text:
    Thomas B. Van Allan, Respondent, v. Alexander F. Gordon, as Executor, etc., of John H. Gordon, Deceased, Appellant.

      Amendment — order allowing a defendant to plead an additional defense conditioned upon the payment of a specified sum — propet' method of appeal therefrom— Code of Civil Procedure, § 723.
    Where an appeal is taken from an order made in an action allowing the defendant to plead an additional defense upon terms, it is not the proper practice to appeal simply from that part of the order which contains the condition, but the whole order should be appealed from.
    Where a case has already been tried in a municipal court and again before a referee, and a third trial is proceeding before another referee, the court may impose as a condition, for permitting an amendment of the answer, the payment to the plaintiff of a specific sum, for example, fifty dollars, but the sum in question should not be required to be paid absolutely, but should be applied upon the plaintiff’s costs in case he recovers in the action. .
    Appeal by the .defendant, Alexander F. Gordon, as executor, etc., of John H. Gordon, deceased, from so much of an order of the County Court of Monroe county, entered in the office of the cleric of the county of Monroe on the 26th day of June, 1895, as imposed upon the defendant, as a condition for the granting of the motion to amend his answer herein, the requirement that he pay the plaintiff the amount of the plaintiff’s disbursements incurred in the action since the trial thereof in the Municipal Court of the city of Rochester and fifty dollars costs in addition thereto.

      James 8. Ua/vens, for the appellant.

      Fred. U. Baker, for the respondent.
   Ward, J.:

This action was commenced in the Municipal Court of the city of Rochester in February, 1893, and the complaint alleged that the then plaintiff, Robert A. Yan Allan, was a practicing physician and surgeon regularly authorized to practice as such under the laws of this State, and that he had rendered professional services as such and furnished medicine to the then defendant John H. Gordon for which he claimed judgment for $625. The defendant answered, admitting that the plaintiff was such physician and surgeon, but denied the rendition of the services as claimed, and for a further answer alleged that the services of the plaintiff were unsldllfully and negligently performed,, and demanded damages therefor; defendant further served an amended and supplemental answer, which alleged that the plaintiff had, since the commencement of the action, disposed of the cause of action to his father, Thomas B. Van Allan. The plaintiff recovered judgment in the Municipal Court for $350 and costs, from which judgment the defendant appealed to the County Court of Monroe county for a new trial, where the action was referred to a referee to hear, try and determine. Subsequently Thomas B. Van Allan, as the alleged assignee of Robert A. Van Allan, was Substituted as plaintiff in the action. IT pon the trial before the referee, the referee reported in plaintiff’s favor ; judgment was entered thereon for $350 and costs. From that judgment defendant appealed to the General Term of this court, where the judgment was reversed and a new trial ordered before another referee. The trial was commenced before such referee and the original plaintiff was sworn, and he gave such evidence as induced the defendant to ask that the trial be suspended, that he might move to amend his answer in important particulars. In the meantime John IT. Gordon, the original defendant, had died, and the present defendant, his executor, had been substituted as defendant. Upon the motion to amend, the County Court of Monroe county made an order that the defendant’s proposed amended answer that accompanied the motion papers, should stand as the answer in the action, provided that the defendant, before the adjourned day of the trial before the referee, should pay the amount of the plaintiff’s disbursements incurred in the action since the trial thereof in the Municipal Court of the city of Rochester, and fifty dollars costs in addition thereto; and it was further ordered that if the defendant admitted the regularity of the original plaintiff’s license to practice medicine and surgery in this State, and of the registry of such license, then that the proposed answer should stand as the defendant’s answer in this case on the payment of ten dollars costs of the motion, and it was further ordered that no amendment should be allowed to the answer unless the defendant admitted the transfer of the claim in suit, from the original plaintiff to the said Thomas B. Van Allan.

The amended answer contained the denial that Robert A. Van Allan was a competent physician, and regularly authorized to practice his jn’ofession under the laws of this State. It also has a second defense set up as a counterclaim, that the said Robert A. Yan Allan had so improperly, unskillfully and negligently performed his services and treated the said John II. Gordon, that he was guilty of malpractice, and that John II. Gordon had suffered damage in excess of the value of any services that had been rendered, which was intended to be recouped against the plaintiff’s claim.

The appeal from the order permitting the service of this answer is an appeal only from that portion of the order which imposed upon the defendant, as a condition for the granting of the motion to amend his answer, the payment by the defendant of the plaintiff’s disbursements incurred since the trial in the Municipal Court, and the fifty dollars costs in addition thereto.

The attitude of the appellant, therefore, is that he proposes to avail himself of the benefits of that order, to wit, the right to serve his amended answer arid inject a new and important defense into the action, and escape the burden imposed upon him as a condition for the privilege granted.

There is difficulty upon the threshold in disposing of this appeal upon the merits, for only a portion of the order is before us, and we are unable to see how we can dispose of the whole question intelligently with only a fragment of the order here. This difficulty arose in In re Rockwell's Will (9 N. Y. Supp. 696), where amotion by the contestant of a will for a struck jury was denied, provided proponent stipulated that jurors might sit at the trial, though they had read newspaper accounts of the controversy and had formed opinions thereon, or conversed on the subject-matter of the litigation upon the merits; but in case the stipulation was not given, then the motion was granted. The General Term of this department held that an appeal by the proponent from so much of the order as imposed the condition in case the application should be denied, and from the granting of the application in case the stipulation was not given, brought up nothing which the General Term could intelligently review.

In Havemeyer v. Havemeyer (44 N. Y. Super. Ct. 170) there was an appeal like the one in the case before us from so much of an order as imposed the payment of the costs of a trial already had and of an appeal to the General Term, as a condition for granting leave to serve an amended answer, and the court held that no appeal will lie from’ a condition merely, of allowing service of an amended answer, stating the reasons therefor.'

To the same effect is The Tribune Association v. Smith (40 N. Y. Super. Ct. 81).

But, assuming that the whole order is before us, we do not think the discretion of the County Court was abused in this instance. By section 723 of the Code of Civil Procedure the court may, “ on such terms as it deems just,” permit an amendment of a pleading “by inserting an allegation material to the case.” This grant of power to the court is a liberal one and was intended to vest a wide discretion in the court, that would adapt itself to varying circumstances and conditions of the different cases in which this discretion is invoked, and it has generally been held that this discretion could not be reviewed by the appellate court. The appellate court has, however, entertained appeals in such cases where the discretion of the court below has been carried to an unreasonable extent, amounting to oppression. ' The appellant complains that the order should have provided that the taxable disbursements should be paid as a condition; we think that is the fair import of the. condition; it means the taxable disbursements and nothing more.

The appellant further complains that the order should not have fixed a specified amount of costs to be paid, but should have provided that the taxable costs be paid simply, if anything, and claims that an examination of the cases fails to disclose an instance where the payment of a specific amount of costs has been imposed as a condition for the relief granted.

However this may be, the court exercised a proper discretion in the case at bar having before it the fact that; in the progress of the litigation in the different courts through which the case has passed,.a large amount of costs had accrued which would ultimately go to the successful party in the litigation, and would exceed the amount of fifty dollars imposed in this instance, and which was not unreasonable under the circumstances of this case.

The order should be so modified as to apply the fifty dollars on the plaintiff’s costs in the action in the event he recover therein, and, as so modified, order affirmed, without costs of this appeal to either party.

Lewis, Bradley and Adams, JJ., concurred.

Order so modified as to apply fifty dollars on the plaintiff’s costs in the action in the event he recover therein, and, as so modified, order affirmed, without costs of this appeal to either party.


source: Caselaw Access Project

author: Ward, J.:

license: Public Domain

text:
    Nettie M. Stillman, as Administratrix, etc., of Arthur B. Stillman, Deceased, Appellant, v. Brush Electric Light Company of Rochester, Respondent.

      _Negligence — a trimmer of electric lamps hilled by electricity — what bill of particulars a plaintiff suing as administratrix may be compelled to furnish.

    The complaint in an action alleged that the defendant supplied electricity in the city of Rochester; that the plaintiff's intestate was a trimmer of lamps in the employ of the defendant; that the defendant negligently maintained, as a part of its plant, a certain lamp in a store of an imperfect and obsolete design and construction; that it did not have certain improved appliances and attachments which were in general use and were necessary for the safety of persons who had occasion to handle or trim the lamps; that the switch and wires maintained in connection with such lamps were defectively constructed and insufficiently insulated, and that the insulating covering was imperfect; that upon a day named the intestate, while discharging his duties as trimmer, was killed by a current of electricity without fault upon his part and because of the negligence of the defendant.
    The defendant applied for a bill of particulars.

      Held, that the plaintiff might properly be required to state what approved appliances and attachments were in general use at the time of the death of the plaintiff’s intestate which were not upon the lamp in question;
    That the plaintiff should not be required to state in what respect the lamp was negligently maintained or defectively constructed or where the electric current was grounded upon the circuit or in what manner it was related to the death of the intestate.
    Appeal by the plaintiff, Nettie M. Stillman, as administratrix, etc., of Arthur B. Stillman, deceased, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 28th day of August 1895, directing the plaintiff to furnish a bill of particulars.

