author: O’Brien, J.: Andrews, J.

text:
    JAMES WALL, Appellant, v. EMIGRANT INDUSTRIAL SAVINGS BANK, Respondent.

      Savings bank — payment to a stranger — contributory negligence — when a right is waived by not asserting it on the trial.

    A bank-book, issued by a savings bank, contained the following rules: “ The passbook shall be the voucher of the depositor, and the possession of the pass-book shall be sufficient authority to the bank to warrant any payment made and entered in it. The bank shall not be liable or called upon to make any payment without the presenting of the pass-book at its counter that the proper entry may be made in it.” It contained also the following: ‘‘Although the bank will endeavor to prevent fraud on its depositors, yet the payments to persons producing the pass-books issued by the bank shall be valid payments to discharge the bank.”
    James Wall made his first deposit in the bank in 187S, and at that time wrote his name in its signature-book. Thereafter, and prior to the payment hereinafter mentioned, a stranger wrote to Wall requesting information as to certain facts, knowledge of which would enable the stranger to answer the test questions commonly put by the bank to a depositor. Wall answered the letter, giving the information asked for. In 1889 a stranger, calling himself James Wall, appeared at the bank with the pass-book. The paying teller, after examination, thought the signature, in the receipt to be signed and retained, slightly different from that in the signature-book. He asked the stranger several of the test questions, and these he answered correctly. The teller then paid the sum demanded.
    In an action by Wall to compel the bank to pay to him the amount which it had thus paid to the stranger :

      Held, that, notwithstanding the rules of the bank, it was bound to exercise, in making a payment, reasonable care and diligence.
    That the plaintiff, in furnishing a stranger with information as to the county ini Ireland in which he was born, the ship in which he emigrated and his mother’s name, thus enabling the stranger to answer the test questions, was guilty of such contributory negligence as barred a recovery as matter of law.
    That, upon the facts, this defense presented a question of law which the court properly decided in favor of the bank.
    (Andrews, J., dissenting, on the ground that the case should have been submitted, to the jury.)
    After deducting this money paid to the stranger there still remained a balance in the plaintiff’s savings bank-book to his credit. The complaint in the action claimed the whole amount of this account, and alleged a refusal by the bank to pay the whole amount.
    Upon the trial the plaintiff did not ask to recover for the balance.

      Held, that it was too late on appeal to raise the question that he was entitled to judgment for this balance, and that the court would not, because such judgment had not been rendered for this balance, order a-new trial.
    Appeal by the plaintiff Janies Wall from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 25th day of June, 1891, upon a verdict for the defendant, rendered by direction of the court on a trial at the New York Circuit before the court and a jury; and also from an order, entered in said clerk’s office, nunc pro tunc, as of the 21th day of June, 1891, denying a motion for a new trial.
    The action was brought to recover the amount of a bank deposit, part of which it was alleged by the defendant had been paid. The disputed payment was made September 3, 1889. Wall, from the time of the first deposit, never drew an amount from the bank which required his signature. He once drew ten dollars, but the bank did not require a signature for so small an amount.

      Mitchell <& Mitchell, for the appellant.

      Goudert Brothers, for the respondent.
   O’Brien, J.:

In Kummel v. The Germania Savings Bank (127 N. Y., 492) it is said: “ Assuming that the by-laws printed in the book are binding upon the depositor and constitute a contract between the parties, we still think that the duty devolves upon the officers of the bank to exercise care and diligence in order that their depositors may be protected from fraud and larceny.” In another form the rule is thus stated in Allen v. Williamsburgh Savings Bank (69 N. Y., 319): “The officers of savings banks, acting under rules such as those shown to us in this case, are bound to the exercise of care and diligence, up to the mark which is fixed for the bank by those rules.” “ The extent of the duty which the savings bank is under will in some degree be measured by the strictness or extent of the rule it has put upon itself. Ordinarily it is bound to the exercise of reasonable care and diligence, which will be a question of law or of fact as the proofs are conclusive and undisputed or debatable and conflicting.”

Whether or not the defendant failed to comply with the duty devolving upon it, of exercising reasonable care and diligence to protect its depositors from fraud or larceny, resort must be had to the evidence to determine whether it was presented in such form as to make it a question of fact for the jury or one of law for the court.

The circumstances under which the moneys were paid out were detailed by the paying teller of the defendant, who testified: “ The pass-book came to me in the regular course, with a draft ticket in it, signed James Wall; it had been presented at'the other window before it came to me, and upon its arrival at my window I took the ticket out of the book, and either at that time or a minute or two afterwards I ran my eye over the account to see if there was money enough in it to pay the demand. * * * 1 then took the draft ticket, signed James Wall, over to this book, which lay a little at my right on a desk, and compared the signatures. I then asked the person who presented the book, and who was in the line, what his name was: He said ‘ James Wall; ’ I then asked him what county in Ireland he was born in, and he said ‘ County Lontli; ’ I asked him what ship he came over in, and he said the Somerset; ’ I asked him his mother’s maiden name, and he said Ann Levins.’ Then, upon the strength of the comparison and those answers, I paid him the money after asking him how much he wanted.”

Upon cross-examination, he testified that there were some slight discrepancies between the signatures upon the signature-book of the bank and the ticket presented by the person attempting to draw the money, and he stated' that this put him on his guard, and it was for that reason that he asked the question, though, as he stated, he thought, upon comparing the signatures that it was Wall’s, although there were one or two slight changes; that eleven years had elapsed, and that this, among persons not accustomed to write frequently, makes a difference in the regularity of the signature.

Unless the force of this testimony is impaired, rebutted or destroyed, we fail to see, upon such testimony undisputed, how any inference could be drawn by a jury that the defendant had violated the rule which required, in paying over money to one in possession of the pass-book, the exercise of reasonable care and diligence. Not only was it not impaired, but in many respects it was supported by the testimony of the signature clerk of the defendant, who testified that he heard the teller asking the questions that were on the test-book containing the signature and test questions. The plaintiff offered no testimony to contradict these witnesses showing the conduct of the defendant’s employees at the timfe the money was paid; and assuming such testimony to be true, no inference could be drawn therefrom that the bank was wanting in that degree of care and diligence which the law would exact to prevent fraud upon depositors. The only question which upon this testimony could remain for the jury would be the credibility of the witnesses, which was in no way assailed or impugned, or in any way affected, unless it is to be assumed that their relations as employees of the defendant, and the interest therefrom resulting, would subject their testimony to scrutiny and suspicion. Theré are cases holding that where a cause of action is supported by the testimony of a single witness, who is interested in the result thereof, and no evidence is presented to the contrary, that the jury is not obliged to credit such testimony, or find a verdict thereon; but that the question of credibility of such witness is to be left to the jury, and a verdict against such witness will not for that reason be disturbed. Those cases, we take it, however, are cases where the burden of proof is upon the plaintiff to establish a cause of action. I-Iere, it is true, the manner in which the moneys were paid out raised a presumption in plaintiff’s favor which shifted the affirmative of establishing its defenses upon the defendant, and the defendant having assumed the affirmative and presented evidence tending to support its defense, which was in no way contradicted or impaired, a verdict, under such circumstances, for the plaintiff would have been against the weight of evidence, and would necessarily have to be set aside. We do not regard the conclusion to be reached upon such evidence as either debatable or conflicting, and it, therefore, properly presented a question of law for the court, and justified the direction which was made.

But, however this may be, if there was any question of fact to be presented to the jury, as to defendant’s negligence, it would have been error to have submitted it in view of the other testimony in the case, showing, conclusively, that the proximate cause of the fraud or loss that resulted to the plaintiff was due to his own negligence. It appeared that, prior to the presentation of the pass-book to the bank, the plaintiff had received a letter requesting him to furnish to a stranger the very information which enabled the person presenting the book to answer the test questions which were in the defendant’s test or signature-book. Even though we assume, therefore, that the discrepancy in the signatures was sufficient to demand scrutiny and an inquiry into the right of the one presenting the pass-book to the money, the suspicion, thus aroused in the employees of the bank, was allayed by correct answers given to the test questions relating to the plaintiff’s birth place, mother’s maiden name, and the ship upon which he came over. These had been furnished to the stranger, who, it would appear, had obtained the plaintiff’s pass-book, and being in possession of the latter and of the necessary information, was placed in a position to perpetrate the fraud which resulted in injury to the plaintiff. As to plaintiff’s carelessness in thus supplying the information to a stranger, no question is presented; and however strongly we may hold the rule to be, in respect to the degree of care required of a savings bank or bank of deposit, it is equally well settled that it is the duty of a depositor, upon his side, to use all reasonable care against fraud upon the bank. There being no dispute but that this duty which was imposed upon the plaintiff had been violated, and the plaintiff’s own testimony having shown that he was negligent, this alone was sufficient to bar his right to a recovery and justified the verdict which was directed for the defendant, bank.

