author:
By the Court.—Sedgwick, Ch. J.
      Freedman, J. (concurring) : Truax, J. (dissenting):

text:
    CORNELIA GILMAN, Appellant v. PREBLE TUCKER, Impleaded, &c., Respondent.

      Judgment, cannot be impeached or controverted in a collateral action or proceeding for error or irregularity or want of jurisdiction.—Exceptions to this general rule.

    This action was brought in this court to vacate and set aside a judgment obtained against plaintiff in the supreme court by Augustus Prentice, one of the defendants, on the ground that the summons and complaint in the latter action had never been served upon her and, that she had never authorized any attorney to appear for her in said action ; and that the appearance for her by an attorney, as alleged in the record of the judgment, was unauthorized.

      Held, That the judgment in the supreme court was not void and was regular when entered ; and the appropriate relief for the alleged unauthorized appearance, is by an application to the court by which the judgment was given. That the plaintiff cannot be relieved of said judgment in this action as the power of relief rested only in the court rendering the judgment. That court alone can vacate or set it aside.
    Before Sed wick, Ch. J., Freedman and Truax, JJ.

      Decided December 5, 1889.
    Appeal from a judgment, entered upon the report of a referee, directing the dismissal of the complaint and the vacation of an injunction obtained by plaintiff against the defendant Tucker, and awarding Tucker his costs, &c.