      Peter H. Ycm AuTcen, for the appellant.

      George F. Yeoma/n, for the respondent.
   Ward, J.:

The plaintiff in her complaint alleges that on March 10,1893, the defendant was the owner of certain real estate, buildings, machines, dynamos, wires and other appliances used in the generation and supplying of electricity for the city of Rochester; that the defendant negligently maintained as á part of its said plant for electric lighting purposes a certain lamp in the store of Garson, Myer & Co. of an imperfect and obsolete design and construction, and which did not have thereon certain improved appliances and attachments, which at said date, and long prior thereto, were and had been in general use in other cities in this country, and which were necessary at all times therein mentioned for the safety of persons who, in the exercise of reasonable and ordinary care, had occasion to handle said lamp and to repair and trim the same; that defendant negligently'maintained said lamp with a defective switch and other wires defectively constructed, and in close proximity to certain gas jets and lines of metal pipe without having in, upon and around said lamp and its connecting line of wire adequate and proper insulation and protection; that the defendant negligently maintained upon its said line of wire and circuit connected with said lamp in the store of Garson, Myér & Go. a large number of arc lamps for electric lighting purposes which require the transmission of an electric current of great strength and intensity and dangerous to human life; that the defendant at all times therein mentioned negligently maintained the same without providing wire properly insulated for the transmission of said current, and negligently maintained said line and transmitted said current of electricity over a wire, the insulating covering of which was old, worn, torn and imperfect and useless for the purpose of insulation. The complaint also charged the defendant with negligence in not inspecting the lines of wire in question to see whether they were properly insulated or whether the current upon said line had become grounded.

The complaint further alleged that on the day aforesaid the plaintiff’s intestate, Arthur B. Stillman, who was employed by the defendant as a trimmer of lamps, in preparing and trimming a defective lamp in the store of Garson, Myer & Co. in the proper discharge of his duties, was killed by a current of electricity without fault on his part and by reason of the negligence of the defendant aforesaid, and the plaintiff brings this action to recover damages for ‘ such killing.

The Special Term, upon the application of the defendant, ordered the plaintiff to deliver to the .defendant’s attorneys “a, bill of particulars of the plaintiff’s claim, duly verified, stating what improved appliances and attachments in general use at the date of the death of the said Arthur B. Stillman, referred to in the complaint, were not upon the lamp in the store of Myer, Garson & Company, referred to therein, and in what respect said lamp was negligently maintained, and in what respect the said lamp was defectively constructed, and where the ground upon the circuit upon said line mentioned in the complaint was located, or in what manner it was related to the death of said Stillman and that the plaintiff be precluded from giving any evidence in respect to such matters upon the trial other than as specified in said bill of particulars.”

The appeal from this order -brings the question before us. The complaint and the answer of the defendant (which denied its negligence and its liability), and the' affidavit of George W. Archer, the president of the defendant, in which he alleged that the defendant was ignorant of the negligence complained of, and of the defects complained of, and their character, and had no knowledge of -what improved appliauces or attachments were not upon the lamp, or of any ground upon said circuit or line at said time, were the papers upon which the defendant moved for the order stated. These were met on behalf of the plaintiff with the affidavit of William A. Breese, a practical electrician who was familiar with the macliin ery and system of the defendant, in which he stated that the defendant was able to detect any grounds by simple tests well known to electricians and to determine within a short distance the location of said grounds and that after determining by tests the presence of a ground and its approximate location, it required but a short time to locate the exact point of a ground by sending men over the circuit; also, with the plaintiff’s affidavit, in which she stated positively that she was unable to give any further particulars in regard to the cause of the accident by which her husband met his death,, and the particular acts of negligence of the defendant in relation thereto, than her complaint stated; and she made a part of her affidavit the testimony taken upon a coroner’s inquest held upon the body of her husband to ascertain the cause of his death, on which the foreman of the defendant was called as a witness, and claimed that his evidence indicated such a knowledge of the situation and circumstances causing the death as would show that the defendant should know the facts sought to be obtained by the bill of particulars, and the appellant’s contention here is that she should not be-required to furnish any of the particulars required by the order.

We are of the opinion that the first branch of the order, requiring the plaintiff to state what improved appliances and attachments were in general use at the time of the death of the intestate, that were not upon the lamp in question, should be sustained. If the plaintiff had in mind or could ascertain any such improvements of which the defendant claims to be ignorant it is proper that she should-state them so that the defendant may be apprised of the particular improvements claimed.

As to the other branch of the order, requiring specifications as to wherein the negligence of the defendant consisted with regard to the lamp in question and its connection, there is more difficulty.

The defendant cites as sustaining its contention in this regard O’Hara v. Ehrich (19 Civ. Proc. Rep. 72), where the General Term of the Superior Court of New York held that the plaintiff should give the particulars of the negligence of the defendant under the general statement in the complaint that the injury was caused by the negligent and improper construction, management and operation of an elevator ; and the case of Lahey v. Kortright (13 Civ. Proc. Rep. 352),, where the same court held that in an action to recover damages, for an alleged defect in the title to premises sold, the court required a bill of particulars showing wherein the-title was defective, and citing also Keairns v. Coney Island & B. R. Co. (1 N. Y. Supp. 906), where a driver of one of defendant’s cars alleged that he was. injured through the defendant’s negligence by being thrown from a car which was “ out of repair and in an unsafe condition,” and the complaint specified in what respect the car was out of repair and unsafe to a certain extent. The court held.that if .the plaintiff sought to prove particulars not alleged under his general allegation of negligence he must giye as to such a bill of particulars.

In McCarthy v. Lehigh Valley R. R. Company (27 N. Y. Supp. 295), also cited by the defendant, the Special Term of the Superior Court of Buffalo, in an action for wrongfully causing the death of one of the defendant’s employees, a brakeman, in which the complaint alleged the ground of action in a very general statement that defendant negligently operated its trains of -cars through incompetent servants and under insufficient rules and with unsafe appliances and over defective tracks, held that the plaintiff should give particulars as to the train on which the deceased was killed, when killed, where the track was defective, what rules were insufficient and in what respect the defendant was negligent in opei’ating its train.

It will be seen that these cases are based substantially upon bald allegations of negligence without specifications as to the particular negligence of the defendant, and in cases where the plaintiff would be expected to know or upon reasonable inquiry could ascertain the particulars.

In the case before us the plaintiff, in her complaint, has been much more specific and has amplified her general charge of negligence with several important particulars; further than that she is unable to go, and insists that the defendant is much better able' to state the facts sought by the bill of particulars from its knowledge •of the situation than she possibly can be. The plaintiff’s claim is that the deceased met with his death from the use by the defendant ■of that wonderful and mysterious power which in the last few years has been utilized and harnessed in, to the uses of business and the purposes of society. To one inexperienced in the manner of making this force available it is like a sealed book, and only those who have made a business of studying and using electricity can understand its operations or its dangers. It seems absurd then for the defendant, who is so much better equipped and better informed ■on the subject, to require this information from the plaintiff.

In Donohue v. Meares (19 N. Y. Supp. 585), where an administrator sought to recover damages for the death of his intestate, who was burned to death while engaged as an employee in the defendant’s hotel, and the only allegation of negligence consisted in this: That the defendants did not provide a reasonably suitable or safe place for the deceased to sleep in and the want of care of said defendants. * * * in failing to provide, reasonably safe means of egress in case of fire or accident in and about said buildings and premises,” the defendants moved for a bill of particulars as to these general allegations, which was denied, and Judge O’Brien, in speaking for the court (General Term of the first department), said : “ While the power of the court to order bills of particulars extends to all descriptions of actions, we think that caution should be exercised in requiring bills of particulars in actions for negligence, and particularly where the action is brought, not by the person in jured, but, as here, by one claiming in a representative capacity. Where the negligence-alleged results in death and the action is brought by an administrator, the latter ordinarily is obliged to obtain his evidence and facts from sources other than his own personal knowledge, and a defendant is ordinarily in possession of facts bearing' upon the cause of death charged through his negligence. No rule can be formulated with respect to any class of cases, much less with respect to actions of negligence, as to when a bill of particulars will be required, it being necessary to determine upon the facts presented' upon the application in each case whether it should be granted or denied.”

We adopt these views and they seem exceedingly appropriate to the case at bar.

We have reached the conclusion that the order of the Special Term should be modified so as only to require the plaintiff to deliver to the attorneys for the defendant within twenty days from the service of this modified order and a notice of its entry, a bill of particulars, duly verified, stating what approved appliances and attachments in general use at the date of the death of Arthur B. Stillman were not upon the lamp in the store of Garson, Myer & Co., referred to in the complaint herein, and that the other portion of the order of the Special Term be reversed, but without costs of this appeal to either party.