A more difficult question presented on this appeal relates to the right of the plaintiff to recover the balance of his deposit with the defendant, which he is and was, undoubtedly, entitled to receive. It was conceded that, in addition to the $540 which had- been fraudulently withdrawn, that plaintiff had still to his credit with the defendant bank the sum of $141.08 and interest. Had the plaintiff requested a direction for this amount, it should have been granted. In his complaint he claimed the whole amount, and the demand alleged upon the defendant related to the whole amount, and the refusal to pay had reference to the whole amount, the defendant, so far as the evidence shows, never having been requested to pay this sum of $141.08, which still remained to the credit of the plaintiff. It is true that this amount was included in the entire amount demanded by the plaintiff, and the right to recover the entire amount was denied by the defendant. Plaintiff did not make any claim for this balance on the trial, although it was conceded that that amount stood to the credit of his account, and at the end of the trial he asked to go to the jury upon “ issues of fact denied.” The testimony showed that the only issue of fact denied was as to defendant’s liability for the $540 which had been withdrawn by some third person from the defendant bank. There was no evidence that any demand had ever been made for this specific sum, but, on the contrary, the evidence was that the demand had been made for the entire amount which had been deposited by plaintiff, which included this, together with the $540 withdrawn. We do not agree with the respondent, that to have obtained this amount it would have been necessary to produce the pass-book, or that it would be unreasonable to require it to take the risk of payment of this $141.08 without the presentation of the pass-book, for the reason that, upon the facts appearing on the trial, it was evident that the pass-book had been taken from the plaintiff’s possession, and its absence could not be regarded as destroying the plaintiff’s right to the balance of the deposit. As held in Kummel v. The Germania Savings Bank (supra), “ The pass-book of a savings bank cannot be regarded as negotiable, and its possession does not constitute proof of a right to draw money thereon. The book imports a liability of the bank to the depositor for the amount of moneys entered therein as deposited, and an agreement to repay at such time and in such manner as he shall direct.” We think, however, that a trial which proceeded entirely upon the question as to plaintiff’s right to recover $540 which had been withdrawn under the circumstances appearing from the testimony, and the court’s attention being directed solely to that contention presented between the plaintiff and the defendant, that it would be violating the rules relating to the conduct of litigations and the proceedings upon a trial to destroy the whole effect thereof by giving undue weight to a point, which, however good, was not then presented, but is presented for the first time upon the appeal. .This amount the plaintiff can obtain from the bank, and while it may be regarded as a hardship that, with this balance in his favor, he should have suffered a judgment for costs, we do not see that the court below was to blame; nor can we, without doing violence to what we regard as the settled rules of practice, afford any relief. The effect of holding that this point was well taken would be to require a new trial of a question which was once litigated, because the court had failed to consider a question which could have been resolved in plaintiff’s favor, but which was never either raised or suggested to the court.

We are of opinion, therefore, that the judgment should, in all respects, be affirmed, with costs.

Yan Brunt, P. J., concurred.

Andrews, J.

(dissenting):

This action was brought to recover the sum of $681.08, with interest, being the balance of moneys deposited by the plaintiff with the defendant. The answer set up several defenses: First. That at the time the plaintiff opened an account with the defendant he received a pass-book, and that one of the conditions upon which the defendant received plaintiff’s deposits, and which was printed in the pass-book, was as follows: “ The pass-book shall be the voucher of the depositor, and the possession of the pass-book shall be sufficient authority to the bank to warrant any payment made and entered in it. The bank shall not be liable or called on to make any payment without the presenting of the pass-book at its counter, that the proper entry may be made in it.” , That at the time the plaintiff demanded payment of the moneys sued for he did not present the pass-book. A second defense was: That among the articles or conditions of the agreement made between the bank and the plaintiff at the time of the deposit and the acceptance thereof was the following : “Although the bank will endeavor to prevent fraud on its depositors, yet the payments to persons producing the passbooks issued by the bank shall be valid payments to discharge the bank; ” that on September 3, 1889, a person representing himself to be tbe plaintiff produced tbe pass-book issued by the bank to the plaintiff, and the defendant, believing such party to be the plaintiff, paid him the sum of $540. The third defense was: That when such party presented the pass-book, the defendant, in order to fully discharge its duty to plaintiff, made various inquiries touching his identity, the answers to which satisfied the defendant that he was entitled to receive the money; that the answers so given were based upon information received from the plaintiff himself, and that the payment of the money was due to the negligence of the plaintiff in confiding to the person who obtained the $540 information which should not have been confided to a stranger.

Upon the trial the defendant claimed and was awarded the affirmative. The undisputed facts established by the testimony were as follows: The plaintiff made his first deposit with the defendant and received a pass-book on January 10, 1878. The conditions or agreement, upon which it is claimed the deposit was received and the pass-book issued, were printed in the inside of the cover of the pass-book and contained, among other things, the two paragraphs set up in the answer and above quoted. At the time of such first deposit the plaintiff was asked certain questions, and the answers to those questions were entered in the signature-book. The questions asktid were as to the plaintiff’s residence, occupation, the year when he was born, where he was born, what vessel he came over in, his father’s Christian name and his mother’s maiden name. The answers to these questions were written down in the signature-book and were as follows, respectively: 12 Little 12th street; laborer; 1845; county Louth; 1867, per “ Somerset; ” Christopher; Ann Levins; and the plaintiff was required to and did write his name, James "Wall, in such signature-book. On September 4, 1889, the plaintiff had on deposit to his credit the sum of $681.08; and on or about that day a person appeared at the bank, with the pass-book, and represented that he was the plaintiff and was paid the sum of $540, leaving to the plaintiff’s credit the sum of $141.08. The person drawing the money signed a receipt for the same with the name James Wall.

Mr. Connell, paying-teller, was called as a witness on behalf of the defendant. He testified that at the time of paying the $540 he compared the signature on the receipt, given by the party who received the money, with the signature of the plaintiff in the signature-book. . He said that upon tbe comparison he saw there were one or two slight changes; that when he made the comparison he saw a slight discrepancy, though not as clearly as shown him at the trial; that such discrepancy was sufficient to bring the matter to his mind and .to put him on his guard. He also testified that after such comparison of the signatures he asked the person presenting the pass-book the following questions: Where he was born ; the name of the ship he came over in and his mother’s maiden name; and that these questions were correctly answered; that is, the answers were the same as those given by the plaintiff when he made the first deposit and entered in the signature-book. On cross-examination this witness was asked the question: “ It was a sufficient discrepancy to bring the matter to your mind and to put you on your guard ? ” And he answered: “ To put me on my guard; and for that reason I asked carefully the other questions to corroborate my judgment.” On cross-examination he was also interrogated closely as to the differences between the signatures, and admitted that there were some quite material differences.

Mr. Crowley, signature clerk, was called and examined on behalf of the defendant. He testified that he was present at the time the $540 was paid, but heard the paying-teller ask but one question, and that was in reference to the vessel in which the party appl^ng for the money came over from Europe.

The papers on appeal contain a photograph of the signature written by the plaintiff at the time he made the first deposit, and also of the signature made by the party who drew the $540, upon the receipt, therefor. It is obvious, upon inspection of these two signatures, that there are material differences between them.

At the close of the testimony, on motion of defendant’s counsel, the court directed a verdict for the defendant, to which direction the plaintiff excepted. The plaintiffs counsel also moved for leave to go to the jury, upon the issues of fact, and upon the question of negligence ; which motion was denied, and plaintiff’s counsel excepted.

We are of the opinion that the judgment appealed from must be reversed because of the denial of the application on behalf of plaintiff to go to the jury upon the question of the negligence of the officers of the defendant.

Notwithstanding the notice printed on the inside of the cover of the pass-book, that all payments to persons producing the pass-books issued by the bank shall be valid payments to discharge the bank, nevertheless, it is well settled that the defendant and its officers were bound to exercise ordinary or reasonable care in making payments, although the pass-book was presented by the person to whom the payment was made. (Appleby v. Erie Co. Savings Bank, 62 N. Y., 12; Kummel v. Germania Savings Bank, 127 id., 488.) Although the testimony in the case at bar is not conflicting, still it was of such a character that different inferences might be drawn from it by different persons, as to whether or not .the officers of the defendant exercised ordinary care in paying the $540 to the person who presented the book. The signature made by the plaintiff in the signature-book, when he made the first deposit, and the signature made by the party who produced the pass-book, and to whom the $540 was paid, were quite dissimilar; and different persons might reach different conclusions as to whether, in view of such dissimilarity, the paying teller of the defendent was not negligent in paying out the $540. Moreover, the dissimilarity of the signatures was such that it attracted the attention of the paying-teller and put him, as he testified, on his guard: ” and different persons might reach different conclusions as to whether it was not negligence on the part of the teller to pay the money without asking other questions besides the three which he did ask. It is true that he asked three questions and received correct answers, thereto; but there were other questions which, had been answered by the plaintiff, when he made the first deposit, and which might have been put to the party who presented the pass-book. These questions were : The residence; the occupation; the year when he was born; the year he came over in, and the father’s name. So far as appears by the evidence, if these questions had been asked, the party presenting the pass-book could not have answered any of them. Under these circumstances, the authorities are clear that the question of negligence should have been submitted to the jury.

