Freedman, J.

The order of arrest having been vacated at special term on the sole ground that the jury, under the direction of the court, had found a verdict for the defendant, it is deemed expedient to proceed at once to the examination of the questions raised by the exceptions taken by the plaintiff at the trial.

The action was brought to recover damages for false and fraudulent representations concerning a certain mining property, by means of which the defendant had obtained from the plaintiff several sums of money and other property.

The answer denied the fraud and then set up, as a distinct and separate defence, that the plaintiff, with full knowledge of all the facts and circumstances alleged in his complaint, had, for a due and legal consideration, fully released and discharged the defendant of and from all claims and demands arising in any way from any and all of the transactions stated in the complaint.

At the trial it conclusively appeared in the course of the cross-examination of the plaintiff that, subsequently to the transactions sued upon, a compromise agreement was made between the parties, that as part thereof the plaintiff executed, under his hand and seal, and delivered to the defendant the release referred to, and that in consideration therefor the plaintiff received from the defendant certain money and clothing. It also appeared that at and prior to the time of the execution and delivery of such release, the plaintiff had in his possession a certain affidavit made by a third person as to a number of facts which showed fraud to some extent in the original transaction.

The trial judge thereupon ruled that, in order to succeed, the plaintiff was bound to show that the 'release had been obtained by fraud, and that the plaintiff had returned or offered to return the money and property received under the release.

The counsel for the plaintiff admitted that in point of fact no such return or offer to return had been made, and upon such admission the court excluded all further evidence offered in support of the claim of fraud in the original transaction, and finally directed a verdict for the defendant, and ordered plaintiff’s exceptions to be heard at general term in the first instance. The exceptions necessary to be considered all relate to this disposition of the . case.

The disposition made was correct. True, if the compromise agreement was obtained by fraud, the plaintiff had a cause of action by reason thereof. He also had an election of remedies. He was not bound to rescind and to return or offer to return the consideration received. He had aright to retain the consideration and to sue for the damages sustained by reason of the fraud by means of which he was induced to enter into the compromise agreement. Gould v. Cayuga Co., National Bank, 99 N. Y. 333, But that is not plaintiff’s action.

The present action was brought upon the fraud in the original transaction. But that fraud had been wiped out by the compromise agreement and the release and the payment of a new consideration. To recover upon that fraud, the plaintiff had to get rid of the effect of the compromise agreement and of the release, which were not void, but only voidable, and this he could only do by proof of a new fraud in the compromise and a return of an offer to return the consideration then and there received. Gould v. Cayuga Co. National Bank, 86 N. Y. 75; Kibbe v. Bowen, 50 N. Y. Super. Ct. (18 J. & S.) 422.

For the foregoing reasons the rulings of the trial judge were entirely correct even if the relation which existed between the parties was of a fiduciary character. Moreover the complaint contained no allegation of fraud in the compromise.

The result already arrived at calls for an affirmance of the order vacating the order of arrest.

Plaintiff’s exceptions should be overruled and judgment ordered for the defendant on the verdict with costs, and the order vacating the order of arrest should be affirmed with $10 costs.

Sedgwick, Ch. J., and O’G-orman, J., concurred.


text:
    FRANKLIN S. CLARK, Respondent, v. THE FERNOLINE CHEMICAL COMPANY, Appellant.

      Master and servant.—Action for services actually rendered at a stipulated price.—Defence in.

    In cases where the servant has not fully or skilfully performed his contract of employment, it is now settled that such a failure is no bar or defence to an action for the services rendered; the only remedy of the employer in such action is to recoup the damages sustained by him.
    In the case at bar, it' was claimed that plaintiff had agreed that any new products or processes discovered by him while in the service of the defendant should be for the benefit of defendant. That he made discoveries of new products and processes, but refused to disclose them, and insisted upon retaining the same for his own benefit. Under such a contract the employer acquires no right or title to the discoveries of his employee, but simply a license to use them.
    Before Sedgwick, Ch. J., Freedman and O’Gtorman, JJ.

      Decided May 6, 1889.
    Appeal by defendant from judgment in favor of the plaintiff entered upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.

      Edward M. Shepard, attorney and of counsel, for appellant.

      Blandy & Hatch, attorneys, and Charles Blandy, of counsel, for respondent.
   By the Court.—Freedman, J.

The appellant asked for the consideration and determination of but one question, and this arises upon certain rulings made by the trial judge, by which the defendant was denied the benefit of certain matters urged as a defence to plaintiff’s claim for salary alleged to be due to him as a discharged employee. The action was brought for services actually rendered at the agreed rate of $65.00 per month, and not for damages for wrongful dismissal. The recovery had was limited to salary accrued up to the day of the discharge as found by the jury. The defendant had pleaded by answer, and upon the trial offered tó prove the following, viz.:

“That the agreement between the plaintiff and defendant, whereby the plaintiff entered into the employment of the defendant, was an agreement for the employment of the plaintiff in the capacity of a chemical expert and chemist, and that the plaintiff should, until his employment should be terminated by the defendant, chemically work with the defendant’s products, and endeavor to develop and discover new products and processes for the benefit of the defendant. Under such agreement the plaintiff did enter into the employ of the defendant. But contrary to the terms of said agreement, the plaintiff, in the spring of 1887, refused to disclose to, or give the benefit of his discoveries to the defendant, but insisted on retaining said discoveries for his own benefit. Thereupon, and on the 7th day of June, 1887, the defendant terminated said contract and discharged the plaintiff from its employment.”

The court at the trial excluded all evidence offered upon this branch of the case, except as to the discharge and the time thereof, and held that, as matter of law, the plaintiff was entitled to his salary up to the day of his. discharge, to which rulings the defendant duly excepted.

The defendant raises no question as to the amount of the recovery, and consequently the real question involved in the appeal is whether the rejected evidence, if admitted, would have defeated the entire claim of the plaintiff for salary prior to his discharge.

In my opinion it would, and could not have had that effect.

The case sufficiently sliows that the real point of difference between the parties was that the plaintiff refused to assign to the defendant some patents taken out by him for his discoveries. This the defendant was not entitled to under the decision of Hapgood v. Osgood, 119 U. S. 226. In that case it was held that under a contract like the one in question the employer acquires no right or title to the discoveries of his employee, but simply a license to use them.

But even if it should be assumed that the defendant would have proved all that was alleged, it does not follow that such proof would have sustained a forfeiture of salary accrued. The plaintiff had rendered service, and it had been accepted. There was no actual dishonesty or fraud. The plaintiff simply took an untenable position as to his rights under the contract, which justified the defendant in terminating the contract. Moreover, under the concessions made by the appellant in the points submitted, the case is to be treated as if the plaintiff had rendered service without objection for the entire period for which he had been engaged. The case is, therefore, analogous to one in which the servant did not fully perform, or unskillfully performed, his contract of employment. In such a case it is now settled that failure to fully perform, or unskillful performance, is no bar or defence to an action for services rendered, and that the only remedy of the employer in such action is to off-set or recoup the damages sustained by him. Turner v. Kouwenhoven, 29 Hun, 232, affirmed in 100 N. Y. 115.

As the facts excluded were set up as a defence, and not as a set-off or counterclaim or by way of recoupment, the defendant was not prejudiced by the exclusion.

The judgment and order appealed from should be affirmed with costs.

Sedgwick, Oh. J., and O’Gorman, J., concurred.


author: By the Couet.—Feeedman, J.

text:
    JOHN YOUNG, Respondent, v. WILLIAM LYALL, Appellant.

      Malicious prosecution, action for, what the plaintiff must establish.

    In an action for malicious prosecution the plaintiff must establish (1) The want of probable cause for the complaint made, and (2) malice in the defendant. Upon both of these propositions the plaintiff holds the affirmative. Probable cause does not depend upon the fact that the offence charged was committed or not, or whether the defendant was innocent or guilty of the offence charged, but depends upon the question whether the prosecutor had reasonable grounds for believing that he had the right to prefer the charge in question against the defendant. So, malice is not necessarily inferrible from want of probable cause. Unless the circumstances showing want of probable cause justify the inference of malice, the plaintiff must establish malice by additional evidence.

