text:
    Anna B. Stewart, Appellant, v. The Union Mutual Life Insurance Company, Respondent.

      Policy of insurance- — waiver of provisions of.

    In an action brought to recover the amount of an insurance policy, it was-proved tliat the defendant was a corporation of tlie State of Maine, with its principal place of business at Portland, Maine, and having also an office in the State of New York. The policy in question was executed by the defendant and sent to a person 'in the State of New York, claimed by the plaintiff to be the manager of the defendant’s business, by whom it was delivered to the insured,, and his note was taken in payment of the premium.

      In answer to a notice received by the insured from tlie cashier in the New York office of the company, the insured sent his check in payment of the note when due. This check was deposited for collection and was returned by the bank unpaid. At this time the insured was sick and, shortly after the receipt of the notice of the return of his check unpaid, wrote that he would attend to the matter in a few days. He died, and the check was never paid.
    The policy contained a provision to the effect that all premiums should be paid in . the office of the company in Portland, but that at the pleasure of the company suitable persons could be authorized to receive such payments at other places, but only upon the production of the company’s receipt therefor, signed by the president, secretary or assistant secretary, and that no payments made to any person except in exchange for such receipt would be recognized by the company or deemed valid payments; that no agent or other person, except the secretary or president, in writing, could alter the terms of the policy or waive a forfeiture. It also provided that the first year’s premium should be paid on the delivery of the policy.
    It was contended by the company that under these provisions the policy was void; the plaintiff claimed that a credit had been extended in the payment of the premiums upon the policy, and that it had become a binding contract.

      Held, that notwithstanding such provisions in a policy, where, from the course of business between the parties, authority to waive this condition might be inferred to rest in any one of the officers or agents of the company, a waiver by such officer or agent would be binding upon the corporation, but that, while the jury might find that the person to whom the policy was sent in the State of New York was the manager of the company in New York, in the absence of any evi-, donee that a practice had obtained by which any person had the right to assume that these provisions in the contract had been departed from in the manner in which this defendant conducted its business, the plaintiff could not recover, and that there was no evidence of such usage or course of business upon the part ©f the defendant in the case under consideration.
    Appeal by tlie plaintiff, Anna B. Stewart, from a judgment of the Supreme Court in favor of tlie defendant, entered in the office of the clerk of the county of New York on the 24th day of November, 1893, upon the decision of tlie court after a trial at the New York Circuit, and also from an order made on or about the 22d day of November, 1893, dismissing the plaintiff’s complaint.

      Samuel B. Paul, for the appellant.

      Sawyer dé Getty, for the respondent.
   Van Brunt, P. J. :

This action was brought on a policy of insurance in the sum of $5,000 on the life of Joe H. Stewart for the benefit of the plaintiff. The defendant was a corporation of the state of Maine, having its principal place of business at Portland, in that State, and having an office and transacting business in the State of New York. The policy was duly executed and sent by the company to one John M. Crane, who was claimed -by the plaintiff to be the manager of the. defendant’s business in the State of New York. The policy was delivered by Crane to the insured in April, 1890, and a note was given for the • premium. On the 0th of May, 1890, a letter was received from the cashier in the New York office by the insured, as follows:

“Your note for $123.10, given in settlement of prem. due on. pol. No. 93091, will be due and payable on the 31st inst. at your-office, where it will be presented at that date.”

It would appear that a check had been given for this note by the-insured, for on the 7th of August, 1890, a letter from Crane was 'sent to the insured as follows : “ I have deposited your check for $123.10 for collection to-day. Kindly see that it is protected.” On the ninth of August Crane wrote again :

“The bank has returned your check marked £Not good.’ Iam sorry for this as it places me in a somewhat unpleasant position. I feel sure that you must have overlooked the matter, and will fix it. up as soon as your attention is drawn to it.”

The insured wrote on the twelfth of August that he had been-very sick in bed since Wednesday, and hoped to be out by the last of the week and would at once provide for. the check, to which Crane replied that lie was sorry to hear of his being ill and trusted that, he would soon be better. Instead of getting better the insured died,, and the cheek was never paid. Upon suit being brought upon this, policy the defendant set up as a defense that by the terms of the application and policy the failure to pay the premium in cash upon the delivery of the policy avoided the same, and the cpiestion presented is, whether there was any evidence upon which a waiver of the terms of the application and policy could be found.

It appears that by the application, which was made a part of the policy, it was provided that such application should constitute “No contract of insurance until a policy shall first have been issued and delivered by the company and the first premium thereon paid during the life of the party proposed for insurance in the same condition of health as described in the application.” The policy provided that the same was to issue upon and subject to the condition, amongst others, that “All premiums are due at the office of the company in the city of Portland, Maine, at the date named in the policy, but at the pleasure of the company suitable persons may be .authorized to receive such payments at other places, but only on the production of the company’s receipt therefor, signed by the president, secretary or assistant secretary. No payment made to any person except in exchange for such receipt will be recognized by the company or be deemed by either party as a valid payment. Lfo agent, nor amj other person, except the president or secretary, in ■ writing, has power to alter or change, in any way, the terms of this contract or to waive forfeiture.”

It also provided that the first year’s premium of $123.10 should be paid at the home office on the delivery of the policy.

There is no question that the premium was not paid at the time of the death of the insured. But it is urged that a credit had been extended in the payment of the premium upon this policy, and that, therefore, it had become a binding contract between the parties, and various cases are cited to support this proposition. It is undoubtedly true that, notwithstanding the provisions in a policy of this description, where, from the course of business between the parties, authority to waive this condition may be inferred to rest in any one of the officers or agents of the company, a wraiver by such officer or agent is binding upon the corporation.

But the difficulty about the plaintiff’s cause of action in the case at bar is that there is no evidence whatever of any authority upon the part of Crane to waive the conditions of the policy. It is true that the jury might find' that he was the manager of .the business in New York, but it is equally true that by the very terms of the contract itself, no one except the president or secretary, in writing, had power to alter or change the terms of the contract or waive any of its conditions. And there is no evidence that any practice had obtained by which any person had the right to assume that these provisions in the contract had been departed from in the manner in which this defendant conducted its business; and it would seem from the rule laid down in Conway v. Phœnix Mut. Life Ins. Co. (140 N. Y. 79) that no ground of recovery appeared from tlie plaintiff’s proofs. In that case it was held that no different rules apply to contracts of insurance from those which obtain in the case of other contracts, and that where the parties have deliberately and formally executed a contract for the purpose of defining their respective engagements and of securing due and exact performance thereof, they should be held to the same, and that the only cases in which recoveries have been permitted contrary to the provisions of the contract are where it has been shown that there has been such a usage or course of business, or such consent, express or implied, as to justify the inference that the insurer had extended its agent’s authority and thus modified the restrictions contained in the policy.

In the case at bar there is no evidence whatever of any usage or course of business upon the part of the defendant, or of any consent to the doing of that which the manager did by accepting a note instead of the cash upon the delivery of the policy. It is undoubtedly true that the proof might be of such a character as to show a waiver of the conditions contained in the policy and the application therefor. But, in the absence of such proof, the jury cannot be •allowed to speculate upon the fact that such might have been the •case.

We think, therefore, that the court was correct in dismissing the •complaint, and that the judgment should be affirmed, with costs.

O’Brien and Parker, JJ., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Van Brunt, P. J. : Parker, J.:

license: Public Domain

text:
    Henry H. Landon and Edward H. Landon, as Executors, etc., Plaintiffs, v. George W. Walmuth, Defendant.

      Power of sale — when it does not cover property devised specifically and absolutely — a stipulation as to costs does not bind the court.

    The will of a testator contained the following provision: “I authorize, empower anddirect my said executors to sell my real estate, wheresoever situated, whenever, without coming in conflict with the eighth provision of this will, they shall deem a sale thereof expe'ient and proper.” The will also contained a devise, after the arrival at age of certain of the testator’s children, or their death before that time, of the residence of the testator at the time of his death, and other property, to the testator’s wife in fee simple absolute. It provided that in case of the death of the testator’s wife before his death, his children and their issue per stirpes should take the propelty thus devised to the testator’s wife, and contained other provisions for the distribution of this property in case of the death of any of the children before his, own death.
    By a codicil the testator devised the property, given by his will to two of his daughters, in trust, and by a subsequent codicil created a similar trust in favor of one of his sons. The wife of the testator died before him, and he left him surviving all of his children, who were, at the time of his death, of full age.
    At his death the testator owned and resided in premises in the city of New York. Subsequently the executors appointed in his will made a contract of sale of these premises under the power of sale contained in the will. At the time appointed for the delivery of the deed under the contract, the executors tendered their deed and the defendant tendered the consideration, but refused to accept the deed of the executors on the ground that they did not have power under the will to convey the property. The executors subsequently tendered a deed, executed by all of the children of the testator, and the wives of those who were married, and also a deed executed by the trustees mentioned in the first and second codicils to the will, but the purchaser refused to accept the deeds as a performance of the contract.
    This action was brought by the plaintiffs, the executors, to compel specific performance of the contract, the plaintiffs urging that the power of sale contained in the will being a general power applied to all the real estate of which the testator died seized and included the premises in question.
    The prope'ty in question was by the will kept separate and apart from the balance of the estate, and was not to fall into the residuary estate and be divided with the rest of testator’s property, but went directly to his children and the trustees for certain of them.