In Shearman and Redfield on Negligence (§ 54) the law upon this subject is stated as follows: The question of negligence must be submitted to the jury as one of fact, not only where there is room for difference of opinion between reasonable men as to the existence of the facts from which it is proposed to infer negligence, bnt also where there is room for such a difference as to the inferences which might fairly be drawn from conceded facts. Where this is the ease the issue must go to the jury, no matter what may be the opinion of the court as to the value of the evidence or the credibility of the witnesses,” and many cases are cited in support of this doctrine.

In Willis v. Long Island Railroad Company (31 N. Y., 670) the court said : “ On the trial of an issue of that nature” (negligence), if there is any doubt, however slight, either as to what facts are established by the testimony, or as to the conclusion in respect to the fact of negligence, that may be drawn legitimately from the circumstances proved, by the average of men of common sense, ordinary experience and fair intentions, the case should not be taken from the jury. It is only where the case is entirely clear upon the testimony, where there is no room for rational doubt either as to the circumstances proved or as to the conclusions of fact, which may properly be drawn from them, that a judge is justified in deciding the question of negligence as matter of law.”

In Waite v. Agricultural Insurance Company (13 Hun, 371) the court said: The facts and circumstances are such that different minds will come to different conclusions on the question of occupancy, and that makes it a very proper case for a jury. It does not follow that because there is no contradictory testimony the court must take the question from the jury and determine it as one of law; on the contrary, if different results will be reached by different minds, the question must go to the jury.”

In Appleby v. Erie County Savings Bank (supra) which was a case similar to the case at bar, the court directed a verdict for defendant, and such direction was held to be correct in that particular case. Church, Ch. J., delivering the opinion of the court, however, said: “ The only point upon which I have entertained any doubt in this case is upon the question whether the teller was negligent in not observing the dissimilarity between the signature upon the receipt, upon which the money was paid, and the signature of the plaintiff upon the book when the first deposit was made, should not have been submitted to the jury.” * * * “In this case if the two signatures were so dissimilar as when compared the discrepancy would be easily and readily discovered by a person competent for the position, then the failure to discover it' would be evidence of negligence which should have been passed upon by the jury. It would not be evidence of negligence if the difference was not marked and apparent, or if it would require a critical examination to detect it, and especially if the discrepancy was one as to which competent persons might honestly differ in opinion.

“ The plaintiff is the appellant and must establish that an error was committed on the trial; and the difficulty is that it does not appear affirmatively that the difference in the signature was so manifest as to require the question to be submitted under the foregoing views. There was no direct evidence that it was of that character, and we cannot have, as the court below had, the benefit of a personal inspection. The difference in certain letters may not have been such as to indicate a different handwriting, and the same remark is applicable to evidence that one was better than the other We have no means of determining but that the court decided that the dissimilarity was of such a character that negligence could not, within the views above expressed, be predicated upon a failure to discover it, and such decision would not be erroneous in law. The tendency of the evidence is in that direction.”

Kummel v. Germania Savings Bank (supra) was also a case in which the officers of the defendant had paid money belonging to the plaintiff to a person not entitled to receive it, upon the presentation of the pass-book and upon a forged receipt. In that ease the question of the negligence of the officers of the defendant was submitted to the jury, and the plaintiff had a verdict in his favor. Haight, <L, delivering the opinion of the court, said: “ The question thus presented for the determination of the jury was as to whether the officers of the defendant had exercised ordinary care and diligence in seeing that the person to whom the money was paid was authorized to receive it. The first question which we are called upon to consider is as to whether the evidence was of such a character as to justify the submission of this question to the jury. The $350 item was paid by the cashier, Frederick Koch. He states that he asked the person presenting the bank-book where he lived, and that he at first answered New York, and that afterwards he stated that he had lived in Brooklyn, before that, at 56 Tillary street; that he did not ask him any further questions but paid him tiie money. The. other payment was made by Oscar Thomas, a clerk, who assisted the cashier. He judged from the first that the signature to the receipt was not exactly right, and asked the person presenting it if he could not write with a more fluent hand, and received the answer that he was not feeling well. He thinks he put the other questions to him appearing upon the signature-book, and that they were answered correctly.

“ As to the payment of the $350 receipt, the question of negligence was clearly for the jury. It affirmatively appears that the cashier did not avail himself of the means at hand to identify the person presenting the pass-book and forged receipt. As to the $100 payment, the question is involved in more doubt, but in view of the fact that the acting cashier making the payment was an interested witness, that the signature to the receipt was such as to lead him to judge that it was not right, and that upon the trial the signature of the plaintiff,,as well as that upon the receipt, was before the court and the jury for comparison, upon which the variance may have been so great as of itself to put a prudent person upon inquiry, we are inclined to the view that this question was also one for the jury, and that no error is apparent that would justify a reversal; ” i,nd the judgment was affirmed.

In the case at bar the dissimilarity of the signatures attracted the ■attention of the paying teller, and, as he testified, put him on his guard ; and he asked but three questions out of eight which might have been put. Under the authorities above mentioned, and many others that might be cited, we are of the opinion that the question of negligence should have been submitted to the jury.

■ It was set up in the answer that the payment to the wrong per-son was caused partly by the negligence of the plaintiff, in disclosing the answers to some of the above mentioned questions to a stranger, .and there was some evidence upon the trial that tended to support .this allegation. If, however, the question of contributory negligence ■on the part of the plaintiff was involved, that question also should have been submitted to the jury.

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

Judgment affirmed, with costs.


source: Caselaw Access Project

author: O’Brien, J. :

license: Public Domain

text:
    EMIL BRUSWITZ, Respondent, v. THE NETHERLANDS AMERICAN STEAM NAVIGATION COMPANY, Appellant.

      Ocean steamships — a cause, 9iot proximate, of an accident — measure of care required, — misconduct of jurors — must be objected, to on the trial.

    In an action brought by a passenger upon a steamship, for injuries alleged to have been Sustained on a voyage from Amsterdam to New York, by reason of the negligence of the steamship corporation, the complaint alleged that, the dining ; saloon being dimly lighted, the plaintiff tripped and fell on sockets fixed in the floor and used to secure tables.
    The evidence showed that the accident happened from the rolling of the sea, and would have happened whether the saloon was lighted or not.

      Held, that it was error for the court to refuse to withdraw from the jury the. question of the insufficient lighting of the saloon.
    The court charged the jury that the steamship company, as carriers of passengers, were bound to use the utmost care and diligence.

      Held, that this was improper; that such a carrier was bound only to ordinary care in a case where no question arose as to defects in the machinery or in the mechanical appliances for the transportation of passengers. »
    That if the socket was the proximate cause of the accident, it was a visible defect.
    Although a jury misconducts, by practically taking the trial of the case into their own hands, yet where counsel do not move to discharge the jury, but substantially acquiesce in the manner in which the trial is being conducted, they cannot subsequently take advantage of such misconduct.
    Appeal by the defendant, the Netherlands American Steam Navigation Company, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 13th day of May, 1891, upon a verdict for the plaintiff for $3,500, rendered-on a trial at the New York Circuit before the court and a jury; also from an order, entered in the same clerk’s office upon the same day, denying a motion for a new trial made by the defendant on the minutes of the court.

      J. A. Shoudy, for the appellant.

      William P. Burr, for the respondent.
   O’Brien, J. :

The action was brought to recover damages for an injury alleged to have been sustained by the plaintiff while a passenger on the defendant’s steamer “ Leerdam ” on a voyage from Amsterdam to New York.

