author: Bradley, J.:

text:
    Marco Lucco, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Injuries resulting from, negligence — improper appliances — violation of directions— employee entitled to notice of a dangerous situation.

    It is tlie duty of a corporation to use due care in supplying suitable and adequate apparatus and appliances for the safety of its employees, and its failure to perform this duty makes it chargeable with negligence.
    An Italian laborer, who had never worked upon a railroad, was employed to to unload rails from a flat car belonging to a railroad corporation, which car was defective in that the drawhead of its rear end was gone and the car was connected to the next one by a chain. The effect of this defect was that there was nothing to prevent the cars from coming together except the bumpers. The laborer was injured by reason of his foot, which was outside the car and upon the platform, being struck when the cars came together by a projecting rail on the car next to the one which he was on. In an action brought to recover the damages resulting from the injury thus caused evidence was given tending to show that the laborer was forbidden to put .his foot outside the car proper, and upon this point the defendant’s counsel requested the court, and the court refused, to charge the jury that if the plaintiff disregarded the direction he could not recover although he was not informed of the reason why the direction was given, but charged that if the jury reached the conclusion that the laborer was directed not to put his foot upon the platform, and was informed what the effect would be if he did so, and the cars came together, and he disobeyed the instructions and was injured, he could not recover.

      J2eld, that, under the circumstances, the instructions of the court were proper.
    Appeal by tbe defendant, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of . the clerk of the county of Monroe on the 28th day of January, 1895,' denying its motion for a new trial made upon the minntes.

      Albert H. Harris, for the appellant.

      Norris Bull, for the respondent.
   Bradley, J.:

The plaintiff received an injury which he charges was occasioned by the negligence of the defendant. He went into the service of the defendant to assist in unloading steel rails from ten fiat cars, which were moved by an engine for the distribution of the rails along the track. When the train reached the point where they were wanted rails were thrown from either side of the cars. This was repeated when the train moved its length forward. Sixteen men were engaged in the work. At the time of the accident the plaintiff was at the rear end of the car next to the engine engaged in the act of lifting a rail to assist in throwing it from the car. His left foot was then resting on the platform of the car, and his leg was caught between a projecting rail of the next car and the car upon which he stood, and was injured. When the latter car was brought into requisition for service on that day it was defective in that the drawhead of the rear end of it had been broken or pulled out, and was entirely gone from the car, and this car was connected and held to that next to it by a chain. So far as the plaintiff’s injury was .attributable to the defective condition of the car the defendant was chargeable with negligence. The first inquiry, therefore, is whether such conclusion was warranted by the evidence.

The chain by which the cars were coupled did not permit the sejoaration of them quite as much as would the use of drawheads, and when the train stopped there was nothing between them to slack or stay their coming together until the contact of the bumpers. It seems that the intermediate movement of the train was short and slow for the purpose in which it was employed. At the time of the plaintiffs injury the engine had stopped and the men were proceeding to cast off a rail from the car when the one in rear of it, moving forward, came in contact with it. The inference is fairly permitted that the resistance of the drawheads, if the cars had been coupled by means of them, would have kept the cars so far apart as to have protected the plaintiff against the consequences to him which followed. The evidence was such as to support the conclusion that the plaintiff’s injury would not have been suffered if the car had been supplied with a drawhead, and that in view of the duty resting upon it to use due care in supplying suitable and adequate apparatus and appliances for the safety of its employees in the service the defendant was chargeable with negligence by which, this accident to the plaintiff was occasioned. (Bushby v. N. Y., L. E. & W. R. R. Co., 107 N. Y. 374.)

"Whether or not negligence on the part of the plaintiff contributed in any degree to the cause of his injury was also a question of fact upon the evidence. The circumstances of the occurrence as represented by the testimony of the plaintiff tended to show that he was free from fault in that respect. There was evidence on the part of the defendant to the effect that he was through the directions of the foreman infornjed of the danger which might result from stepping on to the platform of the car and directed not to do so by a person who-spoke in the Italian language, which was that familiar to the plaintiff. He, however, denied by his evidence that he heard any such warning or direction, and testified that he had no knowledge that the car was defective in the respect before mentioned. This was the first time he had ever been at work upon a iVilroad, and it appears that he had been engaged only about one hour when the accident occurred. The question of contributory negligence was fairly submitted to the jury by the trial justice, who charged them that “ if the plaintiff was informed that it was dangerous for him to stand upon the platform and he disobeyed the instructions and put his foot upon the platform and was injured, then he cannot recover.” The question of liis contributory negligence, as well as that of negligence of the defendant, was properly for the jury.

The defendant’s counsel requested the court to charge that, if the jury found that the accident was occasioned solely by reason of the iron having been shifted on the car, the plaintiff was not .entitled to recover. The court declined to charge fully as requested and exception was taken. It is deemed unnecessary to consider that exception further than to say that our attention is called to no-evidence and none is found tending to prove that the rails had shifted from the position in which they were placed on the cars when loaded upon them. The court was also requested to charge that, if the plaintiff disregarded the warning or direction given to him not to place his feet between the rails, he could not recover, although the jury might think that he was not informed of the reason why the order was given. The court, declining to charge in that language, instructed the jury that if they reached the conclusion that he was directed not to put his foot there, and that he was informed if he did put his foot on the platform what the effect would be if the cars came together, and he disobeyed the instructions, he could not recover. Exception was taken to the refusal to charge as so requested. This was not error. For the purpose of the question it must be assumed that the plaintiff was ignorant of the defective condition of the car and of the coupling of it with the next one; that he was aware of no danger from those causes, and that he was then engaged in the work at the place assigned to him. It is possible that, he may have understood mere directions not to step on the platform as having relation to the method of doing the work and as not pointing to any danger to him. Then he may have been so busily engaged in the work and his attention been so occupied with it that he not being advised nor having any apprehension of danger, such direction may not at that moment have occurred to him.

In the absence from the proposition of the element of reason on on his part for the apprehension of danger, the court, in view of the place and under the circumstances in which the plaintiff was then engaged, was not required to charge it.

The suggestion is made that there may have been some other concurring cause of the accident for which the defendant was not responsible, and, therefore, the question whether it was the result of such defective condition of the car was matter of speculation. That proposition, in the view taken of the evidence, is not applicable to the present case for the reason before stated, that the evidence permitted the jury to find that the injury would not have been suffered by the plaintiff if the cars had been coupled by means of drawheads in the usual manner.

Note. — The rest of the cases of this term will he found in the next volume, 88 Hun. — [Rep.

There was no error in the rulings at the trial to the prejudice of the defendant. And the verdict was fairly supported by the evidence.

The order denying the motion for a new trial should be affirmed.

Lewis, Ward and Werner, JJ., concurred.

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    James Busby, Plaintiff, v. Edward B. Jenks, as Receiver, etc., Defendant.
   Judgment affirmed, with costs. No opinion.

All concur.


author: Dykman, J.:

text:
    William H. Van Arsdale, Respondent, v. George King, Appellant.
   Order affirmed, with ten dollars costs and disbursements.—

Dykman, J.:

This is an appeal from an order of the Special Term denying a motion to vacate an order made at the Westchester County Special Term on the 6th day of December. 1890, granting leave to bring this action and to setaside and vacate all the proceedings subsequent thereto, including the judgment entered in this action. The great delay in making this motion would he a sufficient justification of its denial; but aside from the delay the motion was entirely destitute of merit. At most there was only irregularity in the original motion for leave to sue. The merits are all with the plaintiff and. no injustice has been -wrought. The order should he affirmed, with ten dollars costs and disbursements.

Brown, P. J., and Cullen J., concurred.


text:
    John Ruddiman, Respondent, v. Reuben R. Barrett, Appellant.
   Judgment and order affirmed, with costs. No opinion.

Dykman, J., not sitting.


author: Cullen, J.:

text:
    Joseph H. Newins and Another, Plaintiffs, v. H. Eckford Rose, Defendant.
   Judgment affirmed, with costs.

All concur.

No opinion.

Cullen, J.:

I vote to affirm without opinion. The testimony of Seaman that he did not sell the goods to defendant was erroneously admitted against defendant’s objection and exceptions and was a mere statement of conclusion. He did not state what the transaction was nor deny defendant’s statement that nothing was said between them reserving the goods plaintiffs had sold Seaman.


text:
    Matter of the Petition of The Brooklyn Elevated Railroad Company, Appellant, Relative to Acquiring Property in the City of Brooklyn, v. William C. F. H. Voss, Owner of Parcel Number 10, Respondent.
   Order affirmed, with costs. No opinion.

All concur.


text:
    Tunis E. Butler, Appellant, v. Thomas Brown, Respondent.
   Judgment affirmed, with costs.

Dykman, J.:

This is an appeal by the plaintiff from a judgment rendered against him in favor of the defendant. The action was brought to recover the sum of $222 and interest thereon which at the time of the trial amounted to $275.98 for principal and interest. The indebtedness was not denied by the defendant, but he set up a counterclaim which amounted to $631.37 for principal and interest at the time of the trial. The counterclaim was for the amount due upon an account stated. The cause was tried before a judge of this court without a jury, and he has found that the counterclaim was established by the evidence and set off against the claim of the plaintiff sufficient to extinguish the same and directed judgment in favor of the defendant for the balance, which was $494.94. The evidence sustains the decision, and justice has been done to both parties. There is no error in the record, and the judgment should he affirmed, with costs.

Brown, P. J., and Cullen, J., concurred.


text:
    James Mulrein, Respondent, v. William Starr Miller, Appellant.
   Judgment affirmed, with costs.