      Held, that under the will there was grave doubt as to whether the power of sale contained in it applied to the property in question, and as to whether the testator did not intend that the general provision in regard to the power of sale should not apply to this property, especially in view of its subsequent absolute' devise to his children and tlieir issue per stirpes upon the death of the testator’s wife;
    That the testator clearly intended by the codicil to devise real estate to the trustees of his daughters, and as no power of sale was given to the trustees, it was evidently the intention of the testator to reserve from the general power of sale in the will this particular property ;
    That this view was sustained by the fact that in the second codicil, under which certain property was devised in trust for one of his sons, an express authority to sell real estate was given;
    That it could not be said that it was the intention of the testator by the general power of sale in his will to enable his executors to sell the real estate which he had absolutely bequeathed to his wife, and as that portion of the estate went-to the trustees for two of his daughters under the cpdicil to the will, that the title tendered to the defendant was not a marketable title or free from reasonable doubt.
    The parties to this submission agreed that the decision should be without costs.

      HelO, that there was no power in the parties to take from the court its discretion as to the allowance of costs, and consequently that the defendants should be allowed their costs of this proceeding. (Parker, J., dissenting.)
    Submission of a controversy without action upon an agreed statement of facts, under section 1279 of the Code of Civil Procedure.
    The questions submitted to the court were as follows:
    (1) Have the plaintiffs, as executors under the last will and testament of Charles (x. Landon, full power and lawful authority to sell and convey the premises described in the said contract ?
    (2) Will a deed of the said real property contracted to be conveyed, executed by the plaintiffs, as such executors, give a good, sufficient and marketable title thereto to their grantee ?
    (3) Will a deed of the said decedent’s real property contracted to be conveyed, executed by the plaintiffsj as such executors, together with a deed of the said real property executed by Iienry Hutton Landon and Carrie L. Landon, his wife, Edward Hunter Landon and Mary G. Landon, his wife, Francis G. Landon, Annie Landon Howes and Mary Gordon Pratt, give a good and sufficient title thereto to their grantee %

    (4) Will a deed of the said decedent’s real property contracted to' be conveyed, executed by Henry Hutton Landon and Carrie L. Landon, his wife, Edward Hunter Landon and Mary G. Landon, his wife, Francis G. Landon, Annie Landon Howes and Mary Gordon Pratt, give a good and sufficient title thereto to tlieir grantee ?
    (5) Have Iienry Hutton Landon and Edward Hunter Landon, as trustees under the provisions of the first codicil, and Edward Hunter Landon and Frank Griswold Landon, as trustees under the provisions of the last codicil of the last will and testament of Charles G. Landon, power' to sell and convey the said real property of the decedent to the extent of the interests represented by them respectively ?
    (6) Will a deed of the said property of the decedent contracted to be conveyed, executed by the plaintiffs, as such executors, together with a deed executed by Henry Hutton Landon and Carrie L. Landon, his wife, Edward Hunter Landon and Mary G-. Landon, his wife, Erancis G. Landon, Annie Landon Howes and Mary Gordon Pratt, and a deed executed by Henry Hutton Landon and Edward Hunter Landon, as trustees under the provisions of the first codicil, and Edward Hunter Landon and Francis G. Landon, as trustees under the second codicil of the said last will and testament of Charles G. Landon, deceased, give a good and sufficient title thereto to their grantee ? * * *
    Judgment shall be rendered herein, without costs to eithei party as against the other.

      II. W. Taft, for the plaintiffs.

      Moses Weinman, for the defendant.
   Van Brunt, P. J. :

In August, 1874, one Charles G. Landon, a resident of the city of New York, at No. 7 East Fourteenth street, made his last will and testament, by which, after having directed the payment of his just debts and funeral expenses, it was provided as follows:

Second. I give, devise and bequeath to my executors hereinafter named, all my property and estate of whatsoever kind or nature, to be by them held, controlled and managed, without division or partition, until my son Francis Griswold Landon, now aged fourteen years, shall arrive at the age of twenty-one years, and if he shall die before that time, then until my daughter Mary Gordon Landon shall arrive at that age, and out of the income and avails thereof, to maintain and support my wife and family and to educate my younger children in a manner suitable to their condition and prospects in life. In case such income is not sufficient for that purpose my executors are empowered to sell sufficient of my estate for such purpose until my said son Francis shall arrive at the age of twenty-one years. In case my said son Francis and my daughter Mary shall die before arriving at such age, and all my other children shall be of full age, then the provisions of this my will hereinafter contained shall be carried into effect in the same manner as if my said son had arrived ,at the age of twenty-one years at the time of his death.

Third. After my son Francis G. Landon shall arrive at the age of twenty-one years, or if he and my daughter Mary Gordon Landon shall die before that time, all my other children now being of full age, then, that is to say, after the haj>pening of either of said events, I will and direct as to and concerning my said property and estate as follows : I give, devise and bequeath to my beloved wife, Susan Gordon Landon, in fee simple absolutely forever, my house and lot No. 7 East Fourteenth street, in the city of New York, or such other house as I shall own and reside in at the time of my decease, together with all the furniture, beds, bedding, chinaware, plate, pictures, ornaments and property of all kinds in and about such house, belonging to me, and my horses, carriages, harness, robes and horse and stable equipment and furniture of all kind.”

Then, after providing for an annuity to his brother and sister and to his wife, he directed his executors to divide the residue and remainder of his estate on the arrival of his youngest child at the age of twenty-one years into six portions, giving one part to his wife .and one to each of his children, and then, after having made some provision in regard to real estate owned by himself and his partner, and after appointing his wife guardian of his infant children and naming his executors, the will proceeded as follows:

Thirteenth. I authorize, empower and direct my said executors to sell my real estate wheresoever situate, whenever, without coming in conflict with the eighth provision of this will, they shall deem a sale thereof expedient and proper, and to execute good and sufficient deeds to purchasers upon any sale thereof or any parts thereof; to collect and receive the rents, issues and profits thereof / to repair and improve the sarnie out of my personal estate amd the proceeds of my real estate sold, and generally to manage, control and dispose of the same as they shall see fit.

<c Fourteenth. In case of the death of my wife, Susan Gordon Landon, before my death, my said children and their issue per stirpes shall take the share, property and estate herein devised and bequeathed to my said wife in equal proportions.

Fifteenth. In case of the death of either of my children before my son Erancis Griswold Landon shall arrive at the age of twenty-one years, without issue, the share to which the child so dying would have been entitled under this my will, if death had not intervened, shall go to the survivors or the survivor of my said children and the issue of such as shall be deader stirpes in equal ¡shares.

Sixteenth. If either of my children shall die before the time of my death, leaving issue, then the share herein given to the said child shall go to his or her issue per stirpes, but if there be no issue of such child so dying then his or her share shall go to my surviving children or their issue per stirpesP

In November, 1874, the testator made a codicil to his will, revoking the legacies, devises and bequests to his two daughters in said will contained, and in lieu thereof he gave, devised and bequeathed all sums of money or property, real or personal, which would go to his daughters under and by virtue of said will to two of his sons in trust, and then states the nature of the trust. In August, 1885, the testator made an additional codicil by which he revoked all and every provision in his will and codicil for his son Henry H. Landon, except the provision making him one of his executors, and in lieu thereof he gave, devised and bequeathed to his other two sons the portion or share of His estate which in his said will and codicil he had given, devised and bequeathed to his said son, in trust for certain purposes, among which was to sell and dispose of his estate, both real and personal, at such times and in such manner as to said trustees might seem advisable, and to invest and reinvest the proceeds, etc.

On the 3d of October, 1885, the wife of the testator died, and the testator himself died on or about the 23d of March, 1893, owning and residing in the dwelling house known as No. 428 Fifth avenue. All the children of the testator survived him and are now living, and at the time of his death wore and now are of full age. The will and codicils were duly admitted to probate, and on the 11th of October, .1893, the plaintiffs, as executors of the will of Charles (x. Landon, deceased, entered into a contract with the defendant for the sale of the premises 428 Fifth avenue, in which the testator resided at the time of his decease. Upon the date and at the place appointed for the delivery of the deed mentioned in the contract, the plaintiffs tendered to the defendant their executors’ deed, and the defendant tendered the consideration, but refused to accept the deed as a compliance with the contract upon the ground that the plaintiffs did not have power, under the will, to convey said property. To meet this objection, the plaintiffs, in addition to said executors’ deed, tendered to the defendant a deed purporting to convey said premises, duly executed aud acknowledged by all tlie children of said testator, and the wives of the married sons of the testator, and also a deed executed by the trustees mentioned in the first and second codicils to his will. The defendant again refused to accept the deeds as a compliance with the contract.

Upon this state of facts various questions are presented; but there is only one which it seems to be necessary to determine, and that is whether the plaintiffs tendered to the defendant a marketable title and one free from reasonable doubt. And the answer to this question depends upon the construction of the will and codicils of Charles G-. Landon.

It is urged upon. the part of the plaintiffs that, there being a general power of sale contained in the will, it applied to all the real estate of which the testator died seized, wherever situate, and included the premises in question.