Tbe first ground relied upon by appellant for a reversal relates to the conduct of two jurors during the trial, such conduct having been made the basis of a motion for a new trial, which was denied. "We agree with the appellant, that the course pursued by these jurymen in endeavoring practically to take the conduct of the case away from the court and counsel, and into their own hands, was both extraordinary and reprehensible; and had it been availed of, during the course of the trial and before the verdict, as the basis of a motion to discharge the jury, we would have regarded an exception taken to a refusal to so discharge the jury as good, and one entitling the aggrieved party to a new trial. It will not do, howrever, for counsel, notwithstanding such improper conduct of jurymen, to go on with the trial without objection and speculate upon the result of the verdict, and when it is against them seek to set it aside. Where no objection is made, and no exception taken, the counsel practically acquiesce in the manner in which the trial is being conducted, and they cannot take advantage of the misconduct of jurors which occurs in their presence, and of which they have full knowledge. This conclusion renders it unnecessary for us to determine whether or not, after verdict, a motion such as this should have been made at Special Term or at Trial Term.

The other grounds relied upon for a reversal relate to the sufficiency of the proof, or the failure of the judge to withdraw the consideration of certain questions from the jury, and exceptions taken to certain requests made by the plaintiff and charged by the court.. In determining these questions a brief summary of the complaint, and of so much of the testimony as is requisite to present the questions, is necessary.

The complaint alleges that plaintiff, while going from his cabin to the dining saloon of the steamer, on his way to the upper deck thereof, the said dining saloon being then dimly, imperfectly, insufficiently and negligently lit or illuminated, tripped and fell with great force and violence on the sockets fixed in or attached to the floor of said dining saloon, and used to support or secure the tables therein, dislocating his shoulder and receiving other serious bodily injuries. In thus assigning the charges' upon which the negligence of the defendant is predicated, it will be seen that the failure to properly light the dining saloon is given such prominence, that in one construction to be given to the complaint it might be regarded as the sole ground upon which the negligence of the defendant is placed.

Taking, however, a construction of the complaint for the purpose of sustaining the judgment most favorable to the plaintiff, and assuming that, in addition to the failure to properly light the saloon, the claim is made that the proximate cause of the accident was due also to the negligent manner in which the sockets, fixed in or attached to the floors of the saloon, were left after the tables were removed, we have, nevertheless, to consider' the question raised by the defendant’s exception to the court’s refusal to withdraw from the consideration of the jury the question as to the insufficient lighting of the saloon.

In so construing the complaint, the fact should not be overlooked that in terms it is not claimed that the injury resulted from falling over the sockets, which it is said were allowed to remain in the saloon and rising some inches above the floor; the statement being, “That plaintiff while going, as he had a right to go, from his cabin through the dining saloon of said steamer on his way to the upper deck thereof, the said dining saloon being then dimly, imperfectly, insufficiently and negligently lit or illuminated, tripped and fell with great force and violence on the sockets fixed in or attached to the floor of said dining saloon, and used to support and secure the tables therein.”

The only evidence presented by the plaintiff to sustain the allegation that the saloon was dimly, imperfectly, insufficiently lighted and illuminated, was that of the plaintiff himself, who said “ there was, I think, one little light in the saloon at this time.” Such testimony cannot be regarded as establishing the fact that the saloon was not sufficiently lighted, nor is it evidence to establish that it was at all dark in the saloon. So far as it is made to appear, one light may have been entirely sufficient. Apart, however, from this, we think the proof makes it entirely clear that the absence of light did not, in any manner, contribute to the plaintiff’s injuries.

The plaintiff’s testimony was: “ I opened the door to go out (my state-room), and when I got out to close the door I had the cigars in one hand. The moment I let go I slipped — the vessel lurched and I slipped. I said before, ‘ while coming out of the cabin I had the cigars in one hand and the door-knob in the other, and while putting my cigars in my pocket the ship lurched and I slipped, and my toe stubbed up against this socket.’ ”

Again he says : “ I opened the door with one hand to get out of the cabin of the state-room, and when I got out I tried to close it with the other and I slipped and fell —I slipped and fell in the act of closing the door the moment I let go of the door.’ ”

It will thus be seen that, according to plaintiff’s account, the accident was caused by the action of the sea, the tossing of the vessel by plaintiff’s letting go his hold on the knob of the cabin door, and, according to one account given by him, of stubbing his toe and falling over the socket; and according to another version, “ on the socket,” in the saloon. The primary cause, therefore, was the action of the sea, which produced a rolling of the vessel and precipitated the plaintiff with such force that he was thrown in the direction of the sockets, which would have been the result whether the saloon was brilliantly lighted or enshrouded in darkness. Regarding, solely, the evidence offered by plaintiff, and without considering the defendant’s testimony on the subject at all, it would not justify a finding that there was any want of sufficient light in the saloon, and even if there had been a lack of light, that could neither have caused nor prevented the accident. The defendant, therefore, had a right to have this question withdrawn from the jury as an issue, and it was error for the court to refuse to charge, as defendant requested, that there is no evidence in the case that will justify the jury in finding that the plaintiff was injured by reason of the cabin being insufficiently lighted. "W"e think the trial judge also erred in the instructions given to the jury at the plaintiff’s request. These were as follows:

(1.) “ That if the accident happened from a defect in the ship or in the accommodation of its second-cabin dining saloon, which might have been discovered or remedied upon the most careful and thorough examination of said ship and floor, such accident must be ascribed to negligence, for which the owner is liable in case of injuries to a passenger happening by reason of said accident.”

(2.) “That passenger-carriers bind themselves to carry those whom they take into their conveyances safely as far as human care and foresight will go; that is, to the utmost care and diligence of every cautious person.”

(3.) “A carrier of passengers is bound to use the utmost care in the providing of safe and sufficient and suitable vehicles or vessels and other necessary or appropriate instruments and means of transportation, as well as in the management of the same, and in making such reasonable arrangements as a prudent man would make to guard against all dangers from whatever source arising, which may naturally and according to the usual course of things be expected to occur.”

(4.) The rule as to care and diligence binds common carriers of passengers to the exercise of the utmost human care and foresight, and makes them responsible for injuries and losses arising from even the slightest negligence.”

As said in Palmer v. The Pennsylvania Company (111 N. Y., 492): “We think the trial court was not justified in applying to this case the rule pertaining to the construction and maintenance of tracks and running machiney by a railroad corporation, which holds them to the use of the utmost possible care in discovering and remedying defects therein. That rule is applicable to such appliances of a railroad as would be likely to occasion great danger and loss of life to the traveling public if defects existed therein on account of the velocity with which cars were moved, and the destruc tive and irresistible force which accompanies such motion.”

In Kelly v. Manhattan Railroad Company (112 N. Y., 450), the distinction between the different degrees of care to be observed by common carriers is again pointed out, and, except in respect to cases determining the liability of carriers for injuries sustained by passengers from causes enumerated in Palmer v. The Pennsylvania Company (supra), it is said that the rule in such cases is that the carrier is bound simply to exercise ordinary care in view of the dangers to be apprehended.” These decisions show that the courts have applied to common common carriers very rigid and exacting rules, calling for the highest degree of care and diligence, in matters pertaining to the construction of machinery and mechanical appliances necessary for the transportation of passengers, which rule is so applied as stated in Kelly v. Manhattan Railroad Company (supra), “ for the reason that a neglect of duty in such a ease is likely to result in great bodily harm, and sometimes death, to those who are compelled to use that means of conveyance.”

It is also to be noticed that the reason for this rule in respect to machinery and mechanical appliances is, that passengers are compelled to rely solely upon the carrier, and have no opportunity to exercise their own judgment and discretion, but, in respect to those matters in which such judgment and discretion can be exercised, and in respect to cases where injuries result from other causes, the rule is thus stated in Palmer v. The Pennsylvania Railroad Company (supra): “ Railroad corporations, however, are not the insurers of the lives or safety of passengers upon their cars; and, in order to render them so, it is essential to show that they have neglected the performance of some duty which, in the exercise of reasonable care, prudence and diligence, they owe to such passengers.”

If we take the facts presented here by the plaintiff, it will be seen that the question presented was not whether there was any defect in the machinery or mechanical appliances necessary for the transportation of passengers, but whether the defendants wqre guilty of negligence in removing the tables when not in use by passengers, so as to give the passengers more space, and in leaving the sockets above the floor in the manner testified to by plaintiff. "While the defendant’s testimony denied that the sockets projected above the floor, we will assume the plaintiff’s version to be true, that they did so project; but it must be evident, even if we regard the presence of the sockets as the proximate cause of the injury, it was not a defect or a risk to be run by a passenger which was concealed, but open to common observation, and, as stated by the plaintiff, noticed by him when he first went aboard the vessel. We do not think, that for injuries resulting from the causes assigned by plaintiff, the defendant can be held to the strict rule which, in some instances, bind common carriers of passengers to the exercise of the utmost degree of care and foresight, making them responsible for injuries and loss arising from the slightest negligence, but rather, that the rule to be applied, from the facts here presented, is that the defendants were responsible for any loss or injury resulting from their failure to exercise reasonable care, prudence and diligence. We are of opinion, therefore, that the judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.

