author: 'Herrick, J.:

text:
    Joseph Fowler, Appellant, v. The New York Central And Hudson River Railroad Company, Respondent.

      Contributory negligence — duty of a person approaching a point of danger — when a jury should not'find that signals were not given.

    To maintain an action to recover damages for injuries sustained by reason of the-alleged negligence of a railroad corporation, it is necessary for the plaintiff to-establish the absence of contributory negligence on his part. The burden of proof is upon him, and he is not entitled to the benefit of any presumption to-establish the absence of such negligence on his part, and where the circumstances, point as much to such negligence as to its absence, he is not entitled to recover.
    When a person approaches a point of danger, it is his duty to do so with care and caution commensurate with the dangers of the locality. The duty of looking and listening when one approaches a crossing of many railroad tracks is not adequately discharged by merely looking as the dangerous point is approached, and then, when it is absolutely reached, going blindly forward.
    Where the witnesses for the plaintiff testified that they did not hear the bell of a certain locomotive rung or its whistle blown, but it did not appear that anything specially called" their attention to the absence of such signals, and the defendant’s witnesses swore positively that the bell was rung and the whistle blown, a jury should not find that the bell was not rung nor the Whistle blown.
    Appeal by the plaintiff, Joseph Fowler, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 29th day of November, 1892, upon the verdict of a jury directed by the court after a trial at the Schenectady Circuit, and also from an order entered in said clerk’s office on the 29th day of November, 1892, granting the defendant’s motion for a nonsuit.

      J. Newton Fiero, for the appellant.

      Hamilton Harris, for the respondent.
   'Herrick, J.:

State street in the city of Schenectady is intersected at right ¡angles by the railway tracks of the defendant; at the point of intersection State street runs substantially east and west, and the defend.ant’s tracks north and south. There are four tracks, numbered from the west toward the east, Nos. 1, 2, 3 and 4. At the southwesterly ■corner of the railroad crossing and State street and between track No. 1 and a building standing on the corner State street, and known in this case as the “ express office,” there is a short spur track running beside the building south from State street. On the night of the accident hereafter referred to there was a car ■standing on this spur track.

The defendant was accustomed to keep a flagman at this State ¡street crossing. On the evening of November 1, 1891, and about ■eleven o’clock in the evening, the plaintiff, who is a man about sixty years of age, and somewhat deaf in one ear, was on the south side •of State street, going east toward the railroad crossing; when he had arrived at the express office he testifies that he looked both ways, northerly toward the depot, Avhich is on the north side of State .street, and southerly in the direction of Albany. It was a dark night and somewhat rainy. He states that he neither saw nor heard - any approaching train, and that he did not see any flagman there, nor any man with a lantern; that he saw no light except one, and ■that was a low switch light back of a shanty on the railroad tracks, below State street, in the direction of Albany. That he proceeded on across the tracks, crossing track No. 1. and was just on or across track No. 2 when he was struck by the bumper of the engine attached to the train coming from Albany on track No. 2; that he was thrown to the ground, injured and bruised and rendered unconscious, and sustained injuries from which he claims to be still suffering. He was picked up out of the street, taken to a dispensary, where he lay unconscious until the next day. He testifies that he neither saw nor heard the approach of the train which struck him; that he did not see any light from any headlight upon the engine. The plaintiff is familiar with this crossing, and has used it for twenty-nine years, sometimes crossing it three or four times a day, frequently crossing in the night-time as well as in the day-time. Several witnesses upon the part of the plaintiff were sworn, and testified that they did not hear any bell rung or whistle sounded, but did not testify that there was anything that called their attention to the absence of any such signals.

The engineer, fireman, trainman and conductor of the train, and the gateman who tended the gate opening into the depot on the north side of State street, at the crossing, all testify positively to the ringing of the bell and the blowing of the whistle. That there was a headlight upon the locomotive is not controverted. Several witnesses, sworn on the part of the plaintiff, testify that, in their judgment, the train was going at the rate of thirty-five miles an hour, and that they did not think the train stopped at the depot. The trainmen and a telegraph operator located in the depot or station, at a distance of 400 or 500 feet from the State street crossing, all testified that the train was going at a speed of eight or ten miles an hour, and that it stopped in' the depot from four to five minutes.

The plaintiff introduced in evidence an ordinance of the city of Schenectady prohibiting the passage of trains through the city at a greater rate of speed than ten miles an hour.

At a distance of about 200 feet south of the State street crossing the tracks of the defendant curve to the west, and the uncontradicted evidence is that at the point at the end of the car on the spur track, and twenty-five feet from the westerly rail of track No. 2, and looking south where the vision would be shortened up by such car, the track can be seen for a distance of 174 feet to the south; that beyond the spur track and by the west rail of track No. 1, and twelve feet nine.inches from the west rail of track No. 2, the track of the defendant can be seen for a distance of 475 feet, and when the space between tracks Nos. 1 and 2 is reachéd the tracks can be seen for a distance of 500 feet. There is no evidence in the case to show that the plaintiff looked or listened for approaching trains after he passed the express building, or the car standing on the track next to the express building.

At the close of all the evidence in the case, the court directed the jury to find a verdict for the defendant upon the ground that the plaintiff did not show, the absence of contributory negligence upon his part. From the judgment entered uponfsueh verdict the plaintiff appeals to this court.

The only question necessary to be discussed is that of contributory negligence. To maintain his action it is necessary for the plaintiff to establish the lack of contributory negligence on his part; the burden of proof is upon him, and he is not entitled to the benefit of any presumption to establish lack of negligence on his part, and where the circumstances point as much to negligence as to its absence he is not entitled to recover. (Wiwirowski v. L. S. & M. S. R. R. Co., 124 N. Y. 420; McDonald v. L. I. R. R. Co., 116 id. 546-550.) See, also, Tucker v. N. Y. C. & H. R. R. R. Co. (124 id. 308), a case, in some of its phases, similar to the one now under consideration.

"When a person approaches a point of danger it is his duty to do-so with a care and caution commensurate with the dangers of the locality. The duty of looking and listening when one approaches a crossing of many tracks does not seem to me to be adequately discharged by merely looking as the dangerous point is approached, and then when it is absolutely reached going blindly forward. Here were four tracks to be crossed, and the only evidence offered the court on the part of the plaintiff is that when the express building was reached, and when yet some feet distant from the first track, he looked both ways.

It is claimed that the car upon the-spur track obstructed his vision to the south, and yet when he got beyond this obstruction to his vision there is no evidence that he made any additional attempt to gain a view of the tracks, but went blindly forward to and upon the spot and place where danger was to be apprehended, without either looking or listening.

He was familiar with the crossing, knew that he had a number of tracks to cross, and it seems to me that under such circumstances, to put the evidence in the most favorable aspect for the plaintiff, it points as much to contributory negligence as it does to its absence. It is ai’gued upon the part of the plaintiff that he liad a right to rely upon the defendant’s obedience to the ordinance prohibiting a greater rate of speed than ten miles an hour, and that had it been. going at that rate of speed, and if he had seen the headlight of the locomotive when it was 114 feet away, he could have traversed the tracks with safety before the train could reach him, whereas, if it was going at the rate of thirty-five miles an hour, or more, as. possibly the jury might have a right to infer from the evidence, that then it would reach him before he had time to' cross; and this is attempted to be demonstrated by showing the number of seconds that it would take the plaintiff to cross the track, and the number of seconds it would take to reach the point where the plaintiff was. struck by the train going at ten miles an hour, and again when it was going at thirty-five miles an hour. It seems to me going rather far for the court to assume that a person under such circumstances, would enter into any such mathematical calculations, and it would be going still further to attempt to uphold a person in going into a place of danger where the variation of a few seconds of time would mean to him death or serious injury. If he makes such a venture he should take the risk and abide by it. This is not a case where one is brought face to face with imminent danger, and where he is called upon to act at once in order to escape it, where his acts in endeavoring to escape ought not to be too closely scrutinized as to whether under such stress of circumstances he acted wisely and prudently. Here the plaintiff claims never to have known of his danger until after the danger occurred. It is somewhat difficult to conceive that he should have reached the point where he was struck without either hearing or seeing the approaching train, knowing only of its, presence when he was actually struck by it.

The jury could not have found that no bell was rung or whistle-blown, for while plaintiff’s witnesses swear they did not hear either, yet it does not appear that their attention was specially directed to either; the defendant’s witnesses swear positively that the bell was. rung and the whistle blown, and the jury under such a condition of the testimony could not have found to the contrary. (Rainey v. N. Y. C. & H. R. R. R. Co., 68 Hun, 495-499.)

The judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, L, concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Herrick, J.:

license: Public Domain

text:
    Henry Rodee and Another, Respondents, v. Detroit Fire and Marine Insurance Company, Appellant.

      Insmance of the ca/rgo of a vessel — when it expires — eaniy notice of loss — evidence as to value.

    'The cargo of a vessel was insured until such time as it should arrive and be. safely landed at its point of destination, not to exceed forty-eight hours from the time of its arrival, by an insurance policy which contained a condition requiring early notice of a loss During the voyage a portion of the cargo was damaged, and upon the arrival of the vessel at a point near its destination, which was the dock or elevator of the assured, it was found that it could not reach such destination until it had been lightered. After being lightered the vessel reached the dock on Saturday, and notice of loss was given to the resident agent of the defendant on the following Monday or Tuesday.

      'Held, that the'voyage was not ended within the terms of the policy until the vessel was actually landed at the plaintiffs’ dock, where the cargo could be removed;
    That what is 'early notice of a loss is to a certain extent to be determined by the ■circumstances of each particular case, and under the circumstances, the notice given in the case in question, though not an immediate, was an early notice.
    Where a witness has testified as to the value of grain, and such evidence was admitted without objection, and it afterwards appeared that the witness testified as to such value not only from his own experience but also from daily market quotations he had received, it is not error to deny a motion to strike out his testimony in regard to the value of such grain.
    Appeal by the defendant, Detroit Fire and Marine Insurance ''Company, from a judgment of the Sujireme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 7th day of February, 1893, upon the verdict of a jury rendered at the St. Lawrence Circuit, and also from an order entered in said clerk’s office on the 23d day of February, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      George Clinton, for the appellant.

      Louis Hasbrouck and Alric R. Herriman, for the respondents.
   Herrick, J.:

By a policy of insurance dated August 20, 1891, the defendant insured a cargo of grain belonging to the plaintiffs, on board the schooner Hartford, to be transported from Detroit to Ogdensburg, the policy reading “ in board cargo of the Schr. Hartford, at and from Detroit to Ogdensburg.”

It was provided in the policy that the property insured should be insured from beginning the adventure upon the said property from and immediately following the loading thereof at the port and place named in the indorsement, and so shall continue and endure until the same shall arrive and be safely landed at the port of destination, not to exceed forty-eight hours from time of arrival.” It was further provided in said policy of insurance that in case of loss or damage to property hereby insured, it is agreed that this company, their agent or representative, shall have early notice of the same.”

On its way from Detroit to Ogdensburg the schooner encountered a storm, and took in some water, whereby a portion of the grain became wet; the testimony of the captain, which seems to have been taken as conclusive, was that the water came in around the centerboard box ; the strain of the center board on the center-board box which inclosed it worked the box in such a way as to let in the water.

The vessel reached a point at or near Ogdensburg on the morning of the third of September, but could not reach the plaintiffs’ dock or elevator, because of the depth of the vessel in the water, until a portion of the grain had been taken out of the vessel — lightered out in bags,” that is, “ we put the wheat into bags and put it into a lighter till we got light enough draft so we could go up the river.” After taking out a portion of the wheat, and so lightening the vessel, it proceeded up the river to the plaintiffs’ elevator, arriving there on Saturday, the fifth.

The plaintiffs proceeded to unload the vessel by means of the elevator ; it was discovered that the wheat was damaged; there were some lumps or cakes of it around the center-board box ; the lumps or cakes of damaged wheat were attempted to be kept separate from the rest, but in taking them out some of them crumbled away and got mixed with the other wheat. In proceeding further with the unloading it was discovered that a portion of the wheat on the bottom of the vessel was wet; some of the wheat in the cargo was so wet that it sprouted.

The plaintiffs commenced grinding the ivheat as rapidly as possible, upon the theory subsequently explained by the plaintiff Rodee upon the trial, that the wheat would become worse if not immediately-disposed of, and a considerable portion of the wheat was ground up.

Upon the trial the court charged the jury that no allowance should be given by them for any loss or damage for that portion of the wheat so ground into flour.

On Monday or Tuesday, it is uncertain which — in one portion of the evidence he says on Monday and in another portion on Tuesday morning — the plaintiff Rodee gave notice of the loss to the defendant’s agent at Ogdensburg, who notified the home office of the company, who sent an adjuster to examine into the loss, if any.

The principal questions litigated were whether the plaintiffs had. given timely notice of the loss and whether they had proved by legal evidence the loss or damage sustained by them. It was practically conceded on both sides that the loss or damage should be measured by the difference between the value of the grain at Ogdensburg upon its arrival in a sound and undamaged condition, and its actual value in its damaged condition, and it is claimed by the defendant that an essential element was to prove what its market value would have been if sound and undamaged, and his claim is that the plaintiffs failed to give any legal evidence of such market value.

The plaintiff Rodee testifies in his direct examination: “ In my opinion $1.12 per bushel would be the cash market value of the 23,001 bushels of wheat composing that cargo had it arrived at Ogdensburg sound.” No objection to this testimony was made by the defendant.

In his cross-examination this plaintiff testified: “ The cash market price was $1.12 for No. 2 red — this was Michigan wheat. "When the vessel arrived that was the cash value in Ogdensburg. We had the market quotations every day. That is what a cargo of No. 2 red wheat would have cost to have bought it and delivered it at Ogdensburg that day when the wheat arrived there, adding freight and insurance to it; J take the cost of the cargo and add freight and insurance. The cost of this cargo was $1.06 and nearly one-lialf cents at Detroit; then the freight was five cents and the insurance, I think, was about half a cent a bushel; then there was exchange. I added all that together and called it the cash market value at Ogdensburg.”

At the close of the plaintiffs’ evidence the defendant moved to strike out the evidence in regard to the value of the sound wheat upon the ground “ that it appears from the testimony of the witness Rodee, that the valuation which he gives, and which is the only evidence as to value, he arrives at by taking the cost of the wheat, adding freight, insurance and exchange.”

The court in declining to grant the'motion said: “The courts liave held that the cost of an article is some evidence of its value. And Mr. Rodee does not entirely limit his estimate to the method you speak of, as I understand his testimony. He goes upon his own experience. He says they received daily market valuations, I suppose from some center, and that his own judgment as a purchaser of wheat for many years coincides with the cost of wheat at Ogdensburg.”

As to the first question suggested, that the plaintiff did not comply with the condition of the policy requiring early notice of the loss, it seems to me that the trial court made no error.

The property was insured until the vessel should arrive “ and be .safely landed at the port of destination, not to exceed forty-eight hours from time of arrival.”

It appears that the vessel could not land at the plaintiff’s dock or elevator until she had been lightered, that is, a portion of the cargo removed, and the place where she commenced the lightering was not her point of final destination, and the voyage was not ended within the terms of the policy until the vessel was actually landed at the plaintiff’s dock, where the cargo could be removed. (Meigs v. The Mutual Marine Ins. Co., 56 Mass. [2 Cush.] 439; Bramhall v. The Sun Mutual Ins. Co., 104 id. 510.)

The vessel reached plaintiff’s dock or elevator on Saturday, and notice was given to the resident agent of the defendant on the following Monday or Tuesday. "Wliat is early notice of the loss is to a certain extent to be determined by the circumstances of each particular case. (Bennett v. Lycoming Co., 67 N. Y. 274-277.)

Hpon first beginning to remove the wheat from the vessel the full extent of the damage could not be ascertained; there were lumps or cakes of the dampened wheat around the center-board box ; by the terms of the policy unless the loss or damage reached five per cent it was not recoverable, and it may very well be that the plaintiff would be justified in not giving notice until it appeared that the loss was reaching that per cent which would entitle him to a recovery.

The grain was unloaded on Saturday, when the full extent of the loss was apparent. The next day was Sunday, not a business day, and notice was given the following Monday or Tuesday, and it seems to me that that is a fair compliance with the terms of the policy; it is not immediate notice, but it is “ early notice.” As to the proof of damage which the defendant asked to be stricken out, I think that the trial court committed no error in that respect: First, it was admitted without objection; second, it appears, as suggested by the trial court, that the witness not only testified from his own experience, but that they received daily market quotations. As to which the witness laid the most stress upon, the court which heard him give his testimony, and his manner of giving it, can judge much better than the appellate court as to whether he relied entirely upon his. method of computing the value, or whether upon the market quotations, or upon both. As the testimony appears in the case, the witness seems to have been qualified to form his judgment as to the value-of the grain from the market quotations, and also upon his own judgment and computation, as explained by him and heretofore set forth.

I do not think it necessary to discuss any of the other questions raised in the case or the facts relating thereto.

The judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.


text:
    Sylvester McChesney, Respondent, v. Panama Railroad Company, Appellant.

      Negligence of a train dispatcher — right of an engineer to rely upon instructions.

    Upon the trial of an action brought to recover damages for injuries sustained by reason of the alleged negligence of the defendant, a railroad company, it was shown that the plaintiff was the engineer of locomotive No. 9 on the defendant’s railroad. That on January 3, 1890, while the plaintiff was running a regular train from Aspinwall to Panama, he received the following instructions - from the train dispatcher: “No. 9 will leave Aspinwall and run to Bohio ahead of time. Nos. 9 and 10, ahead of time, will meet at Bohio.”

      Bobio was a station on the defendant’s road about fifteen miles from Aspinwall, and San Pablo was a station beyond Bobio. After the train drawn by engine' No. 9 bad passed San Pablo it collided with the train drawn by engine No. 30, which was coming- from Panama to Aspinwall.
    The engineer and conductor of tlie train drawn by engine No. 30 bad received ' instructions from the train dispatcher as follows: “Eng. 30 will run special Panama to Aspinwall. Will not pass Bobio until No. 9, ahead of time, has. arrived there.”

      Held, that as the plaintiff received no notice of the running of the train drawn by engine No. 30, he had a right to assume that the track would be clear after he' left Bohio;
    That the engineer and conductor of the train drawn by engine No. 30 had the.right to assume that they would not meet engine No. 9 until they reached Bohio;
    That the verdict of a jury in favor of the plaintiff should be sustained.
    Appeal by tlie defendant, Panama Railroad Company, from a. judgment of tlie Supreme Court in favor of tlie plaintiff, entered in tlie office of tlie clerk of the county of Albany on the 25th day of January, 1893, upon the verdict of a jury rendered at the Albany Circuit,- and also from an order entered in said clerk’s office on the 25th day of January, 1893, denying the defendant’s motion to set aside the verdict and for a new trial made upon the minutes..

      Coudert Brothers, for the appellant.

      J. Newton Fiero, for the respondent.
   Herrick, J.:

The plaintiff, the engineer of a locomotive known as No. 9 on the Panama railroad, came in collision with a special train drawn by an engine known as No. 30, and as the result of such collision suffered, severe injuries, for which the jury rendered a verdict in his favor.

The plaintiff was running a regular train, and on the 2d of January, 1890, started with such train from Aspinwall to go to Panama.. He received the following instructions from the train dispatcher of.' the road : “ No. 9 will leave Aspinwall and run to Rohio ahead of! time. Nos. 9 and 10, ahead of time, will meet at Bohio.” Bohio is; a station about fifteen miles from Aspinwall; the distance from Aspinwall to Panama is about sixty miles, according to the timetable in evidence in this case.

San Pablo is beyond Bohio, and about twenty-five miles from Aspinwall; after he had passed San Pablo about 1,000 feet the collision occurred with the train drawn by No. 30, which was going from Panama to Aspinwall. The engineer and conductor of the train drawn by No. 30 had received the following instructions from the train dispatcher of the defendant: “Eng. 30 will run special Panama to Aspinwall. "Will not pass Bohio until No. 9, ahead of time, has arrived there.”

The train drawn by No. 30 was not a regular, but a special train, and had no place upon the regular time-table of the road.

It will be seen that the plaintiff received no notice of the running •of No. 30, and it seems to me that he had a right to assume that the track would be clear after he left Bohio.

The engineer and conductor of the train drawn by No. 30 had the right to assume that they would not meet the train drawn by No. 9 until they reached Bohio ; instead of that they met between Panama and Bohio.

The cause of the accident is thus perfectly apparent, the instructions, and the lack of full .instructions, by the train dispatcher.

The question as to whether the defendant is liable for the error of the train dispatcher is not an open question in this court; it was passed upon when the case was heretofore before us. (See 49 N. Y. St. Bepr. 148.)

As to the various exceptions taken to evidence and to the charge •of the court on the trial, in the view that I have taken as to the cause of the accident, I cannot see that the defendant has been injured by any rulings of the trial court.

The judgment should be affirmed, with costs.

Mayham, P. J., and Parker, J., concurred.

■Judgment affirmed, with costs.


author: Mayiiam, P. J.:

text:
    Johanna Driscoll, Appellant, v. The German-American Insurance Company of New York, Respondent.

      Fire insurance — occupancy specified in the policy — knowledge_ by the company of other manner of occupancy — waiver of avoidance of the policy for non-occupancy.

    When, at the time of issuing a policy of Are insurance, the company knows that the building is occupied in a way besides that specified in the policy, it cannot, after a loss, avoid the policy for non-occupancy, merely because the single manner of occupancy specified has ceased before the loss, while the other manner of occupancy has continued.
    In an action brought by the owner of a building to recover for a loss under a policy of fire insurance upon such building, stated in the policy to be “ occupied as a lodge room,” the defendant, the insurance company, set up as a defense a clause in the policy that it should be void “if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied.”
    It appeared that when the policy was issued the building was occupied one night each week as a lodge room for Knights of Labor, and that such occupancy had ceased before the loss occurred, but the plaintiff offered to show that at the time of issuing the policy, the defendant’s agent knew that the building was used by the owner as a hall for public meetings of various kinds, and for that purpose was in the owner’s possession and control up to the time of the loss. This evidence was excluded and the plaintiff was nonsuited.

      Held, that the nonsuit was improperly granted;
    That the knowledge of its agent was the knowledge of the defendant company, . and with this knowledge directly imputable to the company it did not lie with it to set up the removed of the lodge as a violation of the policy, but that such knowledge worked a waiver by the company of the condition upon which it sought to avoid liability;
    That while the statement of the policy and application, that the building was used as a lodge, was true in fact, it was not to be construed into a warranty that the occupancy for that particular purpose was to be continuous;
    That as the policy excepted from the ground of forfeiture “ exchange of occupants without increased hazard,” the question of increased hazard, if it existed in the case, was one for the jury, and that there was sufficient evidence upon the question of occupancy to require the submission of that question to the jury.
    Appeal by the plaintiff, Johanna Driscoll, from a judgment of the Supreme Court, entered in the office of the clerk of Ulster county on the 2éth day of April, 1893, dismissing the complaint upon the merits, after a nonsuit granted at the Ulster Circuit.

      The policy of insurance upon which this action was brought, in addition to the provisions set out in the opinion, contains one providing that “if building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied,” the policy shall become void.

      J. E. Van Etten, for the appellant.

      William D. Murray, for the respondent.
   Mayiiam, P. J.:

The respondent through its general agent, who was authorized to fill up and issue policies signed in blank by the president and secretary of the respondent, issued its policy to Dennis' Driscoll for one year from January 3, 1891, to January’3, 1892, for a premium of eight dollars and seventy-five cents on an amount of $700 on building described in the policy as follows : “ On his one-story frame sliingle-roof building 30x50 occupied as a lodge room, situate detached at Hickory Bush, in the town of Rosendale, N. Y., payable, in case of loss, to Catherine Cummings, mortgagee, as her interest' may appear.” This policy was indorsed as follows: “January 6, 1891. This company hereby agrees to recognize Catherine Cummings as sole owner of insured property, loss, if any, payable to her. CHAS. B. WESTBROOK, Agent”

“ February 21, 1891. The title to insured property is now vested in Johanna Driscoll, as owner. Loss, if any, payable to her.

“CHAS. B. WESTBROOK, Agent”

At the time of issuing this policy the hall was occupied one night each week as a lodge room for Knights of Labor.

The proof shows that the building was also used as a place for Sunday schools and religious services on Sundays, and for shows, dancing parties and other public entertainments on week days when not occupied by the Knights of Labor on the nights of their meetings. One key was always kept by the plaintiff, who was her own janitor, kept the building swept and in order for use, hired it to parties and received the income for its use.

On the trial the witness who negotiated with the defendant’s agent and procured the policy, was asked by the plaintiff this question : “ Did you state to Charles B. Westbrook, the agent who issued the policy, how the building was occupied at the time the policy was-issued ? ”

This question was objected to and the objection was sustained,, and the plaintiff excepted. This question was later in the trial followed by an offer made by the plaintiff as follows :

“ I offer to show that the agent who issued the policy was informed of the way that this building was used in all its details that it was used for church purposes, Sabbath schools, for dances- and other public entertainments, and that the plaintiff was in the-continual occupation of the property herself.”

Defendant objected. Objection sustained. Plaintiff excepted.

We are inclined to the opinion that the exclusion of this offered evidence was error.

The evidence offered did not tend to prove an unauthorized change in the condition of the policy by the agent.