Dykman, J.:

This is an action for labor and materials furnished by the plaintiff to the defendant upon a dwelling house of the latter under a special contract with him. There is also in the complaint a claim for damages resulting from the wrongful discharge of the plaintiff by the defendant. The c.ause was tried before a referee to hear and determine, and. he decided as a conclusion of law that the plaintiff was entitled to recover from the defendant $3,573.93, besides the costs of the action. The referee found facts in detail which support the decision, and all the findings are fully sustained by the evidence. The defendant has appealed from the judgment entered upon the report of the reteree, but the appeal is destitute of merit. There has been no violation of any principle of law, and an extended examination of the facts is unnecessary. The judgment should be affirmed, with costs.

Brown, P. J., and Cullen, J., concurred.


text:
    In the Matter of the Petition of the Brooklyn Elevated Railroad Company, Appellant, Relative to Acquiring Title to Real Estate or a Right of Way on Lexington Avenue in the City of Brooklyn and County of Kings, v. Bertha Metzger, Owner of Parcel No. 136, Respondent.
   Order affirmed, with costs.

All concur.

No opinion.


text:
    William Styne, Appellant, v. The New York, Lake Erie and Western Railway Company, Respondent.
   Judgment affirmed,with costs. No opinion.

Cullen, J., not sitting.


text:
    The People of the State of New York ex rel. William P. Douglas, Appellant, v. David L. Van Nostrand, as Supervisor, etc., and Others, Respondents.
   Order affirmed, with costs.

Dykman, J.:

This is an appeal from the final order in proceedings to review the action of the assessors of the town of Flushing in Queens county under the statute of 1880. We had a similar proceeding by the same relator against the same defendants in relation to this same property, before us at the July term in 1893. (71 Hun, 611.) The property was then assessed for $60,000, the same as now, and the proof of value, both actual and relative, was substantially the same as now. Such being the case, we are bound by our former decision, and the order should be affirmed, with costs.

Cullen, J., concurred; Brown, P. J., not sitting.


text:
    The People of the State of New York ex rel. Garret Sarvent, Respondent, v. George C. Stephens and Others, Appellants, Assessors.
   Order affirmed, with costs.

All concur, except Brown, P. J., not sitting.

No opinion.

Cullen, J.:

I vote to affirm without opinion. People v. Haupt (104 N. Y. 377) is decisive of the question involved in this appeal.


text:
    James Saxton, Respondent, v. The Manhattan Railway Company and Another, Appellants.
   Judgment modified by reducing fee damage to $1,500 and rental damage to $100 per year and affirmed as modified, without costs. No opinion.


author: Parker, J.:

text:
    The People of the State of New York, Respondent, v. John V. Alexander, Appellant.
   Judgment affirmed.

Parker, J.:

The defendant was convicted of grand larceny in the second degree in the Court of General Sessions of the Peace in June, 1894. The articles for the stealing of which he was convicted consisted of a traveling rug, an overcoat, undercoat and vest. The circumstances under which the theft is alleged to have been committed are as follows: The defendant procured an assignment of a chattel mortgage, executed by Ferdinand Pontrichet and wife, covering household furniture, goods and wearing apparel, under which he had a right to enter, as he did, the premises, where the articles were, to get possession of them. The seizure of the mortgaged property was made by the defendant personally, or by those there present with him, acting under his directions. It was proved that ho either took or caused to be taken away, other articles than those described in the mortgage and those already named, which he was charged with stealing, but such articles were returned by the defendant after he had been arrested and arraigned in the Police Court. The evidence bearing upon the taking of the articles in question, ivas of such a character as to support the finding of the jury that lie did take them. With much elaboration and perfect fairness the court submitted to the jury the question of intent, and they having passed upon it adversely to the defendant, and upon evidence sufficient to sustain the finding, their verdict is conclusive. (Carringtons. The People, 6 Park. 342;Peoples. Mclverney, 5 N. Y. Or. Rep. 47.) Indeed the defendant does not contend upon this review that the evidence bearing upon the question of intent was not of such a character as to present a question for the jury. His view seems to be that under the evidence the only crime of which defendant should have been convicted was that of xietit larceny. In support of this position he insists that the traveling rug was included in the chattel mortgage, leaving but three second-hand articles, which he claims were of less value than twenty-five dollars. The difficulty with his contention is twofold: (1) There is evidence that the rug in dispute was not included in the articles covered by the mortgage, and whether it was, therefore, was a question for the jury and it was submitted to them by the court in a manner wholly unobjectionable. Under this state of the record it would be assumed in support of the judgment that the jury found/the fact to be as claimed by the evidence on the part of the People. (2) If it could bo held that the jury did not find or had no right to find that the defendant took the rug, still the evidence as to the value of the other three articles is of such a character as to sustain the verdict. The evidence adduced on behalf of the People was that the four articles were worth fifty-four dollars, but the court was careful not only in its charge to the jury in the first instance, but later on and in response to their request for further instructions, to inform them that they were not bound by the valuation placed upon the articles by the People’s witnesses*, but could judge of the value for themselves* at the samo time directing their attention sharply to the importance of such determination to the defendant, pointing out with perfect clearness that defendant could not-be convicted of any graver offense than that of petit larceny should they find the value of the articles to be twenty-five dollars or less. V ith such instructions in mind the jury reached the conclusion that the articles-stolen were of greater value than twenty-five dollars, and rendered their verdict accordingly. With that determination, in the light of the evidence bearing upon the question of value, this court cannot interfere. No other questions are presented by the appellant. The judgment rendered upon the verdict of conviction should be affirmed.

Van Brunt, P. J., and Follett, J., concurred.


author: Follett, J.:

text:
    Edward D. Dunlop, Respondent, v. George Wilken, Appellant.
   Judgment and order affirmed, with costs.

Follett, J.:

This action was begun March 13,1893, to recover damages for fraudulent' representations made upon the sale of personal property. In August, 1692, the defendant was the lessee of real estate situated, at Collegeville, Montgomery county, Penn., which was used and occupied by him as a-tannery. v Who was the owner of the fee does not appear, nor are the terms of the lease disclosed. The defendant was engaged in the business of selling toys at No. 501 Broadway, and the tannery was in charge of John Kiefer. On the 7th of August, 1892, the following advertisement appeared in the New York Herald: “Wanted party $8,000-to $15,000; take retiring partner’s place;, manufacturing; staple as flour; seventy per cent clear profit; address Established* 286 Herald.” In the New York Herald of August 14, 1892, the following advertisement appeared: “Wanted party with $8,000 to $10,000: established; staple as wheat;. protected by high tariff; guarantee seventyve per cent per year; address Manufacturer, 286 Herald.” The plaintiff communicated with the advertiser, and in reply received a letter from John Kiefer of Collegeville, Penn., who referred the plaintiff to George Wilken at No. 501 Broadway. Negotiations ensued between the litigants, which resulted in a sale of the stock on hand, tools, movable fixtures and bills receivable for leather sold, for which the plaintiff paid on that date $5,435.85, and received from the defendant a bill of sale of the property. It is alleged in the complaint that the defendar made false representations in respect to the quality of the leather and skins on hand, in respect to the collectibility cf the bills receivable, and also in respect to the profits theretofore derived from the business. On the trial the plaintiff proved that the representations alleged were made; that they were false, and he showed facts from which, the jury was authorized to find that the defendant knew they were falso. The plaintiff also showed that he relied upen the representations and was injured thereby. The defendant, by his own evidence, denied that he knew that the representations which he made were false, hut the jury believed the plaintiff and his witnesses, and we think they were fully justified in so doing. After reading the record we are satisfied that the verdict of tho jury is right and is sustained by the evidence. No exception was taken by the defendant to the charge of the court, and no exceptions to the admission or rejection of evidence were argued, and the only questions presented upon this appeal arise upon the defendant’s motion for a nonsuit. It is clear that a question of fact was presented and that it would have been error in the trial judge not to have submitted the issues to the jury, and by its verdict the parties are bound. The judgment and order should he affirmed, with costs.

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


author: Per Curiam:

text:
    Charles L. Levey, Respondent, v. The Kiernan News Agency, Appellant.
   Judgment affirmed, with costs.

Per Curiam:

Our examination of the record satisfies us that the appellant is wrong in its contention that a case is presented which makes it the duty of this court to set aside the judgment on the ground that it is against the weight of evidence. The other exceptions to which it calls our attention are not well taken and do not merit discussion. The judgment should be affirmed, with costs.

Present — Van Brunt, P. J., Follett and Parker, JJ.


text:
    Tudor A. Myers, Plaintiff, v. Harvey Phillips, Defendant.
   Motion must he made to declare case abandoned.


text:
    David Mayer Brewing Company, Respondent, v. Josiah Denner, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    In the Matter of The Southern Boulevard Railway Company.
   Order affirmed, with costs, on opinion of Van Brunt, P. J., in The Matter of Southern Boulevard Railway Company (58 Hun, 497).


text:
    In the Matter of John B. Seaman.
   Order affirmed, with costs on opinion of O’Brien, J., in Tallmadge v. Seaman.


text:
    Sarah A. White v. Dionis Frankel and Another; Andrew J. Dower, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion


text:
    The German-American Investment Company, Appellant, v. W. J. Hayes and Others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.