Yan Brunt, P. J., concurred.

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


author: O’Brien, J.: Yan Brunt, P. J.:

text:
    GEORGE H. ADAMS and Another, as Executors of ALICE C. BARLOW, Deceased, Respondents, v. STEPHEN H. OLIN and Another, as Executors of SAMUEL L. M. BARLOW, Appellants.

      Mis-trial — former opinion as to afoot, of an appellate court, not binding — what presents an original question of fact — opinion of referee, when considei’ed.

    Where a judgment is reversed by the General Term upon a question of fact and upon a new trial, further, and not unimportant, evidence is produced upon that particular issue before a referee, it is his duty to consider the issue as an original question of fact and to make an independent individual decision thereon. Upon the law of the case he must conform to that declared by the appellate court.
    While an opirfion of a court or referee cannot be regarded, in order to aid or defeat a judgment, the appellate court may consider the opinion of a referee for the simple purpose of showing that a mis-trial has occurred, in that the referee has yielded his individual judgment upon a particular issue of fact to the expressions of opinion thereon made by an appellate court upon a former trial.
    Appeal by the defendants, Stephen H. Olin and Peter T. Barlow, as executors of Samuel L. M. Barlow, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 3d day of February, 1892, confirming the report of a referee in favor of the plaintiffs, directing a recovery of $22,771.12, and interest and costs, with notice of an intention to bring up for review upon the appeal an order, entered in said ■clerk’s office on the 1st day of February, 1892, confirming the referee’s report.

      George L. Hives, for the appellants.

      George II. Admns, for the respondents.
   O’Brien, J.:

On a former appeal this court reversed a judgment against the plaintiffs, and under the order of reversal appointed another referee, and it is from a judgment entered upon the latter’s report, sustaining the plaintiff’s claim, that this appeal is taken.

A statement of. the claim and the defenses urged before the referees need not be formulated again, for the reason that they are ably and elaborately set forth in the opinions upon the former appeal, and reported in Adams v. Olin (61 Hun, 318).

So far as the former decision of the General Term dealt with questions of law, we regard the case as not now open for discussion. It was therein determined, as matter' of law, that the plaintiffs’ evidence made out a prima facie case, and that the provision for Mrs. Barlow, in her husband’s will, did not, in law, amount to a satisfaction of this claim. In addition,' there was discussed upop the former appeal, in the opinions, the question of the statute of limitations and payment, both defenses interposed by the defendants. In respect to the formei’, it being a mixed question of law and fact, the referee was at liberty, if any new evidence was presented in reference thereto, to reach a conclusion thereon, having in mind, however, the decision of this court upon the facts as then presented, which, so far as applicable, would be controlling.

In regard, however, to the question of payment, which is a pure question of fact, this court, upon the ground that the evidence produced on the first trial was insufficient to sustain such a defense, reversed the judgment and remitted the cause back to a new referee, to the end that this question should he again tried. In discussing this question of payment, in the opinions upon the former appeal, it was necessary to state in what resj>ects the evidence relied upon to sustain this defense was insufficient. Such expressions of opinion, however, upon a question of fact, were not binding or conclusive upon the referee, though it was proper and right that he should refer to the same with a view to prevent his falling into the same or any other error which might have been made by the former referee in respect to such evidence. This, however, did not take away from the referee the responsibility which devolved upon him to reach a conclusion upon the facts presented, irrespective of the opinions of the different members of the appellate court in respect to such facts.

A referee stands precisely in the same attitude as a jury. Where a judgment is reversed upon a question of law, a referee, upon a retrial, must conform to the law of the case as declared by the appellate court; but where a decision is reversed upon the facts, he stands in the same situation as a juryman, and must find the facts solely upon the evidence presented.

The case of Claflin v. Dubois (22 N. Y. St. Rep., 551) is directly in point. It was therein held that a judgment should be reversed and a new trial ordered where it was based, not upon the deliberate action of the tribunal before which the cause was tried, but on the assumed decision of another tribunal, which had made no disposition of the facts other than to direct a proper investigation.

The only distinction between the cases is one more favorable to appellant, for the reason that in Claflin v. Dubois the case was tried» the second time on precisely the same evidence, while in the case at bar some additional or new evidence was introduced on the trial upon this question of payment. The parties were, therefore, entitled to the deliberate judgment of the referee upon the question of fact thus presented. He was bound to exercise his own judgment, and was not controlled by the views expressed in the opinions upon the former appeal.

The General Term neither made, nor could it make, any disposition of the facts other than to direct a further inquiry; nor did it deal with this question as one of law, but simply as one of fact; and in sending it before a new referee he was required to proceed with a new trial of the question upon the evidence then presented, the same as though it was then being for the first time tried. It is, of course, entirely proper for the referee to have resort to the opinions expressed by the judges of the appellate court; just as resort might be had to any other argument that would have a bearing upon the question presented for his consideration and decision, but in the end the conclusion to be reached must be the result of his own deliberate judgment, uncontrolled by opinions expressed upon a former appeal.

The record shows clearly that the appellants had not the benefit of a new trial of the question, but that the referee, feeling bound by the views expressed on the former appeal, based his decisions thereon, having resort to the new evidence for the purpose, as stated by him, of determining whether the facts have been so materially changed as, under the rules laid down by the General Term, to warrant a conclusion different from that reached by that tribunal.” Again, lie says: Although not a little impressed by these three items of evidence, and the claim of the respondents as to their legitimate force and effect, whatever might have been my conclusion upon the whole case, if this had been the first trial of the cause, I do not feel justified in saying that this evidence so radically changes the case presented to the General Term as to necessitate a conclusion different from that arrived at by that tribunal.”

The most serious question presented in regard to this error into which the learned referee has fallen relates to the right of this court to resort to the opinion of the referee for the purpose of seeing in what manner his conclusion has been reached. So far as the record shows, outside of the opinion, there is nothing to indicate a failure of the referee to exercise his own judgment. The findings, decision and judgment find support in the testimony presented ; and had the referee made such findings and conclusions as the result of his own judgment upon the testimony presented, we should have no hesitancy in affirming the judgment, assuming there was no other question than the defense of payment in the case, for the reason that there is sufficient evidence to support the findings and conclusions made by the referee.

While we have recently held in the case of Robinson v. The New York, Lake Erie and Western Railroad Company (64 Hun, 41) that an opinion is not evidence, nor can it be resorted to for the purpose of enlarging or destroying a judgment, we do not think that we are at entire liberty to disregard the written expression or statement of the referee, contained in his opinion, in respect to the manner in which the trial before him was conducted. Had the case been tried before a jury, the effect of reading from an opinion of the appellate court a conclusion reached upon a previous trial, or an expression of the court as to the conclusion to be reached upon testimony given upon such former trial, where the question was one of fact, would be, under a proper exception taken, reversible error.

In Panama Railroad Company v. Johnson (17 N. Y. Supp., 777) it was held that it was not error for the court to read from an opinion of the General Term on the former appeal, in the case on trial, that part which laid down the law as applicable to the case, where nothing contained therein stated the result of the previous trial. This is an undoubted expression of the judge writing the opinion, that if the portion read from an opinion of the General Term had stated the result of the previous triai, it would ham heen error. Much more so would it be error to assume that the opinion expressed by the General Term upon a former appeal was conclusive upon a question of fact presented for their consideration, whether such question of fact was presented upon the same, or upon the same and additional evidence as here.

An attempt to control the deliberations of the jury in the manner indicated would afford an opportunity, by an exception taken, to review the error committed upon the trial. Where, however, as here, the trial took place before a referee, no means was afforded until the fact was ascertained by reference to his opinion of finding that his conclusions were the result not of - his 'own judgment, but óf a supposed controlling view entertained by the appellate court. No objection or exception is made to our resorting to such opinion, and we are inclined to the view that to it, just as to any other extrinsic proof, resort may be had where the purpose sought is not to affect or change the judgment, but it is resorted to for the purpose solely of showing that a mis-trial has occurred by reason of error into which a referee has fallen, and which error he states controlled his action and judgment.

Another ground relied upon by appellants has reference to the failure of the referee to exclude the books of account of Mrs. Barlow, produced and offered in evidence by plaintiffs in support of her claim.

Portions of these books were properly admitted, as it was shown that the footings upon certain pages of the books were Mr. Barlow’s own entries, and, of course, competent evidence as against him. There was no principle, however, which would have rendered the balance of Mrs. Barlow’s accounts admissible in support of her own claim against the defendants. Had the appellants to rely upon this ground only, we should have some hesitancy in reversing the judgment for the reason that the consent given by defendants to the introduction of portions of the account, and the failure to properly except to the introduction of the balance, and the sufficiency of the other testimony upon this question, might be regarded as obviating such an objection.