There seems to be veiy grave doubt as to whether it was not the intention of the testator to exempt from the powers of sale contained in the will the premises bequeathed to his wife. Upon the arrival of his youngest son at the age of twenty-one the gift of the premises in which he might live to his wife was absolute, and over them his executors had no control whatever after the happening of this event. It was undoubtedly the intention of the testator that xxntil this time arrived all his children should live with their mother as one- household. But when that time arrived then the house in which he lived was to belong to his wife absolutely, and a provision was to be made for her support out of his remaining property. And that he did not intend that this genex’al provision in regard to the power of sale should apply to this property is fui’ther emphasized by the fourteenth clause of his will in which he says: “ In case of the death of my wife, Susan G-. Landon, before my death, my said children and their issxxe per stirpes shall take the share, property and estate herein demised and bequeathed to my said wife in equal proportions.”

This devise is given after the general power of sale is conferred, keeping this property distinct from other portions of his estate and making a separate disposition of the same in case of the death of his wife. It xvas not to fall into the residuary estate; it was not to be divided up with the rest of his estate ; it xvas bequeathed directly to Ms children, and they would have taken it under this will absolutely had it not been for the codicil subsequently made. But by the first codicil he revokes all the provisions made in his will for his two daughters, and he places their share or interest in trust, and there is no power of sale contained in that codicil in respect to the interest or share of such daughters. As far as their interest in the other portions of the estate is concerned, it was unnecessary because the power of sale contained in the will enabled the executors to sell the real estate for the purposes of division. That under this codicil real estate was intended to be devised to the trustees is evident because he says he gave, devised and bequeathed all sums of money and property, real or personal, which would go to his daughters, and in respect to this real property in question no power of sale wras given. It is apparent that the only real property which the testator had in mind as passing under this codicil was the real estate which had been devised to his wife, and which in the event of her death was to go in part to his daughters. lie evidently contemplated that the balance of his estate should be divided amongst his children, not in realty, but after a sale for the purpose of division. In the subsequent codicil, where he revoked the provisions of his will for one of his sons, and in which he devised the portion or share of his estate which in his will he had bequeathed to his said son to certain of his other sons as trustees, there'is an express giving of authority to sell and dispose of real estate, etc., which is conspicuously absent in the provisions of the previous codicil. Under these circumstances can it be said that it was the intention of the testator that the general provision of the will should enable his executors to sell real estate which he had absolutely bequeathed to Lis wife ? If it was not, then the portions of his daughters in such real estate went to trustees who had no power of sale over such interest.

Can it be said then that the title to this real estate tendered to this defendant is a marketable title and free from reasonable doubt? We think not, and that under the principles laid down in Kilpatrick v. Barron (125 N. Y. 751) the defendant should not be compelled to take.

It is true, since the decision of Fleming v. Burnham (100 N. Y. 1), the Court of Appeals has decided in at least one case that where only questions of law were involved, in an action of this description, the court was bound to interpret the will and give judgment accordingly. But we think, that the later decisions have gone to this length, and that the case first cited should control in the disposition of this controversy.

The defendant is, therefore, entitled to judgment. "We notice that the stipulation of the parties is that the judgment should be without costs. But we know of no power in the parties to take away the discretion which the Code absolutely gives the court in controversies of this description, and, therefore, costs are allowed.

Judgment should be ordered for defendant, with costs.

O’Brien, J., concurred.

Parker, J.:

I concur in the opinion except in so far as it refers to the question of costs. It is true that the-provision of the Code governing the submission of a controversy upon agreed facts does not give to the successful party costs as a matter of right, but commits to the judicial discretion of the court the duty of determining whether costs should be granted or withheld. Were the Code silent on the subject of costs in such a proceeding the prevailing party could not recover costs either with or without the aid of the court. By the Code the right to costs is given when the facts are such as to require the court, in a judicial exercise of the discretion committed, to award them. When awarded, it is by way of indemnity to the party because of the expense incurred in securing his legal rights, and is beneficial to him. Now, it is difficult to see why a party may not waive such an advantage or benefit as well as another. Why he may not deprive himself by his consent of that which may, for convenience, be called a contingent benefit as well as of an absolute one. Why he may not deny to himself the right to costs which may be awarded in the discretion of the court as well as of costs which the Code awards absolutely to a successful party in an action at law. There is no right which a man has which he may not waive. He may waive rights which are secured to him by statute or organic law. And that which he duly waives the court has no power to award to him. I think costs should not be allowed.

Judgment ordered for the defendant, with costs.


author: Van Brunt, P. J.:

text:
    Peter Peiffer, Respondent, v. John E. Wheeler and Another, Defendants; Henry Delafon and Another, Appellants.

      Wa/rrant of attachment — amendment of, by reducing the amount,

    "The court lias power to amend a warrant of attachment by reducing its amount, -on the motion of the person obtaining it, where such person has, in good faith, made a mistake in the amount of the indebtedness, to secure which the attachment was issued.
    In order, however, to justify the court in making such amendment, the utmost good faith upon the part of the moving party should be shown, and where he claims that he forgot that the whole amount for which the attachment was issued was not due for work and labor performed, when more than half of it was upon a note transaction, the explanation is not sufficient.
    The court will not aid a party who recklessly resorts to its process for the purpose of securing his debt.
    Appeal by Henry Delafon and another, attaching creditors, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of September, 1893, denying the motion made on behalf of said appellants to vacate the plaintiff’s warrant of attachment, and allowing the plaintiff to amend his warrant of attachment.

      John Fra/iilcenhevtner, for the appellants.

      J. B. A. Mulldly, for the respondent.
   Van Brunt, P. J.:

On the 4th of August, 1893, the respondent obtained an attachment against the property of the defendants Wheeler & Fish for the sum of $2,868.92, on the ground that the defendants were residents of Newark, N. J., setting up in his affidavit a cause of action for work, labor and services performed at agreed prices, aggregating the sum of $2,868.42. The appellants subsequently procured an attachment against the property .of the defendants, and the same was levied upon the same property upon which the attachment of the respondent had been levied ; and this motion was thereupon made to vacate the plaintiff’s attachment. Upon the hearing of the motion it appeared that but a small portion, of the amount for which the attaclmieut was issued was for work aud labor, and it was claimed upon the part of the plaintiff that he made a mistake in describing a portion of his indebtedness, which was upon notes lent. It further appeared that another portion was represented by a note which had not yet become due, and a motion was made upon the part of the respondent for leave to amend the attachment by reducing it to the amount which was due. This motion was granted, and the motion to vacate denied. And from the order thereupon entered this appeal is taken.

One of the questions presented upon this appeal is that the court has no power to amend a warrant of attachment by reducing its amount. But upon a careful examination of the argument presented upon the part of the appellant we cannot see that there is any reason to doubt the power of the court in a proper case to make such an amendment. It cannot be that where a party has innocently and in .good faith made an averment in regard to the amount of the indebtedness of the defendant in the attachment to him, he must lose his whole lien because he has inadvertently made an error. No such •arbitrary and rigid rule has yet obtained, and in view of the liberal provisions of the Code in regard to amendments we do not think it will. The only case which has been found to support any such view is that of Buhl v. Ball (41 Hun, 61) where the court held that upon a motion to vacate an attachment upon %he papers upon which it -was granted, no affidavit could be received to fortify the allegations contained in the original papers. This arose from the rule of the Code that where such a motion is made upon the papers upon which the warrant was issued no additional affidavits can be read in support thereof.

Neither do we think that Kibbe v. Wetmore (31 Hun, 424) is an authority for the proposition that an amendment can be allowed where an objection is taken to the proof of the facts justifying such amendment upon the hearing of the motion to discharge the attachment. In that case the facts justifying the amendment were presented to the court without objection, and the court conformed the process to the proofs.

In order, however, to justify the court in making such an amendment, the utmost good faith upon the part of the plaintiff should be shown; and in this regard we think the plaintiff entirely failed. A perusal of the papers upon which this order was made leads to the conclusion that the plaintiff intended to grab everything in sight in order that he might secure the money due and to become due from the defendants to him. His excuse in regard to the note which was not due seems to be entirely untenable. And his claim that he forgot that the whole amount for which the attachment was issued was not due for work and labor performed, but that more than half of it was upon note transactions, seems to make too severe a call upon credulity to entitle it to belief. The transactions of this plaintiff are not shown to be so large that he would be likely to forget a little thing of this description. Out of $2,800 for which the attachment was issued, only $1,100 appears to have been due for the cause of action set out in the complaint. Now, it is clear that in case .lie had declared in a complaint for the cause set out in this affidavit, he could only have recovered the $1,100. Besides this $1,100 he includes some $1,400 on note transactions and some $400 more for which he held a note which was not due. This could not have been an innocent mistake. The fact that this was an unusual transaction, viz., of borrowing notes instead of being, as plaintiff alleges, a reason for his forgetting it, was a reason for his remembering it.

We can come to but one conclusion, and that is that the jilaintiff was willing to swear to his ighole indebtedness, due or not due, and whether arising out of the facts stated in his affidavit or not, in his great haste to get his security.

Under these circumstances we do not think that the court should aid a party in recklessly resorting to the process of the court for the purpose of securing his debt. The motion to vacate should have been granted, and the motion to amend denied.