Its object and effect was to prove that the defendant had knowledge at the time of taking the risk of the manner in which this-building was occupied, and the purpose for which it was constructed and used; and while it was, as set out in the application, used as-a lodge room, it was also to the knowledge of the company used by the owner for the purpose of a hall for public meetings of various-kinds, and for that purpose was in her possession and under her control, and the proof show's that it continued so to be used and controlled up to the time of its destruction by fire, except that the Knights of Labor had ceased using it for one night each week as-they were doing at the time the policy was issued.

With this knowledge directly imputable to the defendant it did not lie with it to set up the removal of the lodge as a violation of the policy of insurance, but rather such knowledge worked a-waiver by it of the condition upon which it now seeks to avoid liability. It would be little less than a fraud upon the insured to-allow an insurance company to receive the premium and issue a policy with knowledge of the existence of a fact at the time of such issue upon which it could, claim, on the happening of a loss-against which it assumes to insure, a forfeiture of the policy.

In Forward v. Continental Ins. Co. (21 N. Y. Supp. 665) the-court, in discussing the principle involved in the question and offer above quoted, uses this language: The question is not whether the plaintiff can avail himself of an unauthorized waiver by the defendant’s agent of any provision contained in the policy. It is rather whether the knowledge of the existence of the chattel mortgage, brought home to the company in. this manner through its agent, who procured the policy, effects a waiver of any ground set up for avoiding liability. Two recent cases in the Court of Appeals ■seem to have settled this question in favor of the contention made in behalf of the plaintiff, namely, Berry v. Insurance Co. (132 N. Y. 49; 30 N. E. Rep. 254) and Cross v. Insurance Co. (132 N. Y. 133; 30 N. E. Rep. 390).”

In Berry v. American Central Insurance Co. (132 N. Y. 49) -the assured informed the agent who issued the policy that his son had bought the property of him; that he was to have it as a home ■as long as he lived, and was to insure it, and the court held that this .statement fairly gave notice that the plaintiff was not the owner.

In Cross v. National Insuramce Co. (132 N. Y. 133) the defendant’s agent who issued the policy knew that the premises were vacant and unoccupied, having personal knowledge of that fact, and had notice of the plaintiff’s title. The policy provided that it should be void if the insured were not the sole and unconditional ■owner, or if the building were not on ground owned by him in fee, ■or if it should remain vacant and unoccupied, and it was ■ held that the plaintiff had an insurable interest, and that the condition as to the plaintiff’s title, the premises remaining vacant and unoc■cupied, must be deemed to have been waived.

Within these cases, and many others that might be cited, we’ think it must be held that the 'knowledge of the agent was that of the company, and that it was competent for the plaintiff to prove that knowledge, and the exclusion of evidence offered for that purpose was error.

Again, the language of the policy and application, that the building was used as a lodge, while it is true in fact, cannot, we think, be -construed into a warranty that occupancy for that particular purpose was to be continuous. (O'Niel v. Buffalo Fire Ins. Co., 3 N. Y. 122; Smith v. Mech. & Traders' Ins. Co., 32 id. 399; Blood v. Howard Fire Ins. Co., 12 Cush. 472.)

The policy itself excepted from the ground' of forfeiture <{ exchange of occupants without increased hazard,” and if the question of increased hazard existed in the case, it was clearly one for the jury. (Walrant v. Phoenix Ins. Co., 136 N. Y. 375.)

A change of occupancy will not avoid a policy unless there is a substantial increase of risk. (Miller v. Oswego & Onondaga Ins. Co., 18 Hun, 525.)

Ye are also inclined to the opinion that there was sufficient evidence upon the question of occupancy to require the submission of that point to the jury, and that it was error to deny plaintiff’s motion to submit the question to the jury.

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

Putnam and Herrick, JJ., concurred.

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


author: Mayham, P. J.:

text:
    James Averill, Jr., Respondent, v. Louis W. Emerson, Appellant.

      Compulsory reference of an action triable by the court without a jury, when the examination of an account is dependent upon the establishment of precedent issues.

      A compulsory reference, under section 1013 of the Code of Civil Procedure, is not justified in an equitable action for an accounting, when it is not apparent, that the trial will necessarily involve the examination of a long account, but it, is apparent that no such examination will be necessary or material unless the-relation of co-partners or the existence of a community of interests between the-parties, alleged affirmatively in the complaint and put ia issue by a denial in. the answer, is first established on the trial. ■,
    Appeal by the defendant, Louis W. Emerson, from an order of' the Supreme Court, made at Special Term and entered in the office of the clerk of Clinton county on the 17th day of March, 1893,. directing a reference.

      Wm. J. Roche, for the appellant.

      Frank E. Smith, for the respondent.
   Mayham, P. J.:

The plaintiff moved for and obtained an order referring the issue-in this action to a referee to hear and determine.

The motion was made upon the pleadings and an affidavit of the plaintiffs attorney, and also an affidavit of the defendant, which had been used on his behalf on a motion to change the place of trial. The complaint, among other things, alleged that S. Alonzo Kellogg had and possessed the promise of the warden of Clinton Prison of a contract for the sale of- articles manufactured in that' prison, and that he and defendant entered into an agreement whereby Kellogg agreed to surrender such option and obtain the consent of such warden, and have such contract made in the name of the defendant or some person satisfactory to such warden, to be named by the defendant, whereby the defendant or such other person named by him should sell all the shirts manufactured in such prison for three years, .and should receive a commission, after guaranteeing all sales made •on credit, of ten per cent on all sales made within that time, and that the defendant, in consideration thereof and of other good considerations, agreed to pay over to said Kellogg one-half of such net commission so received by him from time to time on demand.

• The complaint also alleged that the defendant named his brother, James A. Emerson, and the contract was made with the defendant in the name of James A. Emerson. The written contract was attached to and made a part of the complaint.

The complaint also alleged that the defendant made sales under such contract from time to time, to many persons and in many places, amounting to over $500,000, and alleged demands by Kellogg of. his share of the commissions under the contract, which defendant had refused to pay. The complaint also alleged an assignment of the alleged claim of Kellogg to the plaintiff.

The answer denies ever making such arrangement with Kellogg, .as set out in the complaint, or any arrangement by which Kellogg was to share in the commissions which were received for selling these prison-manufactured goods, and also denies that the contract set out in the complaint is the contract under which such goods were sold. The answer alleges the making of a contract between the warden of said prison and James A. Emerson, and alleges that .at the time of making the same Kellogg and his firm were acting therein as the attorneys for the warden, and not for the defendant or the said James A. Emerson, and was not a party in interest with them or either of them. The answer also denies that the defendant was a party to or interested in tbe contract between tbe warden and J ames A. Emerson.

That answer also alleges that James A. Emerson, after procuring the contract, entered into an agreement with the Empire Shirt Company, a co-partnership consisting of himself and Louis Weinman, for putting such goods upon the market. The answer admits numerous sales of goods, and does not deny that they were sold at different times to different persons and at different places as alleged in the complaint.

Defendant by the answer expressly denies that he was a member of the Empire Shirt Company, and that any partnership existed between him and Kellogg, and states that no contract or agreement, such ■as ,set out in the complaint, existed between them or that any contract or agreement of co-partnership existed between them.

The moving affidavit stated that the action was for an accounting by the defendant of all the moneys paid to him, and expenses incurred by him on account of transactions entered into by him under the contract or arrangement with Kellogg set nut in the complaint. And alleged on information and belief the receipt by the defendant of large sums of money on account of such alleged contract.

The affidavit of Louis W. Emerson in opposition to this motion -sets up at great length a reiteration of the facts in the answer, and contradicts some of the alleged personal transactions between him and Kellogg set out in the moving affidavits.

It is quite apparent from the pleadings and affidavits used on this motion, that if the action could be regarded as one solely for an accounting by the defendant, upon the theory of the plaintiff’s complaint, and of the relations between defendant and the plaintiff’s assignor, as therein set forth, that this would be a proper case for a reference within most, if not all, of the authorities. But it seems quite apparent that in determining whether or not a compulsory reference is allowable, the court must look at the issues tendered by the pleadings, and which on the trial it will be required to determine.

No inquiry into the sales or commissions under or arising out of the contract set out in the plaintiff’s complaint would be necessary or material unless the relation of co-partners, or a community of interest is established between the defendant and the plaintiff’s assignor, snob as is alleged on the part of the plaintiff in his complaint.

That relation is denied by the answer, and the issue tendered by that denial becomes one of the leading features and grounds of contention in this action.

This being an equitable action triable by the court, and no issues having been settled to be submitted to a jury, as required by the rules and practice of this court, it is quite clear that a jury trial cannot now be insisted upon by either party.