Lewis and Bradley, JJ., concurred.

Order modified so as to require bill .of particulars of what approved appliances were in use at the death of the intestate, and in other respects the order affirmed, without costs.


text:
    Coridon S. Thomson, as Surviving Executor, etc., of Daniel H. Pryor, Deceased, Respondent, v. George Chick, Appellant.

      Landlord and tenant — monthly hiring — holding over — thirty days’ notice — when reasonable notice is a question of fact — waived' of notice.

    Where, upon the trial of an action, brought to recover rent, there is a conflict in the-evidence as to whether the lease of the premises was for a year, the rent to be payable monthly, or whether there was simply a hiring for a month and a renewal of monthly terms by the payment of monthly rent thereafter, with the acquiescence of the landlord and of the tenant, it is erroneous to direct a verdict for the plaintiff, upon the ground that the defendant had not given thirty days’ notice of his'intention to vacate the premises, and that, therefore, the plaintiff could recover for the balance of the year.

      ■Semble, that where there is an indefinite agreement for a lease, and the defendant pays a month’s rent, there exists a definite tenancy for only one month, but that if the tenant holds over or pays for another month, the tenancy is renewed, but only for another month.

      Semble, that if the landlord is entitled to any notice of the termination of such a tenancy, it is for the jury to say what notice is reasonable, and whether, where notice, was given to the landlord, shortly before the tenant moved, of his intention to do so, and the key of the premises was delivered to the landlord, who did not object, the landlord had waived his right to any further notice.
    Appeal by tlie defendant, George Chick, from a judgment of the ■County Court-of Wyoming county, eutered in tlie office of the clerk ■of Wyoming county on tlie 3'lst day of January, 1893, upon tbe verdict of a jury rendered by direction of the court, with notice of .an intention to bring up for review upon such appeal an order entered in said clerk’s office on tbe 21tk day of January, 1893, denying tbe defendant’s motion for a new trial made upon tbe minutes.

      O. H. Hopfoms, for the appellant.

      James E. Norton, for the respondent.
   Ward, J.:

This action originated in a Justice’s Court of Wyoming county, ■where the plaintiff recovered a judgment of ninetyvthree dollars and sixty .cents and costs for rent claimed by the plaintiff of the defendant upon a verbal contract for tlie renting of jiremises consisting of a house and lot in Attica, Wyoming county, N. Y. The defendant .appealed to the County Court and a new trial was had before a jury; the jury being unable to agree upon a verdict, the court directed a verdict for the plaintiff for the amount of his claim, and the defendant appealed from the judgment entered upon that verdict and brings the case before us.'

The plaintiff’s evidence upon the trial in the County Court was to the effect that a few days prior to March 15, 1891, the parties met and agreed that the plaintiff should lease the house and lot to the defendant for a year commencing the fifteenth day of Mar<5h ■and to continue for a year, the rent to be payable monthly at ten dollars a month; that under this agreement the defendant entered into possession of the premises just prior to the 15th of March, 1891; that defendant paid ten dollars on the rent on the twenty-seventh of April, another ten dollars on June first, and ten dollars after defendant vacated the premises; that the 'defendant moved out of the premises about the first of June ; that the plaintiff was going by the premises and saw them moving out and ■defendant told him they were moving to another place; plaintiff said it didn’t make any difference to him how many houses the defendant rented, as he should hold him for the rent for the balance •of the year. About a week after the defendant moved out the plaintiff found the key to tiie premises, had been left with his wife with a notice that the defendant was going to move from the premises ; plaintiff refused to receive the key. The plaintiff’s claim for rent was for the balance of the year, or.for nine months commencing with June 15, 1891.

The defendant’s evidence, imwhicli he was sustained by two witnesses, was to the effect that the agreement simply was that he was to pay ten dollars a month for the premises; was to commence on March 15, 1891 ; that there was nothing said that the defendant •should hire the premises for a year 'and pay ten dollars monthly or anything of that kind; that he took possession and vacated the premises and paid the rent substantially as the plaintiff’s evidence disclosed, having left the key of the house with the plaintiff’s wife at the time he vacated the premises.

■ There was no conflict in the evidence as Jo the notice or knowledge that the'plaintiff had of the • defendant' moving from the premises and of his intention to occupy other premises about the first of June.

The learned trial judge directed a verdict for the plaintiff for the reason that thirty days’ notice had not been given by the defendant of his intention to vacate the premises, and, that therefore, the term had not ceased and the plaintiff could recover for the balance of the year.

Before the court was authorized to direct a verdict over the objection of the defendant, the evidence must be substantially without 'conflict in favor of the theory upon which the verdict was directed.

"Whether the contract was for a year, the rent to be payable monthly, or whether it was simply a contract for a hiring by the month and renewal of monthly terms by the payment of monthly rents thereafter with the acquiescence of the parties, was a question for the jury, and in considering that question we are to give full force to the defendant’s evidence and take as favorable a view of it as the evidence will reasonably permit.

Without expressing an opinion as to the full force of this evidence, we are of opinion that the defendant’s evidence did create a question of fact which should have been submitted to the jury.

We shall not attempt to analyze at length the numerous cases upon the subject of tenancies where the termination thereof has been held dependent or not upon notice. The examination of a few leading cases will suffice.

In Gibbons v. Dayton (4 Hun, 451), in speaking of a case where the rent was payable monthly and in advance, the court says: “ It is very clear that the tenancy of the intestate was from month to month; neither party was bound to give any notice to the other in order to terminate the tenancy at the expiration of any month. The landlord could have removed the tenant by summary proceedings without notice, and so the tenant could lawfully have left the premises at the expiration of any month without notice and without being bound to pay further rent.”

In Adams v. City of Cohoes (6 N. Y. Supp. 617), where a tenant who had occupied the demised premises for several years after the termination of his lease paid rent semi-annually, it was held that the payment of the rent after the expiration of the term created a new term, expiring at the close of the current year, and requiring no notice for its determination, and the principle there laid down would seem to be that where a renting is for a specific time, and the tenant holds over beyond that time, with the acquiescence of the landlord, and pays rent, a new term is implied equal to the original term, and upon the expiration of such new term the tenant can abandon the premises without notice. This case was affirmed in the Court of Appeals (127 N. Y. 175), and the position of this case seems to be sustained by Park v. Castle (19 How. Pr. 29); Austin v. Strong, 47 N. Y. 679; Nichols v. Williams (8 Cow. 13); People v. Goelet (64 Barb. 476); People v. Gleahill (48 id. 551).

The Court of Appeals, in Adams v. The City of Cohoes (supra), at page 183, cite, with approval, Ludington v. Garlock (29 N. Y. St. Repr. 600; 9 N. Y. Supp. 24). That case was like the one at. bar in its leading features. Ludington sued Garlock to recover a-month’s rent from October 20 to November 20, 1888. On the 20th of April, 1888, Garlock was in possession of the rented, premises, under a parol agreement to pay fifteen dollars a month rent, and at that time Ludington required him to pay eighteen dollars per month if he continued to occupy the premises longer than May first, as his month would be up the twentieth of April.. The contract seems to have been to pay the rent in advance.

About the twentieth of each month, June, July, August and September, Garlock paid the monthly rent of eighteen dollars, and on October nineteenth or twentieth the defendant’s boy came to-the office of the plaintiff’s agent, laid the key to the premises down before him, and said that the defendant had moved out'and surrendered the premises, and there was the key. The agent told the boy that he would not accept the key, but would hold the defendant for another month’s rent; about ten days before that the agent, had been told by the defendant’s father-in-law that the defendant had got another house and was going to move, and the defendant vacated the premises on the nineteenth or twentieth of October. The court held upon this state of facts that whei-e a defendant is in possession under an indefinite monthly renting, and pays his rent in advance, the most that can be inferred as to any agreement on the subject of notice to terminate is that reasonable notice should be given, and that the failure of the landlord to object to the sufficiency of the notice when it was given, and until after ,the tenant had moved out and tendered the key, was a waiver of regular notice. Judge Merwin, who pronounced the opinion in that case, makes a careful examination of the leading cases upon the subject, and concludes: “ When the defendant paid the month’s rent there became a fixed and definite tenancy for a month. There was no agreement by the defendant to take the premises for any longer period. If, however, he held over or paid for another month the tenancy was for that time renewed, and, as renewed, expired at the end of the month unless some further action was taken.”

It is true that, in the case at bar, the rent for the month succeeding the first was not paid strictly in advance, but each ten dollars was paid for specific monthly periods and accepted as such, and so far as the creation of monthly tenancies after the expiration of the first term -by the payment of monthly rent with the acquiescence of the parties is concerned, it is immaterial whether it be at the commencement of the month or at a later period in the month; then, if notice was required under the last case cited, the question should have been submitted to the jury as to whether such notice was a reasonable one, and whether the plaintiff had not waived the giving of the regular notice by failure to object to the notice as insufficient.