The order appealed from should be reversed, with ten dollars costs and disbursements ; the motion to vacate granted, with ten dollars costs, and the motion to amend denied, with ten dollars costs.

Parker and’ O’Brien, JJ., concurred.

Order reversed, with ten dollars costs and disbursements; motion to vacate attachment granted, with ten dollars costs, and motion to amend attachment denied, with ten dollars costs.


text:
    Hugh O’Reilly and Others, as Executors and Trustees, etc., and Others, Appellants, v. The New York Elevated Railroad Company and Others, Respondents.

      Eminent domain — benefits offset against damages — injunction against a railway company where no pecuniary damages are shown.

    Where the fee of a street, over which an elevated railroad company is authorized to construct its road, is the property of the municipal corporation in which it is situated, an abutting owner has no private right or easement in such street, except the easement of light, air and access appurtenant to his premises, and where the erection of the railroad cuts off some of the light and air which such premises would otherwise have received, and somewhat injures the premises by reason of the dirt, cinders and smoke resulting from the operation of the road, but the value of the fee of the premises is increased by the ease of transit to the neighborhood of the premises, afforded by the railroad, to such an extent as to exceed the injury caused to the property, the owner is not entitled to recover damages from the railroad company unless it is shown that there is such a disparity between the rate of increase in the value of the property in question and other property in the vicinity off the line of the road, as would justify the conclusion that it had failed to share in the general increase in value of all the property in the neighborhood.
    The owner of such property is not entitled to an injunction restraining the erection or running of the road. The court will not enjoin the operation of a public work executed under legal authority, simply because some private right is trespassed upon which cannot be compensate for in money, because it has no value.
    In all cases of consequential damages the benefits resulting from the work causing the damage must be deducted from the damages. If the railroad in question had been built without authority of law a different question would be-presented, but, existing by authority of law, its construction and operation cannot be enjoined except by a person who has suffered pecuniary injury, for which he is entitled to compensation.
    Appeal by tlie plaintiffs, Hngli O’Reilly and others, from a judgment of tlie Supreme Court in favor of the defendants, entered in tlie office of tlie clerk of the county of New York on the 3d day of October, 1893.. upon the report of a referee dismissing the plaintiffs5' complaint.
    X. X. JDelafield, for the appellants.
    X?. X. Maynard, for the respondents.
   Van Brunt, P. J.:

This action was brought by an owner of property abutting upon Ninth avenue, for an injunction to restrain the defendants from maintaining and operating their railroad on said avenue in front of the premises of the plaintiffs, and to recover damages for alleged past injury due to the maintenance and operation of the road. Upon this appeal the judgment roll only being presented, the sole question open for discussion is whether upon the facts found the plaintiffs were entitled to greater relief than they obtained, which was a judgment dismissing the complaint, without costs.

The learned referee before whom the case was tried found that the defendants under authority duly received constructed, maintained and operated their railroad; and that defendants were also invested with power of eminent domain and were authorized to acquire any real property needed for such railroad upon payment of just compensation ; that the bed of Ninth avenue in front of the premises in suit is owned by the mayor, aldermen and commonalty of the city of New York, and the plaintiffs have never had any private right or easement therein other than the easements of light, air and access appurtenant to said premises; and that

The said easements appurtenant to the plaintiffs’ land taken for the said railway uses, in and of themselves, apart from any consequential damages to said land from said taking, have only a nominal value.

The referee also found that by the railroad structure and the operation of the road thereon, the light and air which the plaintiffs’ premises would otherwise have received have been to some extent cut off, and that said premises have also suffered from the dirt, cinders and smoke caused by the erection and continued maintenance and operation of the road which have rendered the plaintiffs’ premises for dwelling purposes less comfortable than they would otherwise have been; that

Said railway and stations afford • frequent and easy transit, and the traffic in the said avenue in the vicinity of the premises in suit is thereby increased, and produce a general benefit in which the plaintiffs’ property participates; that

The fee value of plaintiffs’ premises has increased since the construction of the defendants’ road, and that the property is of greater value to-day for business purposes than at any time prior to the construction of the same; that

There has been no such disparity between the rate of increase in value exjDerienced by the property in question and other property in the vicinity off the line of the elevated road as would justify the conclusion that the property in question had failed to share in the general increase of values which is shown to have taken place in respect of all real estate in that vicinity; and further that

Plaintiffs have failed to show that the fee or rental value of the premises in suit has been decreased by the acts of the defendants.

Upon these facts the plaintiffs claim that they were entitled to' injunctive relief, although they failed to show that they had sustained any monetary damage by the interference of the elevated railroad with the easements appurtenant to their lots.

Our attention has been called to certain authorities to sustain this proposition, notably the cases of Smith v. City of Rochester (38 Hun, 612), and Corning v. Troy Iron & Nail Factory (40 N. Y. 191), and also to certain decisions in the elevated railroad cases.. Those decisions, however, fail to support the contention which has. been urged upon this court by the appellants.

In the cases of Smith v. City of Rochester and Corning v. Troy Iron & Nail Factory (supra) it is true that without the proof of' pecuniary damage it was held that an injunction would lie, but in those cases it is to be observed that the party who was engaged in the trespass was doing so without legal right, and, therefore, it was. entirely immaterial as to whether damage was occasioned or not; he could not gratify his whims or cater to his interests at the' expense of his neighbor. But in the case at bar a very different, state of facts exists.. It is found by the referee that the construction of the road was under authority of law, and that in the prosecution of this work they had infringed upon certain easements, appurtenant to the lot of the plaintiffs, which had no value in themselves. Now, the principle upon which actions of this nature have been maintained by the courts is, that where, by the legal construction of a public work, interests belonging to private parties in the neighborhood of the work have been interfered with, the court will enjoin the prosecution or operation of the work until compensation in money is made for the damages sustained by reason of the interference with these easements. But where such interference has ■caused no damage, then the very foundation for a judgment in an .action of this description is not established. The court will not enjoin the operation of a public work, executed under legal authority, simply because some private right is trespassed upon which cannot be compensated for in money because it has no value. It is upon this theory that the courts have laid down the rule that in all ■cases of consequential damages the benefits which result from the work must be deducted. In such actions resulting damages are •sought to be recovered ; hence, resulting benefits, the courts have held, may be deducted. So in the case at bar, although these easements may have been interfered with, if the resulting benefits have more than compensated for the inconvenience which the improvements have caused, there is no ground for an action óf this character. If this railroad had been built without authority of law an entirely different question would be presented, as in the cases cited; but being by authority of law', and existing and being operated by like authority, it cannot be enjoined except by some person who has suffered pecuniary injury for which he is entitled to compensation.

"We think, therefore, that the learned referee was correct in the judgment dismissing the complaint, and that the same should be affirmed, with costs.

O’Brien and Parker, JJ., concurred.

Judgment affirmed, with costs.


text:
    The Harlem Bridge, Morrisania and Fordham Railway Company, Appellant, v. The Town Board of the Town of Westchester and Others, Respondents.

      Additional allowance — amotion for cannot be made after discontinuance.

    It is not possible to make a motion for an extra allowance after an action has been discontinued.
    Where an order of discontinuance upon certain terms has been made, the court. has no power, by a subsequent order reciting the compliance of the parties with the terms, to provide that the question of extra allowance be disposed of at a future date.
    An order directing that the action be discontinued, without costs to either party, having been made, the court cannot thereafter grant an extra allowance, as the allowance is in addition to costs and is part thereof. t

      Appeal by tlie plaintiff, The Harlem Bridge, Morrisania and Fordham Railway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the Supreme Court on the 29th day of May, 1893, granting leave to the defendants, the Town Board of the Town of Westchester and others, to renew a motion for an extra allowance and granting such allowance.
    IF, 2F. Gohen and Henry L. Scheurman, for the appellant.

      H. G. Henderson and A. B. Gruilcshcmk, for the respondents.
   Van Brunt, P. J.:

This action was brought on the 13th of June, 1892, for an injunction to prevent the defendants from interfering with the plaintiff in building and operating its street surface railroad, and to prevent the defendant traction companies from building their own railroads. An injunction was served with the summons and complaint, and after argument continued pending the trial of the action. Issue was joined in August, 1892, and the case reached for trial on the eighteenth of November of that year and adjourned upon the application of the plaintiff. An appeal having been taken from the order continuing the injunction, the same was heard in November, 1892, and a reargument ordered. The case was put on the January calendar and noticed for argument, but was moved off by the plaintiff, and put on the February calendar and argued. Before a decision was rendered, the plaintiff having made a motion for the discontinuance of the action, on the 27th of February, 1893, an order was made and entered by this court granting the plaintiff’s motion upon certain conditions. On the 7th of March, 1893, an order was entered reciting the compliance by the plaintiff with the conditions contained in the order of February 27, 1893 (except, as to the extra allowance to be thereafter disposed of), and the payment of the costs therein required to be paid, and the receipt thereof by the defendants’ attorney ; it was ordered that the action be and the same thereby was discontinued without further costs to either party as against the other. A motion for an extra allowance having been made, the same was denied ; and an application having been made for leave to renew said motion, such leave w'as given, and the motion for extra allowanee granted, and from the orders thereupon entered this appeal is taken.