      Charles P. Crosby, attorney, and Henry E. Knox, of counsel, for appellant, argued :—
    I. The Prentice judgment was a nullity as against the plaintiff, for the reason that the court never acquired jurisdiction of her, either by the service of process upon her or by authorized appearance. The complaint was never served upon her; she never appeared in the action by any person as her attorney ; she never authorized any person or attorney to appear for her ; she never authorized any person or persons to employ or authorize an attorney on her behalf to appear in said action. The suit was commenced without her knowledge ; she never had any knowledge of any proceedings therein or that any attorney had claimed to appear for her therein, and she had no knowledge of the entry of the judgment until on or about the 28th day of June, 1886. Assuming the facts to be true, as stated as to the plaintiff Cornelia Gilman, the Prentice judgment and all the subsequent proceedings based thereon, are utterly void. I submit that so far as this question is concerned, it is a matter of no consequence whether Mrs. Gilman' did or did not have a defence to the claim upon which Prentice brought the suit. This is a question to be settled when she is properly brought before the court, and it cannot be possible that any person can be deprived of their property or estate by legal proceedings as to which the party never had any notice, either actual or constructive. Burton v. Sherman, 20 Weekly Digest, 419. This case was affirmed by the court of appeals, the appeal therein being dismissed. 98 N. Y. 629 ; Ferguson v. Crawford, 70 Ib. 253 ; White v. Coulter, 59 Ib. 629.
    II. In the summary proceedings the Prentice judgment could not be attacked collaterally and the defendant could not defend therein by showing that the judgment was void. Getting v. Mohr, 34 Hun, 340. The remedy was by injunction. Broadwell v. Halcomb, 65 How. 502 ; Crawford v. Kastner, 26 Hun, 440 ; Rapp v. Williams, 1 Ib. 716 ; High on Injunctions, (2d.), Vol, 1, §§ 221, 222, 228, 229, 231 and 261 ; 1 Civil Pro. R., 425, note at foot of page and succeeding pages ; Code of Civil Procedure, §§ 2265, 616 and 617 ; McAdams, Landlord and Tenant, 2d. Ed., p. 670 ; Mclntire v. Hernandez, 7 Abb. N. C. 214 ; S. C. 38 How., 121 ; Reed v. St. John, 2 Daly, 213, 215 ; Jessurau v. Mackie, 24 Hun, 626; Chadwick, v. Sprague, 1 Civil Pro., R., 422. Where the tenant is without an adequate remedy at law, it is the province and duty of the court to exercise its equitable jurisdiction by injunction. Yalentine v. Signett, 2 Abb. 121. For an evil under color of legal proceeding which has no other remedy an injunction order must be the proper one. Griffiths v. Brown, 3 Rob. 627; Lansing v. Board of Supervisors, 24 Hun, 75. Where the tenant from the peculiar circumstances of the case, is precluded from setting up his defence before the justice, an injunction will be granted. Baker v, Hammersley, 16 How. 461 ;.1 Civil Pro., R. (note), 429. As the Prentice judgment had been assigned to the defendant, Preble Tucker, who was not a party to the original Prentice suit, the plaintiff had no remedy open to her in that suit which would reach the defendant, Preble Tucker. Her only* remedy was in equity and by injunction in such an action as this to restrain the defendant, Preble Tucker, as well as tho plaintiff in the original suit. We submit that no injury can result to the defendant Preble Tucker, for continuing this injunction until the trial of this action. On the contrary, if the injunction should be vacated the summary proceedings in the District Court would be at once reinstated and an attempt made by the defendant Tucker to get possession of the .premises, basing his action upon the Prentice judgment, which, as is hereinbefore shown, was not taken by service of process upon her or by her appearance, and as to which she had no knowledge until about the 28th of June, 1886.
    ITT. A court of equity has power to grant relief against a judgment procured by fraud. See decision of the Court of Appeals, rendered in 1854_ by Justice W. L. Allen, who says, at page 164, (Dobson v. Pearce, 12 N. Y. 157.): “ The jurisdiction of the court in which a judgment has been recovered is, however, always open to inquiry, and if it has exceeded its jurisdiction, or has not acquired jurisdiction of the parties by the due service of process, as by a voluntary appearance, the proceedings are coram nonjudice, and the judgment void.” Burton v. Sherman, 20 Weekly Dig. 419, holds that there is no distinction between a forged notice of appearance and a notice really given by an attorney not authorized to give it, and that jurisdiction is not acquired in either case. The case was an appeal from an order denying a motion to vacate a judgment of foreclosure and sale as to Antoinette W. Sherman, on the ground that the court never acquired jurisdiction. The court held that no jurisdiction was ever acquired over the defendant Sherman, and that the responsibility of the attorney does not help to make a case of jurisdiction over a person if the attorney has no power to confer it. This decision was appealed from, and the appeal was dismissed in the Court of Appeals on January 27th, 1885.