We have reached the conclusion that it was error in the court to direct a verdict for the plaintiff.

The judgment and order should be reversed and a new trial ordered in the County Court, with costs to abide event.

Lewis and Bradeet, JJ., concurred.

Judgment and order reversed and new trial granted in the Wyoming County Court, costs to abide the event.


author: "Ward, J.:

text:
    John Raines, Respondent, v. New York Press Company (Limited) and Lemuel E. Quigg, Appellants.

      Libel — publication in a newspaper of charges against a State Senator — allegations in the complaint of their repetition by otha' newspapers — senatorial investigation of the changes, and injury to the feelings — measure of damages.

    The wrongful repetition of a libel by third persons is not the act of the original publisher, but of such third persons, and, if damage results to the plaintiff from their publication of the libel, the persons who repeated it must respond in damages to the plaintiff.
    In an action brought against a newspaper to recover damages for a libel, alleged to have been published of and concerning the plaintiff, a State Senator, allegations contained in the complaint that the libelous publication was copied and commented upon by the general newspaper press of the State, and also by the press of other States, was given prominence in the press, and was commented upon by it as sensational news, bringing into disrepute the plaintiff as well as the bodies of men with which the plaintiff was associated in such publication, are irrelevant matter, and should be stricken out of the complaint.
    An allegation that the State Senate ordered an investigation of the charges, these being criminal in their nature; that the plaintiff had .to employ counsel to represent him upon the investigation; that his labors were exhausting, and that he was caused great mental anxiety because of the difficulty of the investigation and because of false rumors and suspicions, is also irrelevant, where it is not shown by whom such investigation was asked for.

      Semble, that an allegation that the plaintiff was further subjected to severe nervous strain impairing his usual health by the mortification incident to the publication of the charges is proper as constituting a possible legal item of damages, but a further statement that his feelings were injured by the “investigations, rumors and suspicions,” does not. present any ground for a recovery and is irrelevant.
    Appeal by tbe defendants, the New York Press Company (Limited) and another, from so much of an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Ontario on the 15th day of August, 1895, as denied the defendants’ motion to strike out certain portions of the complaint in this action as irrevelant.

      Be La/ncey JVieoll,.for the appellants.

      George Baines, for the respondent.
   "Ward, J.:

The respondent (the plaintiff), John Raines, a member of the State Senate, instituted an action against the defendants, claiming damages for a libel alleged to have been committed upon him hy The Press, a daily newspaper published in the city of New York by the defendants, having a daily circulation of more than 100,000 copies. The libel consisted in charges and statements made in that paper, in its issue of April 18, 1895, to the effect that the plaintiff with other Senators had been guilty of corrupt and improper conduct with reference to a bill pending before the Legislature of the State at that time. The complaint is very long, embracing many matters connected with the charges.

The defendants moved at Special Term to strike out the following allegations of the complaint as irrelevant:

First. “And its editorials and news items were extensively copied and commented upon by all the leading newspaper press in the State of New York, and plaintiff particularly states to the court that the libelous and defamatory publication in the defendants’ newspaper in its issue of April 18, 1895, which said publication is hereinafter particularly set forth, was so copied and commented upon by the general newspaper press of the State of New York.”

Also, second. “ The foregoing publication made of and concerning this plaintiff by defendants as aforesaid was made the subject of editorial comment and of news items in all the newspaper press of the State of New York, as well as of all important cities of the United States, and was given prominence as sensational news wherever such comment was made as bringing into disrepute this plaintiff as well as the bodies of men with which this plaintiff was associated in said publication.”

Also, third. “ That immediately after said publication was made the Senate of the State of New York, by formal resolution adopted in open session, ordered an investigation of all the matters contained in said publication, which investigation continued during the period of nearly one month and the details thereof were made the subject of much comment. And this plaintiff was obliged to employ, and did employ, counsel in his behalf to attend upon all the hearings of the said investigation at great expense and to personally devote a great deal of time to the gathering of evidence and personal attendance upon such investigation to establish the falsity of all the matters suggested and charged by all the matters of such publication by defendants; that such labors were, protracted and exhausting, causing plaintiff great mental anxiety because of the difficulty of the investigation and the false rumors and suspicions caused to be put in circulation by said publication, and the shame, reproach and infamy brought hereby upon the plaintiff.”

Also, fourth. “ That plaintiff was further subjected to severe nervous strain impairing plaintiff’s usual health by the mortification incident to the publicity of all the charges, investigations, rumors and suspicions aforesaid.”

Also, fifth. “ And because no vindication by any investigation would repair the injury done to plaintiff’s reputation by the universal publication of the charges contained in said publication of defendants.”

The motion to strike out prevailed at the Special Term as to paragraphs 2 and 5 aforesaid, but was denied as to the other paragraphs, being 1, 3 and 4.

The only appeal taken from the order was by the defendants from the refusal of the Special Term to strike out the last-mentioned paragraphs.

The learned judge at Special Term was clearly right in striking out the second paragraph. The first paragraph should also be stricken out for the same reasons that must have governed the Special Term in striking out the second. The first alleges in general terms that the defamatory publication was copied into other papers and commented upon by the general newspaper press of the State, and that the defendants’ editorials and news items upon the subject were also copied and commented upon. This matter is of the same nature as appears in the second paragraph, and is subject to the same objections.

Assuming that the purpose of the pleader was to enhance the damages by showing a repetition in o.ther newspapers and by others of the libelous matter, it was too remote for that purpose.

The wrongful repetition of a libel by third persons is not the act of the defendants, but of such third persons, and if damage comes thereby the responsibility falls upon the third person, who must respond.

In Ward v. Weeks (7 Bing. 211) tlie defendant was charged with saying of the plaintiff, “ He is a rogue and a swindler. I know enough about him to hang him.” The special damage alleged was that one Bryer refused to trust the plaintiff with goods on credit. The evidence was that the defendant had spoken the words to one Brice, who had at a subsequent time and place, and without any authority from the defendant, repeated the statement to Bryer, the repetition of which by Bryer and not the original statement occasioned the damage, and it was held that a nonsuit was properly directed.

In Hirst v. Goodwin (3 F. & F. 257), where the plaintiff was a veterinary surgeon, and for the purpose of proving special damage a person was called who said he had ceased to employ the plaintiff since the words were spoken, but it appeared that he was not present when the defendant uttered them, and, therefore, must have heard them from a third party, it was ruled by Martin, B., that such evidence of damage was inadmissible; the action for such damage should have been brought against the person who repeated the slander. The rule enunciated in these cases seems to be sustained by Terwilliger v. Wands (17 N. Y. 54); Hastings v. Palmer (20 Wend. 225); Keenholts v. Becker (3 Den. 346); Olmsted v. Brown (12 Barb. 657).

These cases were actions to recover special damages for words not slanderous per se, and in Terwilliger v. Wands the court says: “ Where words are spoken to one person, and he repeats them to another, in consequence of which the party of whom they are spoken sustains damages, the repetition is as a general rule a wrongful act rendering the person repeating them liable in like manner as if he alone had uttered them. The special damages in such a case are not a natural legal consequence of the first speaking of the words, but of the wrongful act of repeating them, and would not have occurred but for the repetition, and the party who repeats them is alone liable for the damages.” (Citing Ward v. Weeks, supra, and other cases.)

Further on the court says, rather by way of supposition: “ Occasions may doubtless occur where the communication of slanderous, words by a person who heard them will be innocent; and it is certainly reasonable that when repeated on such an occasion and damages result, the first speaker should be held responsible for the damages, as flowing directly'and naturally from his own wrong.” But the court adds: “It is not necessary in the present case to decide whether the proposition is law.”

Beardsley, J., in Keenholts v. Becker (supra), makes the same suggestions as in Terwilliger v. Wands, that a person may be responsible for a slander filtered through an innocent third person, in an action where special' damages must be alleged and proved, and adds: ■“ A different rule should, perhaps, govern where the repetition was itself slanderous and the injurious consequences arose, in part at least, from the second slander.”

The reason for not charging the defendant with the damage that flows from a repetition of his words by. others, in actions for words not slanderous per se, applies with greater force to actions of this character where the words are libelous. The repetition of them cannot well be innocent. The repeater knows from the character of the words spoken that the charge is serious and destructive, and if he repeats them he does so at his own peril and is a wrongdoer, and an action can be maintained directly against him by the party injured, independent of any remedy he may have against the person uttering the first slander or libel.

In the case before us no names are given of papers or persons repeating this libelous matter. If this allegation is sustained a door will be opened so wide that the end cannot be foreseen; if the defendants can be charged with the act of a publisher, who publishes the libel from the columns of the defendants’ paper, they can also be charged with publication through a series of newspapers, one taking from the other indefinitely, and where will the matter end ?

We have reached the conclusion that this paragraph should be stricken from the complaint as irrelevant.