I have not been enabled to see how it was possible to make a motion for an extra allowance after an action had been actually discontinued and ended. The order of March seventh discontinued the action without further costs to either party as against the other. It was absolute in its terms, and as long as that order existed there was no action pending in which a motion for an extra allowance could be granted.

It may be said that in the body of the order it was recited that the plaintiff had complied with all the conditions for discontinuance except as to the extra allowance, which was thereafter to be disposed of. But the court had no power to retain the question of extra-allowance to be disposed of after the action was actually discontinued. The order directed, notwithstanding these recitals, that the-action be discontinued without further costs to either party as against the other. This was the judgment of the court. In this judgment there was no reservation (if such a reservation could have been made) of the right to make a motion for an extra allowance. I have been unable to see how the court could exercise any such power. The moment the action was discontinued, that moment the court lost-all jurisdiction of the parties. No action pending, no or.der could be made therein. The action had been discontinued without further costs to either party as against the other, and an extra allowance is-in addition to costs, and is part of the costs, and the granting of sucli a motion is in contravention of the judgment of discontinuance.

I think, therefore, without discussing the question as to the power of the court, .in view of the nature of the attempted averments upon information and belief, as to the value of the subject-matter of the litigation, that the court had no power after the action had been discontinued to entertain a motion for an extra allowance. As well might the court, in the case of' a trial after judgment entered,, entertain such a motion.

The order appealed from should be reversed, with ten dollars, costs and disbursements.

Parker, J., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Follett, J. :

text:
    Mary Davies, as Administratrix of John B. Davies, Deceased, Respondent, v. The Pelham Hod Elevating Company, Appellant.
    Negligence■— the substitution by a person injured of his judgment, for that of another, relieves the latter from the charge of negligence in respect to the subject of such judgment.

    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant, it was proved that the defendant was in the habit of furnishing derricks and appurtenances for the use of buildings, and also furnished the boilers to run the engine attached to the derrick. The plaintiff’s intestate was employed by the contractor erecting the building, who had exclusive control of the derrick and its management.
    While the plaintiff’s intestate and others were engaged in lifting a stone, with the aid of the derrick, a rope broke and the boom fell, striking him and causing his death. The first topping lift used had been a steel wire cable, but a manilla rope had been substituted for it before the accident, and it was charged that using this manilla cable, which was not of sufficient strength for the purpose for which it was used, constituted negligence on the part of the defendant.
    There was no proof offered that the rope was defective in quality or material, but the plaintiff’s contention was simply that it was too small for the purpose for which it was used.
    It was admitted that the rope broke because it was of insufficient strength by reason of its size. It was further shown that the change from the steel to manilla rope had been made at the request of the plaintiff's intestate, and that he and an employee of the defendant had placed it upon the derrick; that the reason given by the plaintiff’s intestate for the change was that he believed that the manilla rope was safer; would give warning before anything happened, and that the wire rope would not. The rope was ordered and inspected by intestate, and approved by him before it was used.

      Held, that, the intestate having assumed to be an expert and to know the kind of rope best suited to his purpose, and having directed the change, and accepted the new one, knowing its size, and presumably its estimated strength, was as guilty of negligence as was the defendant, if either could be said to have been negligent;
    That the substitution by the plaintiff’s intestate of his own judgment for that of the defendant, in respect to the kind of rope which should be used, was a complete answer to the claim of negligence on the part of the defendant, he having supplied the plaintiff’s intestate with the very thing which he ordered, and from the use of which his injuries were received.

      Arrear by the defendant, Tbe Pelliam Hod Elevating Company, from a judgment of the Supreme Court in favor of the plaintiff, •entered in the office of the clerk of the county of New York on the 1st day of May, 1893, upon the verdict of a jury for $5,000 ■damages after a trial at the New York Circuit, and also from an ■order entered in said clerk’s office on the ljst day of May, 1893, denying the defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

      George S. Oolema/n, for the appellant.

      William H. Arnoux, for the respondent.
   Follett, J. :

This action was brought to recover damages occasioned by the death of plaintiff’s intestate, caused, it is alleged, by the negligence of the defendant’s employees. The defendant is a domestic corporation engaged in supplying contractors and builders with derricks, elevators and pumps. It furnished the builders of the Savoy, which is on the southeast corner of Fifth avenue and Fifth-ninth street, with a boom derrick and a];>purtenances. Afterwards the New Netlierland, which is on the northeast corner of Fifth avenue and Fifth-ninth street, was erected. Isaac Hopper & Co. had a contract for constructing the masonry, and hired, about April 16, 1891, of the defendant the derrick and its appurtenances which had been used at the Savoy. The defendant also furnished a steam engine which supplied power to operate the derrick and an engineer who ran the engine, for which it received fifteen dollars per day. Isaac A. Hopper & Co. had exclusive control of the derrick and of its management. The plaintiff’s intestate was employed by Isaac A. Hopper & Co. as a foreman and was placed in charge of the derrick.

The topping lift of a derrick is the rope connecting the end of the boom with the mast or upright and by means of which the boom is raised and lowered.

On the 10th of June, 1891, while the plaintiff’s intestate and others were lifting with the derrick a foundation stone weighing between eleven and twelve thousand pounds, the topping lift broke and the boom fell, striking plaintiff’s intestate on the head, from the effects of which lie died the next day. It is not asserted that any part of the derrick or its appurtenances was defective except this rope or cable called the topping lift. When the plaintiff’s intestate began using the derrick the topping lift was a steel wire cable, seven-eighths of an inch in diameter, which was used until May twenty-second, when a new manilla rope or cable four and one-fourth inches in circumference, was substituted and used until June tenth, when it broke.

The precise and only cause of action sought to be established on the trial was that the defendant negligently furnished the manilla cable wdfich was not of sufficient strength for the purpose for which it was used, and that the decedent did not, by his own neglect, contribute to the accident. There is no evidence that the manilla rope was defective in quality, material or in the mode in which it was made, but the plaintiff’s contention is simply that it was too small for the purpose for which it was used. Upon this issue considerable evidence was given on both sides, but it was found for the plaintiff, and it must be regarded as settled, so far as this review is concerned, that the rope was too small for the purpose for which it was used. When this case was before this court on the first appeal (65 Hun, 573) it was held on the authority of Devlin v. Smith (89 N. Y. 470) that the defendant would be liable for the damages occasioned by the death of the plaintiff’s intestate, in case the evidence justified a verdict that defendant negligently furnished a rope of insufficient strength, and that the intestate, by his own neglect; did not contribute to the accident. This question is not an open one in this -court.

It is asserted in behalf of the plaintiff that the rope broke because it was of insufficient strength by reason of its size. For the purpose of the present contention it must be conceded that this proposition is true.

The important questions involved are: (1) Was it negligent in the defendant to furnish this rope, and (2) did the intestate by his own negligence contribute to the accident? The plaintiff asserts that sufficient evidence was given to make these questions issues of fact which have been settled in her favor by the jury, while the defend•ant asserts that the evidence is insufficient to justify the submission' of these questions to the jury, and that its motion for a nonsuit should have been granted, and also that the verdict is contrary to the weight of evidence, and that its motion for a new trial should have been granted. The undisputed evidence is that from the time when the derrick was first set up by Isaac A. Hopper & Co. until May twenty-second a steel wire rope or cable was used for the topping lift, and that on the date last mentioned the manilla rope or cable which broke was substituted at the request of the jffaintiff’s intestate. It is true that he did not request that this particular rope be substituted, but that a manilla rope be substituted, and he gave his reasons why. The rope or cable which broke was taken by one of defendant’s employees to the plaintiff’s intestate, and they together placed it in the derrick, or, in the language of a witness, rigged the derrick with it.”

It was testified by witnesses called by both sides that a manilla rope was substituted for the wire cable at the special request of plaintiff’s intestate; that he saw the manilla rope which broke before it was substituted and assisted in making the change. About this there is no dispute nor conflict in the evidence.

Patrick White, a witness called by the plaintiff, testified : I was. present when the rope came. Mr. Davies was there. I had a talk with Mr. Davies about the character of the change to be made in the rigging. He said he was going to get a manilla rope put in, and they would have the wire rope taken out. That is all he told me. He said he thought the manilla rope was better, because it was. safer. He said if it parted it would give you warning, and steel wire rope would break short. Q. So it was Davies’ own suggestion to you ? A. Yes, sir.”

This witness further testified: I remember the circumstances of the putting in of the manilla rope. I saw the rope brought there. The condition of it was new; it wras in a coil; a brand new rope in a coil. I do not know the size of that rope; they said it was a two-incli rope. When the. rope was put on the derrick Mr. Davies, the man who was injured, was present. He said he was going to stay there to see it put in.”

This witness also testified : “ Q. Now, you have spoken about the wire rope that was in use on this derrick. When was this change made from a wire rope to a manilla rope; about how long before the accident ? A. I guess about two weeks. I saw the wire rope that was used, there at the time the change was made, or just before the change was made. Mr. Davies might be working on the job two weeks, or around that time, before this change was made from a steel rope to a manilla rope. The topping lift was changed to a manilla rope. The steel wire that was taken out was the one that was in the fall rope. In raising and lowering these granite blocks it had to drag on the ground. At the time the change was made the outside of it was a little chafed from running along the ground. Some of the wires were crooked. The steel wire rope that was used to raise and lower the stone, known as the fall, that was taken out, and the wire rope that was used for a topping lift, that was taken out and placed in and used as the fall instead of the topping lift, and a new manilla rope was put in and used as a topping lift from that time. The wire rope that had no chafing on it, and didn’t have any-breaking of the wires in it, was substituted and used from and after that time as the rope to raise and lower the granite blocks.”