      Held, that the case at bar was a proper case for submission to the jury, and that the direction of a verdict in favor of defendant would have been erroneous.
    Before Sedgwick, Ch. J., Freedman and O’G-orman, JJ.

      Decided May 6, 1889.

      Appeal by defendant from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.

      John H. V. Arnold, attorney and of counsel, for appellant.

      Kelly & MacRae, attorneys, and William F. Mac-Rae, of counsel, for respondent.
   By the Couet.—Feeedman, J.

The action is for the recovery of damages for malicious prosecution. The charge made by the defendant against the plaintiff was grand larceny.

At the trial both parties gave evidence, and the issues were submitted to the jury under instructions which, if the case was one for the jury, carefully guarded every right the defendant had. There was no error in the charge or in the refusals to charge otherwise. The defendant insists, however, that either the complaint should have been dismissed or that a verdict should have been directed in his favor. The exceptions taken call for the consideration and determination of these points.

In an action for malicious prosecution the plaintiff must establish (1) the want of probable cause for the complaint made, and (2) malice in the defendant. Upon both propositions he holds the affirmative. The question of probable . cause does not depend upon whether, in fact, the offence charged was committed or not, nor whether the accused was guilty or innocent, but upon the question whether the prosecutor had reasonable grounds for believing that he had a right to prefer the charge which he made. For the same reason the mere fact that the prosecution terminated in favor of the accused, is not of itself evidence that probable cause did not exist. So, malice is not necessarily inferrible from want of probable canse. Unless the circumstances showing want of probable cause justify also the inference of malice, the plaintiff must establish malice by additional evidence.

The evidence shows that when the plaintiff rested, he had made out a prima facie case under these rules. It, therefore, remains to be seen whether the-evidence given by and on behalf of the defendant called for the direction of a verdict in defendant’s favor.

The defendant claimed that he had no personal knowledge of the matters which constituted the foundation of the charge ; that he relied upon information derived from the foreman of his factory ; that such information was to the effect that, on plaintiff’s discharge from defendant’s employ, certain small pieces of machinery upon which, with others, the plaintiff had been at work, were discovered in plaintiff’s trunk ; that he, the defendant, had laid the facts before a police magistrate, who concluded that they constituted grand larceny ; and that it was this conclusion reached by the police magistrate, and not malice, which led the defendant to make the affidavit upon which the prosecution proceeded.

But it also appeared that there was an explanation concerning the articles discovered in plaintiffs trunk which the defendant could have readily had and which he made no effort to get; that in view of the relations between the parties and the character of plaintiff’s employment and the nature of the work he had been doing, the defendant should have hesitated to charge larceny; that no larceny had been committed; that to defendant’s personal knowledge plaintiff’s trunk had not been removed from defendant’s premises at the time of the alleged discovery; that the defendant had submitted to the police magistrate the incriminating circumstances without disclosing the extenuating circumstances; that the application to the police magistrate had not been made at or about the time of the discovery, but five days thereafter; and that in the meantime the plaintiff, through lawyers retained for that purpose, had demanded from the defendant the settlement of a certain claim with-notice that, if not paid, suit would be brought.

Upon these and other circumstances, not necessary to be specifically mentioned, the case was one for the jury, and the direction of a verdict in favor of the defendant would have been erroneous.

The judgment and order appealed from should be affirmed with costs.

Sedgwick, Ch. J., and O’Gorman, J., concurred.


text:
    THE NEW YORK LIFE INSURANCE COMPANY, Appellant, v. JAMES AITKIN, as Executor, etc., Respondent.

      Deed and mortgage.—Assumption of mortgage and covenant for its payment by grantee, in the conveyance of real estate subject to an outstanding mortgage lien.

    On the trial of the case at bar, the complaint was dismissed on the ground that in the deed to defendant’s testatrix, which contained the assumption clause, the description of the mortgage assumed was erroneous, and parol evidence was inadmissible to correct the erroneous description and show what mortgage was intended to be assumed by the grantee.

      Held, that this ruling was erroneous. That this case was one in which the mistake appears from the instrument itself, and where the intent of the parties can be ascertained, beyond a doubt, by parol proof of'existing and undisputed facts and circumstances connected with the property, its conveyance and the mortgage in question. In such a case the law will enforce the obligation according to its true legal construction, and there is no need of resorting to equity to reform the instrument. That the parol evidence offered at the trial was clearly admissible and its rejection was error.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 6, 1889.
    Appeal by plaintiff from judgment, entered on a dismissal of the complaint -at trial term.

      Henry G. Atwater, attorney and of counsel for appellant, argued:—
    I. The description in the deed from Gregg to Aitkin of the mortgage assumed as being made by Gregg, although erroneous, is immaterial, since the mortgage intended is sufficiently ascertained by the other words of description, aided by the extrinsic evidence. There is here a latent ambiguity which can be removed by extrinsic evidence in the same way that the ambiguity was raised, quod ex facto oritur ambiguum, verificatione facti tollitur. Greenleaf Ev., § 297. On the face of the deed the description is plain enough, and only becomes ambiguous when by extrinsic evidence it appears that there is no mortgage which corresponds with the whole description, and then the other words of description and the extrinsic evidence are resorted to in aid of the interpretation, and if from these the intent is sufficiently ascertained, the misdescription becomes immaterial. That branch of the rule about latent ambiguities which applies here is generally laid down in the words “ Falso demonstrate non nocet." The exposition of this maxim as given in the various text books and decided cases is practically the same, though couched in slightly different language. 1 Greenleaf Ev., § 301; Taylor on Ev., § 1218; Broom's Legal Maxims, 629; Wigram on Extrinsic Ev., 144, par. 67; Miller v. Travers, 8 Bing. 244; Burr v. Broadway F. Ins. Co., 16 N. Y. 267.

      II. Taking the assumption clause as a whole and without rejecting any part of it, still it may be construed so as to apply to plaintiff’s mortgage. The object of an assumption clause is to have the grantee assume some obligation resting on the grantor. Gregg was liable for this mortgage because he had assumed it in the deed to him. If the words “made and executed by the party of the first part” are construed to mean “ assumed by the party of the first part ” the description is perfect. It was said in Coyne v. Weaver, 84 N. Y. 390, that “a court may wrestle if need be with unwilling words to find the truth or preserve a right which is endangered.” Gregg was in equity the principal debtor in the mortgage by reason of his assumption; and while it was not technically made by him, yet the words “ made and executed ” may without any undue straining of language be applied to a mortgage in which he was the principal debtor.

      Johnston & Johnston, attorneys and of counsel for respondent, argued :
    I. The plaintiff herein stands or falls by the terms of the covenant in the assumption or habendum clause in the deed from Gregg to the defendant’s testatrix. That a written instrument, until reformed, is the best evidence of a contract between the parties is a well settled rule of law. Until reformed it is the highest evidence of the contract, and it cannot be contradicted or varied by parol evidence. Hogan v. Smith, 16 Ala., 600. The question that is presented by the words of the said assumption clause is one of mistake. Until the instrument is reformed its terms must govern the liabilities of the parties thereto. It is not a question of misdescription, nor of parol evidence to vary a written instrument, nor of a patent or latent ambiguity, as contended below by the learned counsel for the appellant.