    IV. The following authorities support the position of the plaintiff herein : A judgment rendered by a court which had neither jurisdiction of the person nor of the subject matter of the action is absolutely void, and may be treated as a nullity. 4 Wait's Pr. 631; Harris v. Hardeman, 14 How. (U. S.), 334; Borden v. Fitch, 15 John. 121; Phelps v. Baker, 41 How. 237 ; Hoffman v. Hoffman, 46 N. Y. 30 ; Baldwin v. Kimball, 16 Abb. 353 ; Ferguson v. Crawford, 70 N. Y. 253. This last decision was made in the year 1877 by the Court of Appeals of this state, per Rapallo, Justice, who refers with approval to the case of Bolton v. Jacks, 6 Rob. 198, in which Jones, Justice, uses the following language : “ That it is now conceded, at least in this state, that want of jurisdiction will render void the judgment of any court, whether it be of superior or inferior, of general or local jurisdiction, or of record or not, and that the bare recital of jurisdictional facts in the record of a judgment of any court, whether superior or inferior, of general or limited jurisdiction, is not conclusive, but only prima facie evidence of the truth of the fact recited, and the party against whom a judgment is offered is not by the bare fact of such recitals estopped from showing by affirmative proof that they were untrue, and thus rendering the judgment void for want of jurisdiction.” Rapallo, Justice, referring to this decision of Jones, Justice, in Bolton v. Jacks, uses the following language : “ It thus appears that the current of judicial opinion in this state is very strong and uniform in favor of the proposition stated by Jones, Justice, in 6 Rob., 198, and, if adopted here, is decisive of the present case. It has not, as yet, however, been directly adjudicated ; and, if sustained, it must rest upon the local law of this state, as it finds no support in adjudications elsewhere. There are reasons, however, founded upon our system of practice, which would warrant us in so holding.” In another part of his opinion, he uses the following language: “ That when the judgment has been obtained by fraud, or without bringing the defendant into court, and the want of jurisdiction does not appear upon the face of the record, relief may be obtained in equity.” In deciding this case, the cases of Brown v. Nichols, 42 N. Y. 26, and Denton v. Noyes, 6 John. 296, were distinguished. White v. Coulter, 59 N. Y. 629, holds that a party against whom a judgment by default regular on its face has been taken, but who was not served with the summons, has a legal right to have the judgment vacated. The decision in Ormsby v. Jacques, 12 Hun, 443, was made in the year 1877, by the general term, of the second department, per Dykman, Justice. The action was brought to set aside a judgment entered in an action t'o foreclose a mortgage in which the present plaintiffs were defendants. From the judgment roll it appeared that the plaintiffs had appeared therein by an attorney. The plaintiffs claimed that he appeared fraudulently and corruptly and without any authority from them, ' and that they did not know that he had done so until after a sale had been had under the judgment; that neither a summons nor any other paper in the action had been served on them. Dykman. Justice, in deciding the case, cites with approval Ferguson v. Crawford, 70 N. Y. 253, and states that the decision of the court of appeals in Ferguson v. Crawford is placed on grounds which are inconsistent with the case of Brown v. Nichols. He then cites with approval the decision of the Court of Appeals in Ferguson v. Crawford, which refers with approval to the decision of the court in Bolton v. Jacks. At page 445 the court uses the following language : “Whether the appearance is forged or unauthorized, che court obtains no jurisdiction of the person, and in all such cases relief may be obtained in equity according to the decision of the Court of Appeals in the case of Ferguson.” This case is precisely like the case at bar. It was an equitable action brought to set aside a judgment on the ground that the appearance was unauthorized, and is brought precisely as this case is brought.