The third paragraph sought to be stricken out is that the Senate ordered an investigation of the matters contained in the libelous publication, etc. This is clearly irrelevant. It is not alleged that the investigation by the Senate was sought. by the defendants; for aught that appears the investigation was sought by the plaintiff for his own vindication, as is frequently the case when members of legislative bodies are assailed and their motives or characters traduced. It is true that the defendants’ newspaper article suggests that its •charges ought to be investigated, but by whom or what body or person is not stated. The charges being of a criminal character, the most appropi’iate tribunal to investigate them would be the grand jury. The Senator’s constituents might deem it their duty to investigate them, so too the Senate, the body whose members had been libeled. It would not be claimed that the plaintiff would be entitled to damages or to be reimbursed for any expense that he might be put to in consequence of an investigation by his constituents, by detectives, by the grand jury or other public body.

We have reached the conclusion that this paragraph is clearly irrelevant and should also be eliminated from the complaint.

This brings us to paragraph fourth : “ That plaintiff was further subjected to severe nervous strain, impairing the plaintiff’s usual health by the mortification incident to the publicity of all the charges, investigations, rumors and suspicions aforesaid.”

In so far as this allegation states that the injury to the plaintiff’s feelings was occasioned by reason of the libelous publication, the charge being that the publication was malicious,, it is permissible, as such injury to the feelings may constitute an item of damage (Brooks v. Harrison, 91 N. Y. 83, 92); but the injury to the feelings on account of the investigations, rumors and suspicions stated are irrelevant.

But as the motion embraces the striking out of both relevant and irrelevant matter in the same paragraph, it may properly be denied •as embracing too much. This paragraph 4 will not be stricken out.

The conclusion, therefore, that we have reached is that paragraphs 1 and 3 shall be stricken from the complaint as irrelevant, and that paragraph 4 shall remain, and the order of the Special Term should be modified accordingly, but as neither party has wholly prevailed upon this motion it should be without costs.

Lewis, Bradley and Adams, JJ., concurred.

Order modified by striking from the complaint paragraphs first and third as irrelevant, and as so modified affirmed, without costs of this appeal to either party.


author: Ward, J. :

text:
    Susan Magennis, as Administratrix, etc., of Edward Magennis, Deceased, Appellant, v. Nicholas A. Scheid, Respondent.

      Partnership — am, issue as to the interests of respective partners must be tried by the court — it cannot be referred by an interlocutm'y order.

    In an action brought by an administratrix she alleged that her intestate and the defendant had been in business together; that after the death of the intestate the defendant had carried on the business and had possession of the plant and property connected therewith, claiming to .be the surviving partner of the intestate, and had excluded her from the property and business of the firm, and she demanded an accounting. The defendant interposed an answer, stating, among other things, that he was a partner with the intestate and that as the surviving partner he was entitled to wind up the business of the firm. Upon the trial of the action the court found that a co-partnership existed between the parties, but also found that the precise interest of each of the partners and what property that interest related to.had been left uncertain.
    The court ordered a reference for the purpose of stating the Ann accounts and in order to determine the interests of the partners in the Arm assets and the property and liabilities of the Arm.

      Held, that as the defendant had, by his answer, raised an issue as to the relative interests of the parties, he was entitled to have that issue decided by the court itself;
    That the court could not delegate the decision of the question to a referee.
    Appeal by tbe plaintiff, Susan Magennis, as administratrix, etc.,' of Edward Magennis, deceased, from an interlocutory judgment of tlie Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 30th day of April, 1895, upon the decision of the court rendered after a trial at the Erie Special Term.

      Frederich Ilcdler, for the appellant.

      Fdward L. Jellineh, for the respondent.
   Ward, J. :

The plaintiff in her complaint alleges that her intestate, Edward Magennis, and the defendant had been carrying on the business of rendering grease, tallow, bones and fertilizers at Clieektowaga in Erie county; that after the death of the intestate the defendant had carried on the business, and had possession of the plant and property connected therewith, claiming to be the surviving partner of the intestate, and had refused to let the plaintiff have access to the business and property in question, and demanded that an account be taken of all the dealings and transactions between the defendant and the intestate, and that it be determined whether a partnership existed, and for other relief.

The defendant answering alleged the existence of a co-partnership between the deceased and the defendant in the said business, and that they were jointly interested therein, and as such co-partners were the owners of the plant and appliances and assets connected therewith, and that as survivor he was entitled to close up the business of the firm and distribute its assets.

The trial court found the facts showing that a co-partnership existed between the deceased and the defendant, and that they had carried on as such the rendering business, and in the third finding of fact appears this statement: “ That the precise interest of each of said partners in said business, and to what property it related, was left uncertain.” The court found as a conclusion of law, first, that the deceased and defendant were co-partuers in tlié business, and carried on such business as co-partners, and, second, as follows: “ I direct that a referee be appointed to take and state the condition of the co-partnership accounts; the interest of each of said co-partners in the firm assets and the property to which such co-partnership related, and the liabilities against said company. Said judgment will direct said referee to take proof of all of said facts and report the same with all convenient speed to this court with his opinion thereon.”

The defendant filed exceptions to the conclusions of law, and appealed from the interlocutory judgment rendered upon the findings of the court, and he insists here : First, that the facts found do not sustain the conclusion of the court that a partnership existed between the plaintiff’s intestate and the defendant; and, second, that the court had no powe.r to direct a reference to take and state the interest of the plaintiff and of the defendant in the firm assets or in the property, that being one of the questions raised by the pleadings in the case, nor did the court have the power to direct a reference to take proof of said facts and require the referee to report such proofs to the court with his opinion thereon.

The evidence taken before the court as to the existence of the co-partnership does not appear in the appeal books, and is not before us. We have simply the facts found by the court and its legal con-¡ elusions. As to the first point we can, therefore, only inquire whether the facts found were sufficient to justify the. legal conclusions reached. Taking the findings of fact altogether there is. enough to justify the conclusion as to the co-partnership between the intestate and the defendant, but not to determine the exact position of each party in that co-partnership or his interest in the property; indeed, the court finds that- that question is left uncertain. It is manifest, therefore, that, before the accounts can be taken -and stated as between the former partners, the interest of each, or the share of each, in the business and property must be ascertained.

The trial court, instead of ascertaining that as one of the questions at issue in the case, makes a reference for that purpose, and that is the other point of error alleged by the appellant.

The only authority that can be claimed for this reference is section 1015 of the Code of Civil Procedure, which is as follows: “The court may likewise of.its own motion, or upon the application of either party without the consent of the other, direct a reference to take an account and report to the court thereon, either with or without the testimony, after interlocutory or final judgment, or where it [is] necessary to do so for the information of the court, and also to determine and report upon a question of fact arising in any stage of the action upon a motion or otherwise, except upon the. pleadings.”

That part of the order of reference referring to the referee to take and state the interests of the partners in the firm assets, and the property to which such co-partnership related, cannot be sustained ; that question arose upon the pleadings and was at issue in the action, and it was the duty of the court to decide that question upon testimony taken before it where the court could have the benefit of seeing the witnesses, and observing their appearance and manner of testifying. This was a right that the parties could insist upon, and the duty of taking this testimony could not be relegated to a referee.

Had the court ascertained the exact interests of the partners in the firm property and determined that interest, then a reference to state the partnership account would have been proper and ia authorized by the Code.

In Doyle v. Metropolitan El. R. Co. (136 N. Y. 505) the court, against the defendant’s objection, appointed a referee to take testimony as to the value of any easement or property taken or interfered with by the defendant and as to the amount of the rental loss that the plaintiff had sustained, and to report the same with his opinion thereon. It was held that the court had no power to direct such a reference; that case is controlling here.

The interlocutory judgment should be reversed and a new trial ordered, with costs to abide the final award of costs.

. Lewis and Bradley, JJ., concurred.

Interlocutory judgment reversed, and a new trial granted, with costs to abide the final award of costs.


text:
    Frank J. Helmick, Respondent, v. Lester Churchill, Appellant.

      Justice's Court — where a defendant fails to appear, after demanding a jury trial the justice may try the cause.

    An appellate court will not be astute to discover errors in trials conducted by justices of the peace where one of the parties has made a default; the judgments of such justices are to be sustained by every reasonable and warrantable intendment.
    An action was tried in a Justice’s Court before a jury demanded by the defendant, but the jury were unable to agree and were discharged. An adjourned day was agreed upon when another jury was to be drawn, and upon that day a jury, which had been summoned, appeared but were not sworn; the defendant did not appear, and the justice, after waiting more than an hour, dismissed the jury and tried the case himself.

      Held, that the defendant had, by his default, waived his right to a trial by the jury, and that the action of the justice in trying the case himself was justified.
    Appeal by the defendant, Lester Churchill, from a judgment of the County Court of Chautauqua county, entered in the office of the ■clerk of the county of Chautauqua on the 14th day of March, 1895, upon the decision of the court affirming a judgment rendered by a justice of the peace.

      James L. Weeks, for the appellant.