      II. It being a question of mistake, the plaintiff being a stranger to the contract on which it now sues, cannot seek to reform the said contract. This court (Sedgwick, Ch. J., O’Gorman and Truax, JJ.), has recently passed on this question in Willis v. Sanders, 51 N. Y. Super. Ct. 384, saying that “ one demanding the reformation of a deed must show himself a privy to the transaction wherein the deed was made,” and “ an action for the reformation of the deed is not sustainable by one who does not, as a matter of fact, connect himself with the arrangement, bargain or contract under which the deed was made.” The court of Mississippi has enunciated the same doctrine in Kilpatrick v. Kilpatrick, 23 Miss. 124, saying : “ It is a well settled principle that a court of equity will not rectify a mistake in a written instrument by the aid of parol evidence, except as between the original parties.” So also has the court of Alabama in Hogan v. Smith, 16 Ala. 600, saying : “a party to a deed or other instrument who alleges a mistake in drawing it must become an actor in seeking to reform it.”
    III. The plaintiff was assuredly not a party or privy to the transaction in which the said deed from Gregg to defendant’s testatrix was made, and viewed by the law of New Jersey, the lex loci rei sites (Bouvier Dict., sub. tit.; 2 Parsons on Contracts, 702; 2 Kent, 294; Story Conf. Laws, p. 103), there is no privity of contract of any kind whatever between plaintiff and defendant’s testatrix. The courts of New Jersey refuse to extend the doctrine' of Lawrence v. Fox to contracts under seal (Crowell v. Currier, 27 N. J. Eq. (12 C. E. Gr.) 152 and 650), and hold that there is no privity of contract between the mortgagee and the party assuming the payment of the mortgage, and they give the mortgagee a judgment for deficiency against the party assuming only on the equitable principle of subrogation and of preventing a multiplicity of actions (Crowell v. Currier supra; Young v. Trustees of Public Schools, 4 Stew. (31 N. J. Eq.), 290), reversing S. C. sub nom. Trustees v. Anderson, 3 Stew. (30 N. J. Eq.) 366, and not by virtue of any equity residing in him [Ib., p. 666). Hence the plaintiff has no standing in court to ask a reformation of the terms of this contract.
    IV. This court has already held in Ranny v. McMullen, 5 Abb. N. C. 246, that in a collateral proceeding of this kind the written instrument cannot be reformed ; it must be done in a direct suit for that purpose.
    V. Even were the plaintiff able to connect itself as a party to the transaction in which the deed was made, the mistake is one of law and not of fact, and one that the court will not relieve against (Hoover v. Reilly, 2 Abb. N. S. 471 ; Leavitt v. Palmer, 3 N. Y. 19 ; Hall v. Reed, 2 Barb. 500), and the plaintiff did not offer nor prove any fraud, imposition, undue influence, imbecility of mind or the like (Gwyne v. Hamilton, 29 Ala. 233 ; Gordere v. Downing, 18 Ill. 492 ; Atlantic Fire Ins. Co. v. Wilson, 5. R. I. 479 ; Kesler v. Zimmerschitte, 1 Texas, 50), and the plaintiff does not stand on any equity superior to the defendant (Henderson v. Dickey, 35 Mo. 120), it is simply offering evidence tending to show that Helen E. Aitkin paid interest on a $4,000 mortgage, and did not offer testimony sufficient to warrant the court to act. (Vreeland v. Bramhall, 28 N. J. Eq. 85 ; Flaacke v. Mayor, &c., of J. C., 28 Ib. 110 ; Voorhis v. Murphy, 26 Ib. 434 ; Treacy v. Hecker, 51 How. Pr. 69).
   By the Court.—Freedman, J.

This action is brought on an assumption clause in a deed.

On December 3, 1868, Phoebe T. Drew and John G-. Drew, her husband, made a certain indenture of mortgage to the plaintiff whereby they mortgaged certain premises therein described to the plaintiff to secure the payment to plaintiff of the sum of $4,000 and interest.

On December 15, 1869, the said Phoebe T. Drew and John Gr. Drew conveyed the said mortgaged premises to John Gregg by a deed wherein he, Gregg, covenanted and agreed to pay the mortgage aforesaid.

On December 28, 1870, the said John Gregg and Phoebe Gregg, his wife, conveyed the said premises to Helen E. Aitkin. This deed contained an assumption clause in the following words :

“ And that this conveyance is made, subject nevertheless to the lien of a certain mortgage made and executed by the said party of the first part to the New York Life Ins. Co. bearing date the 3d day of December, 1868, to secure the sum of four thousand (4,000) dollars, lawful money of the United States, with interest thereon, which mortgage forming a part of the consideration money hereinbefore expressed, and having been deducted therefrom, the said party of the second part hereby assumes and undertakes to pay and to indemnify and to save said party of the first part harmless therefrom.”

This is the assumption clause on which this action is brought.

Helen E. Aitkin entered into possession of the premises so conveyed and remained in possession as owner thereof for a considerable time thereafter. Subsequently she died leaving a will which was duly admitted to probate by the surrogate of the city and county of New York on the 16th day of March, 1875, and letters testamentary were issued thereon to the defendant James Aitkin, the executor named in said will, who ever since has been, and now is, the sole executor of said Helen E. Aitkin.

On March 5, 1880, the said mortgaged premises were duly sold by decree of the court of chancery of New Jersey in a suit to foreclose the plaintiff’s mortgage. Not enough was realized to satisfy the amount due thereon. The deficiency remaining due and owing to the plaintiff, for which the plaintiff holds no security of any sort, amounts to $1,590.80, with interest thereon from March 5, 1880. To recover this sum and interest the present action was brought.

At the trial plaintiff’s complaint was dismissed on the ground that in the deed to defendant’s testatrix, which contains the assumption clause sued upon as above set forth, the description of the mortgage assumed is erroneous, and that parol evidence was not admissible to correct the erroneous description and to show what mortgage was intended to be assumed. In this the learned trial judge erred. The description of plaintiff’s mortgage was in all respects correct, except as to the name of the mortgagor. The party of the first part (i. e., John Gregg) could not have been such mortgagor because at the time of the execution of the mortgage he was not the owner of the premises. Four thousand dollars had been deducted from the purchase price on account of a mortgage on the property for that amount, and there was but one mortgage on the property, as it was understood by the parties, for there was a covenant that the premises were free from encumbrances, which, taken in connection with other parts of the deed, meant that there was no encumbrance but the mortgage mentioned. The payment of this mortgage was assumed, for there is no uncertainty or ambiguity as to the personal undertaking. After all this the plaintiff was prepared to show, if it had been permitted, that no other mortgage held by the plaintiff could have been intended because it never had but this one mortgage on the premises, and that subsequently Helen E. Aitken paid interest to the plaintiff thereon. This evidence was admissible. The object of the assumption clause was to have the grantee assume some obligation resting on the grantor. Gregg was liable for the amount of the mortgage because he had assumed it in the deed to him. If the words, “ made and executed by the party of the first part” are construed to mean “assumed by the party of the first part,” the description is perfect. Upon the whole case, especially with the aid of the rejected evidence, the intent of the parties is apparent without any doubt.

The case, therefore, being one in which the mistake appears from the instrument itself, and where the intent of the parties can be ascertained without any doubt, the law will enforce the obligation according to its true legal construction, and there is no need of resorting to equity to reform the instrument. This precise point has been determined by this court, after a review of authorities, in Fairchild v. Lynch, 42 N. Y. Super Ct. (10 J. & S.) 265, and a reference to that case is all that is necessary here.

The claim of the defendant that, in as much as the mortgaged premises were situate in the state of New . Jersey, the law of that state should be considered, requires no examination now, because no such question was raised below. If there is a difference between the law of this state and that of New Jersey of which the defendant can take advantage, it should be shown in" some competent way upon the new trial.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Sedgwick, Oh. J., and O’Gorman, J., concurred.


text:
    JOHANNA WULSTEIN, Appellant, v. JOHN H. MOHLMAN, et. al., Respondents.

      Action for personal injury.