Per Curiam:

The decision of the Special Term was authorized by the case of The William H. Sawyer Lumber Co. v. Bussell et al (31 N Y. Supp. 1107; S. C., 84 Hun, 114). The order should be affirmed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., O’Brien and Parker, JJ.


text:
    The New York Board of Fire Underwriters, Respondent, v. Metropolitan Lloyds of New York and Others, Appellants.
   Judgment affirmed, with costs, with leave to defendants to withdraw demurrer and answer over on payment of costs in this court and in the court below. No opinion.


text:
    Jacob W. Feeter, Respondent, v. Eliza J Arkenburgh, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    James Hedges, Plaintiff, v. William H. Payne, Defendant.
   Motion denied, with ten dollars costs. No opinion.


author: Per Curiam :

text:
    Luz Diaz Govin, Respondent, v. Luciana Govin de Miranda, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion granted as stated in opinion.

Per Curiam :

For the reasons stated in the opinion in Govin v. De Miranda, decided herewith (see ante, p. 227), the order appealed from should be reversed, with ten dollars costs and disbursements and the motion granted as therein stated

Present— Van Brunt, P. J , O’Brien and Follett, JJ.


text:
    James S. Miller, Respondent, v. The Manhattan Railway Company and Another, Appellants.
   Judgment affirmed, with costs. No opinion.


text:
    Empire City Subway Company, Appellant, v. The Columbus and Ninth Avenue Railroad Company, Respondent
   Order affirmed, with costs.

Follett, J.:

The same questions are involved in this appeal as those determined in the case of The Empire City Subway Company, Limited v. The Broadway and Seventh Avenue Railroad Company, Houston, West Street and Pavonia Ferry Railroad Company (see ante, p. 279), decided at this term, and the order in this case is affirmed, with costs, on the opinion delivered in the case referred to.


author: Per Curiam : Follett, J.,

text:
    Samuel W. Castner and Others, Respondents, v. John Duryea, Appellant.
    Van Brunt, P. J , and O’Brien, J., concurred.
   Judgment reversed, new trial ordered, costs to appellant to abide event.

Per Curiam :

For the reasons stated in the opinion in Herbert v. Duryea, herewith handed down, the judgment should be reversed and a new trial ordered, with costs to-appellant to abide the event.

Present— Van Brunt, P. J., O’Brien and Follett, JJ.

Follett, J.,

dissenting (See dissenting opinion of Follett, J. in Herbert v. Duryea (ante, p. 288).


text:
    In the Matter of the Board of Street Opening, etc.; In re Guarino.
   Reference ordered to Fredericks. Wait to take proof and report with his opinion.


text:
    Bernhard Metz, Plaintiff, v. American Credit Indemnity Company, Defendant.
   Motion for new trial denied and judgment ordered dismissing complaint, with costs.

Per Curiam :

Under the contract by which Abraham was employed by the defendant, he had no authority to bind the defendant to pay commissions to the plaintiff; and besides, there is no evidence that Abraham assumed to bind the defendant. The motion for a new trial should be denied and judgment ordered dismissing the complaint, with costs.

Present — Van Brunt, P. J., and Follett, J.


text:
    Richard C. Fallons, Appellant, v. James O. Hoyt and Another, Respondents.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Lily A. G. Coddington, Appellant, v. Emily K. Bond, Respondent, Impleaded with Others.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    The Martens-Turner Company, Respondent, v. James Mackintosh, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Lysander T. Millis, as Receiver, etc., Appellant, v. Edna M. Gardner and Another, Respondents.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Hamilton Weir, Appellant, v. Roger Sullivan, Respondent.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Chicago and Eastern Illinois Railroad Company, Respondent, v. Henry B. Beecher and Others, Appellants.
   Judgment affirmed, with costs, with leave to defendants to answer on payment of costs. No opinion.


text:
    Peppina A. Silverman and Another, Respondents, v. Belle Heyman, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    W. Emlen Roosevelt and Another, Respondents, v. American Veterinary College et al., William C. Lesster, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    George H. Newton and Others, Respondents, v. A J. Lyman, Appellant.
   Order modified by striking out all reference to section 550 of the Code, in the order of arrest, and, as modified, affirmed, without costs. No opinion.


text:
    In the Matter of Maria Van Vleck.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    John J. Bordman and Another, Plaintiffs, v. James B. Kinney and Others, Defendants.
   Motion granted, with ten dollars costs.


text:
    Gray Latham and Another, Plaintiffs, v. Samuel J. Tilden and Others, Defendants.
   Motion granted, with ten dollars costs.


text:
    Moritz Freedman and Others, Plaintiffs, v. Pietro Catalano and Others, Defendants.
   Motion granted, with ten dollars costs.


text:
    Jacob W. Rein, Plaintiff, v. John Scott, Defendant.
   Motion granted, with ten dollars costs.


text:
    Manhattan Savings Institution, Plaintiff, v. Mary Greeley and Others, Defendants.
   Motion to dismiss appeal on payment of ten dollars costs.


author: O’Brien, J.:

text:
    The People of the State of New York ex rel. John Gillespie v. Board of Fire Commissioners, Respondent.
   Writ quashed, with costs.

O’Brien, J.:

The relator was a member of the uniformed force of the fire department of the city of New York from May 3,1875, until June 22,1888, when he was dismissed upon charges of bad conduct in using improper language to another fireman and absence without leave. The relator was required to attend before the commissioners on June 20,1886, and on that day the doctor connected with the department visited him and refused him sick leave. The relator, however, did not attend, and the hearing was adjourned until June twenty-second, with directions to have additional charges of absence without leave preferred. On the latter date the relator again made default, neither appearing nor sending any excuse for his nonappearance, and the commissioners then proceeded to try the charges, and, having concluded that they were sustained, dismissed the relator. In August, 1888, the relator applied to the commissioners for leave to open the default and to answer, and for a rehearing, upon affidavits tending to show that from June 19 to June 22,1888, he was suffering from a severe laceration of the lower lip, which he claimed he had received on the sixteenth of June, which rendered him incapable of attending to duty, and that on June twenty-second, the date for which the hearing was set down, he sent a messenger to notify the commissioners of his condition, but that such messenger was prevented from IDresenting the relator’s excuse by being obliged to attend to his own business. The commissioners in October granted such rehearing, setting it down for November 8, 1888, upon which day the relator attended with his witnesses, and the charges were again examined into. The relator produced witnesses who testified to substantially the same state of facts as appeared in tlio affidavits asking for a rehearing, namely, that the laceration of the relator's lip was so serious as to incapaciate him for duty. As against such witnesses the commissioners fiad the testimony of the doctor of the department, who had visited him, and who testified that he found him, at the time of his visit, in a state of intoxication, and noticed no such condition of the face or lip as would render him unable to perform his duty. This was supported by the testimony of the foreman of the company, who testified that he was in quarters on the seventeenth, eighteenth and nineteenth of June, and that on the seventeenth and eighteenth, both being dates after the relator received the wound to the lip, as claimed, the relator was present and went with the company to a fire; that during the period from June sixteenth to the evening of June nineteenth the relator made no complaint of being unable to perform duty, but performed it in the regular way, and that on the evening of the nineteenth he left quarters and did not return after that. On the eighteenth of June he was served with a copy of the charges and notice of trial for the twentieth by the foreman, at the quarters of the company, and on the evening of June twentieth he was served with notice of the adjournment to the twenty-second. In this state of the record we do not think that the decision holding the relator guilty upon the charges was without evidence to support it, or against the preponderance of evidence, nor do we think, from the treatment accorded, the relator by the commissioners, that the charge he makes of prejudice against him has been sustained. He was given two opportunities to appear and answer, and except his statement that he was sick on the twentieth, and that his messenger did not deliver his message on the twenty-second, no excuse is presented for his failure to attend and answer the charges. Notwithstanding this, a rehearing was given him and an opportunity to present all his witnesses, and the question was again inquired into, as seen, on November 8,1888, and after a full hearing the charges were found to have been sustained. The only criticism made as to the trial had in November was that the opportunity was not afforded the relator of obtaining the evidence of the doctor who attended him. The counsel stated to the commissioners that the doctor had been subpoenaed and promised to attend Wo do not think, however, that after all the time and opportunity given to the relator, that the commissioners were obliged again to adjourn to suit the convenience of one of relator’s witnesses. Apart, however, from this no harm was done, because the commissioners permitted the relator to submit the affidavit of the doctor, and it appears in the record, just as would his testimony, and goes only to the extent of showing that the relator was treated for lacerated lip. Upon the entire case, we think the conclusion at which the commissioners undoubtedly arrived was justified, to the effect that the wound was not so serious as to unfit tho relator for performing his duty and that this was after-wards availed of as a pretext to excuse an absence which, according to the testimony of the doctor as to the condition in which he found the relator when he visited him, and as to the admissions made to him by tho relator, was due to intoxication. It will bo noticed that we have not commented upon the fact that this proceeding was allowed to slumber from the early part of 1889 until it was brought on for hearing at the June term in 1895; and accepting the new excuse given, that the relator was without means, still the fact remains that here, again, as all through the proceedings, the evidence is furnished of a failure to show any diligence or care in observing tho rules of the department, or m pursuing the remedy which was open to him when, as claimed, he was aggrieved by the action of the commissioners. Our conclusion is that the writ should be quashed, with costs.

Van Brunt, P. J., and Follett, J., concurred.


text:
    Elizabeth Keller, Respondent, v. The Manhattan Railway Company and Another, Appellants.
   Judgment affirmed, with costs. No opinion.


text:
    Charles Hoffman and Others, Respondents, v. The Manhattan Railway Company and Another, Appellants.
   Judgment reversed, new trial ordered, costs to appellants to abide event.