Ebenezer Davies, a brother of the intestate, testified : “ Q. What did your brother say to you about the reason for changing from wire rope to manilla? A. He said there was a flaw in the wire rope, lie said he believed manilla rope gave warning before anything happened, and that wire rope would not. That it would snap all at once.”

Mr. Isaac A. Hopper, the employer of the intestate, was called as a witness for the defendant, and testified : “ I had some conversation with Mr. Davies in regard to making a change of rope in the topping lift; that was about two days after he was there; the second day, I think, after he was in charge of the derrick; I made my usual visit to the building and had general conversation with Mr. Davies, and, after a while, he said to me, £ I wish you would step over to the derrick; there is something I want to call your attention to.’ I stepped over about ten feet away from the foot of the derrick, and he picked up one of the wire cables and said to me, £ Look at that.’ I said, £ Look at what ? ’ He said, £ Look at that spot on that cable.’ I said, What of it ? ’ He said, £ I think that is a weak spot.’ I said, £ It don’t appear so to me ; it looks like a mud spot.’ He said, £No, boss; I think that is a -weak spot in that cable.’ I said, ‘ John, if you have any doubt about it there will be no risk. You tell Henry, our timekeeper, to telephone to Mr. Pelham to come right up here, that you want him, and you just show him this and tell Mm to take this cable out and put in another one.’ So he said, ‘Very well, sir.’ Q. Do you remember which cable that was, whether it was the one that was in the topping lift ? A. My recollection is it was the topping lift that I understood he -was to change. I saw him the next day. When I went there the next day I found a manilla rope had been substituted for the wire cable in the topping lift. I. asked Mr. Davies what it meant. I expressed surprise at seeing the change made, and I asked him what it meant, and he told me as near as I can remember his words ■— he said to mo: ‘ Don’t say anything, boss, I know what I am doing; now I have got what I want.’ I said to him, ‘ Wliat do you mean by that, John % ’ And he said, ‘ I mean that a manilla rope is the best rope for this purpose,’ and I asked him why, and the answer he made me was that if a manilla rope was going to give, that there would be some warning, while with a ware cable, that if there -was anything to give there, it would snap like a pipe stem, and there would be no warning, and he said, ‘ Now don’t make any objections, boss, for I know what I am doing now.’ So I told him; I said, ‘John, be careful. I don’t want any one hurt on this job,’ and I left him at that. The derrick was in his charge.”

William A. Smith, an employee of the defendant, who, at the request of Davies, sent for the manilla rope, testified: “ I went there the day the rope was changed. First I saw the engineer. I had a conversation with him ; as the result of that conversation I went and had a conversation with Mr. Davies, the foreman; he wanted the wire cable changed to a manilla rope; he said that he preferred a manilla rope, as the wire rope might give way without any warning, and by using manilla he thought he would have warning in case that it was liable to break. I told him I thought he was making a mistake; that a steel cable was preferable in my judgment. He said he would sooner have a manilla rope. lie insisted upon having manilla. As a result of that conversation I went around to the New York Cable Company’s store in Fifty-eighth street and telephoned to our office in West Twenty-sixth street. * * * I had further conversation with Mr. Davies after that in regard to the rope. ' It was some few days after the change had been made. He said he was satisfied with the change; that he had what he wanted.”

Mr. Brown, an employee of the defendant, testified: “ I got the rope that I took up there in the shop. I cut it off from a new coil myself, and put it in the wagon. I saw Mr. Davies and had a conversation with him. I brought the rope up there, and I was going to leave it on the sidewalk, and he told me there was no one around to put it on, and asked me to put it on for him, and I told him I would. I took off the wire rope that was onto the blocks, and put on those two new blocks and changed the rope. Mr. Davies stayed there all the time. Q. Did he say anything to you about making the change from a wire to a manilla rope? A. Nothing more; only he looked at it and said, That is the stuff. I would sooner have that one than that wire.’ I took off the blocks that were used with the wire rope and put on others. I took those others up with me — two double blocks. "When I rigged the manilla rope there were in the topping lift five parts all told.”

Mr. Newton, who ran the engine, testified that he had a conversation with the intestate on the day after the ropes were changed. “ He came up and said, ‘ Good morning, Mr. Engineer; I feel satisfied this morning.’ He said he always felt safer with a manilla rope than with a wire rope, because it gave so much more warning.”

The foregoing extracts from the testimony conclusively show that the plaintiff’s intestate assumed to be an expert in such matters, or asserted by his conduct and language that he knew which kind of a rope was best for the topping lift. He exercised his judgment, which the defendant acquiesced in though not recommending the change. These extracts also show that the substitution of the manilla rope for the steel wire cable was made at the special instance and request of the plaintiff’s intestate; that he helped make the change; saw and handled the rope before it was used, and exercised his own judgment in respect to the substitution. A rope is not an intricate piece of machinery, the details of which are not readily comprehended, but it is a simple implement, the strength of which is learned, approximately, by referring to tables which are given in the hand books of mechanics. The intestate knew the size of the stones ■which were being moved and understood approximately the strain which the derrick was required to sustain. During the eighteen days which elapsed between the date when the substitution was made and the date when the accident occurred, the intestate had the entire supervision of the derrick and knew the size and number of the stones moved, and it was liis duty to see that the cable was not used after it had been weakened by use. The intestate, having assumed to be an expert and to know the kind of rope best suited to his purpose, and having directed the change and accepted the new one, knowing its size and presumably its estimated strength, was as guilty of negligence as was the defendant, if either can be said to have been negligent.

When this case was before the court on the former appeal it was said: “We are of the opinion that the substitution by plaintiff’s intestate of his own judgment for that of the defendant, in respect to the kind of rope that should be used, is a complete answer to the claim made of negligence as against defendant in having supplied him with the very thing that he ordered, and from the use of which his injuries were received.”

That language is as applicable to the present record as to the former one, and, under the evidence presented in this record, the court erred in refusing to nonsuit the plaintiff, and the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Yan Brunt, P. J., and Parker, J., concurred.

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


author: Follett, J.: Van Brunt, P. J.

text:
    Charles Edward Hart, by his Guardian, etc., Appellant, v. The Delaware, Lackawanna and Western Railroad Company, Respondent.

      Negligence, — when a question for the jury.

    In an action brought to recover damages resulting from personal injuries alleged to have been caused by the negligence of employees of the defendant, it was shown that the tracks of the defendant' extend to a wharf and down onto a floating bridge, which rises and falls with the tide. On this bridge the defendant stationed an employee, whose duty it was to hand the hawser to an incoming float for the purpose of having the float drawn to the bridge. The float was held in position so that the tracks upon it would connect with the tracks on tlie bridge by four steel keys, about seven feet along, permanently attached to the bridge, and which were run out onto the float when the latter was drawn into position, and into boxes or grooves on its deck. When the barge was ready to leave the keys were shoved onto the bridge until another float came.
    The plaintiff was in the employ of the New York, New Haven and Haitford Railroad Company as a floatman on one of its floats. The float upon which he was employed went to the bridge of the defendant, but found another float lying alongside of the bridge. An employee of the defendant stated that if the float upon which the plaintiff was engaged wished to get to the bridge it would be necessary to pull the other float away. This was done. The plaintiff, whose duty it was to receive the hawser on the side of his float, took his position for that purpose, and, as the float approached the bridge, one of the steel keys, which had not been drawn back when the other float was pulled from the bridge, struck him, breaking one of his legs.
    The accident happened in the evening, and there was a conflict of testimony as to whether the lights on the bridge were sufficient to enable the plaintiff to see.
    It was proved that the floats were in the habit of approaching the bridge at all hours of the day and night, and that the bridge was always manned for the purpose of receiving them, and that it was not an unusual thing for an incoming float to remove an idle one lying at the wharf.
    It was also shown that the defendant’s bridgeman stood with the hawser in his hand ready to hand it to the floatman of the float upon which the plaintiff was. That the keys could have been pulled back into position within two minutes, and that between fifteen and twenty minutes elapsed between the time when the empty float was drawn away and the bridge was reached by the float upon which the plaintiff was stationed.
    The negligence charged against the defendant consisted in the fact of its permitting these keys to project beyond the bridge when the float upon which the plaintiff was engaged approached it.

      Held, that the questions of negligence on the part of the defendant’s agents and contributory negligence on the part of the plaintiff should have been submitted to the jury. (Van Brunt, P. J., dissenting.)
    Appeal by the plaintiff, Charles Edward Hart, by Samuel M. Hitchcock; his guardian ad Utem, from a judgment of the Supreme Court in favor of tlie defendant, entered in the office of the clerk of the county of New York on the 5th day of April, 1893, rendered upon the decision of the court dismissing the plaintiff’s complaint, with costs.

      John II. Kitchen, for the appellant.