      Dewitt G. Reilly, for the respondent.
   Ward, J.:

Upon the return day of the summons issued by the justice the1 plaintiff complained in an action on contract, and sought to recover for work and labor done for the defendant, and for damages by reason of a breach of contract to remove for defendant certain buildings and tools, and demanded judgment for thirty dollars and costs.. The defendant answered, denying each and every allegation contained in the complaint, and demanded a jury for a trial of the issue. A jury was drawn, sworn,.and the trial, was had before them, but they were unable to agree and were discharged. The parties agreed that another jury should be drawn for an adjourned day that was. fixed. A venire was issued by the justice for the adjourned day,, and upon that day a jury appeared, but were not sworn. The plaintiff appeared, but the defendant did not, and the justice, after waiting an hour and twenty minutes, dismissed the jury and proceeded to try the cause, and heard the proofs and allegations of the plaintiff, and rendered a judgment for him of twenty-nine dollars, damages and costs.

The appellant alleges as errors that the. justice had no jurisdiction to try the cause, but should have impanelled and sworn the jury,, and had the evidence submitted to them and taken their verdict,, also that the evidence was insufficient to justify the judgment, and that the justice adopted a wrong measure of damages.

Although the défendant had demanded a jury, he could waive1 such jury by consent in open court (Hosford v. Carter, 10 Abb. Pr. 452), and he could also waive the jury by his neglect to appear on. adjourn day, and the justice could proceed to hear the cause without a jury. (Kilpatrick v. Carr, 3 Abb. Pr. 117.)

Section 2995 of the Code of Civil Procedure provides for the drawing of the jury, and that if a person whose name is drawn is challenged and set aside, or is excused, another ballot must be drawn, and so on successively until the required number of jurors is obtained,, and that the parties might elect to try the cause by a less number than six jurors, etc. The Code contemplates the presence of both parties when the jury is to be selected. If the plaintiff abandons-the case it is dismissed, and the jury is discharged. If the defendant fails to appear the plaintiff is not turned out of court, but may proceed -without a jury.

The appellant cites section 2861 of the Code of Civil Procedure, which provides that a justice of the peace has such jurisdiction in civil actions as is specially conferred upon him by statute, and no other, and then cites section 2989 of the Code, which provides that where an issue of fact has been joined, if neither party'demands a trial by jury, the justice must try the issue and hear the allegations and proofs of the parties. These sections must be construed-in connection with the other provisions of the Code upon the subject, and considered in the light of the purpose of the statute providing for trials in Justices’ Courts. That purpose manifestly is to confer upon a party the right to a jury trial where he continues in the contest to the end, but not where he is in default, and abandons the action and the court in which it is pending. ¥e are of the opinion that there ivas no error in the proceeding of the justice in this regard.

As to the other question raised by this appeal we have examined the evidence, and while it is not very full or conclusive it is sufficient, uncontradicted, if credited by the justice, to sustain his judgment. The appellate courts will not be astute to discover errors in proceedings of a justice of the peace in cases of default where a defendant refusing to attend upon a trial awaits his chance of finding some error by which the judgment can be reversed, and the rule is well stated in Schoonmaker v. Spencer (54 N. Y. 366) that it is the uniform practice of the courts in reviewing proceedings had before a justice of the peace, if possible, to sustain them by every reasonable and warrantable intendment.

The judgment appealed from should be affirmed, with costs.

Lewis, Bradley and Adams, JJ., concurred.

Judgment of the County Court affirmed, with costs.


text:
    Edward R. C. Clarkson and Others, Plaintiffs, v. The Western Assurance Company, Defendant.

      Insurance — parol contract to insure a vessel — conditions in a policy, not delivered, of no effect — verdict directed subject to the opinion of the court at General Term is impi'oper where any fact is controverted or any exception is taken.

    Á recovery can be bad upon a parol contract to insure, although no policy was ever issued by the insurer, if the jury finds with the insured upon a complaint, alleging that the insured applied for insurance; that the insurer accepted the risk, and that the premium was tendered.
    Where the insurer refuses to deliver a policy of insurance, and resists payment upon the ground that it entered into no obligation to insure, it cannot set up, as a defense to an action brought upon a parol contract of insurance, limitations and conditions which it would have inserted in a policy of insurance had one been delivered by it to the insured.
    Where a verdict is ordered, subject to the opinion of the court at General Term without qualification, no exceptions can be' heard by the General Term, and the only question is which party is entitled to judgment upon the uncontroverted facts.
    Hence, where exceptions have been taken upon the trial, or the facts are controverted, the case is not one in which a verdict can properly be directed subject to the opinion of the court at General Term.
    Where the trial court, in making a decision, expressly states that its statement of the facts shall not bind either party, directs a verdict for the defendant subject to the opinion of the court at General Term, and the plaintiff excepts to such direction, the exception of the plaintiff to the direction of a verdict for the defendant brings up for review the question of the plaintiff's right to go to the jury upon the issues in the case. If the court finds that there was a question of fact in the case a new trial must be ordered.
    In this action the jury rendered a verdict in favor of the defendant, after a trial at the Erie Circuit on June 10, 1895, which, by direction of the court, was rendered subject to the opinion of the court at General Term.

      Benjamin H. Williams, for the plaintiffs.

      George Olinton, for the defendant.
   Ward, J.:

The complaint in this action alleged in substance that, on the 9th day of December, 1892, Melville E. Brown and Charles II. Blakeslee were tlie - owners of the steamer Northerner’, and that Thomas Maytham, Edward C. Maytham, Lambert W. Drake and John Kelderhouse were mortgagees holding a mortgage thereon, and that on said last-named day the said mortgagors, Brown and Blakeslee, applied to the defendant for insurance to the amount of $6,000 on said steamer against loss by fire for the term of four months from that date, loss, if any, payable t'o said mortgagees; that the defendant accepted the application, and that on the 12th day of December, 1892, before any policy ivas delivered, the steamer burned and was totally destroyed at L’Anse, Michigan ; that afterwards the defendant was tendered the premium but refused to deliver the policy or pay the amount insured.

The answer, among other things, denied the allegations in the complaint and alleged that in the application for insurance it was represented and warranted that the said steamer lay at L’Anse, Michigan, and that she was properly moored and laid up for the winter, which was not true ; that the steamer had on board petroleum; that the risk was extra hazardous, which was unknown to the defendant. It further alleged that the policy which would have been issued by the defendant would have contained, among other provisions, a clause to the effect that no suit or action on such policy for the recovery of any claim should be sustainable until after a full compliance by the insured with the requirements set forth in the policy, nor unless commenced within twelve months after the fire.

The relief demanded in the complaint was that the defendant deliver to the plaintiffs a policy of insurance in accordance with the agreement to insure, and that the plaintiffs have judgment for the sum of $6,000 and interest thereon- from the 1st day of March, 1893. The action was not commenced until after the expiration of twelve months from the time of the fire. The policy was never delivered nor was it produced upon the trial. No premium was in fact paid, but by the custom of the defendant such premiums were to be paid upon the presentation of a bill for the premium, and thus credit was given to some extent, and no point is made here because such premium was not paid previous to the fire. The plaintiffs were the owners of the cause of action at the time of the commencement of the action. At the conclusion of the plaintiffs’ evidence the defendant moved for a nonsuit. The plaintiff asked to go to the jury upon the questions in the case, and the trial judge stated that there were two exceptions in the case that had been taken by the plaintiffs to the admission of certain evidence, and that if they were out of the way he would make a disposition of the case by sending it to the General Term subject to its opinion. These exceptions were waived by the plaintiffs’ attorney and the learned trial judge proceeded to make a statement of the facts in the case with a view of apprising the General Term of the view the trial court had taken of the evidence, but expressly stating that the statement did not bind any one as to the facts, and then directed a verdict for the defendant subject to the opinion of the court at General Term, to which the plaintiffs excepted.' The case is here, therefore, on this order of the trial court burdened with the exception last referred to, and the first question that presents itself is as to what disposition shall be made of the case, and upon what principle it shall be considered by the General Term.

In Durant v. Abendroth (69 N. Y. 148, 151) Rapallo, J., speaking for the Court of Appeals, said: “ This is not strictly the case of a verdict subject to the opinion of the court, for at the time of directing the verdict for the plaintiff, the court ordered the exceptions to be heard in the first instance at General Term. Where a verdict is ordered subject to the opinion of the court without qualification, exceptions cannot be heard, and the only question before the General Term is which .party is entitled to final judgment on the uncontroverted facts, and for that reason it is improper to direct a verdict subject to the opinion of the court, where exceptions have been taken on the trial or the facts are controverted.”