      Kelly, Tucker & Henderson, attorneys, and Charles J, Hardy, of counsel, for respondent, argued:—
    I. This court has no jurisdiction to entertain the cause of action set forth in the complaint, (a) This is an action brought in the superior court to set aside a judgment of the supreme court. No fraud or collusion in procuring the judgment sought to be set aside is alleged, and no reason is given why the action is not brought in the court wherein the judgment was obtained. The jurisdiction of one court to vacate in an independent action the judgment of another court, is in its nature so extraordinary as to demand close adherence to principles and precedents in exercising it. Smith v. Nelson, 62 N. Y. 286 ; Helburn v. Rosenson, 2 N. Y. State Rep. 618 (Gen’l Term), 1st Dep't. The “principles and precedents ” upon which the courts have acted in vacating judgments of other courts of competent jurisdictions are, that they will undertake to set aside such judgments only where it can be shown that there was fraud or collusion in their procurement, and that, upon failure to show such fraud or collusion, they will refuse to interfere. “ The power of the supreme court to annul a judgment for fraud in procuring it is undoubted, although the jurisdiction is carefully limited and guarded, and will only be exercised in clear cases.” Andrews, J., in Smith v. Nelson (supra). (b.) Plaintiff’s proper proceeding was by an application in the original action in the supreme court, to have the judgment recovered against her therein by Prentice, set aside for want of service of process upon her. No action in equity will lie to restrain the enforcement of a judgment rendered by a court of record, on the ground that the defendant in the action in which the judgment was obtained was not served with process. The plaintiff has an adequate remedy at law by motion in the original action. Fullan v. Hooper, 18 How. 75. A judgment by a court of competent jurisdiction cannot be impeached collaterally for error or irregularity, but is conclusive until set aside or reversed by the same court. Dobson v. Pearce, 12 N. Y. 156. If a suit has not been regularly commenced defendant must relieve himself from such irregularity by motion. Nones v. Ins. Co., 8 Barb. 541. The defendant’s remedy by motion to vacate a judgment without authority, seems to be proper. It has been held in various cases that where a judgment is void, or voidable, the proper way is to move to set it aside or vacate it. Grant v. Vandercook, 57 Barb. 175. The remedy of the party is by application for re-trial or other relief in the action wherein the judgment was rendered. Krekler v. Ritter, 62 N. Y. 372. This has also been held to be the proper practice in an action similar to the present in Burton v. Sherwood, 20 N. Y. ,W. Dig. 419, and the same is held inferentially in Hunter v. Lester, 18 How. 347. Also held direct in Runburg v. Johnson, 11 C. P. Repts.,
      283 (City Court of Brooklyn, General Term), a ease on all fours with this present case, where it is held explicitly that the remedy is by a direct motion for the interposition of the court rendering the judgment. The question is settled by the decision in Brown v. Nichols, 42 N. Y. 26, where the court holds that a judgment against a defendant who was not served with process, and has no knowledge of the suit, but for whom an attorney appeared without authority, cannot be attacked for want of jurisdiction in any collateral proceeding. And holds, also, that the defendant may seek relief from such unauthorized appearance by direct application to the court, Earl, C. J., saying : “ I think a party should always seek relief to an unauthorized appearance in the suit in which it has been put in.” And it is submitted that it is so well-settled a rule of law as to require no citation of cases in its support, that a judgment of a court of record having jurisdiction cannot be attacked or impeached in any collateral proceeding. If there really was the error plaintiff complains of, and the facts are as she says they are, why does she not seek to have it remedied by a motion in the supreme court in tho action wherein the judgment was rendered? Section 724 of the Code gives the supreme court the power to correct such error. What right has the plaintiff to ask the superior court to set aside a judgment in an action of which the supreme court had jurisdiction, an action in which all the proceedings were had in the supreme court, and in which, confessedly, there was no fraud practiced upon her by the person recovering the judgment ? The judgment of a court, procured without fraud or collusion, stands until it is vacated either by a court to which an appeal has been taken from it, or by the court which rendered it when that court had jurisdiction to render it. As the learned referee herein says, in his opinion dismissing the complaint: “The court has an inherent power over its own records to correct them in furtherance of justice.”
    II. Plaintiff shows no cause of action. There is hardly any question that has received such careful consideration from the courts of this state as that involved in the present controversy, viz. : What is the effect of a judgment rendered in an action in which there has been an appearance by an attorney for a party not served with process, and who has not authorized an appearance to be entered for him ; and how far the courts will protect the rights of innocent third parties acquired from a judgment so entered, and without notice of any defect therein. And so frequent have been the adjudications on this subject that the law cannot be regarded as otherwise than established in favor of the innocent third party as against the one immediately harmed by reason of the unauthorized appearance. The rule of the English cases on this point is this : “ Where a suit has been regularly commenced, and an attorney appears for defendant, or agrees to appear, without warrant, the plaintiff may proceed to take judgment, and the court will support such judgment, whether it be for a bona fide debt due the plaintiff or not ;r and whether the defendant has a defence or not; and the only remedy the defendant has is an action against the attorney.” And this is substantially the rule of the New York courts. The leading case on this case is Denton v. Noyes, 6 Johns, 296, decided by Chancellor Kent in 1810. In that case an attorney of the court appeared for a defendant against whom a writ had been issued, but not served, and, without authority from defendant, confessed a judgment, which was entered up. And it was held that this judgment was regular ; that an appearance by an attorney of the court, without warrant, is good as to the court ; and the party has an action against the attorney who so wrongfully appeared for him. Aliter if there be any fraud or collusion between the plaintiff’s attorney and the defendant’s. The-broad principles of equity, justice and public policy, upon which this decision rests, have been so well recognized that this case of Denton v. Noyes, though often criticised, has never been overruled, and must be regarded as the law on this subject to-day in this state. The adjudications on this subject, in accor-' dance with the rule as stated in Denton v. Noyes, are numerous. (The counsel cites and reviews many cases). This doctrine as laid down in Denton v. Noyes, is again reasserted and re-affirmed in Ferguson v. Crawford, 70 N. Y. 253. This case is one turning upon the question of a forged notice of appearance, and the court carefully distinguishes it from Denton v. Noyes. The case turns on a totally different point than that on which Denton v. Noyes turned, and this difference between a bona fide and a forged notice of appearance was noted in the old English cases, and commented upon by Van Ness, J., in his dissenting opinion in Denton v. Noyes. In Ferguson v. Crawford, Rapallo, J., says : “On the trial of the present action, the defendants, in support of this defence, put in evidence the judgment roll, in the last-mentioned action, which roll contained a notice of appearance for the present plaintiff, and a consent that judgment be entered, purporting to be signed by Mills (the attorney). The judgment was entered by default, for want of an answer, and on this consent, and recited that the summons had been served on the defendants therein, and that none of them had appeared except the present plaintiff by Mills, his attorney, and some others, etc. Thereupon plaintiff offered to prove : (1) That the signature to the notice of appearance was a forgery. (2) That Mills was never authorized to appear for the plaintiff. (3) That he never did appear. The defendants rely wholly upon the effect of the recital in the judgment, and the notice of appearance contained in the judgment roll, and claim that in a collateral action these import verity, and cannot be contradicted by extrinsic evidence. None of the principles upon which the decision in Denton v. Noyes and Brown v. Nichols rest can be applied to such a case as this.”
   By the Court.—Sedgwick, Ch. J.