Upon the ground, however, that the referee erred in his assumption that he was controlled by the supposed decision upon a question of fact upon the former appeal, the judgment must be reversed.

"We regret exceedingly that this should be the result of this appeal, believing, in view of what has already occurred, and to prevent further delay and expense in settling two estates, that it would have been better could the questions of law, which necessarily arise in this case, be speedily determined by the appellate courts.

In view of appellants’ insistence, however, which we regard as well founded, there must be a reversal of the judgment, which is accordingly ordered, with costs to the appellants to abide the event!

Yan Brunt, P. J.:

I do not concur in the view which seems to pervade the within opinion, that although the General Term may reverse a judgment because the evidence was not sufficient to support the finding of a referee or jury, that upon a new trial, even if no more or other evidence is offered, the referee or jury may make the same finding which the court at General Term had held the evidence did not support. But the referee in the case at bar went further than this. There was other and additional evidence offered, but because it did not, in his opinion, radically change the whole aspect of the evidence, he felt himself bound by the ruling of the General Term.

How the referee could determine exactly what amount of additional evidence would have caused the General Term to have sustained the finding which they reversed, I cannot imagine. When new evidence was given, it seems to me plain, unless the evidence was absolutely without any probative value whatever, that it was the duty of the referee to weigh the whole evidence, and to give judgment according to conviction impressed upon his mind by the whole evidence, and not to conjecture or guess as to how the General Term might be impressed thereby.

I think, therefore, that the referee erred, and there should be a new trial, with costs to appellants to abide event.

Andrews, J., concurred in the result.

Judgment reversed and new trial ordered, with costs to appellants to abide event.


author: O’Brien, J. Van Brunt, P. J.: Andrews, J.:

text:
    VICTOR S. FLECHTER, Respondent, v. GILBERT E. JONES, as Treasurer of “The New York Times,” Joint-Stock Association, Appellant.

      -----Libel —pleading a second general denial coupled with a justification — such a defense is not demurrable.

    In an action to recover for the publication of an alleged libel, the answer contained, first, a general denial; it then set up a second and further defense which began with a repetition of the general denial, and continued with demurrable allegations intended simply as a justification.
    The plaintiff demurred to the second defense and it was struck out.

      Sold, that a defense containing a general denial was not demurrable. (O’Brien, J., dissenting.)

      Semble, that the plaintiff might have made a motion to strike out the second general denial as redundant.
    A justification set up in an answer in an action for libel must be as broad as the charge made.
    If facts are pleaded in partial mitigation of the offense charged, it should be so stated.
    Appeal by the defendant Gilbert E. Jones, as treasurer of “ The New" York Times,” a joint-stock association, from an order of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 8th day of January, 1892, sustaining the plaintiff’s demurrer to the second defense of the-amended answer herein; and also from a judgment of the Supreme Court, entered in said clerk’s office on the 12th day of January, 1892, in accordance with said order, after a trial at the New York Special Term before the court.
    The facts áre set forth in the dissenting opinion of Judge O’Brien, which for that reason is printed first.

      JB. F.. Fmstevn,, for the appellant.

      JBenno Zoewy, for the respondent.
   O’Brien, J.

(dissenting):

This action is brought to recover damages for the publication of a libel which is set out at length in the complaint. The answer contains, first, a general denial; second, a further and separate 'defense is set up, prefaced by the statement that the defendant repeats and makes part of this defense the denial contained in the first defense, and avers. There then follows in this defense various allegations, evidently intended as a justification because not stated as a partial defense. To this plaintiff demurred, on the ground that the same was insufficient in law upon the face thereof and constitutes no defense.

In sustaining the demurrer the learned judge below correctly stated the rule to be applied in determining the sufficiency of a defense in an action of this character: It is thoroughly settled that the justification must be as broad as the charge made, and of the very charge sought to be justified.” Leaving, therefore, out of consideration the first paragraph of this second defense, which contains a reiteration of the denials which form the first defense, the first question to be determined is as to whether or not the justification set forth in the second defense is as broad as the charge made.

The libel complained of charges, among other things, that one Bendix brought suit against Flechter for having obtained money under false pretenses; that, morally, Bendix won the suit, for Flechter at no time attempted to prove that the instrument was anything more than a base counterfeit. The justification alleges the sale of a violin by plaintiff to Bendix under fraudulent statements, but says nothing about the suit, or that Flechter did not attempt to prove that the instrument was anything more than a base counterfeit: So in respect to the libel complained of, that in a suit for libel brought by plaintiff against one Prof. Franko, a musical director, who called him a liar and a thief, the answer seeks to justify this charge by alleging the prosecution of Franko for the writing of a letter, which, it is stated, might sustain the charge that plaintiff is a liar, but not that he is a thief. So in respect to the charge that certain witnesses testified that they would not believe the plaintiff under oath, it is not claimed that one of them named Banner ever so testified. Another instance of the failure to make the justification as broad as the charge is to be found in respect to that part of the article which charges the plaintiff with smuggling and with perjury.

It is unnecessary, however, for us to particularize or point out in the voluminous pleadings, such as are here presented for the consideration of the court, the instances wherein there is a failure to make the justification as broad as the charge — which is required in order to have it constitute a complete defense ■— enough having been already stated to show that the test thus applied to the answer will demonstrate that the defense, as a justification, is not sufficient under the rule which requires that the matter alleged in support of the charge must be as broad as the charge and must cover the precise charge.

The only question, therefore, that is presented for our determination is, whether the general denial which is set forth in the first defense, and which precedes, in the second defense, the allegations referred to and to which objection has been made by the demurrer, saves the pleading from the result that otherwise must follow of being obnoxious to demurrer. In other words, will the fact that the second defense contains a general denial, which is a reiteration of a first defense where the other facts set up as a justification are insufficient, prevent a demurrer lying to the entire defense.

By the first defense "the defendant availed himself of his right to interpose a; general denial. And, it seems to us, that to permit the defendant, in a pleading of several pages in length, which is otherwise open to demurrer, by merely repeating, in introducing a second defense, a general denial, to escape the effect of a bad pleading, would be to regard the form rather than the substantial requirements of the Code and of common sense in reference to pleadings. The effect would be to allow the denial which" is contaihed in and used as a first defense, by repeating it, to be made available as a second defense, and thus have the same thing twice repeated as two defenses to a cause of action set forth in a complaint. Such a practice, if permitted, would justify the insertion, coupled with a general denial, of any statements however insufficient as either a partial defense or a justification, and thus take away a right given by the Code of testing the sufficiency of a pleading by demurrer.

"We do not think, in a case of this character and in reference to a pleading such as the answer here set forth, that the plaintiff should be compelled, either to wait until the trial of the action and avail himself of his objection when evidence was offered to sustain the defense, or to resort to a motion to strike out the objectionable portions of the answer as irrelevant or redundant. The defendant had the right either to plead justification, or to set forth facts which would constitute a partial defense in mitigation of damage?; but in tbe latter case they should be accompanied by an allegation showing the purpose for which such facts were stated. Where, therefore, a defendant attempts to set forth, as. a defense in justification, facts which might be available, if stated to be for that purpose, as a partial defense in mitigation, objection may be taken by demurrer.

We think, therefore, that the judgment was right and should be affirmed, with costs, and with leave to the defendant to withdraw -and amend or answer over.

Van Brunt, P. J.:

I do not think that with a general denial ineorporaxeu in a defense, no matter how often repeated, can such defense be demurrable. 'The evils pointed out by Mr. Justice O’Brien from such a form of pleading can be remedied by a motion to strike out the excessive denial as redundant but no part of a pleading can be stricken out •on demurrer.

Andrews, J.:

I concur in the opinion of the presiding justice, that a defense which contains a general denial is not demurrable. The judgment should be reversed, with costs.

Judgment reversed, with costs.


author: O’Bbien, J.:

text:
    In the Matter of the Petition of HUGH M. STANFIELD for the Payment of Interest upon a Certain Legacy.

      Bequest —of the income on a sum held in trust — it bears interest from the death of the testator, payable annually — the rate of interest.

    Mark M. Stanfield left a will by which, “after payment of his just debts,” he bequeathed the income of certain sums to certain persons named therein, and directed his executor to invest such sums and pay over the income. Twenty months after the will was offered for probate two of the persons entitled to income under the will petitioned the surrogate for an order directing the executor to pay over such income. The executor, a corporation, answered that it had not invested the moneys because it had never had funds sufficient to pay the debts and legacies and establish the trusts provided for.
    It appeared that the value of the estate was large, and that the personalty had earned over three per cent.