Is it referable against the objections of the defendant under section 1013 of the Code of Civil Procedure ? The language of that section is as follows: The court may of its own motion or upon

the application of either party, without the consent of the other, direct a trial of the issues of fact by a referee where the trial will require the examination of a long account on either side, and will not require the decision of difficult questions of law. In an action triable by the court, without a jury, a reference may be made as. prescribed by this section, to decide the whole issue or any of the issues, or to report the referee’s finding upon one or more specific questions of fact involved in the issue,” Two conditions referred to-must appear to the court before granting a reference in cases triable by the court:

First. Where the trial will require the examination of a long-account.

Second. Where the trial will not require the decision of difficult questions of law.

It is by no means certain that the trial of this action will involve-the examination of a long account. To assume that, will involve also-the assumption in advance of the trial, that the plaintiff will establish the contractual relations between the defendant and his assignor set. up in the complaint.

This the court cannot determine in advance.

In Thayer v. McNaughton (117 N. Y. 111) Andrews, J., says: It is not enough to justify a compulsory reference that the case may by possibility involve the examination of a long account.

“ There must be enough alleged or shown to justify an inference-that that will be the course of the trial. The same rule applies to. equitable as to legal actions. In neither case can a compulsory reference be ordered unless the trial will require the examination of a long account. * * * But the power of the court to order the reference is limited by the general condition contained in the first clause of section 1013, which is alike applicable to cases triable by the court and cases triable by jury. (Camp v. Ingersoll, 86 N. Y. 433; Barnes v. West, 16 Hun, 68; Read v. Lozin, 31 id. 286.) ”

It is difficult to distinguish the principle involved in this decision from the one involved in the determination of the case at bar. As this is one of the latest utterances of the Court of Appeals on this subject to which my attention has been directed, I think it must control in the decision of this appeal.

It is true that we are referred by the learned counsel for the respondent to the case of Brown v. Finch (45 N. Y. St. Repr. 327; affd., 133 N. Y. 671), without comment or opinion, but in that case it is evident, from the brief statement in the opinion of the General Term, that that court put its decision on the express ground that it appeared affirmatively that at some stage of the action the examination of a long account must be had. It also appears • that the objection that the case was not referable grew out of affirmative matter of defense set up in the answer.

That case is unlike this. Here the objection that the case is not referable grows out of affirmative allegations in the complaint which are put in issue by a denial of the answer.

Nor is it quite clear that the other condition which may stand in the way of a compulsory reference does not exist in this case. It is not quite clear that the maimer in which the plaintiff claims to connect the assignor with the defendant, and thus to connect them both with the profits of the contract, in writing, to which neither of them are parties, will not present difficult questions of law which, within the provisions of section 1013 of the Code, would render this action not one in which an involuntary reference can be ordered by the court.

"We are,' therefore, of the opinion that the order awarding a reference and appointing a referee in this case should be reversed.

Putnam and Herrick, JJ., concurred.

Order reversed, with ten dollars costs and printing disbursements.


text:
    Rebecca Sutherland, as Administratrix, etc., of Mark Sutherland, Deceased, Respondent, v. The Troy and Boston Railroad Company, Appellant.

      Contributory negligence — insufficient proof thereof.

    In an action brought to recover damages for injuries sustained by the plaintiff’s intestate through the alleged negligence of a railroad company, the obligation rests upon the plaintiff to establish the fact that her intestate was free from contributory negligence. ,
    Evidence that the intestate, an engineer, upon frequent occasions ran his engine at a rate of speed greater than was permitted by the rules of the company; that some other engineers had done the same thing, and that warning had been given that they must not exceed the rate of speed prescribed, by the rules of the company, as bearing upon the question whether the plaintiff’s intestate was free from contributory negligence, considered.
    Appeal by tbe defendant, Tbe Troy and Boston Railroad Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of Rensselaer on tbe 26th day of April, 1893, upon tbe verdict of a jury rendered at tbe Rensselaer Circuit, and also from an order entered in said clerk’s office in January, 1893, denying tbe defendant’s motion for a new trial made upon tbe minutes.

      T. F. Hamilton and John H. Peck, for the appellant.

      Warren, Patterson & Faulkner, for tbe respondent.
   Herrick, J.:

This case lias been several times before tbe court. Tbe Court of Appeals (35 N. Y. St. Repr. 853) held that upon tbe evidence tbe plaintiff was not entitled to recover because she “ did not meet tbe obligation resting upon her of presenting a case from which tbe jury could fairly find that her intestate was free from any negligence which contributed to his death.”

Upon this last trial there was some evidence presented upon the question of contributory negligence in addition to that which appeared in tbe case when it was before tbe Court of Appeals, but from a careful reading of tbe case I cannot see that the facts are substantially different from wlmt they appeared to be then. Under the ruling of the Court of Appeals, it seems to me that the plaintiff has failed now, as she did then, to establish the fact that her intestate was free from contributory negligence. Instead of meeting the obligation that devolved upon her of proving a lack of negligence, the evidence strongly points directly the other way, and that but for the intestate’s own negligence' and violation of the rules of the company, this accident would not have happened.

While upon this last trial there is evidence showing that the intestate upon frequent occasions ran his engine at a rate of speed greater than was permitted by the rules of the company, and that some other engineers had done the same thing, it also appears that ■in addition to these rules warning had been given and posted upon the bulletin for the inspection of engineers, that they must not exceed the rate of speed prescribed by the rules of the company. It seems to me, upon the evidence in the case as it now appears, that, within the former decision of the Court of Appeals, the plaintiff is not entitled to recover. The judgment should be reversed and a new trial granted, costs to abide the event.

Mayham, P. J., concurred ; Putnam, J., not acting.

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


text:
    Michael O’Neil, Respondent, v. Hudson Valley Ice Company, Appellant.

      Contract — a reservation by one pa/rty of the right to pay workmen employed by the other — no privity created.

    In a contract, by which the party of the first part, as “agent,” contracts to So certain work for the party of the second part and to pay all the expense thereof, and the party of the second part agrees to pay the contractor at a certain specified rate as the work proceeds, retaining a certain percentage until the completion of the work, a provision that “the party of the second part also reserves the right to pay the men on above contract and keep the men’s time,” does not impose an obligation upon the party of the second part to pay, upon a quantum meruit, the men employed by the contractor on the work, nor does it create a privity between such party and the workmen.

      Nor does such a provision in a contract authorize the contractor, in employing men to perform the -work, to bind the party of the second part, to pay for their services, by any statement made by him to the men.
    Appeal by tlie defendant, The Hudson Valley Ice Company, from a judgment of the County Court of Albany county in favor of the plaintiff, rendered upon an appeal (for a new trial) from the judgment of the City Court of Albany, and entered in the office of the clerk of Albany county on the 14th day of June, 1893, and also from an order denying the defendant’s motion for a new trial made upon the minutes.
    The plaintiff recovered a judgment in the City Court of Albany, and the County Court on appeal, on a new trial, directed a verdict for the plaintiff, on which judgment was entered, from which judgment the defendant appealed to this court.

      George H. Stevens, for the appellant.

      John A. Stephens, for the respondent.
   Mayham, P. J.:

This action is brought by the plaintiff to recover for alleged services rendered in filling an ice house for the defendant.

On the 30th day of December, 1892, Thomas Mullon, agent, entered into a contract, in writing, with the defendant, in consideration of the sum of twenty-two cents per ton, to scrape, cut, convey and house all the ice necessary to fill the ice house belonging to the defendant, situated at the corner of Bridge street and Broadway, and when harvest is complete to return defendant’s tools and implements to the dock near the elevator, and to pay all expense from start to-finish, except for coal necessary for the engine, and to pay the defendant one dollar and twenty-five cents per day for what horses he hires of it, and to accept seventy-five per cent of pay for what is harvested weekly, and to do all things subject to the requirements of the defendant.

The defendant agrees to pay Mullon twenty-two cents per ton of forty-five cubic feet. The defendant also reserves the right to pay those employed on the contract and keep their time, and as soon as the job is completed to pay the balance of the contract price.

The case discloses the fact that the ice furnished amounted, at the contract price, to $2,200, of which sum the defendant had paid $2,056.93 to the employees, leaving a balance on the contract price' due from the defendant of $143.07.

.Bht it is insisted that the defendant is liable, under this contract, to pay the laborers on this job for all the work performed by them, and that seems to be the theory upon which the learned trial judge proceeded in directing the verdict in this case, and that contention is sought to be maintained under this provision of the contract: The party of the second part also reserves the right to pay the men on above contract and keep the men’s time.”