The case of Denton v. Noyes, 6 Johns. 296, has been approved by the highest court in this state, in particular by Brown v. Nichols, 42 N. Y. 26. Against such an approval the dissenting opinion in the latter case cited Robson v. Eaton, 1 Term. 62. This last case was an instance of a forged warrant of attorney; and Ferguson v. Crawford, 70 N. Y. 253, held that in such a case, no process having been served, the judgment was void.

In the present case, following Denton v. Noyes, the judgment was not void and was regular when entered; and the appropriate relief for the unauthorized appearance, is by an application to the court by which judgment was given, and the relief given by the court in its discretion, when the attorney appearing is insolvent, would be to allow the defendant to come in and plead. My opinion is that,in this action, the plaintiff could not be relieved of the judgment, as it was in the power alone of the court giving judgment to set aside the judgment. But if this proposition is not correct, the relief that should be given in the action, should be no greater than could be obtained in the court that gave the judgment,—that is, the defendant in the judgment, to entitle herself to relief, should show that she has a defence on the merits.

In my opinion there should be an affirmance of the judgment appealed from, with costs.

Freedman, J. (concurring) :

I am of the opinion that the judgment should be affirmed with costs, for the reasons assigned by the learned chief judge, and the further reason that the complaint in this action on its face shows no equitable cause of action.

Truax, J. (dissenting):

The plaintiff was the owner of certain premises in the city of New York. On the 7th day of August, 1884, a judgment was entered in the office of the clerk of the city and county of New York in an action in the supreme court of the state of New York, wherein one of the defendants herein, Augustus Prentice, was plaintiff, and the above named Cornelia Oilman, and one Andrew E. Smyth were defendants, for the sum of $1,800.78. The plaintiff herein alleges, that neither the summons nor complaint in said action was ever served upon her ; that she never authorized any attorney to appear for her in said action, and never authorized any person nor persons to employ or authorize any attorney to appear on her behalf. That she never had any knowledge of any proceedings in said action, or that any attorney had claimed to appear for her, until on or about the 28th day of June, 1886 ; that an attorney, without her knowledge and consent, did appear in said action ; that judgment was entered therein as on a default to answer ; that execution was issued on this judgment in favor of the said Prentice; and that, on the 10th day of March, 1885, the premises hereinbefore mentioned were sold under said execution, and at such sale Prentice became the purchaser.

The plaintiff further alleges, that on the first day of March, 1886, one Mary A. P. Tucker, obtained a judgment against her for the sum of upwards of $10,000. That the above-named defendant Preble Tucker took an assignment of the said judgment, and redeemed the premises hereinbefore mentioned from said Prentice, and paid said Prentice the amount of the first-mentioned judgment, and received a deed of said premises from the sheriff. That thereafter said Preble Tucker instituted summary proceedings in the district court for the sixth judicial district of New York, and that thereupon the plaintiff brought this action to restrain the enforcement of such summary proceedings, and to set aside the said first-mentioned judgment and the execution issued thereon, and all the proceedings thereunder.

This action was referred, and on the trial the complaint was dismissed by the referee.

I think that the referee erred in dismissing the complaint on the grounds stated by him, namely : that the plaintiff had a perfect remedy by motion in the original action to set aside the judgment in that action.”

It may be that the plaintiff could have moved in the action in which the judgment was obtained to set aside the judgment; but she also has the right to bring an action to set aside the judgment.

That a remedy at law exists is not a valid objection to an action in equity if the equitable remedy is concurrent with the remedy at law. Crary v. Smith, 2 N. Y. 60.

Equitable actions of the nature of this are not unknown to the courts of this state.

In McIntyre v. Sanford, 9 Daly, 21, affirmed in 89 N. Y. 634, it was held, that an action would lie to set aside a sheriff’s sale of real estate under an execution, and it was so held although the plaintiff in that action had his remedy by motion in the action in which judgment had been obtained against him.

The principal and, in my opinion, the only important question in this case, is, can the plaintiff in this action show that the appearance by the attorney in the other action was unauthorized and void ?

The printed book shows that the plaintiff herein never was served with the summons in the action in the supreme court ; never authorized any attorney to appear for her in that action; had no knowledge that the action had been begun, and knew nothing of the judgment that was obtained therein, nor of the sale under execution, until possession of her real estate was demanded,—and this was after the time to redeem had expired;. that the attorney who so appeared for her is not now a resident of this state, and that an attachment, was issued against her property on the ground that she was not a resident of the state of New York.