    The cause of action in this case, as claimed by plaintiff’s counsel on the trial, was for damages from personal injuries sustained by the plaintiff through the invasion of her house by the defendants, and by the threats made to her by them and the consequent injuries that she suffered thereafter and therefrom. The court declined to submit any question to the jury and dismissed the complaint. Held, that the only question for consideration on the appeal is, whether the defendants, in obtaining property or influencing the action of plaintiff by means of duress, are liable for subsequent consequential distress of the plaintiff, and for physical suffering caused by such mental distress ; and the court finds no authority or principle to sustain such a claim.
    The fundamental principle in all cases in which primitive damages are sought is, that the damages must be the natural and proximate consequence of the act complained of. 1st, whether they are general, namely, such as necessarily result from the wrong alleged; or 2nd, they are special, namely, such damages as are never implied, but recoverable if specially pleaded and proved. In either case, general or special, the maxim, “ causa próxima, non remota, spectatwr,'’ applies, and the damage must be the natural and proximate consequence of the act complained of, and not a remote consequence therefrom. Held, That the damages sought in this case (if any) are too remote, and the complaint was properly dismissed.
    Before Freedman and O’G-orman, JJ.

      Decided May 6, 1889.
    Appeal by plaintiff from judgment entered upon the dismissal of the complaint at the trial.

      HenryWehle, attorney, and Charles Wehle, of counsel, for appellant.

      Louis Cohen, attorney for respondents constituting the firm of J. H. Mohlman & Co. .

      Charles A. Flammer, attorney for respondents constituting the firm of B. Fisher & Co.

      Cromwell G-. Macy, attorney for respondent John Y. Alexander, and the respondents constituting the firm of John F. Huner & Co.
   By the Court.—Freedman, J.

The complaint is unique. In it the pleader attempted to set forth a cause of action against twelve defendants nine of which constitute three distinct firms. The remaining three defendants are sued as the agents and representatives of the three firms, and one of them is styled in the body of the complaint as well as in the title of the action as “John Doe whose real name is unknown to plaintiff, the companion of J. Y. Alexander.” I have tried to find a term known to jurisprudence expressive of the cause of action attempted to be set forth by the complaint, but did not succeed.

The complaint alleges in vigorous popular language, and without regard to legal phraseology, trick and device, intimidation, false representations, illegal threats, mysterious conduct, duress, extortion, and possibly some other matters by means of which the plaintiff, a married woman, was compelled by the three representatives of the said three firms to execute a chattel mortgage upon certain personal property owned by her. The complaint then goes on as follows :

“ IY.—That at said time this plaintiff was in delicate health and in state of pregnancy. The threats and taunts of the said defendants John H. Mohlman and J. Y. Alexander, and the mysterious conduct of the defendant John Doe, had an effect upon the mind and body of this plaintiff so that she became excited and hysterical, and in that condition the plaintiff was unable and incapable of realizing the precise nature of her acts and doings ; she was- completely under the influence of the fear excited by the aforesaid threats, and in that condition informed the defendants that she was willing to execute any mortgage they may require, and while in that condition the plaintiff signed a mortgage produced by the defendant Alexander.

“ Y.—That on the 17th day of March, 1887, there was filed in the office of the register of the city and county of New York a paper purporting to be a copy of the mortgage so signed by this plaintiff ; that the said paper was filed for the use, and with the authority of the defendants, the members of the said three firms hereinabove stated, and a copy of said paper is hereto annexed, marked ‘ Exhibit A.’ But this plaintiff, on her information and belief, avers that the said paper, Exhibit A,’ is not the paper so signed by this plaintiff, but that the paper, which plaintiff has signed, was, after such signing, altered in material particulars without the consent or authority of this plaintiff.

“ YI.—The plaintiff further shows and alleges : That while the plaintiff was in the condition of body and mind hereinabove described the said defendants who were present in plaintiff’s rooms demanded the sum of $2.50 as the expenses for drawing the said mortgage, and this plaintiff paid the same, acting under the same fear and apprehension. That this plaintiff signed the said mortgage and paid the said sum of money while her mind was incapable of exercising any volition, and while under the duress and compulsion produced by the defendants’ aforesaid acts and conduct.

“ YII.—That this plaintiff signed the said mortgage without any consideration whatever.

“ YIII.—The plaintiff further shows and alleges, that at the time of exacting said mortgage the defendant Alexander stated that said mortgage was only required by "defendant Mohlman as a private security ; that the same would not be filed in the Register’s office. That the defendants violated said promise, and filed, on the 17th day of March, 1887, what they claim to be a copy of said mortgage, to the loss and injury of plaintiff.

“ IX.—The plaintiff further shows and alleges : That in consequence of the aforesaid conduct of the said defendants, and the excitement and painful agitation caused thereby, this plaintiff became sick and suffered a miscarriage, which miscarriage caused the plaintiff great pain and injury, and she is still suffering from the same, to her great damage in the sum of five thousand dollars.

“ Wherefore plaintiff demands judgment that the plaintiff may recover of the defendants in this action the sum of five thousand dollars, her damages sustained by reason of the premises alleged herein, together with the costs of this action.”

Thus it will be seen that the only damages alleged are damages arising from personal suffering.

The answers of the defendants put in issue every material allegation of the complaint.

At the trial, after plaintiff’s husband, as a witness Called by the plaintiff, had been examined and cross-examined, the court called upon plaintiff’s counsel to state what the cause of action was. The counsel stated : “ The cause of action is the personal injury sustained by Mrs. Wulstein through the invasion by these three men and the firms they represented, of her home, the threats made to her, and the consequent injuries that she suffered.”

The court intimated that such an action did not lie.

The counsel claimed that all the elements of the case had not yet been fully elicited, and the following thereupon took place :

The Court: What do you propose to prove—anything in addition to this gentleman’s evidence ?

Mr. Wehle: No, merely the seriousness of the Suffering of the plaintiff.

The Court: The physical consequence ?

Mr. Wehle: The physical consequence, and that it was solely caused by the conduct of these defendants. And then I would ask to have the case submitted to the jury upon all the issues against each of the defendants, because there might be a difference in the degree of responsibility.

The court declined to receive such additional evidence and to submit any question to the jury, and, on motion of counsel for the defendants, dismissed the complaint. From the judgment entered upon such dismissal the plaintiff appealed.

The question presented by the appeal is one .of proof at the trial, and not, as has been claimed, a question of the sufficiency of the complaint. It is whether the testimony as given by plaintiff’s husband together with the additional facts proposed to be shown under the statements of plaintiff’s counsel, entitled the plaintiff to recover anything for her alleged personal sufferings. That no other damages were claimed except such as arose from personal suffering is too clear for argument. The point now raised that the plaintiff was entitled to recover at least $2.50 paid by her for the preparation of the chattel mortgage, is untenable (1) because it was not raised below ; (2) because such payment was not pleaded as an item of damage ; and (3.) because the testimony of plaintiff’s husband was that he, and not the plaintiff had paid the said sum.

The facts to be considered are as follows :

Plaintiff’s husband had a grocery store in Division street which, in January, 1887, he exchanged for a farm. On February 14, 1887, plaintiff purchased a grocery store and contents at No. 728 Second avenue, for which she took a bill of sale in her own name. She permitted her husband to run the said store as if it were his own, and he did so run it. He then and there carried on business in his own name and bought goods on the strength of his apparent ownership. In March, 1887, he was indebted to the firm of J. H. Mohlman & Co, for goods received from them at the Division street store, and to the firms of B. Fisher & Co. and John F. Huner & Co. for goods received from them at the Second avenue store, and it having been ascertained by these firms that the title to the Second avenue store and its contents and appurtenances was in his wife, the plaintiff, they called upon him for payment or security. He represented himself as unable to pay, and then the representatives of said firms insisted that as security his wife should execute a chattel mortgage. So far they had a perfect and undoubted right to go, and the manner in which the said firms procured the information upon which they acted, is utterly immaterial.

It having now been ascertained that the representatives of the three firms had a right to call on plaintiff’s premises and a right to demand from her husband payment or security, the next question to be determined is, whether they subsequently committed any wrong.