      Walter Kdwa/rds, for the respondent.
   Follett, J.:

This action was brought to recover damages for a personal injury, caused, is is alleged, by the negligence of the defendant’s employees. At the time of the accident the defendant was, and for some years prior thereto had been, in the possession and control of a wharf at the city of Hoboken, known as pier No. 11, which was used for transferring railroad cars to and from floats. The New York, New Haven and Hartford Railroad Company owned and used floats for transporting cars between its railroad and other railroads having terminal facilities on New York harbor. These floats are about 225 feet long and thirty-flve feet wide, and have three tracks extending lengthwise of their decks for cars to move and stand on. Each float has a capacity for sixteen cars and is moved from place to place by a steam tug lashed to its side. The wharf is approached through a slip formed by spiles driven on each side and are like ferry slips. Attached to the wharf is an adjustable bridge which rises and falls with the tide, and can be easily brought to the level of the deck of the float. Railroad tracks extend from the yards of the defendant to the wharf and across the bridge. A windlass stands on the wharf operating a hawser which has a ring on the end of it. On the bridge is stationed an employee of the railroad, whose duty it is to hand the hawser to the man standing on the bow of the incoming float, who fastens it to the hook on the float, and then, by means of the windlass, the float is brought to the end of the bridge, after which the bridgeman runs the keys forward into the toggle boxes or grooves on the deck of the float. It is necessary that the ends of the tracks on the float and of those on the bridge should be brought and kept close together and in line so that the cars may be moved to and from the floats. The tracks on the bridge and on the floats are held firmly end to end by four steel keys, which are seven feet long, about four and one-half inches square, and weigh between 100 and 800 pounds each, one being on each side of the bridge and two near the center. They are fastened permanently to the bridge, and when in use are run out about three and one-lialf feet onto the float and into toggle boxes or grooves. When the float is ready to leave the wharf, the keys should be and usually are shoved back onto the bridge, where they remain until another float comes in. It is the practice and duty of the railroad to operate the bridge and the keys.

On May 15, 1890, the plaintiff was, and for three or four years before had been, in the employ of the New York, New Haven and Hartford Railroad Company as a floatman on its floats. On the date mentioned he was engaged on float No. 23, which at the time was towed by tug or transport No. 5. At about eight o’clock in the evening of the day mentioned, while the tug and float were lying at Harsimus Cove, in Jersey City, the captain was ordered by the New York, New Haven and Hartford Railroad Company to go to defendant’s wharf. The order was obeyed, and the float reached the wharf about forty minutes past eight o’clock. When near the wharf, it was found that a float belonging to another line was lying at the bridge. Thomas Gould, an employee of defendant, came from the wharf onto the float lying alongside of the bridge, and said: If you want to get into the bridge, you will have to pull this float out.” Thereupon the persons in charge of tug No. 5 and float No. 23 drew the float lying alongside the bridge out of the slip and left it in a place of safety near by, and then entered the. slip. It was the duty of the plaintiff to stand on the starboard side of the bow of his float and receive the hawser, which it was the duty of defendant’s bridgeman to hand him. The plaintiff took this position, and as the float was brought near the bridge, oiie of the steel keys, which, when the other float was pulled out, had not been drawn back onto the bridge, struck him, breaking one of his. legs and rendering amputation necessary.

The negligence complained of was in permitting these keys to project beyond the bridge when the float approached it. The night was dark, and there was some controversy on the trial whether the lights on the bridge and on the float were sufficient to enable the plaintiff, had he exercised due care, to see that the keys projected beyond the edge of the bridge.

It was conceded on the trial that the float on which the plaintiff was employed was lawfully at defendant’s pier at the time of the accident, and it was testified, and was not contradicted, that, cars are transported at all hours of the day and night, and that the bridges are always manned. It was not unusual for an incoming float to remove an idle float lying at the wharf and then take its place. And besides, the captain of float No. 23 was requested by defendant’s bridgeman Gould to pull that float out so they could get in.” ■So it appears by the uncontradicted evidence that the float on which the plaintiff was employed was at this particular time rightfully at the wharf, and by the authority of defendant’s bridgeman removed the idle float and entered in its place. It seems that defendant’s employees had ample notice that float No. 23 was about to draw near the bridge, and it was their duty to exercise due care to have it in a safe condition to receive the float. It was also testified, and not contradicted, that in case keys projected beyond the edge of the bridge they endangered incoming boats and their employees. This evidence presented a question for the jury as to whether the employees of the defendant were guilty of negligence which caused •the plaintiff’s injury. The evidence descriptive of the plaintiff’s ■conduct on the occasion in question is not such as authorized the ■court to hold, as a matter of law, that he was guilty of negligence which contributed to the accident. The evidence presented two fair questions of fact for the jury: (1) Were the defendant’s agents .guilty of negligence which caused the injury ? (2) Did the plaintiff, by his own negligence, contribute to the injury ? and it was ■error to take the case from the jury.

This case has been before this court on a former appeal. (51 N. Y. St. Repr. 291; 22 N. Y. Supp. 3.) Judging from the statement ■of facts contained in the opinions delivered on the former appeal, the evidence on the first trial was quite different from that given on the second. For example, it is stated in the leading opinion ■delivered on the former appeal that, The Starin float having been detached from the bridge, the bridgeman took one end of the haw;ser, the other end being made fast to the float, climbed up on the south rack, walked along the rack as the float made off, and, with the assistance -of a man put on the float by the captain of the tug, secured the float at the mouth of the slip. * * *

Before the bridgeman had time to do this work, and return to his position upon the bridge, and before any notice was given that the slip was ready for occupancy, the New Haven float was shoved into the slip.” There is no such evidence in this record, and besides, it is testified that the bridgeman stood with the hawser in his hand ready to hand it to,the floatman when the float came within reach, and defendant’s employees had notice of the coming of the float. By this record it appears that between fifteen and twenty minutes elapsed between the time when the New Haven tug started to pull out the empty float and the time when the bridge was struck, and that the four keys could be pulled back within two minutes. On the former trial it appears by the opinion that the testimony was. that it would take eight or ten minutes to run back the keys. A cursory comparison of the opinions delivered on the former appeal with the present record shows that the facts are quite different.

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

O’Brien, J., concurred.

Van Brunt, P. J.

(dissenting):

I cannot concur in the conclusion arrived at by my associates in this case. I am utterly at a loss to find in this record any evidence of negligence upon the part of the defendant. Whatever negligence there was arose from the impetuosity and undue haste of the pilot, of the boat upon which the plaintiff was employed.

It appeared from the evidence that when the float upon which, the plaintiff was employed came to the slip of the defendant, it was. already occupied by another float, and that they signaled to know whether they could come into the slip and received a reply that they could do so provided they pulled out the float then in the slip. It. further appeared that they pulled out the float, and without any invitation or notice that the pier was ready to receive them, the. pilot having charge of the float upon which the plaintiff was injured being in a hurry, drove the float into the slip, and one of the plaintiff’s feet was caught in the keys which projected from the bridge. It further appeared that this pilot knew of the existence of these keys and that they were out upon the float that was occupying the pier, and that they were required to be pulled back before he could enter the pier with safety. And yet, without any notice that they had been pulled back, or that the pier was ready, he drove his float in and the plaintiff was caught between one of these keys and the deck of the float, the only evidence being that perhaps there was time enough to have pulled in the keys. But I fail to see that there was any negligence upon the part of the employees of the defendant until he was invited to go into the slip after the other float had been removed. Instead of waiting to ascertain whether the pier was ready, knowing that something had to be done before he could safely enter, he was ¿n such a hurry that he drove his float in, regardless of what might be the condition of the bridge. ’

In the prevailing opinion it is said: It seems that defendant’s ■employees had ample notice that float No. 23 was about to draw near the bridge and it was their duty to exercise due care to have it in a safe .condition to receive the float.” But where there is in this case any notice to them that this incoming float was to be driven in at once is not pointed out. The employees of the defendant had no reason to suppose that the pilot controlling the float, knowing the danger of coming in with these keys projecting, would rush his boat in, regardless of the risk, without ascertaining that the slip had been ■ma,de ready for his reception. That he was negligent ivas beyond question. Without an intimation that the bridge was ready to .shove his float in, and then because the bridge was not ready, to claim negligence upon the part of the defendant seems to be applying a very harsh rule of diligence, and such as has never heretofore been sanctioned.

The judgment should be affirmed, with costs.

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


author: Follett, J.:

text:
    Simon Witmark, Respondent, v. The New York Elevated Railroad Company and Another, Appellants.

      Lease — when a surrender thereof and, the acceptance of a new lease is not a surrender of the estate.

    In an action begun September, 1889, to recover damages for injuries caused to property by the erection and maintenance of an elevated railroad, it was shown that in December, 1871, the plaintiff and his brother were possessed of leasehold interests in certain property on Ninth avenue, New York, with the privilege of renewing the leases; that on May 1, 1881, the leases were surrendered and new leases taken out, by which the property affected by this action was leased to the plaintiff, the changes in the leases being made for the purpose of partitioning the property. Between the time when the plaintiff and his brother became the owners of the leasehold interest, and the 1st day of May, 1881, the defendant in this action equipped and put in operation its railroad.

      The referee on the trial assessed yearly damages for the operation of the road, and allowed their recovery from September 19, 1888, to March 80, 1893.
    It was contended by the defendant that when the old leases were given up and the new ones were taken out, there was a surrender of the leasehold estate created by the old leases.