Per Curiam :

We find no evidence justifying the large awards made in this action. What evidence was offered upon the part of the plaintiffs is unsatisfactory and inconclusive and affords no sufficient basis for the judgment which has been entered. We think, therefore, that the judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Present —Van Brunt, P. J., Follett and Parker, JJ.


text:
    Roger M. Sherman, Appellant, v. Irving Grinnell and Others, Respondents.
   Judgment affirmed, with costs. No opinion.


text:
    Annie C. Pell and Others, Respondents, v. The Manhattan Railway Company and Another, Appellants.
   Judgment affirmed, with costs.

Per Curiam:

The judgment in this case must be affirmed. One difficulty with the appellants’ argument as to the credibility of some of the witnesses is, that it depends upon evidence given by them in other cases wnich is not contained in this record and which does not seem ever to have been offered in evidence. The judgment should be affirmed, with costs.

Present — Van Brunt, P. J., Follett and Parker, JJ.


text:
    George Jaus, Respondent, v. The New York Elevated Railroad Company and Another, Appellants.
   Judgment affirmed, with costs. No opinion.


text:
    Andrew McKinney and Another, Respondents, v. Edward Campion, Appellant.
   Judgment and order affirmed, with costs.

Per Curiam:

The plaintiffs are partners under the firm name of A. McKinney & Co., are cotton brokers, and members of the New York Cotton Exchange. It is alleged in the complaint that in July and August, 1891, the defendant employed the plaintiffs to buy 400 hales of cotton and also to sell 400 bales at prices specified, and that they executed the orders the commissions for which amount to forty dollars, and also advanced on the defendant’s account $155.15, inclusive of interest. This action was brought to recover these sums. As a sole defense it is alleged that the defendant was not a dealer in cotton, never owned or had any, that he never employed the plaintiffs to buy cotton from others or to sell to others, but that the transactions stated in the complaint and in the plaintiffs’ bill of particulars, were wagering contracts between the litigants and void. One of the plaintiffs testified that the defendant directed them to buy 400 bales of cotton of others and to sell 400 bales on the Cotton Exchange. This the defendant denied, but the issue was submitted to the jury under a charge not excepted to, and found for the plaintiffs. The defendant utterly failed to maintain the defense alleged, that the transactions were not between himself and third persons, but were with the plaintiffs. It is apparent that the plaintiffs did not contract with the defendant, but they were merely acting as his agents in buying and selling cotton on the exchange. The court further instructed the jury that if tho defendant did not intend to purchase the cotton ordered or to deliver that which he sold, but merely to speculate on the rise and fall of the article, and this intention was communicated to the plaintiffs, they could not recover their commissions or the money which they had advanced; but in case they found that the plaintiffs had no knowledge of the defendant’s purpose, but executed the orders in good faith, believing that the purchases and sales were real, they were entitled to recover their commissions and advances though the defendant intended to engage in wagering transactions. No exception was taken to this instruction. This issue was also found for the plaintiffs on evidence sufficient to raise the question, and the verdict is decisive of the rights of the parties. No exceptions to the admission or exclusion of evidence were taken, nor were any exceptions taken to the charge. The judgment and order should be affirmed, with costs.

Present — Van Brunt, P. J., Follett and Parker, JJ.


text:
    Michael O'Brien, Appellant, v. Robert J. Smith, Respondent.
   Judgment affirmed, with costs.

Per Curiam:

This action was begun September 9, 1889, by an assignee of Margaret Smith to compel the defendant to account for moneys which, it is alleged, he wrongfully converted to his own use between November 1, 2880, and September 11,188D, while employed by the assignor as the manager of her retail liquor store at Nos. 56 and 58 Columbia place, Brooklyn. The allegations in the complaint are wholly on information and belief, but it is not alleged how much money the assignor lost, nor when the defendant converted it. Ac the close of the plaintiff’s case the defendant rested, and the court held that there was no evidence that the assignor had lost any money or that the defendant had retained any of her money. The court also found that the assignment was colorable only, the assignor retaining an interest in the alleged cause of action. After reading the evidence we are satisfied that the plaintiff utterly failed to prove his cause or action, and that the judgment should be affirmed, with costs.

Present— Van Brunt, P. J., Follett and Parker, JJ.


text:
    Frances L. Glover, Respondent, v. The Manhattan Railway Company and Another, Appellants.
   Judgment reversed, new trial ordered, costs to appellants to abide event.

Per Curiam:

The evidence in this case is entirely unsatisfactory. An examination of the testimony of the expert Mangam leads to the impression that it is utterly unreliable and should not furnish the basis for any judgment. He seems to be uncertain both in his ideas and his figures, and a perusal of this testimony necessarily produces distrust in either his knowledge or his ingenuousness. This testimony seems to have formed the basis of the judgment, and we think it is wholly unsatisfactory and insufficient. It is true that certain other evidence was given by the plaintiff and her husband. But this evidence seems to be altogether inadequate to sustain the findings oi the court below. It appears to have been assumed that the court was to infer damage, and that it was the duty of the defendant to disprove the same. This, however, is not the rule which is to govern the disposition of cases such as the one at bar. The judgment appealed from should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Present — Van Brunt, P. J., Follett and Parker, JJ.


author: Parker, J.;

text:
    Shreve Crump & Low Company, Respondent, v. Edward Holbrook and Another, Appellants, Impleaded, etc.
   Judgment modified by deducting therefrom interest on $5,636.68 from October 20, 1891, to April 4, 1893, and, as modified, affirmed, without costs.

Parker, J.;

This suit was brought to compel an accounting by the defendants for certain property which came into their hands as trustees under a deed of trust. In November, 1889, Theron J. Blakeslee made a general assignment for the benefit of his creditors to John J. Connolly. During the following month of December Edward Holbrook was substituted as assignee under such assignment, in which plaintiff was preferred as a creditor. July 23, 1890, Holbrook, together with Norton and Crump, took possession of the assigned estate in pursuance of the terms of a trust agreement entered into by all interests, including the creditors of Blakeslee. This trust instrument provided for the continuance of the business of importing, selling and dealing in oil paintings for the period of three years. Prior to the failure of Blakeslee lie was conducting at his store, in addition to his business of dealing in paintings, a bric-abrac department, which was carried on by him under a written agreement for consignment entered into between himself and this plaintiff. Briefly, the agreement provided that plaintiff should consign bric-a-brac to Blakeslee and allow him §3,000 per annum towards the payment of the rent of the store, in consideration of which Blakeslee was to sell goods at his own expense and guarantee payment of all sales, and to divide the gross profits equally with the plaintiff. After the making of the general assignment, the business was carried on by the substituted assignee in precisely the same way. Immediately upon taking possession under the trust instrument, Holbrook, one of the trustees, informed Mr. CrumjD, another trustee, and the general manager of the plaintiff, that if the bric-a-brac business should be continued, there should be a division of expense, and if that could not be done it should no longer be continued. Conversations and coiTespondcnce between the parties followed this statement of Holbrook, from .which it is fairly to be gathered that it was the opinion of the plaintiff’s general manager that the request was reasonable and one likely to be granted as soon as there could be a meeting of the board of directors. The board of directors never did meet, or, at least, if they did, no affirmative action was taken accepting the suggestion or proposition of Holbrook as to the basis upon which should be conducted the bric-a-brac business. That there should be a division of the expenses incurred by the trustees in the bric-a-brac department constituted the first counterclaim of the defendants. It is not questioned that ihe acceptance of the original contract between, plaintiff and Blakeslee, the proceedings thereunder by Holbrook as substituted assignee, during the term he was in possession of the property in such capacity, the acceptance of the trust by the trustees by which ihe rights under the original contract with plaintiff was transferred to the trustees, and their subsequent action in receiving the benefits of the contract, operated to continue in force the original contract unless there was a modification of it, either by positive agreement or by such action as would estop one of the parties from denying the modification alleged by the other. The appellants insist that the evidence establishes their claim of a modification upon both grounds. It would seem, however, from the testimony of Trustee Holbrook that he did not understand that there was such a modification of the original agreement as was binding upon the plaintiff. He testifies that while he was substituted assignee he made the point that the expenses as well as the profits should be divided equally, but nothing was done about it. That when he became trustee under the trust instrument he brought the matter up at the first meeting of the trustees, but that there was no resolution or formal action taken on the subject. The matter was discussed and Mr. Crump, who was one of the’ trustees, as well as manager for the plaintiff, committed himself personally to a modification of the agreement as proposed by Holbrook, and promised to lay it before the company and recommend it to the board of directors. Holbrook does not claim that Crump promised to do more than recommend it to his board, and says that he understood perfectly at the time that in order to bind the arties there would have to be action taken y the plaintiff’s board of directors, and, as we have already observed, such action was never taken. Nor does it appear that any agent of the plaintiff, having authority to do so, united with the trustees in amodification of the original contract. Under this head then the question remaining is whether appellants are right in their assertion that the plaintiff is estopped from denying that there was a modification of the agreement or a new agreement in the terms contended for by the plaintiff ? It is apparent from what we have said, in discussing the alleged agreement for a division of profits and expenses, that the defendants, in effect, seek to estop the plaintiff from denying the existence of such an agreement on the ground that they were led to believe that it would be made. Of course we are not expected to sanction any such position, and it is due to the learned counsel for the appellants to say that he does not express in words what we say he contends for in effect. He urges that they were misled by the plaintiff’s acts and silence into believing that the modification of the agreement had been made. But in this position he is not supported by the testimony, for while Holbrook asked for a modification and Crump agreed to recommend it, and Shreve wrote, “ » e will hope to arrive at some satisfactory agreement,” and again, While no action has been taken by our board of directors, which cannot get a quorum together since Crump’s absence, the conversation incident to it has all seemed to be indicative of a feeling to accept it substantially as you propose.” Still there was no meeting and no formal acceptance, as the defendants well knew. The defendant Holbrook testified that he understood that there could be no agreement until formal action was taken by the plaintiff’s board of directors. He was not misled, therefore, into supposing that the agreement had been modified as he had requested. He merely expected that it would be. His expectation was founded on the expressed opinions of two of plaintiff’s officers, but he knew that they could not bind, and were not attempting to bind, the plaintiff; that they as well as he were waiting for the formal action ol' the board, which was never taken. Upon such a foundation there cannot be predicated an estoppel. Appellants make the further point that the trustees were entitled to an accounting of the profits made by the plaintiff on two Monticelli paintings purchased in Prance during the summer of 1890, on the advice of Watson, whose salary the trustees were paying. This claim constituted defendants’ second counterclaim. The decision of the trial court was necessarily founded upon a determination of fact that the Monticelli paintings were not purchased by Watson or any one else for the defendants. There is evidence that the discovery of the Monticellis was made by Mr. Fenwick, the agent in Paris and Europe of the Shreve, Crump & Low Company, who consulted Mr. Watson about it, and was by him advised to purchase. The only other connection that Watson seems to have had with the pictures was that he privately exhibited them in New York to a Mr. Lambert, who subsequently became the purchaser. There are some features of the evidence which suggest that had the purchase of the Monticellis not turned out to be very profitable the trustees might have "been permitted to bear the loss or accept a moderate price. While this is so, there is ^evidence of a substantial character that the paintings were bought by Fenwick in the first instance for his own account, and after-wards sold by him to the plaintiff. The finding of the trial court, therefore, has such .support in the evidence as requires its affirm-n-nce. The further position is taken by the appellants that they are entitled to a modification of the judgment, so that it will provide that the costs and expenses of administering the trust shall be paid out of the proceeds of the trust estate oefore the judgment in question shall be paid. Ordinarily the position would be right, and it was our rfirst impression that the modification requested should be granted, because in accordance with a proper construction of the trust agreement. But, on examining the record, we find a stipulation by appellants’ counsel, made in open court, “ that the assets were $81,801.62, while the liabilities were •only $26,166.46. That is, liabilities in the execution of the trust.” We cannot conceive •that the stipulation had any other purpose than to assure the court that the assets were ¿imple to defray the expenses of the trust, and afterwards pay such sum as plaintiff should recover in full. As the stipulation carried that assurance to the court, and must have been intended to do so, we do not think appellants at this time are entitled to a modification of the judgment in such respect. We think the appellants’ claim that the judgment was wrong in so far as it allowed interest to plaintiff from October 20, 1891, to April 4, 1893, is well founded. The prayer for relief in plaintiff’s complaint demanded interest from April 4, 1893. There was no amendment of the complaint during the •trial respecting the allegations as to interest. There was no suggestion, as far as we have •observed, during tbe progress of the trial, that plaintiff was entitled to interest prior •to the termination of the trust. The suggestion of respondent’s counsel to the court, as .appears from the record, was distinctly otherwise; he said: “ We would be entitled to interest at the expiration of the three years is our contention.” The three years clid not expire until about July, 1893. Whether the plaintiff could have recovered interest for any period prior to that time, had it been in a position to ask for it, is not •passed upon. It was not entitled to recover interest prior to April 4,1893, because it did not demand it in its complaint, and permit•ted the trial to close without altering its position. The judgmentshould he modified by deducting therefrom interest on $5,636.68 from October 20, 1891, to April 4, 1893, and, as modified, affirmed, without costs to either party.