Upon this point the facts may be summed up as follows :

Upon plaintiff’s husband refusing to pay or to procure the security demanded, he was threatened with arrest in legal proceedings. The plaintiff, who up to this time had been in the kitchen, then came upon the scene and demanded to know what was wanted. Matters were somewhat explained to her, and in the course of the conversation with her, the representatives of the firms repeated their threats to have her husband arrested and also threatened to attach the store and to close it right up. Plaintiff then said to her husband that he should do all the men wanted to get them, out, but he was not willing. In the end the plaintiff, against the express protest of her husband, did execute and deliver the chattel mortgage in question which in the meantime had been prepared. There was no "physical violence inflicted or attempted or threatened to be inflicted upon the plaintiff, and her husband, in answer to an inquiry by the court, expressly conceded that she was not in any way prevented from leaving the room if she had seen fit to leave.

The most, therefore, that can be claimed is, that the threats which induced the plaintiff to execute and deliver the chattel mortgage, constituted duress which invalidated the mortgage. Her remedy thereafter was either an action in equity to restrain the mortgagees from collecting or enforcing the mortgage, or, after payment, under protest, an action at law to recover back the amount paid with interest. She pursued neither, and in fact her husband subsequently paid the mortgage. This disposes also of the alleged violation of promise not to file the mortgage as a further ground of liability on the part of the defendants.

The case having now been pruned down to its proper size, the only question left is whether, on obtaining property by means of duress, the wrongdoer is liable for subsequent consequential mental distress of the party wronged and for physical suffering caused by the mental distress. The miscarriage in this case occurred about two weeks after the execution and delivery of the chattel mortgage. I can find neither authority nor principle for such a claim.

The fundamental principle applicable to all cases in which primitive damages cannot be recovered, and the case at bar belongs to this class, is that the damages to be recovered must be the natural and proximate consequence of the act complained of, whether they are general, viz., such as necessarily result from the wrong alleged, or special, viz, such as are never implied, but recoverable if specially pleaded. 1 Greenleaf on Evidence, § 256. Whether they are general or special, the maxim is : carosa próxima, non remota, spectatur ; or, in the language of Lord Bacon, “ It were infinite for the law to judge the- causes of causes, and their impulsion one on another ; therefore, it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further, degree.”

The principle that the law never suffers a wrong and a damage without a remedy, is subject to the qualification that the damage must be the natural and proximate consequence of the wrong complained of, and not a remote consequence.

The general rule being as stated, the damages sought to be recovered in this case are too remote, and the complaint was properly dismissed.

The judgment should be affirmed with costs.

O’GrOBMAN, J., concurred.


author: By the Court.—O’Gobmah, J.

text:
    JACOB FINELITE, Appellant, v. JOHN SINNOTT, Respondent.

      Ejectment, action of.—Evidence in.

    In an action of ejectment, this well known rule of law prevails. “The plaintiff must depend for success and recovery of the premises upon the strength of his title, and in nowise upon the weakness of the title of his opponent.”
    In the case at bar the plaintiff failed to establish the exact dimensions of the premises claimed, or their exact locality. The words used “ being about thirty feet, etc.,” do not fix the dimensions of the lot. The description of the same in the devise was not clear nor definite.

      Before Sedgwick, Ch. J., Fbeedmah and O’Gorman, JJ.

      Decided May 6, 1889.
    Appeal from a judgment entered in favor of defendant, upon the dismissal of the complaint,

      Alexander Finelite, attorney, and Christopher Fine, of counsel, for appellant,

      Arnoux, Hitch & Woodford, attorneys, and C. N. Bovee, of counsel, for respondent.
   By the Court.—O’Gobmah, J.

This is an appeal taken by the plaintiff from a judgment against him on dismissal of his complaint.

The action is brought to eject the defendant from premises, of which plaintiff claims' to be owner in fee, situated at the corner of Chatham street and Baxter street, in the city of New York. The prem-' ises are thus described in the complaint:—

“ Beginning at a point on the westerly side of Baxter street, distant ninety feet one inch from the northwest corner of Chatham and Baxter streets ; thence running northerly and along the westerly side of Baxter street, one foot, to other land occupied by said defendant; thence westerly at right angles to Baxter street, and along the line of the land now owned by said defendant, thirty-three feet six inches, to land now or late belonging to Silcox ; thence

southerly and along said last-mentioned lands, two feet and eleven inches, to land now owned and in the possession of this plaintiff; and thence easterly, thirty-three feet six inches, to the point or place of beginning.”

Both the plaintiff and the defendant claim title to these premises under the will of one Blaze Moore, executed in 1817, and duly admitted to probate and recorded m 1820.

The part of the will on which the plaintiff relies is as follows :—

“ I give and devise nnto my said daughter Rosanna Winter, all and every my messuages, houses andlot or lots of ground fronting on Chatham street in the city of New York, adjoining Orange street, the same being about thirty feet wide in front and sixty-six feet in length. I also give and devise unto my said daughter Rosanna, a lot of ground fronting on Orange street, directly in .ibhe rear of and adjoining the said last-mentioned premises, being about twenty - seven feet in width in front and thirty-four feet in depth. To have and to hold the said several lots, messuages and tenements with the appurtenances to her, my said daughter Rosanna, for and during her natural life, and upon her decease the same shall go to and be held and .enjoyed by my son Augustus Winter, his heirs and assigns forever, to whom I give and devise the same accordingly.”

In an action of ejectment it is the well known rule of law, that the plaintiff must depend for success only on the strength of his own title, and in nowise on the weakness of the title of his opponent.

In the case at bar, the plaintiff failed to satisfy the court as to the exact dimensions of the premises, claimed to be the property of the plaintiff, or of the exact locality in which they were placed. The description in the devise was not clear or definite. The words used “ being about ” thirty feet, &c., do not fix the dimensions, and a similar ambiguity is attached to all the other testimony produced by the plaintiff to sustain his case. Every effort to cure the defect at the trial failed.

The judgment appealed from should be affirmed, with costs.

Sedgwick, Ch. J., and Freedmah, J., concurred.


author: *By the Court.—O’Gorman, J.

text:
    HENRY LISSA, et al., Appellants, v. EMIL GOODKIND, et al., RESPONDENTS.

      Negligence—Recovery of damages sought.

    If the plaintiffs had adhered to their custom of shutting off the water on plaintiffs’ floor every night, the overflow of water complained of could not have happened. No duty was imposed upon defendants, of taking any precaution to avert the accident, which they could not have expected or foreseen, and under such circumstances there was no negligence on their part. The accident was wholly caused by the negligence of plaintiffs’ servant.
    •Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided May 6, 1889.
    Appeal from a judgment entered in defendants’ favor, upon the direction of a verdict, in an action brought to recover damages for injuries sustained by an overflow of water.

      Sol Kohn, attorney and of counsel for appellants.

      Rose & Pwtsel, attorneys, and Gibson Putsel of counsel, for respondents.
   *By the Court.—O’Gorman, J.

The learned trial judge in this case, after hearing evidence on behalf of the plaintiffs and of the defendants, directed a verdict in favor of the defendants. •

In the statement made by the judge, of his reason for his ruling, he stated with clearness and precision the defect of the evidence for the plaintiffs, and I see no cause to dissent from his conclusion.

The plaintiffs failed to prove that the defendants, who occupied an upper floor of the building in which plaintiffs and they carried on their respective occupations, knew, or had reason to know or suspect, that plaintiffs had made any permanent change in their custom of shutting off the water on plaintiffs’ floor every night. If that custom had been adhered to on the night of the overflow on defendants’ floor, no overflow there could have taken place. No duty was imposed on them of taking any precaution to avert an accident, which they could not have expected or foreseen. Under such circumstances, there was no negligence on their part, and it was wholly caused by the negligence of the servant of the plaintiffs.

The case did not present a question of conflict of evidence. The great preponderance of evidence was clearly in favor of the defendants, and if the case had been sent to the jury, and they had found a verdict for the plaintiffs, an appellate court would doubtless have directed a new trial. Dwight v. Germania Ins. Co., 103 N. Y. 358.

The judgment rendered in the case should be affirmed, with costs.

SedgwickÍ Oh. J., concurred.


author: By the Couet.—O’G-obman, J.

text:
    WILLIAM H. ARNOUX, Respondent, v. HENRY A. BOGERT, Appellant.