      Held, that where there is a bequest of the income of moneys held in trust, interest runs from the death of the testator, and that the rule relative to legacies did not apply.
    That the proper rate of interest allowable, upon the facts stated, was three per cent.
    That the proper time of payment was annually.
    Appeal by tbe Knickerbocker Trust Company, as executor under the will of Mark M. Stanfield, deceased, from an order of the Surrogate’s Court of the county of New York, entered on the 3d day of March, 1892, directing such executor to pay to Hugh M. Stan-field interest on $10,000, at three per cent per annum annually from May 28,1890, until the further direction of the court; also an appeal by the petitioner in the proceeding, Hugh M. Stanfield, from so-much of said order as fixed the rate of interest at three per cent per annum instead of at the legal rate.
    Lowery, Stone <& Auerbach, for the Knickerbocker Trust Company, appellant.

      William A. Boyd, for Hugh M. Stanfield, petitioner, respondent.

      John Wotmcm, for the guardian.
   O’Bbien, J.:

The petitioners, Hugh M. Stanfield and Henry Stanfield, are adult sons of Mark M. Stanfield, deceased, who died on May 28, 1890, leaving a last will and testament, in which it was provided:

“After the payment of my just debts, I give and devise unto-George Otis the income of twenty-five thousand dollars for his life to my son, Hugh M. Stanfield, the income of twenty thousand dollars for his life; to Florestine Stanfield, wife of Henry Stanfield, during the life of herself and child, the income of twenty thousand dollars; to Henry Stanfield the income of ten thousand dollars, and to John C. Parcher the income of ten thousand dollars; and I direct my executors, hereinafter named, to invest said sums in bond and mortgage or government bonds, and pay the income to the respective-parties named.”

Pending a contest over the probate of the will, a temporary administrator was appointed, and qualified July 25, 1890.

On January 20, 1892, the executor not having invested the principal Bums, the income of which was devised to the two sons, Hugh M. and Henry R., they commenced proceedings before the surrogate by petition and notice of motion for an order directing the payment to them of interest upon the principal amounts.

The executor, in answer to the petition, showed to the surrogate that the principal sums had not been invested, because the executor had never had in its possession sufficient funds to enable it to provide for the payment of debts, to pay legacies and to set up the trusts provided by the will.

The questions submitted to the surrogate for decision were:

1. The devises being given after the payment of my just debts,” . did they beco.me effective or could interest accrue on them before the debts were paid ?

2. From what time should interest, if allowed, be computed ?

3. At what periods should interest be paid ?

A At what rate should interest be computed ?

The surrogate decided that interest should be paid by the executor upon these bequests from the date of the death of Mark M. Stan-field ; that such interest should be computed at the rate of three per cent per annum ; and that payments of intei’est should be made annually.

From that decision these appeals are taken.

We regard the law as settled that as to general legacies they are not payable until one year after the issuance of letters on the estate, and that as to an annuity legacy it begins to run from the death of the testator..

The question here presented is, what is the rule as to the bequests of income ? _ Are we to follow the one governing the payment of annuities or of general legacies ?

In Cooke v. Meeker (36 N. Y., 15), it is said: “ The authorities would seem abundant, therefore, to sustain the doctrine that when a sum is left in trust, with a direction that the interest and income should be applied to the use of a person, such person is entitled to the interest thereof from the date of the testator’s death. Especially is this so when, as in the will under consideration, it appears clearly to have been the intent of the testator that the legacy should be paid by a transfer of bonds and mortgages bearing interest at the time of his death.” Appellants insist that this statement is obiter and in direct antagonism to the general rule and weight of authority, holding that interest upon legacies commences to run only after the expiration of a year from the granting of letters testamentary —■ that, as respects legacies, a direction in a will that it be paid, with interest, but specifying no time from which interest is to be computed, requires, in the absence of any special circumstance, that interest commence only after the expiration of the year, except in certain .cases of a testator who is a parent or stands in loco parentis to the legatee, in which case, if the legatee be not an adult, interest on the legacy should be allowed, as a maintenance, from the time of the death of the testator.

In this case, however, it must be remembered, as already stated, that the question is not as to when interest begins to run upon a legacy or when an annuity is payable; the question being from what time interest upon bequests are payable.

Although some doubt was expressed as to the correctness of the' rule stated in Cooke v. Meeker (supra), in two cases which arose and were decided by former surrogates — In re Lynch Estate (52 How. Pr., 367); Nahmens v. Copely (2 Dem. Surrogate, 253) — we no longer regard it, so far as' this court is concerned, as an open question.

In Barrow v. Barrow (8 N. Y. Supp., 783), the cases are collated and discussed, and the rule as laid down in Oooke v. Meeker followed. This doctrine was applied by Mr. Justice Daniels in deciding Pierce v. Chamberlain (41 How. Pr., 501); and the same learned judge, in his opinion in Powers v. Powers (1 N. Y. Supp., 636), which was a decision of this General Term, held that a beneficiary, under a will bequeathing a fund to a trustee in trust to invest the same and pay over the income, is entitled to such income from the time of the testator’s death where the trust has been invested by the testator and had yielded income from such time.

We are unable to see any distinction in principle between the case last referred to and the one at bar. It here appears that the income received within one year and eight months from the death of the testator was $30,029 95, which, according to the valuation of the personal estate, which was stated to be $317,766.66, would make a showing of interest herein of about six per cent. If, however, we take the executor’s figures of the amount of income received and the percentage which such income bears to the appraised value of the personalty, it is conceded to have been three and seven one-hundredths per cent.

It was within the discretion, therefore, of the learned surrogate, in the absence of facts showing that the estate earned the full legal rate of interest, to determine what amount should be allowed, reference being had to the percentage of income of the appraised value of the personalty.

"We do not think that the learned surrogate was bound to allow any greater percentage, upon the facts appearing before him, than the three per cent granted. In other words, it was a matter within the discretion of the surrogate, which, upon the facts, we do not find was unwisely exercised. We think, therefore, that the order appealed from should be affirmed; and, inasmuch as all parties appealed from some part of the order, it should be without costs of appeal to any of the parties.

Van Brunt, P. J"., and Andrews, J., concurred.

Order affirmed, without costs.


author: Yan Brunt, P. J.:

text:
    EUGENE KELLY, Plaintiff, v. CHARLES H. NOXON and Others, Defendants.

      Lease for more than a year — may be surrendered by parol, by accepted, surrender— evidence — a contract for future surrender must be in writing.

    Eugene Kelly, who had leased by a written lease offices to a firm of JSToxon and others from April first, for one year, subsequently, by a writing, extended the term for four years. Just before the first of June, in the second year, one of the lessees had a conversation with Kelly’s agent, who, the lessees wishing to he released, said there was a person who would take the offices if they would deliver them up immediately, whereupon the lessee said all right, it was short notice, hut he would see what he could do. He talked to his brother, also a lessee, and a day or two later the lessees vacated after having delivered the keys to the agent’s clerk.
    In an action by Kelly to recover the rent subsequently falling due under the lease:

      JB.eld, that although the lease was for more than a year it could be surrendered by parol if the surrender was accepted.
    That the proof did not establish an accepted surrender.
    That the indefinite answer of the lessee that he would see what he could do did not establish a contract for a surrender, and that the delivery of the keys, unaccompanied by any agreement as to a surrender, was not enough.
    That an agreement to surrender at a future time was within the statute.

      Exceptions of the defendants, Charles H. Noxon, "Willis E. Noxon and John F. Noxon, directed to be heard in the first instance at General Term, taken upon a trial at the New York Circuit before the court and a jury, at which the court directed a verdict for the plaintiff for $326.99.
    The case came before the General Term on a motion for a new trial made upon a case and exceptions.
    The action was brought to recover the amount due upon a written lease which was originally for one year from April 1,1889, and was extended by a writing for four years from May 1, 1890. The defendants were copartners.

      H. A lalor, for the motion.

      G. J. Hardy, opposed.
   Yan Brunt, P. J.:

This action was brought to recover the rent of certain premises in the city of New York. It appeared that the plaintiff had leased to the defendants offices for one year, which was afterwards extended to four years, and that the defendants, on or about the first of June of the second year, vacated the said premises, and the question involved is as to whether there was an accepted surrender by which they were discharged from the further payment of rent.

It was claimed upon the part of the defendants that the plaintiff made an agreement with them, that if they would remove and vacate the premises by a certain time he would release them from the lease; that the defendants carried out their agreement by vacating the premises in time and delivering the keys to the plaintiff’s agent who accepted the same.