Van Brunt, P. J., and Follett, J., concurred.


text:
    Minnie Rinaldo, Respondent, v. The Manhattan Railway Company and Another, Appellants.
   Judgment reversed, new trial ordered, costs to appellants to abide event.

Per Curiam :

After an examination of the evidence in this case it seems to us apparent that it does not justify the awards which have been made, either for rental damage or for fee damage. It seems to be doubtful whether from the evidence any such damage has been sustained. The judgment seems to rest upon inference rather than upon proof. We have endeavored to ascertain from the evidence some basis upon which a reduced amount might be awarded, but we have been unable to arrive at any conclusion based upon such evidence. It seems hardly necessary to discuss in detail the evidence for the purpose of showing the particular points in which it is defective, as it seems to us upon a consideration thereof that it has little or no probative force. We are of opinion that the judgment appealed from must be reversed and a new trial ordered, with costs to the appellants to abide the event.

Present — Van Brunt, P. J., Follett and Parker, JJ.


text:
    Thomas Crimmins, Respondent, v. The Metropolitan Elevated Railway Company and Another, Appellants.
   Motion denied, with ten dollars costs.


text:
    Rose Cohen, Respondent, v. The Manhattan Railway Company and Another, Appellants.
   Judgment modified as directed and affirmed as modified, without costs.

Per Curiam :

The fee damage in this case should he reduced to $1,250, the rental damage to $100 a year, and the extra allowance to $100. The judgment as so modified should be affirmed, without costs to either party.

Present — Van Brunt, P. J., O’Brien and Parker, JJ.


text:
    Charles M. Church and Others, Respondents, v. The Manhattan Railway Company and Another, Appellants.
   Judgment modified by reducing fee damage to $5,000, and as modified by such reduction affirmed as modified, without costs.—

Per Curiam :

Upon an examination of the evidence in this case we think that the fee damage should be reduced to the sum of $5,000. The judgment as modified by such reduction should be affirmed, without costs to either party.

Present — Van Brunt, P. J., O’Brien and Parker, JJ.


text:
    Fannie H. Kingsbury and Others, Respondents, v. The Manhattan Railway Company and Another, Appellants.
   Judgment affirmed, with costs. No opinion.


text:
    David J. King, as Executor, Respondent, v. The Metropolitan Elevated Railway Company, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    Charles Hoffman and Others, Respondents, v. The Manhattan Railway Company and Another, Appellants.
   Judgment modified by reducing rental damage to $6,750 and fee damage to $7,500, and as so modified affirmed, without costs.

Per Curiam:

Upon an examination of the evidence in this case we think that the rental damage should be reduced to $6,750, and the fee damage to $7,500. The judgment, as so modified, should be affirmed, without costs.

Present — Van Brunt, P. J., O’Brien and Parker, JJ.


text:
    In the Matter of Audubon Avenue.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    St. Louis Stamping Company, Appellant, v. Edwin S. Piper, Respondent.
   Order affirmed, with ten dollars costs and disbursements.

Per Curiam :

We do not think that an injunction pendente lite ought to he granted. The order appealed from should be affirmed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., O’Brien and Parker, JJ.


text:
    Frances V. Greene, Plaintiff, v. Frederick B. Carey, Defendant.
   Motion granted, with ten dollars costs.


text:
    In the Matter of One Hundred and Fifty-fourth street.
   Motion granted, with ten dollars costs.


author: Beadlet, J.:

text:
    Bertha W. Berry, Appellant, v. Daniel Gavin and Others, Respondents.

      Failure of an agent to disclose Ms agency — mechanic's lien — incorrect statement in the notice as to ownership — the interest of one who consents to the work is covered by the lien.

    The fact that an agent who agreed to repair a "building did not disclose his agency and the name of his principal, is of no importance in an action brought by such principal to foreclose a mechanic’s lien filed to secure the amount due under such contract.
    Upon the trial of an action brought to foreclose a mechanic’s lien it was shown that the contract, for doing the work under which the lien was claimed, was made with one of the two persons who were in possession of the premises, by • virtue of an equitable title thereto as vendees under a contract of sale; the vendor named in such contract of sale thereafter conveyed the premises to that one of the persons in the possession thereof who did not make the contract for the work, and to his wife, with the consent of the other contract vendee who contracted to have the work done. The person who made the contract for the work in making the same acted for himself and his co-vendee, and the grantees named in the deed were cognizant of the performance of the work as it progressed. The notice of lien, filed subsequent to the date of the conveyance, named as the owners of the property the two persons In the possession thereof at the time the contract was made.

      Held, that the incorrectness of the statement as to the ownershi_ the property did not vitiate the notice or defeat the lien;
    That as the work was performed with the consent of the wife of the vendee, who was named as one of the grantees in the deed, it was sufficient to bring her interest within the operation of the lien.

      Appeal by the plaintiff, Bertha W. Berry, from a judgment of the County Court of Erie county in favor of the defendants, entered in the office of the clerk of the county of Erie on the 12th day of November, 1894, upon the decision of the court dismissing the plaintiffs complaint upon the merits

      Sene Isbell and Philip A. laing, for the appellant.

      George M. Osgoodby, for the respondents.
   Beadlet, J.:

The purpose of the action was the foreclosure of an alleged lien and for other relief, founded upon a claim for labor and materials, and a notice of lien filed in the Erie county clerk's office.

It appears that Stephen R. Berry, husband of the plaintiff, made with the defendant Bobee the contract, which was made to perform the work of repairing the building upon the premises in question. It does not appear that any formal decision was made by the County Court. But in a brief memorandum of the judge the chief ground indicated for the result is that it did not appear that the wife had such relation to the claim as was necessary to enable her to prosecute the action as plaintiff.

The evidence, however, was such as to fairly require the conclusion that as between the husband and the plaintiff he made the contract and caused the work to be done as her agent, pursuant to a written agreement and power of attorney. He appeared as a wiC ness in her behalf on the trial. The fact that he did not disclose his agency or the name of his principal has, so far as appears, no importance in the present case. (Ludwig v. Gillespie, 105 N. Y. 653.)