We do not think that this contract, taken as a whole, will bear any such construction. It is not quite clear why this provision was incorporated in the contract; but it is quite obvious that this volition reserved to the defendant was not intended to nullify the other provisions in it, which regulated the price to be paid for this work, and obligated Mullon, or the unknown principal whom he represented, “ to pay all the expense from start to finish,” and turn the contract into an obligation on the part of the defendant to pay upon a quantum meruit the very expenses which Mullon had contracted to pay, nor did it authorize Mullon, in employing the men to perform this work, to bind defendant to pay for their services by any state' ment made by him to them.

The case is not analogous in principle to that of Kingsbury v. Earle (27 Hun, 141). That was a case where the father conveyed land to his son, with an express covenant on the part of the son to pay all his father’s debts; and the amount of the debts, and not the nominal consideration in the deed, was deemed to be the actual consideration agreed to be paid by the son.

No such agreement was made by the defendant in this case by the written contract. Nor does this case come within the principle of the cases cited by the respondent, where a party having money in his hands due to another, pays part of it on the debts of the other, from which a trust is sometimes presumed in favor of other creditors. (Cock v. Moon, 18 Hun, 31, and other cases cited by the respondent on this point.)

Under this written contract there was no privity between the defendant and the plaintiff’s assignors. They were employed by Mullon, who was only authorized to act under the contract for himself, and not as the agent of the defendant. .Nor is the case like that of Lawrence v. Fox (20 N. Y. 268) ; that was a case where the defendant agreed to pay a third person for the benefit of the plaintiff. In the case at bar there was no agreement made by the defendant to pay a third person, but only a reservation of privilege by the defendant to pay to the extent of its liability to Million.

The case is more clearly analogous to that of Lorillard v. Clyde, (122 N. Y. 602), which was distinguished from Lawrence v. Fox (supra). In Wheat v. Rice (97 N. Y. 302) it was held that the principle of the case of Lawrence v. Fox (supra) should be limited to cases having the same essential facts. Under such limitation it cannot be extended to this case.

We think the trial court erred in admitting the evidence of communications made by Million to plaintiff’s assignors at the time of employing them, that the company would pay them. In doing so he acted without authority from the defendant, and his statements were but hearsay, and should have been excluded on the objection of the defendant. (Happy v. Mosher, 48 N. Y. 313.)

There was perhaps a sufficient dispute upon the facts in this case to have justified sending it to the jury. But as both parties called upon the court to direct a verdict, and the defendant made no request to submit that dispute to the jury, that question cannot be raised here. (Dillon v. Cockcroft, 90 N. Y. 649.)

We think, for the reasons hereinbefore stated, the trial court erred on the trial of this action, and for that reason a new trial should be ordered in the County Court.

The judgment must be reversed and a new trial ordered in the Albany County Court, costs to abide the event.

Putnam and Herrick, JJ., concurred.

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


author: Putnam, J. :

text:
    Charles H. Armatage, Respondent, v. Joseph Fisher and Others, Appellants.

      Removal of the president of the common council of Albany — injunction, instead of certiorari or quo mm'unto —•rules applicable, pending the adoption and alteration of the rules of the common council — term of office of the president.

    An action brought for the purpose of obtaining an injunction to restrain members of the common council of a city from taking steps to remove the plaintiff from the office of president of the common council, in alleged violation of law, is not open to the objection that the proper remedy is by certiorari, when at the commencement of the action the plaintiff has not been actually removed from his office, as, under the Code of Civil Procedure, a writ of certiorari cannot issue until the final determination of the body to which it is directed.
    Nor in such a case, as the plaintiff is still president and no other person has been appointed to his place, is relief obtainable by an action in the nature of quo warranto.

      Semble, that when the papers in such an action for an injunction show that the defendants, as members of the common council, without authority of law, are proceeding to remove the plaintiff from his office of president, a case is established in'which equitable interference by a temporary injunction is proper, on the ground that the plaintiff is about to suffer irreparable injury.
    In an action brought to enjoin the alleged illegal proceedings of the defendants, constituting a majority of the members of the common council of the city of Albany, in attempting to remove the plaintiff from the office of president of that body, which right of removal was by the defendants claimed to exist under an alteration of rule 33 of the common council, made on June 5, 1893, by a mere majority vote, it was claimed by the plaintiff that such alteration was illegal because in violation of rule 34, alleged to have been then in force, which provided that no rule of the council should be altered, suspended or rescinded, except by a two-thirds vote, or on a specified notice. On an application for an injunction pendente lite it appeared that the plaintiff, as president, had appointed a committee to report rules; that at the time of such appointment it was resolved that the rules of the last board, of which rule 34 was one, be adopted until the committee should report; and that the committee reported the new rules on June 5, 1893, before the change was made in rule 33.

      Held, that rule 34 was not in force when the change in rule 33 was made, there being then no rules in force;
    That in the absence of any rule or statute to the contrary, the common council could by a majority vote adopt new rules, and that the transaction of June 5, 1893, was not an amendment of existing rules, but the adoption of new rules, none being in force at that time.
    The change made in rule 33 consisted in inserting therein a provision that in case of charges preferred against the president of the common council, a committee of investigation should be named and appointed by the common council.

      Held, that the insertion of this provision'was in effect the making of a new rule, and, hence, that it was doubtful whether the same was within the prohibition of rule 34 against altering, suspending or rescinding a rule as it existed prior to the report of the committee on rules, even if rule 34 should be deemed to have been in force at the time in question;
    That the rules adopted by the common council of a municipal body are not ordinances, and, hence, that the transaction of June 5, 1893, adoping new rules of the common council, was not prohibited by the provision of the charter of the city of Albany (Laws of 1883, chap. 398 of title 3, § 34) which, prescribes that no ordinances shall be adopted and no by-laws rescinded or repealed except by a two-thirds vote;
    That as neither the city charter nor rule 33 as in force on and prior to June 5, 1893, applied to the removal of the president of the common council, there Was, at the time charges were preferred against the plaintiff, no statute or rule providing for the procedure to be adopted by the common council in such a case, unless the new rule 33 was in force;
    That if the defendants had the power to remove the president, they could do so as well without the adoption of a rule as after it; and that it was not important whether the new rule 33 was properly adopted or not;
    That as it was within the power of the common council to remove the president, and it was not essential that it should enact before the trial of the charges against him, a rule or rules as to the procedure to be adopted, the proceedings so far as they had gone appearing to have been fairly conducted, the action to restrain such proceedings could not be maintained.
    The charter of the city of Albany, as amended by section 3 of chapter 386 of the Laws of 1891, provides that the common council “ shall biennally elect a president ” from its own body, and biennally appoint a clerk, and that the cleric shall hold his office for two years;

      Held, that the absence of a provision determining the period for which the president should hold his office did.not indicate an intention that he should hold it for two years, the same as the clerk, but rather indicated a contrary intention ;
    That the words ‘ ‘ shall biennially elect ” were not intended to fix the term of office;
    That the duration of the office of president held by the plaintiff, not being provided for by the Constitution or statute, the office was held during the pleasure of the common council;
    That the common council, having- the power to appoint its president, was to be deemed to have the right to remove him, at least for cause;
    That in the absence of any statutory prohibition, a majority of the common council could, in a proper case, remove the president as well as appoint him;
    And that the court could not b3r injunction restrain the defendants, a majority of the common council, in their action in a matter so within their jurisdiction and in which they appeared to be proceeding in an orderly manner.
    Appeal by tlio defendants, Joseph Fisher and others, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of Albany county on the 29th day of July, 1893, enjoining and restraining the defendants pendente Ute from acting upon any report of the committee theretofore appointed by the common council of the city of Albany, to hear and to report upon charges alleged to have been preferred before that body against the plaintiff, Charles II. Armatage, in such wise as to remove the said Charles II. Armatage from his office and position of president of the said common council, or otherwise interfering with the said Charles H. Armatage in the execution of his duties as president of the common council, etc.
    By section 3 of chapter 286 of the Laws of 1891, it is provided:
    “ The common council shall biennially elect a president from its own body, and in his absence a president for the time being, and biennially appoint its clerk, who shall receive a salary of twenty-five hundred dollars par annum, payable monthly, and who shall perform such duties as may be prescribed for him. The clerk so. appointed shall also be the city clerk and hold his office for two years unless removed for cause and by consent of the common council.”

      John A. Delehanty, for the appellants.