It was claimed upon the trial that there could be no surrender of the lease without writing, because it had more than one year to run. That this position, however, was not well taken is shown by the case of Hurley v. Sehring (43 N. Y. St. Rep., 240) and cases there cited. An accepted surrender may terminate any lease; the only question arising being as to whether there has been such surrender and acceptance..

It appeared from the evidence offered upon the part of the defendants in the case at bar that they had been occupying, as above stated, the premises in question, and that they desired to be relieved, from the lease which they had entered into, and made application to the plaintiffs agent to that effect some time in March, stating that they desired to be released after the first of May following. They were told that if they could get a tenant they would be released. Subsequently, the last week in May, one of the defendants had a conversation with one of the agent’s of the plaintiff, who stated to him that there was a party who would take the offices if they would deliver them up immediately, whereupon the defendant told him “ All right; of course it ivas short notice, but he would see what he could do.” He testified that he talked to his brother about it and decided to vacate them at once, and did vacate them within a day or two, fixing the day or two, because two days after was the first of June, and the agent said he wanted them about the first of June. They thereupon went down stairs and gave the keys to the clerk of the agent, one of the agents being there at the time. Nothing further was said nor were the offices afterwards occupied by the defendants.

The court, upon this evidence, directed a verdict for the plaintiff, and the question arises as to whether the proof was sufficient to establish an accepted surrender. We think not. It is apparent, from the testimony of the defendants, that it was not definitely settled at the conversation with the agent whether they would remove or not, because the reply was, when told that the offices could be rented if the defendants could remove immediately, Of course, it was short notice, but he would see what he could do,” and he talked to his brother about it, and they decided to vacate it at once, and did. vacate within a day or two afterwards.

No communication was’ made to the agents subsequent to this undecided answer until the incident of the keys; nor is there any evidence of'an agreement to accept any surrender at the time of the delivery of the keys referred to.

There was no contract for surrender. The defendants did not move out immediately, but not until after the expiration of a day or two thereafter ; and there was no evidence of any meeting of minds in respect to this question of surrender. In order that a party may be released upon the claim of a surrender of a term within the statute, the evidence must be strong and unequivocal, showing an accepted surrender, otherwise the provisions of the statute are defeated. It is only when there has been an accepted agreement of surrender that the provisions of the statute do not apply.

An agreement to surrender at a future time comes within the statute; and in the case at bar there were no acts done by the agents of the plaintiff which were not entirely in harmony with the powers conferred upon them by the lease from the plaintiff to the defendants.

Under these circumstances, we fail to see that the proof was of that character which would have justified the court in submitting any question to the jury.

"We think the exceptions should be overruled and judgment rendered for the plaintiff upon the verdict, with costs.

O’Brien and Andrews, JJ., concurred.

Exceptions overruled and judgment rendered for the plaintiff upon the verdict, with costs.


author: Van Brunt, P. J.:

text:
    JAMES H. FERGUSON and Others, Respondents, v. GEORGE H. GILL, Appellant.

      Corporations — a false certificate — liability of the trustees — evidence — notes given after the filing of the report, in renewal of a prior debt — scienter —survivors of a pm-tnership.

    In an action, under section 15 of chapter 40 of the Laws of 1848, the general manufacturing act, to enforce against a trustee the liability fixed by statute as the penalty for signing a false certificate, the plaintifEs, judgment-creditors of a corporation, alleged that a patent-right, for which all the stock of the company was issued, was, to the defendant’s knowledge, worthless.
    The defendant offered to show what took place at a consultation between the parties interested in the patent as to its value, which the trial court refused to allow him to do.

      Held, that this evidence was improperly excluded.
    That it was competent upon the question of scienter.
    That the defendant should have been allowed to contradict proof made by the plaintiffs that no work had been done under the patent.
    That where a liability had been contracted before the certificate in question was filed, but renewal notes therefor had been given after the filing, the liability came within the statute.
    That whether the creditors knew that a certificate was false was unimportant, as the statutory liability arose from the fact of its falsity, and not from the fact that the creditor relied upon it.

      The original creditors were a firm of whom one, at the time of the commencement of the action, had died.

      Held, that the survivors held the legal title and were authorized to enforce the penalty created by the statute.
    Appeal by tbe defendant George II. Gill from a judgment of tbe Supreme Court, ■ entered in tbe office of the clerk of the city and county of New York on the 24th day of October, 1891, upon a verdict for the plaintiff for $3,414.94 after a trial at the New York Circuit before the court and a jury; and also from an order denying defendant’s motion for a new trial, entered in said clerk’s office on the 18th day of November, 1891.

      O. G. EusKmore, for the appellant.

      JB. Estes, for the respondents.
   Van Brunt, P. J.:

This action was brought to enforce an alleged liability of the defendant for certain debts of a corporation, organized under the manufacturing act, upon the ground that the defendant, being a trustee of the corporation, joined in the making and filing of a false certificate that the capital stock of said company had all been paid in.

Without considering in detail the facts developed upon the trial, it will only be necessary to refer to them in a general way to illustrate the questions which have been raised upon this appeal.

The statute under which the liability is claimed to arise reads as follows :

“ If any certificate or report made, or public notice given by the officers of any such company, in pursuance of the provisions of this act, shall be false in any material representation, all the officers who shall have signed the same knowing it to be false, shall be jointly and severally liable for all the debts of the company contracted while they are stockholders or officers thereof.”

The capital stock of the corporation in question having been issued ostensibly in payment for a patent, a certificate of paid-up stock was filed,- signed by the defendant and others; and it is claimed by the plaintiff that the patent in question was substantially worthless, to the knowledge of the defendant, and that, therefore, the certificate was false.

The plaintiff offered evidence tending to show that the patent had belonged to a previous corporation and was sold by the receiver for a very small sum of money; and it appeared from the minutes of the corporation that, on the 5th of April, 1886, the purchaser from the receiver presented a bill of sale of the patent which was purchased by the company, of which the defendant was trustee, for the sum of one dollar. And it further appeared that, by resolution, the value of the patent was fixed at $100,000, and 1,000 shares of stock of the par value of $100 were issued, partly to the seller and partly to other persons. On the 24th of May, 1886, it further appeared the said seller made a proposition to sell and assign to the company in question said patent for 1,000 shares of the capital stock of the company, which offer was accepted by the company, and the stock issued to the seller, who subsequently distributed the stock in various ways.

The plaintiff further offered evidence tending to show that the patent in question was worthless.

Upon the part of the defendant, testimony was offered, going to show a consultation had between the parties interested in this patent as to its value, which testimony was excluded and an exception taken. Evidence was also offered that certain work had been done under the patent, which was also excluded.

This, we think, was error. The question involved was as to the knowledge of the want of value of the letters-patent, and any communications which had been made to the defendant upon that subject were competent upon the question of scienter. And in respect to the question as to work done, that evidence was offered to directly contradict evidence which had been given upon the part of the plaintiff to the effect that no work had been done under the patent; clearly within the issue and proper to be submitted to the jury upon the question of value.

It is further ui’ged, upon the pai’t of the defendant, that the indebtedness sued upon was not contracted subsequent to the filing of the certificate in question. But even if the original inception of the debt was prior to that time, it appears that there were various renewal notes given by which the debt was extended, and such renewal notes were given after the filing of the certificate, which brings the claim distinctly within the terms of the statute.

It is further urged that the plaintiffs are estopped from taking advantage of the act of the defendant in filing the certificate of fully paid stock, because they kne,w the value of these letters-patent, and that the stock of the company was issued for the letters-patent in question, and that, therefore, they could not have been deceived by the false statements contained in the certificate.

This claim upon the part of the defendant rests upon the erroneous theory that reliance upon the certificate is necessary to be shown by the creditor before a recovery can be had. This is importing into the statute a provision which it does not contain. It is entirely immaterial whether the creditor relies upon the certificate or not. As long as the trustee knows the certificate to be false, and the debt is thereafter contracted while he is an officer of the company, it comes within the provisions of the statute.

It is further urged that the plaintiffs, not being the original creditors of the company, but having obtained whatever title they have to the claim by assignment or legal devolution, they cannot enforce the penalty provided by statute.

We are unable to see the force of this objection. The plaintiffs and each of them have always been the owners of the claim in question. They were partners with Henry Lovejoy, and the firm composed of those three members were the owners of the claim. The death of Lovejoy in no way affected the title of the surviving partners to the claim. As soon as his title dropped out, that of the surviving partners remained the same as it was before his death. Each partner is the owner of the whole of the copartnership assets, and can sell the same and give a good title thereto. Consequently, by the death of Lovejoy there was no devolution of title upon his surviving partners.

Because of the errors in the exclusion of evidence heretofore mentioned, it is necessary that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the final event.

Andrews, J., concurred; O’Brien, J., concurred in the result.

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