. The defendants, however, cannot be prejudiced in their legal rights as against the husband arising out of his apparent relation to the contract and the work performed, but they are available in the action brought by the plaintiff as the principal. The contention of the defendants’ counsel, that the cause of action as' alleged in the complaint is not founded upon the notice of lien which was filed, is not supported.

The notice of lien is .fully set forth in the complaint bv a copy annexed. If there were any matters alleged in the complaint not consistent with or permitted by the notice of lien they appeared on the face of the pleading.

There was ho such variance between the allegations in the complaint and the notice of lien as to deny to the plaintiff the benefit of the latter in the action if the facts proved supported the claim founded upon it.

The contract to do the work was made in June, 1893. At that time the defendants Bart Lobee and Daniel Gavin were in possession of the premises having the equitable title to them as vendees in a contract of date May 1, 1893, made with them by Austin E. Preston as vendor. lie by deed of date July 1, 1893, conveyed the premises to the defendants Daniel Gavin and Sarah A. Gavin (his wife). This was evidently done with the consent of Lobee. In making the agreement with Berry, Lobee acted for himself and Gavin, and they, with the wife of the latter, were cognizant of the performance of the work as it progressed.

The notice of lien was filed November 15, 1893, and in it the defendants Daniel Gavin and Lobee were named as the owners and persons in interest. The incorrectness of that statement did not vitiate the notice or defeat the plaintiff’s lien. (Laws 1885, chap. ■342, § 4.)

The work seems to have been performed with the consent of the ■defendant Sarah A. .Gavin as well as of the other defendants which was sufficient to bring her interest within the operation of the lien. (Id. § 1; Schmalz v. Mead, 125 N. Y. 188; Pell v. Baur, 133 id. 377.)

It is now urged on the part of the -defendants that the notice of lien was not filed within ninety days after the performance of the work as required by the statute.' (Laws 1885, chap. 342, §4.) No such question seems to have been raised upon the trial nor igf it suggested in the memorandum of the county judge.

There is, however, some evidence tending to prove that the work was finally completed within that time.

The complaint was dismissed at -the close of the plaintiff’s ■ evidence.

The facts which that tended to prove were sufficient to put the •defendants upon their defense. We do not consider the questions which may finally arise upon the merits.

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

Lewis and WARD, J J., concurred.

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


author: Beadley, J.:

text:
    The Flour City National Bank of Rochester, Respondent, v. Ernest D. Grover and Others, Appellants.

      Promissory note ■ — possession thereof presumptive proof that the plaintiff is a bona, fide holder — proof of framd — presumption from a failure to deny a statement — • declarations of the president of a bank■ — failure of consideration — a promise not a misrepresentation.

    In on action brought upon promissory notes the presumption is, upon the production of such notes by the plaintiff at the trial, that the plaintiff became the owner of them before maturity, and that he was a bona fide holder thereof for value, but if it appear that they were obtained by fraud the burden is shifted to the holder to prove that he was the holder of the notes in good faith and for a valuable consideration.
    In case the notes are shown to have been obtained by fraud, the question whether the plaintiff is a bona fide holder thereof for value, where the evidence as to the bona fides of the plaintiff consists of the testimony of the plaintiffs cashier, is a question of fact for the determination of the jury.
    In an action at law based on fraud the fraud must be clearly proven; it will not be presumed, nor on mere probabilities be assumed.
    The fact that, in the presence and hearing of a party to an action, a statement is made pertaining to the matter in question which it is for his interest to controvert, and he does not deny it, is evidence for the consideration of the jury, who may treat his silence as an implied admission of the fact as stated.
    Declarations of the president of a bank cannot bind the bank, nor are they admissible as evidence against it, unless they are made in regard to, at the time, and as a part, of a transaction within the scope of his agency.
    It was shown upon the trial of an action that one Mrs. Cushman claimed to have, under a contract with a corporation, the exclusive right to sell a certain article in a particular territory for a specified period of time; that she entered into an agreement with one Grover to sell him all her rights in such territory and certain other property at a specified price, in payment of which were given the notes upon which the action was brought; that she had the contract as represented, and that it was exhibited to Grover at the time of the negotiation and was delivered to him at the time the agreement was made. Grover proceeded for a time in the performance of the business contemplated. He was subsequently advised by tlie company that permission for him to proceed under it was refused. It was not shown that the company had taken any action with a view of terminating the contract, or that it had advised Mrs. Cushman that it treated it as terminated.
    Held, that although the right to declare tlie contract forfeited might have existed after the transfer to Grover, by reason of some default on the part of Mrs. Cush-man, she was not chargeable with the knowledge that the company would avail itself of the power of forfeiture, and might have supposed from its non-action in that respect that it would not do so, without which her right to proceed in the performance of the contract would remain, and that she was not chargeable with fraud in that respect;
    That by the existence of the right of the company to declare the contract forfeited, and its subsequent exercise of such right, there was a failure of consideration to that extent for the notes available to Grover as for a breach of the contract in that he did not receive what Mrs. Cushman undertook he should have by means of the transfer to him of the agency contract of the company;
    That the promise.or statement of Mr. Cushman, who conducted the business for Mrs. Cushman, that Grover ivould be allowed to go forward with the contract, was not fraudulent unless Mr. Cushman had been advised to the contrary; it was a mere promise or undertaking about a matter executory in character and not a misrepresentation as to an existing fact.
    Appeal by tlie defendants, Ernest I). Grover and otliers, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 26th day of November, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Monroe Circuit.
    The action was brought upon three promissory notes of date January 20, 1893, made by the defendant Ernest D. Grover, for S663.04 each, payable to the order of the defendant Albert B. Grover at the Flour City National Bank on or before April 24, 1893. They were indorsed by the payee, by the defendant Rose E. Grover, and by the defendant Sarah J. Cushman.
    The defendants Grover, by their answer, allege that the defendant Sarah J. Cushman, claiming to have the exclusive right to sell Yost’s writing machine in certain counties of the State for the period of two years from November 3, 1892, with the option of two additional years if she should fulfill her contract, entered into an agreement with the defendant Ernest D. Grover to sell him all her rights in such territory and some machines, attachments, fixtures and certain other property, at the price of $1,989.12; that the notes were given in performance of the agreement. And that tlie defendant Sarab J. Cushman then had no such right in those counties, having before then forfeited it, etc. And that the plaintiff was not a Iona fide holder of the notes.
    The trial court directed a verdict for the plaintiff.

      Horace L. Bewnett, for the appellants.

      Joseph 8. Ilunn, for the respondent.
   Beadley, J.:

Upon the production by the plaintiff of the notes at the trial the presumption was that the plaintiff became the owner of them by due course before maturity, and that it was a bona fide holder of the notes for value.

But if it had appeared that they were obtained by Sarah J. Cushman from Grover by fraud, the burden would have been shifted to the plaintiff to prove that it was a holder of the notes in good faith and for a valuable consideration. (Case v. Mechanics’ Banking Assn., 4 N. Y. 166; First Nat. Bank v. Green, 43 id. 298; Vosburgh v. Diefendorf, 119 id. 357.)

No fraud is alleged in the defendants’ answer, nor did it appear on the trial that the notes were obtained by fraud on the part of Cushman from Grover.

Mrs. Cushman had with the Yost Writing Machine Company the ■agreement as represented. It was exhibited to Grover at the time of the negotiation, and was delivered to him at the time his agreement with Cushman was made, and he proceeded for a time in performance of the business contemplated. lie afterwards called at the office of the company, and by one of its officers was there advised that permission for him to proceed under the Cushman contract was refused. If from the nature of the contract Cushman had no right to substitute the agency of another for the company by transfer of the contract, Grover, upon inspection of the contract, was equally with Cushman advised of the fact.

The allegation in the answer is that Cushman’s right • to proceed in performance of the contract was forfeited. It may be assumed for the purpose of the question that by reason of some default on the part of Cushman the company had the right to put an end to the further performance of it by her. It does not appear that the compa íy had taken any action with that view or advised Cush-man that it was so treated. And although the right to declare it forfeited may have existed after the transfer to Grover, by reason of some default on the part of Cushman, she was not chargeable with knowledge that the company would avail itself of the power to forfeit it, and may have supposed from the non-action of the company in that respect that it would not, without which her right to proceed in its performance would remain operative, and, therefore, she was not chargeable with fraud in that respect. But by the existence of such right and its subsequent exercise by the company there was a failure of consideration to that extent for the notes available to Grover as for breach of the contract in not receiving what Cushman undertook he should have by means of the transfer to him of the agency contract of the company. The main inducement to Grover in making the purchase was in the company’s contract and his supposed right acquired to proceed under and pursuant to it'.

At some time, after Grover had proceeded under the contract, but how long after does not appear, he learned that the company had asserted that it had no agency in the territory in question. lie testifies that he then called upon Mr. Cushman, who it seems conducted the business for Mrs. Cushman, and told him what he had so learned, and that Cushman said, “ There was some mistake about it; that the company had written him, as he told me before, the contract could be turned over to me; they would allow it to be turned over to me, give- me the same terms he had.” If it liad appeared that Cushman had said to Grover before the agreement with him was perfected that the company had written him that the, contract could be turned over to him, there would, in view of the evidence that no such consent was given, have been some proof to permit the jury to determine that Cushman was chargeable with fraud in obtaining the notes, and, therefore, the burden of showing that the plaintiff was a bona fide holder of the notes for value would be cast upon it. But the evidence fails to show that sucli statement was made by Cushman before the transfer and notes were made. And if the jury had by the evidence been permitted to do so, and had found that the notes were obtained by fraud, the question' whether the plaintiff was a bona fide holder for value would have been one of fact for the jury since the relation of the cashier to the plaintiff was such as to present the question of his credibility for consideration. (Joy v. Diefendorf, 130 N. Y. 6.) The burden, however,, was with the defendants to prove that the notes were fraudulently obtained by Cushman. In an action at law fraud must be clearly proved. It will not 'be presumed, nor, on mere probabilities, be assumed. The defendant E. D. Grover, when he made the agreement with Cushman, undoubtedly understood and believed that he would be permitted to proceed under the contract which was transferred to him. It may be assumed that he was so advised by Cushman, and the latter may have supposed that ho could and would have the benefit of it. And his promise or statement that Grover Avould be allowed to go forward with it was not fraudulent unless he had been advised to the contrary, which does not appear. It was a mere promise or undertaking about a matter executory in character and not the misrepresentation as to an existing fact.