      Written agreement in the form of a letter to reserve and pay rrmneys from a

      described fund.

    Plaintiff and defendant were respectively engaged as attorneys, in the matter of a loan of $860;000, by the New York Life Insurance Company to the firm of Pliyfe & Campbell. Tho plaintiff was the attorney for said firm, and the defendant the attorney for said company.
    On May 22d, 1886, all but #130,500 of the loan, had been paid over to said firm by defendant, and on the latter date defendant at the request of said firm of Phyfe & Campbell signed and delivered to defendant the following letter:
    “New York, May 22, 1886.
    “ W. H. Arnoux, Esq.
    Dear Sir:
    At the request of Messrs. Phyfe <fc Campbell, I write this to say that in case of your loaning them $2,500, and furnishing me with their request I will reserve for you that sum out of the next payment made them by the New York Life Ins. Co.
    Bespeclfully yours,
    H. A. Bogert.”
    On the receipt of the letter the plaintiff lent Phyfe & Campbell, $2,500, who gave him an order or request upon defendant, for the payment of that sum to plaintiff, from the next payment to be made to said firm by the said company, and the defendant had due notice of the order or request. Subsequently the whole amount of said loan was paid to said firm, and defendant did not reserve nor pay plaintiff therefrom the said $2,500, and plaintiff was not paid the same by Phyfe & Campbell.
    Held, that this was an undertaking by the defendant, to reserve, or cause to be reserved and paid to plaintiff, the amount of $2,500, the loan in question, and, failing to do so, he is liable to judgment in this action for the amount and interest, the matters set up in defence not being sufficient to change the construction which, as matter of law, must be put upon this undertaking.
    Before Sedgwick, Oh. J., and O’Gtoeman, J.

      Decided May 6, 1889.
    Appeal from a judgment in favor of plaintiff, on the pleadings, rendered in accordance with the verdict of a jury directed by the court, and the exceptions ordered heard in the first instance at the general term.

      JohnH. Wilson, attorney and of counsel, for appellant.

      Arnoux, Bitch & Woodford, attorneys, and William H. Arnoux, of counsel, in person, for respondent.
   By the Couet.—O’G-obman, J.

This is an appeal from a judgment in favor of the plaintiff, rendered in accordance with the verdict of a jury, directed by the learned trial judge on the pleadings in the case. The trial judge directed that the exceptions should be heard in the first instance at the general term.

All the facts alleged in the complaint are admitted by the defence, and, together with the facts set up in the answer, which are not denied by the plaintiff, tell the story of the case.

Prior to May 22, 1886, the New York Life Insurance Company had agreed to lend Phyfe and Campbell,.$860,000, secured by mortgages on real property in the city of New York. The plaintiff, Arnoux, was the attorney for Phyfe and Campbell in the matter of this loan.

On May 22,1886, the day above mentioned, all but $130,500, had been paid to them by the hand of the defendant, who was the attorney of the lender in' examining title, and making the several advances.

On May 22, 1886, the defendant, at the request of Phyfe and Campbell, signed and delivered to plaintiff the following letter:—

“ New York, May 22, 1886.
“ W. H. Arnoux, Esq.
Dear Sir :
At the request of Messrs. Phyfe and Campbell, I write this to say that, in case of your loaning them $2,500, and furnishing me with their request, I will reserve for you that sum out of the next payment made them by the New York Life Ins. Co.
Respectfully yours,
H. A. Bogert.”

Thereupon the plaintiff lent to Phyfe and Campbell $2,500, and they gave him an order or request for payment of that sum to plaintiff, out of the next payment which should be made to them by the Company. The defendant had due notice of that order or request.

Subsequently, the whole amount of said loan was paid to Phyfe and Campbell, or to their order, and defendant did not reserve the amount, which, by his letter, he promised to reserve, out of the next or any payment made by the “Insurance Company ” to Phyfe and Campbell—and plaintiff has not been paid by them for the loan made to them by him, or any part thereof.

All these allegations of the plaintiff are expressly admitted by the defendant in his answer.

The only new facts set up in his answer, are, that the expectation and understanding of plaintiff and defendant, when the letter of May 22d was written, were that the. remaining sum, not then advanced by the Company to Phyfe and Campbell, would, in due course, come into the defendant’s hands, as attorney, to be paid over to them, and that the amount promised to be paid to plaintiff, should be retained or reserved for him. That no part of said balance was paid to Phyfe and Campbell, or to defendant for their use, to be applied as they might order, as contemplated in the letter written by defendant.

The defendant offered no testimony, and the trial judge directed a verdict for the plaintiff.

At the trial the learned judge delivered opinions, of which the following are extracts:—

“ Does it not amount to more than you have claimed ? Is it not an undertaking that the defendant would see to it, that it should pass in such a way that he could, and that he would reserve it ? As I understand the writing, it means that the defendant undertook to reserve, or cause to be reserved. Now the manner in which it was to be done, that was his business, not the plaintiff’s business. I think the motion to dismiss the complaint must be denied. I think that is the construction to be placed upon it as matter of law.”

“ Judge Arnoux advanced this money upon the strength of this writing. It is fair to assume that he would not have advanced this money if he had not received that writing. Now, as I understand the document, Mr. Bogert would reserve, or cause to be reserved, an amount to repay that loan. The pleadings show that he did not.”

“ He failed in that undertaking, and I therefore think that, as matter of law, the entire defence set up, the affirmative defence, is not available to change the construction which, as matter of law, must be put upon the written undertaking. I therefore grant the plaintiff’s motion, and I will say that if the defendant wants to go to the general term, I shall direct his exceptions to be heard there in the first instance, and shall suspend the entry of judgment in the meantime.”

I see no reason to differ from the view thus expressed. The obligation of the defendant was fixed by the terms of his letter of May 2 2d, and defendant has failed to give any valid reason why he did not comply with that obligation.

The defendant admits that the whole amount of the loan was paid by the company, his clients, to Phyfe and Campbell. He does not say that it was not paid by Ms hands ; and before such payment was made, he was bound, under his letter, to reserve enough to satisfy the plaintiff’s claim.

The defendant in his brief claims that he should have been permitted to produce evidence to assist the court in the interpretation of his letter. The case on appeal does not show that defendant offered any testimony, or applied to the court for leave to produce any evidence.

In my opinion, no error was committed at the trial and the judgment should be affirmed with costs.

Sedgwick, Ch. J., concurred.


author: By the Court.—O’Gorman, J.

text:
    JONATHAN D. CONDICT, Respondent, v. JANE H. COWDREY, Appellant.

      Beal estate broker, commissions of.—When entitled to same.

    The duty the real estate broker undertakes, and the obligation he assumes as a condition to entitle him to commissions for his service, are not fulfilled until he brings the buyer and settler to an agreement. He must produce a purchaser ready and willing to enter into a contract with the employer and upon his terms. This implies the agreement of the buyer and seller, the meeting of their minds on the terms and conditions of sale produced by the agency of the broker.
    The commissions of the broker are earned and due to him from his employer when he has produced to his principal a purchaser for the property with whom the principal is satisfied, and who contracts for the purchase at an acceptable and satisfactory price.
    The words in the letter of defendant “ if sold through your agency ” must be understood and construed as meaning, if a valid agreement for the sale of the property shall be entered into between the defendant and a person or persons ready and willing to purchase, and with whom the defendant is satisfied.
    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided May 6, 1889.
    Appeal from a judgment in favor of plaintiff, entered upon a verdict of a jury, directed by the court at trial term.

      Arthur C. Butts, for appellant.

      Henry G. Atwater, for respondent.
   By the Court.—O’Gorman, J.

This action is brought by the plaintiff, a real estate broker, to recover from the defendant the amount of certain commissions, which he claims to have earned in her .employment. The defendant admits the employment but denies that his services had produced a sale of the property, and that such a result was necessary to entitle him to receive any commissions.