In Matson v. The Farm Buildings Insurance Co. (73 N. Y. 310), which "was an action brought upon a policy of fire insurance, which contained, the provision, in substance, that the defendant should not be liable for a loss occasioned by the use of kerosene oil, on the trial the defendant’s counsel asked for a nonsuit on the ground that the condition above mentioned had been violated, and the policy thereby rendered void. The court denied the motion and directed a verdict for the plaintiff for the amount of the loss, subject to the opinion of the court at General Term, to which defendant’s counsel duly excepted. The court (Rapallo, J.) said at page 314: The case seems to have been considered at General Term on the assumption that the fire was occasioned by the use of kerosene and to have been decided on the ground that, such use not having been habitual, the company was not exempt from liability. The facts stated in the case are not sufficient to show whether the loss was or was not thus occasioned, and, therefore, it was not a proper case for a verdict subject to the .opinion of the court. To render the direction of such a verdict proper all the facts necessary to enable the court to render a final judgment one way or the other must be conceded or established beyond controversy. The case as presented is deficient in this .respect.” The court then proceeded to consider whether there were any questions for the jury, and held that there were in that case, and concluded: “ We are of opinion that there was a mistrial and that the judgment must be reversed and a new trial ordered.”

If we are to regard this case as coming to us without exception and without any contest as to the factSj our duty tiren will simply be to pass upon the evidence in the place of the jury and determine which party should recover in this action. If, on the other hand, this is simply a motion for a new trial upon exceptions ordered to be heard in the first instance at the General Term, then we have only to consider whether there was any question for the jury and whether that question is brought before us by the exception finally taken by the plaintiffs to the direction of a verdict in favor of the defendant.

We have reached the conclusion that the exception brings before us the question of the plaintiffs’ right to go' to the jury upon the issues in the case, and that the plaintiffs are not concluded by their waiver of the exceptions taken upon the trial or by the statement of facts of the trial court which appears in the record before us. Indeed, the learned counsel for the defendant concedes in his points that if there were any contested questions of fact in the case upon which the plaintiffs were entitled to go to the jury, “the court had no power to direct a verdict subject to. the opinion of the General Term, in which event there has been a mistrial, and a new trial must bo ordered,” so that the question before us is whether we can sustain the plaintiffs’ contention that there was a question of fact for the jury, and, in considering that question, the evidence and the inferences therefrom must be construed as favorably to the plaintiffs as the ease will warrant. This involves a somewhat careful review of the evidence and the facts.

Edwin T. Hitchcock, the agent of the insured, testified that, on the 9th of December, 1892, he applied to the agents of the defendant for an insurance upon the steamer of $50,000, and that the agents agreed to take $10,000 fire insurance on her, and distribute it among several companies of which they were agents, $6,000 of which was apportioned to the defendant, the agent of the insured stating that he had received a telegram that morning from the owners of the vessel; that she was laid up at L’Anse and to procure fire insurance upon her. The agent exhibited this telegram at the time to the defendant’s agents and signed a blank application for fire insurance, in which the several companies that were to take the insurance were specified, and upon which the words “ Str. Northerner, laid up at L’Anse” were written in after it was signed by Hitchcock, but in his presence and with his apparent consent. L’Anse is a point-located on the northern peninsula of Michigan, on this side of Keweenaw Point, about Y00 miles from Buffalo.

Upon this application a policy of insurance ivas prepared, but it was never delivered to the insured. The master of the Northerner, Peter A. McKinnon, testified that the vessel left Buffalo on December second, and that on the morning of the seventh or eighth of December she got ashore on Keweenaw Point, and was relieved by throwing a part of her cargo'overboard, and she proceeded to L’Anse in a leaky condition. When there, the master telegraphed to Captain Ward, of Detroit, who had chartered the vessel for the season and had control of her, telling him what had happened and asked him for instructions. Ward telegraphed “ better lay her up,” and the master obeyed those instructions, and commenced laying the Northerner up; got chains out of the locker, cleaned her up some, turned the yawl boats upside down, put the tackles away, and the engineer commenced to disconnect her engine.” He thinks this was the eighth of December; that it took a day to do these things that were necessity to lay her up; that she continued to lie there until the twelfth of December, when she caught fire and was burned. One Captain Bounds came there the night of the ninth, and assumed to represent the marine underwriters, and directed that the vessel be taken to Duluth; that, without change of position, the vessel was got in readiness-to go to Duluth on the night of the eleventh, of December. Captain Rounds had agreed to go with them, but, at the last moment, Rounds refused to go and abandoned the vessel; and before the fire actually occurred the master had again changed his mind, and concluded to remain at L’Anse, and to make a slight change of position of the boat, so as to give a more secure position for the winter.

Another witness for the plaintiffs testified that he was the mate of the vessel; that the seventh or eighth of December she went to - L’Anse, where they obtained orders to lay her up, which they proceeded to do, and took steps substantially as stated by the other witness for that purpose. On his cross-examination he says : “ We commenced laying up on the ninth. It was in the -morning, and we kept at work until the morning of the tenth, and then we began refitting her on the morning of the tenth. We had not completed laying her up when we began to refit her. She burned on a Monday morning. We started to fit her out on the Saturday morning before she burned. We had got the chains up, but we had not put them out. In laying a boat up there it is customary to use a chain to moor her, and that is why we got the chains up ready to put out.

A telegram was produced from Charles IT. Blakeslee, one of the 'own'ers, dated at Rochester, December 6, 1892, to Eber Ward, the lessee, at Detroit, which was as follows : “ Where is Northerner ? lay her up; cannot permit her to run further.” This telegram was received by Mr. Ward before he ordered thé boat laid up as above stated. Mr. Blakeslee testified that when he was advised that the Northerner had met with this disaster and gone to L’Anse he did notin any way consent to her proceeding further on the voyage.

John Kelderhouse testified that he had owned a great many vessels, had a good many vessels insured, and testified without objection as an expert upon the subject, and stated : “ I understand about a vessel being laid up, when you go to an insurance office to get fire insurance that we are commencing to lay up. When we speak of a vessel as being laid up, we simply mean that she has reached a port of safety with the intention of staying there; and in this matter of work to be done, some do more and some less. Some longer laying up than others, and some lay up better than others ; sometimes they keep the engine in readiness to work all winter. I have known one to have her boiler ready to work all winter long., I do not think they lay up generally alike; they vary.”

Edward Smith was sworn for the plaintiff; was a vessel owner, had experience and was asked as an expert without objection : “ Q. "When you apply for insurance, what do you understand by the term ‘laid up ? ’ A. I usually govern myself to have the winter fire insurance placed at the expiration of the marine. I don’t think everybody lays up alike. Some do more work than others. Everybody does not take out chains. They turn over their boats unless they don’t mind much about taking care of their property. The engine is not often kept so that it can be used during the winter unless the vessel has been ashore or something that required steam to pump her during the winter, more than could be done by hand ; then it might be kept; it would be cheaper ; seventy-five per cent of the vessels have shipkeepers living on board, and they have lamps of course; sometimes it takes several weeks to lay up a vessel.”

The defendant offered no evidence, but lays great stress upon the fact that after the arrival at L’Anse, .and when the vessel was substantially laid up under the direction of Capt. Rounds, the master, without authority from the owners or the lessee of the vessel, and against the express directions of the lessee (Mr. Ward), had concluded to go to Duluth, and had taken some steps to put the vessel in condition to start, but without actually starting or at all changing her position, when this intention ivas abandoned, and the original intention of remaining at L’Anse for the winter, and laying the Northerner up there, was resumed.

The learned counsel for the defendant admits that, to justify the direction of the verdict, it must clearly appear that the vessel wras not laid up at L’Anse within the meaning of the insurance contract, and claims that taking the whole evidence together such is the only rational view to bé taken of the evidence. In this we cannot concur. There was certainly some evidence to go to the jury upon the question as to whether the vessel was laid up at the point mentioned at the time the insurance was effected and the fire occurred. It is clear that the vessel was lying in the harbor of L’Anse, and that the men upon the vessel were busy fitting her for winter quarters at that point at the time the insurance contract ivas made (the ninth of December); that on the twelfth of December, when the fire occurred, all intention of proceeding further on the voyage or leaving this port of safety had been abandoned, and nothing appears to have occurred iu the interim to have increased the risk or endangered the vessel, and without desiring to express any opinion upon the weight of the evidence to influence the jury upon another trial we are clear that there was evidence, or at least that there could be drawn from the evidence, taking it altogether, the inference that the vessel, within the spirit and purpose of the contract of insurance, was laid up at L’Anse, both at the time of the making of the contract and at the time of the destruction of the vessel.

As before said, the policy of insurance was not introduced in evidence. The counsel for the defendant makes several points'upon the assumption that the assumed policy had been proved and that its conditions had been violated by the plaintiffs. It is difficult to see how such objections can be made, predicated upon a paper that is not in the case. A blank form of policy appears in the evidence, which the defendant seems to assume is the kind of policy that -would have been issued if one had been filled up, executed and delivered to the plaintiffs, and he makes the point, based upon a paragraph in the assumed policy, that by the-terms thereof it was void if petroleum or any of its ,prod nets of a greater inflammability than kerosene oil of the United States standard was kept, used or allowed on the vessel, and that it was the undisputed evidence of the master that there was in the neighborhood of 2,000 barrels of kerosene oil on the vessel, which tvas being carried as a part of her cargo. Assuming that this point is available under the circumstances, it is not well taken because it did not appear from the evidence that the kerosene on board of this vessel was of greater inflammability than kerosene oil of the United States standard.