As nothing appears in the evidence of the transaction between-Cushman and Grover to repel the presumption that the plaintiff ■was a bona fide holder and owner of the notes for value, the question arises whether any other reason appears in the evidence tending to impeach such relation of the plaintiff to them.

The defendant E. D. Grover testified that after this action was commenced he called upon Mr. Hathaway, the president of the plaintiff, and in the conversation had, amongst other things, said to him that Mr. Cushman had told him that the bank did not own the notes, and that Hathaway did not deny the statement. It is urged that this want of denial is some evidence of an admission on the part of the plaintiff that it was not the owner of the notes. That rule is applicable against a party to an action in whose presence and hearing something pertinent to the matters in question is stated, and Avliich it is for his. interest to controvert. Then the fact that he does not do so is evidence for the consideration of the jury, and it may treat his silence as an implied admission of the fact as stated. Hathaway was not a party to the action, and although lie was president of plaintiff, his declarations cannot bind the bank, nor are -they admissible as evidence against it unless they are made in regard to, at the time of, and as a part of, a transaction-within the scope of his agency. (Packet Co. v. Clough, 20 Wall. 528; Baptist Church v. Brooklyn F. Ins. Co., 28 N. Y. 153; Luby v. Hudson R. R. R. Co., 17 id, 131.) It does not appear that Hathaw’ay ■ was then engaged in the performance of any official duty of which the conversation referred to was a part. His declarations, .therefore, if any had been made about the title of the bank to the notes, would not have been admissible. It was a mere conversation between Grover and him on the subject of the suit upon the notes, and whether the bank had taken title to them was dependent upon a past transaction, of which Hathaway may or may not have been advised. The cashier testified that, he was discount officer of the bank; that the notes passed through his hands, as such, and were discounted.

The circumstances of the interview between Grover and Hathaway were not such as to render the failure of the latter to speak on the subject referred to any evidence of an implied admission on the part of the bank that it did not own the notes.

It seems that the bank held some bonds and mortgages as general collateral security for the liabilities of Cushman to it, which liabilities arose mainly upon paper discounted by it. Whether or not the security thus taken was adequate does not appear. The evidence upon that subject does not deny to the plaintiff the character of tona fide holder for value of the notes.

The letter of date January 16, 1893, from Cushman to Mayo, who by it was treated as in some way representing the compauy, offered in evidence and excluded, could have been of no benefit to the defendants if it had been received in evidence. The main feature of the letter was that Mrs. Cushman desired to transfer the business to a person not named in it, to do which consent was requested that such person take the agency. There is nothing in the letter importing that the contract had been forfeited, or that Cushman apprehended that it would be, but, on the contrary, it is there treated by Cushman as operative. "Without some answer from the company, of which there was no offer to prove, the letter had no materiality for any legitimate purpose. There was no error to the prejudice of the defendants in any of the rulings at the trial.

The conclusion upon the evidence was required that the plaintiff by transfer before their maturity became and was the tona fi$e owner and holder of the notes for value.

The judgment should, therefore, be affirmed.

Lewis, Ward and Weeuer, J J., concurred.

Judgment affirmed.


text:
    Maria Du Boise, as Administratrix, etc., of Isaac Du Boise, Deceased, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.

      Negligence — pt'oximate cause of an injury— contributory negligence.

    In order to hold a corporation liable for injuries sustained, as alleged, by reason of its negligence, the negligence must be the proximate cause of the injuries and it must appear that the person injured was free from contributory negligence.
    In such an action the evidence tended to show that the plaintiff's intestate approached the railroad of the defendant from the north; that there were four tracks numbered from south to north ; that the crossing was blocked by coal’ cars standing on track No. 2; that after waiting some minutes the plaintiff’s intestate climbed upon the coal cars, upon a platform between them, his head then being two or three feet above the boxes on the cars; that he stood there a moment looking east and west; that his view to the west was unobstructed ; that he then jumped down and was killed by a train going east on track No. 1, moving at the rate of from fifty-five to sixty miles an hour. The night was dark and the evidence was not sufficient to enable the jury to find that no signal was given and to impute negligence for the want of it.. There were two engines near the crossing blowing off steam or smoke.

      Held, that it could not be said that the accident resulted from the presence of the coal cars, or that the deceased was free from contributory negligence.
    MotioN by the plaintiff, Maria Du Boise, as administratrix, etc., of Isaac Du Boise, deceased, for a new trial on a- case containing exceptions, ordered to be heard at the General Term in the first instance upon the granting of a nonsuit by the court after a trial at the Monroe Circuit on the 13th day of December, 1894.

      P. Qlimiberlavn,, for the plaintiff.

      Albert II. Ilcm-is, for the defendant.
   Bradley, J.:

On the 6th day of August, 1894, as the plaintiff’s intestate was proceeding on a highway to cross the defendant’s railroad, he was struck by a passing train and killed. The plaintiff charges that the disaster was occasioned solely by the negligence of the defendant. The plaintiff was nonsuited at the trial.

The occurrence was about nine o’clock in the evening, and it was then quite dark. It was in the town of Gates, county of Monroe, aiid the highway was known as the Field road. The defendant’s tracks crossing the road were four, numbered from the south to the north. The deceased, on foot, approached the tracks from the north. There was then a train of coal cars standing on track No. 2 over the crossing. After waiting some minutes, and as the coal traiii was not moved, he proceeded to cross by climbing over •between cars, and when he jumped from the train on to the south side of it he was struck by a train going east on track No. 1. It seems that there was no engine attached to the coal train, and that it remained there for some time, and was an obstruction to the passage across the road over the railroad tracks. The defendant was chargeable with negligence for permitting the coal train to remain the length of time that it had been there at the time of the accident. And the inference is fairly justified that the decedent would have safely passed over the tracks before the train arrived if that obstruction to his passage had not been there. In that sense the negligence of the defendant was a cause of the death. But this condition there did not justify the decedent in incurring the hazard of encountering .a passing train upon the south track.

The cars between which he passed were fiat cars with boxes two or three feet high, and his head was two or three feet above them when he was on the platform between them, where lie stood for a moment,'looked-west and east, and then jumped. No reason appears why his opportunity to see the approaching headlight was not as favorable as it would have been if the coal train had been absent and he had been on the ground. In that view it is difficult to see that the standing coal train contributed to the accident otherwise than in inducing delay in the passage of the decedent until the fatal moment. This did not render the fact that the coal train stood there the pertinent or proximate cause of the occurrence. He was not held back by it or required by it to go forward when he did. He voluntarily proceeded to pass over the train, and might have done so at his pleasure sooner if he had so chosen, or might have delayed doing so until later.

Unless some further reason exists to render it so, the negligence of permitting the coal train to remain there is not imputable as the cause cf the unfortunate event.

Tliis was a rural section of the county, and the fact that the colliding train was running at the rate of fifty-five or sixty miles an hour was not in itself negligence on the part of the defendant. The evidence was not sufficient to enable the jury to find that no signal was given, and to impute negligence for the want of it.

The two persons who were at the crossing for some little time before and at the time the train passed did not assume to know that none was given. One of them said that he heard nothing of the train, any whistle or bell, before he saw it crossing the highway, and added that he did not know whether the bell was rung or not; that he was on the south side, about thirty feet away from the track, attending to his horse, waiting for the removal of the coal train from the crossing. The other person, who was on the north side of the coal train and with Du Boise at the time the latter proceeded to pass over, testified that as the decedent, was climbing on the coal train he heard a whistle; that lie could not tell what whistle it was; “ it must have been the train that was coming east, but I 'ain’t certain of that; it might have been the other engine for all I know;” that he could not say that he had heard the train until it passed at the' crossing because there were other engines “ steaming ” about there.

No negligence of the defendant to which the injury is imputable as the proximate cause appears unless in permitting the coal train to stand at the crossing. Some evidence was furnished tending to prove freedom of Du Boise from contributory negligence, or to relieve him of such imputation which might otherwise exist. He was struck immediately after he passed from the coal train. lie evidently did not see the approaching train before he jumped to the ground, although the evidence tends to prove that before doing so he looked to the west and to the east. Unless his view was otherwise obstructed he could have seen it as the engine had a headlight and the track to the west was straight for a long distance, and when he was standing between the cars of the coal train his head was so far above them that the car west of him was no obstruction to his view. Why he then did not see the headlight of the train and avoid the accident is a question somewhat difficult to answer. It does' not appear that there'was anything on or connected with the coal train which in any manner interrupted his then seeing a train coming from the west. From an engine standing a few feet east of the crossing and facing west on a side track just south of that on which, the train passed was issuing some smoke or steam, or both, and it emitted a hissing noise, and another engine somewhere west of the crossing made a like noise. The space west of the crossing for some distance was lighted up by the headlight of the engine standing east of it. The night was rather quiet with a breeze from the north,- and the smoke from that engine passed to the south. The precise location of the engine west of the crossing does not appear. The track just south of the coal train of course was clear. As has been observed, the person before mentioned, who stood on. the north side with Du Boise when he started to go and went over the coal train, testified that he did not see or hear the train until it came about opposite to him, and that he attributed his failure to hear it to the noise made by the other engines; added that when Du Boise was climbing on to the coal train he heard some whistling, a great whistling about, and I was going to say look out; * * * I saw him look to the west and east, and I thought he knew what he was doing, and he jumped down and just at that instant the train went by.”