It was held by this court in Bolton v. Jacks, 29 Super. Ct. (6 Robt.) 166, that want of jurisdiction renders void the judgment of any court, whether of superior or inferior, general or limited, or local jurisdiction, and the recital of jurisdictional facts in the record of such judgment is not conclusive (unless made so by statute), but only prima facie evidence of the existence or occurrence of such facts, and the party against whom the record of such judgment is offered in evidence is not estopped by such recitals from showing affirmatively by proof de hors the record, that they are untrue, and thus avoiding the judgment.

This case was cited with approval by Judge Rapallo, in Ferguson v. Crawford, 70 N. Y. 266-7. Judge Rapadlo, after referring to many cases on this subject, in this state and in other states, says that it thus appears that the current of judicial opinion in this state is very strong and uniform in favor of the proposition stated by Jones, J., in Bolton v. Jacks. It has not as yet, however, been directly adjudicated, and, if sustained, it must rest upon the local law of this state as it finds no support in the adjudications elsewhere. There are reasons, however, founded upon our system of practice, which would warrant us in so holding, the powers of a court of equity-being vested in our. courts of law, and equitable defences being allowable ; there is no reason why to an action upon a judgment the defendant should not be permitted to set up by way of defence any matter which would be ground of relief in equity against the judgment ; and, it is conceded in those states where the record is held conclusive, that when judgment has been obtained by fraud, or without bringing the defendant into court, and the want of jurisdiction does not appear upon the face of the record, relief may be obtained in equity. The techcnical difficulty arising from the conclusiveness of the record is thus obviated.

In Howard v. Smith, 33 Super. Ct. 124, this court held, that “ whenever it appears by the record of a judgment of a sister state that the defendant appeared by attorney, it is prima facie evidence of the fact; but in such case the defendant may rebut this presumption by proof that the attorney, named in the record was not his attorney in fact, and never had any authority to appear for him in the action.” In other words, notwithstanding the recital of the record, he may disprove the authority of the attorney to appear.

And the court of appeals, in Ferguson v Crawford, (supra) said, in effect, that there is no distinction in this respect between domestic and foreign judgments, and for this reason this case of Howard v. Smith is an authority for reversing this judgment.

There is no distinction between a forged notice of appearance and a notice really given by an attorney not authorized to give it, and jurisdiction is not acquired in either case. Burton v. Sherman, 20 N. Y. Weekly Digest, 419. On the trial of the action the court may and will determine on what terms relief will be granted to the plaintiff.

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


source: Caselaw Access Project

author: By the Court.—Truax J.

license: Public Domain

text:
    WILLIAM B. TREMAINE, Appellant, v. WILLIAM Y. MORTIMER et al., Individually and as Executors, &c., Respondents.

      General assignment, and relations of assignee to property of assignor and to judgment creditors, as also to mortgagee of personal property of assignor— Chattel mortgage—Judgment—Execution—Levy and sale.

    While an assignment for the benefit of creditors remains in force, the right to assail prior encumbrances rests in the assignee, and cannot be exercised by a judgment creditor.
    Where a chattel has been replevined and is in the possession of the sheriff, it may not be levied upon by virtue of an execution against the defendant the replevin action.
    Before Freedman and Truax, JJ.

      Decided December 5, 1889.
    Appeal from a judgment in favor of the defendants dismissing the complaint upon the merits, with costs', and also from an order vacating and setting aside the verdict of a jury in favor of the plaintiff, and directing judgment dismissing the complaint. The facts appear in the opinion of the court.

      Herbert T. Ketcham, attorney and of counsel, for appellant.

      John W. Pirsson, attorney, and Emil S. Arnold of counsel, for respondents.
   By the Court.—Truax J.

One Sewell made two mortgages on November 2, 1885, upon certain personal property then belonging to him, and then in his possession. One of these mortgages was made to one Chase, and the other was made to the defendants herein. Both were filed in the register’s office on the same day. The Chase, mortgage was refiled April 8, 1887, but the mortgage to the defendants has never been refiled. Sewell having made default, Chase took possession of the property mentioned in the mortgage, under his mortgage, on December 12, 1887, and on the following day said Sewell made a valid general assignment for the benefit of his creditors. Thereafter certain judgments were obtained against said Sewell, executions were issued on the said judgments to the sheriff of the city and county of New York, and on January 9, 1889, the sheriff sold to the plaintiff, by virtue of said executions, all the right, title and interest of the said Sewell in and to the said property. The plaintiff claims the right to the property by virtue of said sale to him, as aforesaid, and has brought his action against the defendants to recover damages for the conversion by the defendants of the said property, while the defendants claim under the Chase mortgage as well as under the mortgage to them.