      G. L. Stedman, for the respondent.
   Putnam, J. :

The plaintiff claims that the defendants, as members of the common council of the city of Albany, on June 5,1893, illegally altered rule 33 as previously adopted, and under said rule, as so altered at the time the action was commenced, in violation of law, were proceeding to remove the plaintiff from his office of president. An order was made granting a temporary injunction restraining the defendants during the pendency of the action from taking any steps towards removing the plaintiff from his said office, from which said order the appeal was taken.

It is conceded in the respondent’s brief that the object of the injunction was not to restrain the removal of the plaintiff as a member of the common council, which under the statute and rules can be done, and only done, by a vote of two-thirds of the members of said council. The object is to prevent his removal as president, the defendants claiming that lie can be so removed by a majority vote.

It is alleged by appellants that plaintiff’s remedy, if any, for the alleged violation of law by the defendants, is by writ of certiorari under the provisions of the Code of Civil Procedure (§ 2140). This position would probably be well taken had the defendants at the time the action was commenced actually removed the plaintiff from his office. Put a writ of certiorari cannot issue until the final determination of the body to whom the writ is directed. When the. action was commenced, therefore, plaintiff could not have resorted to this remedy.

Nor could the plaintiff have obtained relief by an action in the nature of quo warranto. Plaintiff is yet president. No other person has been appointed to his place. This case is not like that of Johnston v. Garside (20 N. Y. Supp. 327) and kindred cases. The object of the action is to prevent the removal of the plaintiff and the appointment of another person in his place. It is to prevent a state of affairs which, if brought about, would probably render an action in the nature of quo warranto proper.

If in this case the papers show that defendants, as members of the common council of the city of Albany, without authority of law, are proceeding to remove plaintiff from his office of president, we are inclined to think they show that plaintiff is about to suffer an irreparable injury. The loss of the office may be deemed such. We are, therefore, not prepared to say that if the proposed action of defendants as to removing the plaintiff was or is without jurisdiction, this equitable action cannot be maintained, or that the temporary injunction was improperly granted.

We proceed, therefore, to consider the alleged illegal acts of defendants, as stated in the complaint and papers before us.

It is claimed that on June 5, 1893, while rule No. 34 was in force, providing that “No rule of this council shall be altered, suspended or rescinded except by a two-tliirds vote of all the members elected, and no motion to alter, suspend or rescind any (such) rule shall be in order without the unanimous consent of the council, unless notice thereof shall have been given at the previous regular meeting, and no motion to suspend shall embrace more than one rule, or relate to any other subject than the one specified in said motion,” the defendants, by a majority vote only, and without any notice having been given at a previous meeting, assumed to alter and amend rnle 33 in violaron of the provisions of law, and of rule-31 {supra).

The original rule was as follows, except the part in italics, which part contains the amendment or alteration alleged to be unlawfully made: “ 33. When any member of the common council shall be charged (which charge shall be in writing and presented at a meeting of the common council) -with any violation of any law or ordinance of said city, or resolution, rule or regulation of said council, the matter shall be referred at said meeting to a committee of investigation of not less than five. In case the charge is preferred against the president of the common council such committee shall he named and appointed hy the vote of the common council / except in case the com/mittee is named hy the common cotmcil, the member (charged) shall have the right to object to not more than two members named on said committee, and the member complaining or charging shall have the same privilege, and other members shall be appointed to fill the vacancies thus created. The member charged shall be served with a copy of said charges and notice when said committee shall hear the same (at said time), or the time or times to which it shall be adjourned (shall) to examine the same, and of when it shall report to the council. - When the report of any committee of investigation shall be considered the council may order a secret session for that purpose.”

It is urged by plaintiff that rule 33 could not, on June 5, 1893, be-changed as above except by a two-tliirds vote and after notice of the proposed change had been given at a previous meeting, as provided by rule 31, then in force.

W e doubt whether this position is well taken. It appears by the affidavit of Craven, the clerk of the common council, that on May 3,1892, when the plaintiff was elected president, he appointed three-persons to report rules for the transaction of the business of the board, and it was then resolved that the rules of the last board be adopted until said committee reported. Said committee reported on June 5, 1893, and before the change was made in rule 33. Therefore, when the change was made rule 31 was not in force. There was then no rule. In the absence of any .rule prohibiting such a course it is clear that the common council could by a majority vote adopt new rules, unless prohibited by statute. Therefore, the trails-■action of June 5, 1893, was not an amendment of tlie rules but the adoption of new rules, none being then in force.

The allegation in the complaint that certain rules of order of the common council were and have been in force” is an allegation of a legal conclusion and not a statement of facts, and hence not admitted in the demurrer. There was no allegation that such rules were ever enacted by the common council. The defendants could, therefore, on the motion for an injunction, prove the resolution that was in fact passed in regard to the adoption of the old rules and the facts as to the adoption of the new ones.

It is doubtful whether rule 31, as existing prior to the report of the committee, if deemed in force at the time in question, prohibited the making of an additional new rule except by vote of two-thirds of all the members of the common council and unless notice ■should have been given at a previous meeting. The prohibition is against altering, suspending or rescinding. The so-called alteration leaves the original rule in force. It makes a provision for a case not provided for in the former rule. The alteration is in fact a new provision, which might have been contained in a new or separate rule, and which does not alter, suspend or rescind the provisions of rule 33 as in force on or before June 5, 1893.

The transaction of June 5, 1893, was not, we think, prohibited by section 31 of title 3, chapter 298, Laws of 1883, providing that no ordinances shall be adopted, and no by-laws rescinded or repealed, unless by a two-thirds vote. The rules adopted by a legislative or municipal body cannot be deemed ordinances. Such bodies adopt rules for their guidance in making ordinances or laws. A rule is defined to be u the regulation adopted by a deliberative body for the conduct of its proceedings.”

The word “ ordinance,” as applicable to the action of a municipal corporation, should be deemed to mean the local laws passed by the governing body. The Legislature of the State passes laws and makes rules for the government of its procedure. So a municipal corporation passes laws called “ ordinances ” and enacts rules. The same distinction that exists between laws and rules made by the Legislature should be held to exist between ordinances and rules enacted by a municipal corporation.

We, therefore, incline to the opinion that the defendants did not do an illegal act in making new rule No. 33 by a majority vote, and without previous notice, there being no statutory or other prohibition against the act.

But assuming that our views above stated are erroneous, and that the new rule, so far as it alters or adds to the old one, was enacted without authority, and that in fact the old rule No. 33 is in force unchanged, it remains to be seen in wliat regard the plaintiff is injured by the illegal action of defendants.

It requires no argument to show that if plaintiff’s only grievance was the alleged unlawful enactment of the new rule 33, and defendants, after such enactment, have done no act in violation of plaintiff’s rights, this equitable action could not be maintained. In that, case plaintiff’s remedy, if any, would be by a certiorari. It will not be claimed that this court should, by injunction, restrain the action of a municipal corporation in the adoption of rules whether such rules are regularly enacted or not. But the position of plaintiff is that defendants have not only made the new rule, but tender cmd hy virtue thereof they are proceeding to remove plaintiff. The assumption is that without the rule the removal would not take place.

As we have seen, the injunction is not sought to prevent the removal of plaintiff as a member of the common council, but to-restrain the action of the defendants looking to his removal as president. Neither section 3 of chapter 286, Laws of 1891, amending section 7 of title 3 of the act of 1883, nor rule 33, as in force on and prior to June 5, 1893, apply to the removal of the president. Hence, at the time the charges were preferred against plaintiff there was no statute or rule providing for the procedure to be adopted by the common council in such a case, unless the new rule 33 was in force.

Assuming that the common council has, in any event, power to remove the president, we are unable to see that any rule as to the course of procedure was necessary to be adopted prior to such removal. In other words, if the defendants have the power to remove the plaintiff, they can do so as well without the adoption of a new rule as with it. It is true that section 3 (supra) gives the common council the right to determine the rules of its own procedure, but it is not bound to establish general rules of procedure, and •the failure to make such general rules does not invalidate its action if otherwise legal. Doubtless, on the charges against.the president being preferred, the common council should furnish him with a copy ■of the same, notice of the hearing thereon before the board or its committee, and an opportunity to examine and cross-examine witnesses, .and to offer evidence on his own behalf, as was done in this case. The proceedings before the committee after the charges were made ■seem to have been fairly conducted; plaintiff appears to have had a reasonable opportunity to protect himself, appearing by counsel and ■ex oss-examining witnesses produced by the defendants.

Therefore, as the proceedings of the defendants, based on the ■charges made against plaintiff, wei’e as much authorized without a previous rule establishing the course of procedure as if such a rule had been adopted, it is not important whether the new rule 33 was .properly adopted or not.