It is true that the speed of the train was such that it jiassed over considerable space in a brief time. But when he was standing upon the coal train it*does not appear what, if anything, there was to confuse or obstruct his view in the approach of the headlight of the train on the adjacent track. And it is difficult on the evidence to see how he was enabled to throw himself in front of the train in such proximity to it without the want of reasonable care on his part. While he was on the coal train there was nothing to disturb or deny to him deliberation or the exercise of his faculties. His opportunity then no less permitted than Ms purpose to cross the track required him to take careful observation and satisfy himself that it was safe to do so before proceeding to cross the track. If he had done this no apparent reason is disclosed by the evidence why the calamity would not have been avoided.

As the burden was upon the plaintiff to prove that the negligence of her intestate did not contribute to the disaster’, that fact, as well as the negligence of the defendant, must be made to appear by evidence direct or inferential.

For the reasons before given the charge of negligence of the defendant as the 'cause of death does not seem to have been supported by tlie evidence, nor does it fairly permit the inference that the decedent was free-from contributory negligence.

The motion for a new trial should be denied and judgment directed for the defendant.

Dwight, P. J., Lewis and Ward, JJ., concurred.

Motion for a new trial denied, and judgment .directed for the defendant on nonsuit.


author: Beadlbt, J.

text:
    Catherine E. Beeman and Betsey Swift, Respondents, v. Charles Beeman and Alice Beeman, Appellants, Impleaded with Others.

      Trust — must be explicit or be shown, beyond a reasonable doubt — an ineffectual gift is not necessarily a tn'ust — revocation by the destruction of the instrument.

    In order to constitute a trust there must be either an explicit declaration of trust or circumstances which show "beyond a reasonable doubt that there was an intention to create a trust.
    An intent to give, ineffectual as a gift, is not for that reason a trust.
    A father conveyed lands to certain of his children by separate deeds and in distinct parcels and took from each a mortgage, in which the father was named as mrrtgagee, conditioned to pay him an annual sum for life and after his death to pay a certain sum to his daughter-in-law, Catherine Beeman, and to a married daughter, Betsey Swift, in equal shares; no trust in favor of these persons was expressed in the mortgages and no declaration of trust attended their execution or that of the conveyances.

      Held, that no trust arose in favor of Beeman or of Swift, and that the payment directed to be made to them should be regarded merely as in the nature of a testamentary provision;
    That if the father purposely destroyed a mortgage, taken under the circum-' stances above stated,- it would amount to a revocation by him of the provision for payment to the donees after his death.
    Appeal by the defendants, Charles Beeman and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 15th day of February, 1894, upon the decision of the court rendered after a trial at the Erie Special Term.
    The facts as they must be here assumed are, that on March 20, 1880, Lyman Beeman made deeds of his lands in distinct parcels to his children, the defendants Charles Beeman, Henry S. Beeman and Eunice Eldred, respectively, and took from each of them 'a mortgage thereon* in which Lyman Beeman was named as mortgagee, containing the condition for the payment of the sum of sixty-two dollars and seventy-two cents to the party of the second part annually during his life, and for the payment of $533.35 hi one year after his death and one year’s interest to- Catherine Beeman, wife of his son William, and Betsey Swift, “ heirs of said Lyman Beeman, in equal shares ; ” that Lyman Beeman retained the mortgages in his possession and caused that of Henry S. Beeman to be recorded; neither of the others was recorded. ’ Lyman Beeman died February 26, 1891, and some time before his death he destroyed the mortgages so made by Charles Beeman and Eunice Eldred. The purpose, of the present .action was the establishment of the lien of the mortgage of the defendant Charles Beeman. Judgment to that effect was directed and entered.

      Frank Brundage, for the appellants.

      F. 0. Farrar, for the respondents.
   Beadlbt, J.

The view of the trial court was that, by the execution and delivery of the mortgage to Lyman Beeinan an irrevocable trust was created in behalf of the plaintiffs. It would have been so if a trust to that effect had been express!/ declared in the instrument. (Martin v. Funk, 75 N. Y. 134; Schluter v. Bowery Savings Bank, 117 id. 125; Beaver v. Beaver, 117 id. 421; 137 id. 59; Connecticut River Savings Bank v. Albee, 64 Vt. 571; 33 Am. St. Rep. 944.) And when the trust is not in words declared in the instrument, it is entitled to that character if such clearly appears to have been the intention of the donor. (Mabie v. Bailey, 95 N. Y. 206; McPherson v. Rollins, 107 id. 316.)

In the mortgage made by the defendant Charles Beeman to Lyman Beeman no trust was expressed, nor, so far as appears, did any declaration of trust attend the making of the conveyance and mortgage. And unless something further than the terms of 'the instruments themselves import, arises out of the transaction or otherwise appears to ■ so characterize it, a trust was not impressed upon it in favor of the plaintiffs. But as to them it would be treated as in tlie nature of a testamentary provision. (Townsend v. Rackham, 143 N. Y. 510.)

The condition in the mortgage in behalf of the plaintiffs was without consideration on their part and was the result of the voluntary direction of the mortgagee. In such case it was said in Beaver v. Beaver (117 N. Y. 428) that “ To constitute a trust there must be either an explicit declaration of trust or circumstances which show beyond reasonable doubt that a trust was intended to be created.” It was there held that no trust existed. And on the review of the second trial the same reason was given for a like result. On that trial the evidence warranted the finding made that the money in question was deposited by the father “ with the purpose and with the intent that such moneys should thereafter be and remain the property” of his son named. It was held that this new fact did not alter the legal situation nor warrant the inference of a trust. (137 N. Y. 65.) In none of the cases cited by counsel, other than McPherson v. Rollins (supra), was it held that a trust was created without the declaration to that effect by the donor at the time of the transaction out of which it was claimed to have arisen. And the main distinguishing feature of that case from Townsend v. Rackham (supra), as mentioned by the court in the latter case, is in the fact that the payment of the annuity to the beneficiary was not postponed until after the death of the donor, while in the Townsend case and the one at bar the plaintiff could take nothing during the life of the mortgagee. It is deemed unnecessary to further consider the significance of that distinction.

It may be inferred, as found by the trial court, that the conveyances to three of his children and their md’rtgages containing’ the condition for the ultimate payment of certain sums to the plaintiffs, were made and taken by Lyman Beeman for the purpose of making a division of his property amongst his children. lie took and held the mortgages. He could have effectually imposed in favor of the plaintiffs a trust upon such provision for payment to them.

The mortgages were made without their knowledge. When the fact was afterwards ascertained by them they undoubtedly expected to derive from it the benefit of such provision if they survived their father. And it may be assumed that when the father caused the instruments to be made he intended that such provision should be available to them after liis death. It does not, however, appear that he at any time made any expression to the effect that he held the mortgages in trust for them to any extent.

An intent to give, ineffectual as a gift, is not for that reason a trust. (Young v. Young, 80 N. Y. 422.)

The difficulty is that the intent of Mr. Beeman at the time the mortgage was taken to give the plaintiffs and that they should finally have the amount so provided by it, was not supplemented by any expression to the effect that they were taken and held by him in trust for the plaintiffs.

There is, therefore, wanting an explicit declaration of trust, and within the rule announced by the court in the Beaver case, there is a want of circumstances appearing, requisite to impress that character in favor of the plaintiffs upon the mortgages in the hands of the mortgagee.

The view of the court, as there expressed, is.that when the inquiry is dependent upon circumstances they must be such as to permit no reasonable degree of uncertainty of the purpose of the alleged donor to create a trust to render them effectual for its support as such. Since the Townsend case, that of McPherson v. Rollins cannot be relied upon to support the present one. And, although it is there distinguished by the court, it seems quite evident that upon the subject of a trust it is so limited by the doctrine of that and the other later cases hereinbefore' cited as to render it of little value as authority.

It is not seen that there is anything essentially bearing upon the question in the fact that four years after the conveyances, etc., were made, the five children of Mr. Beeman joined with him in the release of their contingent interest in the estate of their grandfather for the discharge of a mortgage to the latter and held by his personal representative upon the land so conveyed and covered by the three mortgages. This release by the plaintiffs may have been founded upon their expectation, which good faith on the part of the father should have induced him to observe, but this release, does not appear to have been given upon any agreement or declaration creating a trust in their behalf. It is unnecessary here to inquire what other remedy the plaintiffs may have arising out of that transaction if they finally fail to support their alleged claims upon the mortgage made by the defendant Charles Beeman.

The conclusion follows that no trust appears to have been created in behalf of the plaintiffs, and that if Lyman Beeman, during his life, purposely destroyed that mortgage, his act in doing so must be deemed a revocation by him of the provision contained in it for payment to them after his death.

The judgment should be reversed and a new trial granted, costs of this appeal to abide the final award of costs.

Dwigi-it, P. J., Lewis and 'Wakd,. JJ., concurred.

Judgment reversed and a new trial granted, costs of this appeal to abide the final award of costs.