The law as to the rights and duties of brokers has been the subject of numerous decisions of the courts of this state, and may be regarded as, in great part, settled by the current of authority. The duty the broker undertakes—the obligation he assumes, as a condition of his right to demand commissions, is to bring the buyer and seller to an agreement. In that all the authorities substantially concur.

The true definition of a broker seems to be that he is an agent employed to make bargains and contracts between other persons, for a compensation. The duty of a broker consists in bringing the minds of the vendor and vendee to an agreement. He must produce a purchaser, ready and willing to enter into a contract on the employer’s terms. This implies the agreement of the buyer and the seller— the meeting of their minds produced by the agency of the broker.

The commissions are earned when the broker produces to his principal a party, with whom the owner is satisfied, and who contracts for the purchase at an' acceptable price. Sibbald v. The Bethlehem Iron Co., 83 N. Y. 381, 382.

The contention of the defendant in the case at bar is, that by special contract with the plaintiff, she became liable for payment of commissions only when the contract of sale of her property was fully carried out, and the purchase money actually received by her. This proposition is not sustained by any evidence produced on her behalf. Her letter to the plaintiff of May 10th, 1887, properly interpreted and understood, does not bear such a construction. The words in that letter, “ the price I may accept ” for the land, are similar to those used in one of the opinions above cited. There the words, “ acceptable price,” clearly mean price, or rate of payment, satisfactory to the vendor, and do not mean money actually paid, in consummation of the sale. The words in the letter, “ if sold through your agency,” must be understood as meaning, if a valid agreement for the sale of the property has been entered into between the defendant and a person or persons ready and willing to purchase, and with whom the defendant was satisfied.

The oral testimony on the part of the defendant, for the purpose of proving a collateral verbal agreement, in accordance with the alleged real intent of the defendant, differing from that which the language of her letter expressed, was quite insufficient.

A valid agreement was, in fact, entered into by persons ready and willing to purchase the property, and defendant received from them in part payment cash, and the deposit of certain securities to be forfeited to her in case of their failure to carry out their agreement, and these persons were introduced to the defendant by the plaintiff, and his action was the procuring cause of that contract. The fact that they subsequently refused to carry out that contract, on the ground of alleged false representations made by the defendant here, through her agent, Dickson, and that a litigation on the subject is now pending between them and the defendant, in no degree affects the rights of the plaintiff. His duty was performed and his compensation was earned, when the minds of his employer and of the persons then ready and willing to purchase had met, and a binding agreement had been made between them. Duclos ,v. Cunningham, 102 N. Y. 678 ; Knapp v. Wallace, 41 Ib, 479.

No error was committed by the trial judge, and the judgment in favor of the plaintiff must be affirmed, with costs.

Sedgwick, Ch. J., concurred.


text:
    MORTON P. HENRY, Appellant, v. SYRACUSE, GENEVA AND CORNING RAILWAY COMPANY, Respondent.

      Sailway company bonds and mortgage.—Provision for sinking fund therein . to provide for payment or cessation of interest.—Legal construction, &c.

    A bond issued by the defendant and held and owned by plaintiff contains a provision for its payment through a sinking fund, or the cessation of interest, as follows :—“ And the said company hereby covenants and agrees to provide, according to the terms and conditions of the said mortgage, a sinking fund, as follows : The sum of $ 10,000 shall be so provided and paid on the fifteenth day of November in each year, commencing on the fifteenth day of November, 1877; also, in addition thereto, such further sum in each year as shall be equal to the amount of interest on the retired bonds until the whole amount of the said bonds shall be paid and extinguished. The numbers of the bonds to be paid in each year, by the amount of the said sinking fund, shall be determined by drawings by lot at the agency of the company in the city of New York by a notary public, to be appointed by the said trustee, in the month of August, in the year eighteen hundred and seventy-seven, and in the same month in each year thereafter; and the company shall cause a notice of the numbers drawn to be posted in the office of the agent of the company in the city of New York at which the coupons of the said bonds are payable on or before the first day of September after drawing, and on the following fifteenth day of November, the principal of said bonds so drawn shall be payable, at the option of the holders, at the office and in the manner aforesaid, upon the surrender of the bonds drawn, with all the coupons thereto belonging ; and after the said fifteenth day of November, the interest upon the bonds so drawn shall cease.”
    In the drawing had in 1887, the plaintiff’s bond, to which were attached the interest coupons which this action seeks to recover, was drawn. The plaintiff refused to present his bond for payment when notified that the money to pay the same had been provided by defendant under this provision, claiming that the defendant’s right to pay and retire his bond was dependent upon his (plaintiff’s) option, and if he did not avail himself of the option the bond could not be redeemed, and plaintiff’s right to retain its possession and to demand and receive interest on the amount of the same (by and through the interest coupons attached) continued unimpaired.

      Held, that the option given to the plaintiff, by the terms of said bond, applied only to his right to retain possession of his bond and does not refer to the subsequent provision for the payment of interest, which stands alone and positive and imperative, and after the fifteenth day of November, 1887, the interest on the bond ceased, and no interest could be recovered thereafter by the plaintiff, although the bond had not been retired and paid, and still continued in plaintiff’s possession. By the said drawing and notice, the bond and interest became due in November, 1887, and interest then ceased, and coupons for subsequent interest were invalid.
    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided May 6, 1889.
    Appeal from an order of the special term, overruling the demurrer to the answer, and from the judgment entered on said order dismissing the complaint.

      Biddle & Ward, attorneys, and Morton P. Henry, of counsel, in person, for appellant.

      Harris & Harris, attorneys, and Albert H. Harris, of counsel, for respondent.
   By the Court.—O’Gorman, J.

This is an appeal taken by the plaintiff from a judgment of this court, overruling his demurrer to the defendant’s answer.

The facts are these:—The plaintiff is holder and owner of a bond issued by the defendant corporation for payment of $1,000—in the year 1905, and owner also of two coupons, being promises of defendant to' pay interest on the bond, which interest was to become due on May 15, 1888, and on November 15, 1888. The defendant refused payment, on the ground that, in accordance with the provision set forth in the bond, it had been retired on November 15, 1887, and that it had ceased to bear interest from' that date.

The bond recites that it is secured by a mortgage to the “ Farmer’s Loan and Trust Company of New York, as trustee,” and then follows the provision on which the defendant relies:—

“ And the said company hereby covenants and agrees to provide according to the terms and conditions of said mortgage, a sinking fund, as follows :

“ The sum of ten thousand dollars shall be so provided and paid on the fifteenth day of November in each year, commencing on the fifteenth day of November, 1877 ; also in addition thereto such further sum in each year as shall be equal to the amount of interest on the retired bonds, until the whole amount of the said bonds shall be paid and extinguished. The numbers of the bonds to be paid in each year, by the amount of the said sinking fund, shall be determined by drawings by lot, at the agency of the company in the city of New York, by a Notary Public, to be appointed by the said trustee in the month of August, in the year 1877, and in the same month in each year thereafter ; and the company shall cause a notice of the numbers drawn to be posted in the office of the agent of the company in the city of New York, at which the coupons of the bonds are payable on or before the first day of September after drawing, and on the following fifteenth day of November the principal of said bonds so drawn shall be payable, at the option of the holders, at the office, and in the manner aforesaid, upon the surrender of the bonds drawn with all the coupons thereto belonging; and after the said fifteenth day of November the interest upon the bonds so drawn shall cease”

The provision in the mortgage in this regard is as follows :

“ The party of the first part hereby covenants and agrees with the party of the second part and its successor or successors, and with the holder of each and all of the issue of one million dollars of bonds which may be issued, that the said party of the first part will provide for the redemption and retirement of such bonds and each of them by a sinking fund, as follows.”

, Then follows the same provision for drawing, pay-ability of principal and ceasing of interest, as is contained in the bond. * * * “And in case of default in payment of any of the sums of money herein stipulated to be set aside and paid for the purpose of the redemption, purchase and retirement of said bonds, at the time or times when such sums of money should be set aside and paid according to the terms of this indenture,” &c., the trustee is authorized to foreclose.