      Held, that presumptively the surrender of a written lease by the lessee to the lessor, accompanied by the acceptance of a new lease, effects, as between the parties, a surrender of the estate held under the old lease, but it is a rebuttable presumption;
    That such surrender will not be implied against the intent of the parties as manifested by their acts, and that in the case under consideration it was unreasonable to presume that the plaintiff and his brother intended to surrender their estate, and that the transaction of May first was simply to effect a division of the property for the purpose of partition;
    That it has long been the policy in this State to permit leases to be surrendered for the purpose of obtaining renewals without terminating the estate created by the original leases.
    The lease taken out in 1881 expired in 1890, and a new lease was then taken out under the privilege of renewal.

      Held, that it was not error to permit the plaintiff to recover damages for the diminished rental value since the last-mentioned date, as the new lease was but a renewal of the former one, under the covenant contained in it.
    "Where a witness is familiar with the fee and rental value of property in a given vicinity, he may testify to values without being limited to property 'which has been sold or rented. '
    Appeal by the defendants, The New York Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of April, 1893.
    The New York Hospital now is, and since July 2,1862, has been, the owner in fee of a tract of land, bounded north by West Twenty-ninth street and west by Ninth avenue, which has been divided into lots. November 30, 1869, the society leased Nos. 324, 326, 328 and 330 Ninth avenue to Henry J. Burchell for twenty-one year's from December 31, 1869, which term ended December 31, 1890.
    The leases contained covenants binding the lessee to erect buildings "on the lots, and the lessor covenanted to renew the leases for two terms of twenty-one years each, at a rent to be agreed on, or, in case of failure to agree, the amount to be fixed by arbitration.
    On the 15tli of December, 1871, Simon Witmark, the plaintiff, and David Witmark, his brother, became, by mesne conveyances, the assignees of the leases of the four lots before mentioned. The comer lot, No. 330, is eighteen feet and nine inches wide and each of the others twenty feet wide and all are 100 feet deep. The buildings erected on these lots extend about seventy feet east from the avenue. At some time (the date not appearing) Simon and -David Witmark erected a building on the rear of the four lots thirty feet wide and seventy-eight feet and nine inches deep, fronting on West Twenty-ninth street and known as No. 370. By the construction of this building the property was divided into five lots instead of four. In 1881 the brothers desired to partition their leasehold interest, so the four original leases held by them were surrendered, and May 1, 1881, five new ones were taken from the New York Hospital Society for the unexpired term of twenty-one years. Nos. 328 and 330 Ninth avenue and No. 370 West Twenty-ninth street were leased to the plaintiff, and Nos. 324 and 326 Ninth avenue were leased to David Witmark. When the leases of the plaintiff’s three lots expired (December 31, 1890) he took renewals for the full term of twenty-one years.
    Between December 15, 1871, the date when Simon and David Witmark became the assignees of the four original leases, and May 1, 1881, the date when they surrendered the original leases and took in their stead five new ones, the defendant constructed and put in operation its elevated railway in Ninth avenue. September 19,1889, this action was begun to recover past and fee damages. The referee assessed the past damages at $144 per year and allowed a recovery from September 19,1883, to March 30,1893, tlie date of the report, and assessed the so-called fee damages at $1,000.

      Sidney Smith, for the appellants.

      Roger Foster, for the respondent.
   Follett, J.:

The defendant insists that the plaintiff’s present estate began May 1, 1881, after the elevated road was in operation, and that he must be deemed to have taken his lease with reference to its existence, and that he is not entitled to injunctive relief for any permanent injury to the easements appurtenant to his estate nor to damages caused by the operation of the road since that date. On and prior to May 1, 1881, Simon and David Witmark were possessed of an estate for years in Nos. 324 to 330 Ninth avenue, together with the right of renewal for two terms of twenty-one years each under four leases, one for each lot.

On the date last mentioned the four old leases were given up and five new ones -were taken in their places, and it is insisted that this amounted to a surrender of the leasehold estate created ' by the original leases. A surrender is a falling of a lesser estate into a greater, like an estate for years into an immediate remainder in fee. The estate held by the Witmarks was one which could be extinguished by a surrender to the owners of the remainder in fee. Neither the surrender nor the destruction of the written evidence of the title to an estate effects a surrender of it unless the parties so intend. A deed or lease is not the estate, but only the evidence of it, and the destruction or surrender of the. written instrument does not necessarily effect a surrender of the estate. Presumptively the surrender of a written lease by the lessee to the lessor, accompanied by the acceptance of a new lease, effects, as between the parties, a surrender of the estate held under the old lease, but it is a rebuttable presumption, especially as between third parties, and -when there is no ground for the application of the doctrine of estoppel. (Van Rensselaer's Heirs v. Penniman, 6 Wend. 571; Lawrence v. Brown, 5 N. Y. 394-404; Coe v. Hobby, 72 id. 146 ; Abell v. Williams, 3 Daly, 17.)

In Coe v. Hobby (supra) it was said: “ A surrender is implied and so effected by operation of law within the statute quoted, when another estate is created by the reversioner or remainderman, with the assent of the termor, incompatible with the existing- estate or term. In the case of a term for years, or for life, it may be by the acceptance by the lessee or termor of an estate incompatible with the term, or by the taking of a new lease by. a lessee. It will not be implied against the intent of the parties, as manifested by their acts; and when such intention cannot be presumed without doing violence to common sense, the presumption will not be supjiorted.”

In 1871 the Witmarks paid $52,500 for the leasehold interest in the four lots, and prior to May 1,1881, they erected on the demised premises a new and valuable building fronting on West Twenty-ninth street, and it is unreasonable to presume that they intended to surrender their estate in the premises without any compensation whatever. The transaction of May 1, 1881, ivas simply a division' of the premises into five tenements or lots instead of four, for the purpose of enabling the co-tenants to partition their interests as between themselves. The rent reserved by the five leases was the same as that reserved by the four, and the new leases contained the same covenants and conditions as the old ones. The Witmarks did not surrender possession of the premises, and they did not intend to give up their estate created by the original leases, nor did the landlord understand that it was receiving a surrender of the original estate. It lias long been the policy of England and of this State to permit leases to be surrendered for the purpose of obtaining renewals without terminating the estate created by the original leases. (4 Geo. II, chap. 28, § 5 ; 16 Pick. Stat. 255 ; 2 J. & V. L. of N. Y. 240; 1 R. L. [K. & R.] 144; 1 R. S. 744, § 2.)

From the evidence contained in the record we think that the referee well found as a fact that the lease of May 1, 1881, simply continued the estate created by the leases of November 30, 1869. When a lease has Peen taken since the construction of the elevated road it is held that it must be presumed that the rent was fixed with reference to the advantages and disadvantages of the road to the demised premises. (Kernochan v. N. Y. E. R. R. Co., 128 N. Y. 559.) In this case there is no room for such a presumption, for the ground rent was fixed in 1869, and since that time valuable buildings have been erected on the premises by the Witmarks and their predecessors in the leasehold estate.

No error was committed in receiving in evidence the lease of December 1, 1890,'and in permitting the plaintiff to recover damages for the diminished rental value since that date. The new lease was but a renewal of the former one, pursuant to a covenant that it should be renewed, and it continued the original term. (Gibbes v. Jenkins, 3 Sandf. Ch. 143; Collett v. Hooper, 13 Ves. 255.)

No error was committed in permitting Marcus Witmark to testify to the valuations placed on Nos. 328 and 330 when the property was divided between the co-tenants. There was no evidence that there was any written contract dividing the property, or that there was any written evidence of the price agreed on.

It is urged that the referee erred in permitting Levy to testify that the value of real estate in the avenues and streets near the property in question and its rental value liad recently advanced. The point of the objection seems to be that the witness should have been required to specify the property to which he referred, and if sold, the prices for which sold, or if rented, the prices at which rented during the period covered, so- that the referee might judge whether values had risen or fallen. The witness did point out many pieces of property, stating prices at which they had been sold and the sums for which rented, and clearly showed a sufficient acquaintance with real estate in that vicinity to qualify him to testify as to values. If we should limit the evidence of the value of real estate to actual sales, it would be very difficult if not impossible to establish the value of that which, for a long time, had not been in the market. All doubt of the competency of the witness, and about his familiarity with the fee and rental value of property in the vicinity of the plaintiff’s property, was removed by the cross-examination of the defendants’ counsel. The rulings challenged by the appellants in respect to the testimony of Beaver and Alexander are entirely unimportant and the evidence admitted could not have affected the result. The referee found that the plaintiff’s leasehold estate is subject to a mortgage owned by Jesse A. Marshall, who is not a party to the action. By his conclusions of law he directed that the plaintiff should be required to procure a release of her lien upon the easements on receiving the fee damages. The plaintiff’s attorney in entering the judgment neglected to insert an appropriate provision to that effect. It was not necessary for the defendants to appeal to correct the judgment which could have been readily done by a motion. However, the plaintiff committed the first fault.

It seems to us that the judgment should be modified so as to conform to the referee’s decision, and, as modified, affirmed, without costs to either party.

Van Brunt, P. J., and O’Brien, J., concurred.

Judgment modified so as to conform to the referee’s decision, and, as modified, affirmed, without costs to either party.