Another point is that the assumed policy contained a special provision that “ No suit or action on this policy for the recovery of any claim shall be sustained in any court of law or equity * * * unless commenced within twelve months next after the fire.” Assuming again that this point is available (there having been no policy proved), it is a sufficient answer to say that this action is not upon the policy. The defendant had refused to deliver a policy and the plaintiffs were consequently obliged to bring this action to compel a delivery of the policy and payment of their claim. Where' the insurance company refuses to deliver the policy of insurance, and resists payment of the loss on the ground that no obligation to insure was entered into, it cannot take advantage of a limitation clause that might have been inserted in the policy had one been delivered. (Smith v. Glens Falls Ins. Co., 62 N. Y. 85: Shaw v. The Republic Life Ins. Co., 69 id. 286; Taylor v. Merchants' Fire Ins. Co., 9 How. [U. S.] 390; Hay v. Star Fire Ins. Co., 77 N. Y. 235.)

A further point is made by the defendant that tho agent, Hitchcock, misrepresented the condition of the boat as being laid up at L’Anse, when it in fact was not so laid up. That was a question of fact for the jury, to be passed upon by it, and depends upon the fact to be found, whether the boat wras or was not laid up at the port indicated. None of the objections last considered impressed the trial court, if urged before it, as the verdict was directed solely upon the ground that the boat was not laid up at the time of the making of the contract of insurance and of the destruction by fire of the vessel.

While the plaintiffs demand equitable relief in this action, and it might well have been treated as one of equitable cognizance purely, the parties seem to have acted upon the assumption that it was a proper case for the jury, and no point is made here but what it was. It can be further treated as such, and a recovery can be had upon the parol contract of insurance, if the jury shall find with the plaintiffs. (Insurance Company v. Colt, 20 Wall. [U. S.] 560; Ellis v. The Albany City Fire Ins. Co., 50 N. Y. 402.)

Tho verdict for the defendant should be set aside and a new trial ordered, with costs to abide event.

Lewis, Bradley and Adams, JJ., concurred.

Yerdict set aside and new trial ordered, costs to abide the event.


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    Philip Drago, Respondent, v. James H. Smith, Appellant.

      Municipal Court of Buffalo — action by a laborer to recover for services — settlement of the claim by the laborer — the plaintiff’s attorney has no lien for services.

    The provisions of section 60 of the Code of Civil Procedure, giving an attorney a lien upon his client’s cause of action, do not apply to the Municipal Court of Buffalo.
    Prior to the passage of chapter 805 of the Laws of 1895, giving to an unskilled laborer in the city of Buffalo who has a family dependent upon him for support, and who recovers a judgment for his labor in a sum. less than twenty-five dollars, certain statutory and other costs, and also the remedy of a body-execution against his debtor in a case where an execution against property has been returned unsatisfied, such a laborer had a right to settle with his debtor an action brought against his debtor for labor performed; and he could make such a settlement without regard to the rights of an attorney who had been employed by him to bring the action in the Municipal Court of Buffalo.
    The attorney had no right, .before the passage of the act of 1895, to continue such an action after it had been settled by his client, with a view to recovering the statutory costs.
    Appeal by tlie defendant, James II. Smith, from a judgment of tlie Municipal Court of tlie city of Buffalo, entered on tlie 18tli day of June, 1895, upon tlie decision of tlie court rendered after a trial of the action.

      Franlc Harding, fo'r tlie appellant.

      Olinton A. Webster and Franlc P. Marquis, for tlie respondent.
   Ward, J.:

This action was brought in the Municipal Court of Buffalo by the plaintiff against the defendant on the 11th day of May, 1895, to recover seven dollars and eighty-seven cents for work performed as a common laborer under section 45 8 of the charter of the city of Buffalo, which gives the common laborer, who has a family dependent upon him for support and recovers a judgment for less than twenty-five dollars for his labor, eight dollars as statutory costs in addition to the costs and disbursements of the action, and the remedy of a body execution against his debtor upon the return of a property execution unsatisfied. Issue was joined May 21,1895, by an answer denying the allegations of the complaint.

The case was adjourned from time to time until June fourth, when it was tried upon the stipulation of the parties’ attorneys. The stipulation embraced a receipt as follows:

“ Buffalo, N. Y., May 25, 1895.

“Received of James II. Smith full amount of all claims or demands against him for work and services done for him previous to this date, and for which suit is now pending in the Municipal Court, entitled Philip Drago vs. James H. Smith, and I agree to discontinue suit without costs to said James TI. Smith.

“ PHILIP DRAGO.”

At one of the adjournments after the settlement the defendant set up the receipt by supplemental answer. Notwithstanding the settlement the plaintiff’s attorney insisted upon proceeding with the action, for the purpose of protecting the lien which he claims he had for the eight dollars costs given by the statute, and on the ground that he was entitled to enforce such lien under section 66 of the Code of Civil Procedure, which gives an attorney a lien upon his client’s cause of action, or upon any judgment, verdict, report or decision that may be obtained upon such cause of action for the attorney’s services.

The Municipal Court rendered a judgment in favor of plaintiff and against the defendant for damages, seven dollars and eighty-seven cents; court costs, two dollars and eighty-five cents; statute costs, eight dollars, and directed that the sum of seven dollars and eighty-seven cents paid to the plaintiff should be credited upon the execution, and that the defendant was liable to execution against the person.

The plaintiff’s attorney and the Municipal Court seem to have assumed that the statute which the plaintiff’s attorney invoked, and which gives the laborer the protection claimed, was in force at the time of the settlement, and that, therefore, the settlement could be disregarded and the attorney’s lien enforced by a proceeding in that action notwithstanding the settlement.

Section 458 of the Buffalo charter, being chapter 105 of the Laws of 1891, provided that in an action brought'in the Municipal Court by a domestic servant to recover for services performed by her, if tlie plaintiff recovers a judgment for a sum not exceeding twenty-five dollars, exclusive of costs, no property of tlie debtor should be exempt from execution, and if an execution against tlie property was returned unsatisfied, in whole or in part, plaintiff was entitled to an execution against the person to collect the same. This section was amended in 1895 (Chap. 805) and took effect May 27,1895. That amendment gave to the unskilled laborer, having a family dependent upon him for support, for wages due him, the same right as a domestic servant under the act of 1891 (siopra); if lie recovered a judgment for a sum not exceeding twenty-five dollars exclusive of costs, no property of the defendant should be exempt from execution, and authorized a body execution in case an execution against the property was returned unsatisfied in whole or in part, and provided that he should be entitled to recover the sum of five dollars as costs in addition to the costs allowed by section 162 of chapter 105 of the Laws of 1S91, which provided that in an action for wages, if the recovery did not exceed twenty-five dollars, the plaintiff was entitled to recover three dollars as costs. It will be seen from the above statement that the statute which gave the unskilled laborer the rights upon which this judgment was predicated and the right to an execution against the person of his debtor was not in existence at the time of the commencement of the action in the Municipal Court or at the time of the settlement. At the time of such settlement the plaintiff had the right of any other plaintiff in a Justice’s Court or in a court that takes its place, like the Municipal Court of the city of Buffalo, to obtain his judgment and collect it if he could out of the property of his debtor. He was not entitled to the special costs of five and three dollars, only the ordinary costs of the action if he recovered. There was nothing, therefore, in the way of his settling the action with the defendant, upon any terms he 1 chose. If he had an attorney in the proceedings, that attorney must look to his client for his compensation. Section 66 of the Code of Civil Procedure certainly had no application to the case as it existed when the settlement was made and prior to the amendment of the statute in 1895. Indeed, it has been held by the Court of Appeals, in cases where section 66 applies, that the client still remains the owner of the cause of action and is not bound to continue or permit the continuance of the litigation for the benefit of the attorney wlien lie deems it prudent to stop, providing lie is willing and able to satisfy tlie just claims of tlie attorney, and tbe settlement is not made in fraud of tbe rights of tbe attorney and it does not appear tliat tbe client is irresponsible. (Lee v. Vacuum Oil Company, 126 N. Y. 579; Poole v. Belcha, 131 id. 200.)

It cannot be claimed tliat tliis settlement was made in fraud of tbe rights of plaintiff’s attorney in order to deprive him of bis costs, because no authority existed for tbe imposition of such costs at tbe time of tbe settlement, nor does it appear that the client is irresponsible.

We are also of tbe opinion tliat section 66 of tbe Code has no application to tbe Municipal Court of Buffalo.

Tbe judgment should be reversed.

Lewis, Bradley and Adams, JL, concurred.

Judgment reversed.