Hence, if it was in the power of the common council to remove i;he presidexxt, it not being essential that it should enact before the ■.trial of the charges against him a rule or rules as to the procedure 'to be adopted, and as the proceedings as far as they have gone appear to have been fairly conducted, this action to restrain such proceedings cannot be maintained.

The real question in the case, then, is whether the common council have or have not the right to x-emove the president at pleasure or for cause, and if so, whether he can be removed by a majority vote. In this case the removal is sought for cause. As we have suggested, jf such a removal is beyond the power of defendants it may be a proper case for a court of equity to grant an injunction restraining ¡an act which it might be deemed would produce irreparable injury by depriving him of his office. And in that event a temporary injunction was properly granted.

By section 3, chapter 286, Laws of 1891 (supra), it is provided that the common council shall biennially elect from its own body a president, etc. The plaintiff iixsists tlxat this language indicates a legislative intent that the term of one elected to such office shall be two years, or the same time as the cleric and the members of the •common council. We think the statute rather indicates a contrary intent. It provides that the aldermen shall be elected for two years, .■and that the clerk shall hold his office for the same period. If it was the intent that the president should hold his office for two years also, the act would doubtless have so provided. The absence of a provision in the statute determining the period of time for which the president shall hold his office we think indicates a contrary intent to that suggested by respondent. In People ex rel. McCann v. Kilbourn (68 N. Y. 479) the Court of Appeals has determined that the words shall biennially appoint,” relate to the time when the appointment shall he made and were not intended to fix the term of office of the appointee.

We, therefore, incline to agree with the view of the appellants that the duration of the office held by plaintiff, not being provided for by the Constitution or by statute, is held during the pleasure of the common council. (See Const. art. 10, § 30 ; People v. Mayor of New York, 5 Barb. 43, 46, 47 ; People ex rel. Sims v. The Fire Com., 73 N. Y. 437; People ex rel. Cline v. Robb, 126 id. 180.)

The common council having the power of appointment should also have the power of removal. Such a power seems necessary. A president, after his appointment, might become entirely incompetent, insane, unable to perform the duties of his office. It is reasonable that the body that made the appointment should have the right to remove the appointee, at least, for cause, as the defendants are seeking to do in this case.

A majority of the common council can elect a president, and, unless prohibited by some statute, can generally pass any resolution for the government of the corporation. So, in the absence of any statutory prohibition, we think a majority can in a proper case remove the president as well as appoint him. The acts of 1883 and 1891 require a twó-thirds .vote to remove a member of the board, but are silent on the subject of the removal of the president. It would seem to follow that the majority of the board of aldermen, who, unless prohibited by statute can enact any resolution, in the the absence of any prohibition in that regard, can legally make such removal.

When the action was commenced, therefore, the aldermen on the charges preferred against the plaintiff were proceeding to investigate the same. They had appointed a committee of five, before whom plaintiff appeared with his counsel. Much evidence was taken, and the papers show that the committee had returned the evidence to the board without any recommendation. We think the board had the legal right to investigate such charges, and the right, if the evidence sustained them, to remove the plaintiff. To what conclusion they will come and whether they will reach such conclusionby a majority or a two-thirds vote it is impossible to say. Whether the evidence established the charges is not for us to determine. The question for us to consider is whether the common council had jurisdiction to remove the plaintiff for cause or otherwise. As they have that power, whether new rule 88 was properly adopted or not, we cannot, by injunction, restrain their action in a matter so within their jurisdiction, and in which they appear to be proceeding in an orderly manner.

Other questions are raised in the case which we deem unnecessary to discuss.

Our conclusion is that the order should be reversed, with costs and disbursements, and the motion for an injunction denied, with costs.

Herrick, J., concurred.

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


text:
    James J. Farren, as Surviving Partner of the Co-partnership Firm Composed of Nathan P. Hinman and James J. Farren, Respondent, v. Lucy McDonnell, Appellant.

      Semew of a referees finding of fact — application of payments —presumption of payment from a receipt.

    The power of tlie General Term on appeal, to review and reverse the finding of a referee upon questions of fact, is rarely exercised where there is sufficient evidence of an unobjectionable character to sustain the report.
    While a debtor paying money to a creditor to whom he owes several debts may, at the time of payment, direct the application of the money, yet, if he fail so to do, the creditor may make his own choice as to its application.
    The legal presumption of settlement and payment in full, arising from the giving, of a receipt and note by a creditor to his debtor, may always be overcome by-proof.
    Appeal by the defendant, Lucy McDonnell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Albany county on the 2d day of March, 1893, upon the report of a referee.
    The action was brought by Nathan P. Ilinman and James J. Farren, to recover the value of the services performed by them as' attorneys and counselors at law at the request of the defendant in two certain actions in the Supreme Court. During the pendency of the action and the progress of the trial Nathan P. Jiinman died, and the action was continued, by stipulation 'of the parties, in the name of James J. Farren as surviving partner.

      Z. S. Westbrook, for the appellant.

      J. J. Farren, in person, respondent.
   Mayham, P. J.:

One of the principal contentions of the appellant on this appeal is that the referee erred on the trial of this action in'awarding to the plaintiff’s firm too large an amount as the value of their services rendered for the defendant.

As the case stands, the question was purely one of fact determined by the referee tipon conflicting evidence.

The action was for professional services rendered by the plaintiff’s firm for the defendant, and the value of those services was testified to by eminent lawyers on either side, who assumed to take into account the amount and kind of services rendered, as well as the capacity of the eminent lawyers by whom they were performed, a method usual and proper in determining the value of such services, and while there is a wide margin of difference between the opinion or judgment of the witnesses on the different sides of this case as to the value of their services, we have carefully examined the evidence upon which the respective parties rely in support of their contention, and find abundance of evidence to support the conclusion of the referee as to the value of these services.

The power of this court un appeal to review and reverse the finding of a referee upon questions of fact is not denied, but that power is rarely exercised where there is sufficient evidence of an unobjectionable character to sustain the report.

The rule governing the exercise of that power in the appellate court is well stated by Euger, Ch. J., in Baird v. Mayor, etc., of New York City (96 N. Y. 576) as follows: “In reviewing the ■determination of a trial court upon questions of fact, an appellate tribunal is not warranted in reversing upon the sole ground that, in its opinion, the trial court should have reached a different conclusion upon conflicting evidence; * * * to justify a reversal it

must appear that such findings were against the weight of evidence •or that the proofs so clearly preponderated in favor of a contrary result that it can be said, with a reasonable degree of certainty, that the trial court erred in its conclusions.

“ Any other rule would nullify the peculiar advantage which that tribunal possesses in observing the manner and appearance of the witnesses produced and the various physical and mental peculiarities by which the mind of the professional observer determines the •degree of credit which ought prudently to be attached to oral testimony.”

It is also contended that payments were from time to time made, ■•as appears by the proof, which should have been applied by the referee upon the claims for services for which this action was prosecuted. But this evidence was met by evidence that these plaintiffs, or one of them, had rendered a large amount of service not contained in the complaint in this action. And it was contended, and the referee in effect finds, that the payment or advancements so ' proved were applied upon such services; and the proof of the plaintiff justifies such application of the same; and as there was no proof of any direction given by the defendant as to the application of the money so paid, the plaintiff was 'at liberty to apply it on any debt' -due him at the time of the payment.

The rule- is well settled that while a debtor may give direction at the time of payment as to the application of the money, yet, if he fail to do so the creditor may take his own choice as to its application.

This rule is laid down in Bank of California v. Webb (94 N. Y. 467) by Earl, J., as follows : “ A debtor paying money to a creditor to whom he owes several debts may direct the application of the payment because the money is his and he may do as he will with it, ■and control its application. But the debtor must exercise his option •as to the application when he makes the payment; after that the money has ceased to be his, and is no longer subject to his control. Then it belongs to the creditor, and he is master of it, and may-control its application.”

The finding of the referee, that the payments were applied upon other debts of the defendant, was supported by sufficient evidence to uphold it, and with that finding we should not interfere. Rut the appellant urges that a receipt and note was given by Iiinman, which are evidence that the defendant did not owe plaintiff at that time. It is quite true that such transactions are prima facie evidence. (De Freest v. Bloorrmigdale, 5 Den. 304.) Rut this prima facie evidence may always be overcome by proof. (Ryan v. Ward, 48 N. Y. 204; Miller v. Coates, 66 id. 609.)

The legal presumptions arising from these transactions were met by evidence from which the referee might find that they did not establish a settlement or payment in full at the time that they were given.

We have examined the rulings and decisions of the referee on the trial, and the various exceptions taken by the defendant in the case, and find no error for which this judgment should be reversed.

The judgment should be affirmed, with costs.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.