Pursuant to these provisions for the gradual retirement of these bonds, the defendant has in each year provided the sinking fund called for ; has caused the drawings to be made, and has paid and retired the drawn bonds.

In the drawing, had in 1887, the plaintiff’s bond, to which were attached the coupons in suit, was drawn ; due notice of that fact was given, and the money to pay and retire it was provided by the defendant ; but the plaintiff refused to present his bond for payment, on the ground that defendant’s right to pay it was made dependent upon his option; and that, unless he chooses to avail himself of his option to receive payment, the bond cannot be redeemed,'and stands exactly as though it had never been drawn.

The plaintiff’s contention is, that he had, under the provision in the bonds, an option to deliver up his bond when drawn, or to retain it, and that if he elected to retain it, his right to demand and receive payment of interest continued unimpaired.

I do not think that a proper construction of the clause in question sustains that proposition. The “ option ” given to the holder by the terms of the bond applies only to his right to retain possession of his bond and coupons, which right could not be denied. It does not refer to the subsequent provision for cessation of interest, which stands alone, distinct, positive and imperative. “After the said fifteenth day of November, the interest upon the bonds, so drawn, shall cease.” If instead of the words “so drawn,” the words in the sentence had been “ so surrendered,” the plaintiff’s construction might be accepted. This use of the words “ so drawn” seems to me fatal to the plaintiff’s claim.

But a careful consideration of the bond, taken as a whole, relieves the question, in my opinion, of all doubt. Its manifest intention was that a system should be established by means of which the stability of the defendant’s enterprise should be assured by a gradual payment of its debts and consequent reduction of the interest accruing thereon.

For this purpose a somewhat complicated plan was devised, by which a certain number of bonds should be paid off, in each year, and funds were to be carefully provided beforehand for that purpose. It cannot be supposed that it was intended to leave it to the “ option ” or caprice, of each bondholder to frustrate the success of this plan whenever he might be called on to aid in its execution.

It seems clear to me that the true meaning of the provision on this subject is this :—Since the corporation has no right or power to compel its bondholder to surrender his bond when drawn, or the coupons attached thereto, his retention or surrender of them shall be of no serious consequence, for whether he surrenders them or not, “ the interest on the bonds so drawn shall cease.”

The judgment appealed from should be affirmed, with costs.

Sedgwick, Ch. J., concurred.


text:
    FREDERICK GOLL, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Negligence.—Action for damages caused thereby.

    In regard to the question raised as to whether the defendants were obliged to build a shield or screen under their structure for the protection of persons in the street below from falling matter. Held, on appeal, that the following charge of the court below to the jury, contained all that the defendants had a right to require, and conveyed to the jury the correct rule of law on the question;—“Although originally the road was well built, yet if in the course of its operation the defendants found, or by the exercise of reasonable care and diligence should have found, that a certain way of operating the road inflicted certain injuries upon the public, it became their duly to take all reasonable measures to guard against such injurious consequences, even if that involved the making of additional fixtures not contemplated from the beginning, as long as their adoption did not involve a radical change in the general construction of the road. But they were not bound as against persons who were not passengers to add to the construction and equipment of their road and its cars, the best and most select safeguards which human skill and ingenuity from time to time have invented and brought into use to prevent accidents. Such rule applies only to passengers. As against all other persons who had a right to use the streets in common with them, and the plaintiff comes within this rule, they discharged their duty if they adopted that which, under all the circumstances, and in view of the peculiar structure of the road, inclusive of the danger to be apprehended, was reasonably adequate and safe. If they thus discharged their duty under all the circumstances, they are not to be held liable solely by reason of the fact that at the time and place of the accident they had no shield or screen under the structure.”
    Before Sedgwick, Ch. J., and O’Cobman, J.

      Decided May 6, 1889.

      Appeal from a judgment entered npon a verdict of a jury, and also from an order denying the defendant’s motion to set aside the verdict and for a new trial.

      Davies & Rap alio, attorneys, and Howard Townsend and H. D. Sedgwick, Jr., of counsel, for appellant.
    ■ B. F. Watson and F. A. Burnham, attorneys and of counsel, for respondent.
   By the Court.—O’Gorman, J.

The plaintiff, while walking on the sidewalk of the Bowery, immediately under the track of defendants’ elevated railroad, was struck by a heavy piece of metal, which fell from one of defendants’ cars, passing above. This piece of metal was part of the cylinder of the defendants’ locomotive. This cylinder had suddenly burst, scattering numerous fragments on the sidewalk.

The jury returned a verdict for the plaintiff, and the defendants appeal, on the ground of various alleged errors committed at the trial.

The learned trial judge held, without objection, that there was no evidence of any contributory negligence on the part of the plaintiff, and that the plaintiff had no right to expect from the defendants the same degree of care in protecting him from injury, that he would have been entitled to receive if he had been a passenger on one of their cars.

The trial judge also held, that from the nature of the accident itself, negligence on the part of the defendants might be inferred, and on this ground, chiefly, denied the defendants’ motion for dismissal of the complaint, made at the close of the plaintiff’s evidence.

The trial judge was justified in so ruling, on the authority of Cosulich v. Standard Oil Co., 55 Super, Ct., 384, 394 ; Gerlach v. Edelmeyer, 47 Ib., 292 ; Caldwell v. N. J. Steamboat Co., 47 N. Y. 282.

The exceptions to the admission of certain testimony of medical experts, as to the nature and extent of the injuries received by the plaintiff, and as to the reasonable certainty that the ill effects of these injuries would be permanent, were, in my opinion, not well taken. There is, not uncommonly, some difficulty experienced in confining the answers of such witnesses to the precise question put to them, and they are apt, perhaps from the necessity of the case, to include in their answers, statements, considerations, and analogies, not always pertinent to the matter in litigation, or responsive to the question put to them. But their testimony is only as to their own opinions, which it is the province of the jury to consider, as far as it may be applicable to the case on trial, and under the instruction of the court, when such instruction may be necessary. I see no reason to believe that the testimony of the medical experts in this case in any degree misled the jury, or did any injustice or injury to the defendants.

As to the defendants’ exceptions to the judge’s charge, and to his refusal to charge as requested :

■ The defendants’ counsel, apprehending that a part of the charge might convey the idea that it was the duty of the defendants to build a. shield under their superstructure, asked the court to charge “ that the defendants were not obliged to build a shield or screen under their superstructure, and the jury are not to consider that in determining the question of negligence.”

The court refused to charge, except as already charged, and the defendants’ counsel excepted.

This request seems to have been unnecessary, for, in fact, the court had previously, in general terms, but with sufficient clearness, charged on the subject as far as the defendants had a right to require, in the following words : “ But they were not bound, as against persons who were not passengers, to add to the construction and equipment of their road and its cars the best and most select safeguards which human skill and ingenuity from time to time have invented and brought into use to prevent accidents. Such rule applies only to passengers. As against all other persons who had a right to use the streets in common with them, and the plaintiff comes within this rule, they discharged their duty if they adopted that which, under all the circumstances, and in view of the peculiar structure of the road, inclusive of the danger to be apprehended, was reasonably adequate and safe. If they thus discharged their duty under all the circumstances, they are not to be held liable solely by reason of the fact that at the time and place of the accident they had no shield or screen under the structure."

A charge to the jury must be considered, as to its purpose and effect, not piecemeal, in separate parts, but as a whole, and if, taken as a whole, it conveys to the jury the correct rule of law on the given question, the judgment will not be reversed, even although detached sentences may be erroneous. Caldwell v. N. J. Steamboat Co., supra, page 286.'

It is not necessary, however, to invoke the aid of this opinion of the court in the present case.

The part of the charge above set forth, following, as it did, the part objected to by the defence, sufficiently explained the meaning and intention of the court, and prevented any possible interpretation, to the detriment of the defendants, not sustained by the evidence.

An examination of the whole case has convinced me that no substantial error has been committed at the trial, and that the judgment -should be affirmed, with costs.

Sedgwick, Ch. J., concurred.