We think that the case of Smith v. Payne, 56 Supre. Court. 451, is decisive of this case. It was held by this court in that case, that while an assignment for the benefit of creditors remains in force, the right to assail prior encumbrances is in the assignee, and is not in the judgment creditor. It is true that the sheriff sold all Sewell’s right, title and interest in and to the property of the plaintiff; but at the time of this sale Sewell had no right, title or interest in or to the property because he had parted with it by virtue of his general assignment ; and as that assignment remains in force, the assignee, and not the creditors of Sewell, would be entitled to the property. The defendants also claim the right to hold the property by reason of certain proceedings taken by them under the mortgage to them. It was shown on the trial that, before any levy had been made, under the executions that were issued on the judgments against Sewell, the defendants brought an action of replevin against Chase, Sewell and Sewell’s assignee. Such proceedings were had in said action' that the property mentioned in the complaint was delivered by the sheriff to the defendants. While the property was in the possession of the sheriff, under the warrant of replevin, a levy under the executions, which had been issued upon the judgments above referred to, was made. The plaintiff claims under the sale that was made by virtue of this levy. The case cannot be distinguished in-any material respect from the case of the First National Bank of Oswego v. Dunn, 97 N. Y. 149, in which it was held that where a chattel has been replevined, it may not, while in the possession of the sheriff, be levied upon by virtue of an execution against the defendant in the replevin action. Of course, if the property cannot be levied upon, no valid sale can be made under such a pretended levy, and the plaintiff did not acquire a valid title by his alleged purchase under such sale.

The judgment and order are affirmed with costs.

Freedman, J., concurred.


author: By the Count.—Sedgwick, Ch. J.

text:
    GEORGE T. NEWHALL, Appellant, v. WILLIAM H. APPLETON, et al., Respondents.

      Terms used in contracts; evidence as to trade meaning admissible—JRebuttal by witnesses whose knowledge of the trade commenced subsequent to the contract, when admissible—Conditions precedent, relevant to the issue.

    Evidence that the word “orders ” in a contract whereby one is employed as a canvasser to obtain orders for serial publications at a compensation of a specified sum “for each and every order obtained” hada certain meaning in the trade of book canvassing, is admissible.
    The defendant in an action brought by the canvasser under such a contract to recover the specified sums for orders obtained by him, having called witnesses who testified that the words according to the usage and custom of the trade meant each order that proved good, by which was meant, that the orders should be bona fide signatures unconditionally for the complete work, and should prove good by the delivery of from one-quarter to one-third of the whole number of parts to, and the payment therefor by the subscribers, that such was the custom now ; and the custom in 1877 (when that contract was made) was the same as it is now. The plaintiff thereafter called witnesses who had been familiar with the business since 1878, or 1879, but not before, and asked, “ Do you know the customs and trade meanings in that business now ? ” The question was objected to and the objection was sustained. JBJeld error, for which the judgment should be reversed.
    Under the custom and trade meaning as testified to on behalf of defendants the Court held that proper deliveries to the subscribers was a condition precedent to payment by them, and therefore it was relevant to the issue to investigate whether or not the defendants had made the proper deliveries,
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 6, 1890.
    Appeal by plaintiff from a judgment dismissing the complaint, entered upon the report of a referee.

      William W Badger, attorney and of counsel, for appellant, on the questions considered in the opinion, argued:—
    I. The last general term opinion in this case (54 Superior Ct. 557, Mem. printed below), is still the law of the case. Evidence was excluded as immaterial which tended to show that ten parts had been delivered in some places, and had failed of delivery in many other places, solely by the fault or neglect of defendants in not tendering the deliveries in the time required by the contracts, one to four each month after the canvass.
    II, The Court of Appeals in this case, in March, 1889, in its second division, 114 N. Y., 140, allowed evidence of custom so far only as it tended to show any technical or trade meaning of the words used in the contract. Defendants called their employees and three other witnesses on that issue, all of whom swore undisputed that the customs and trade meanings were the same now as they were in November, 1877, when this contract was made, and then proved the present customs as they claimed them. The plaintiff then produced six witnesses who knew the present customs well for two to ten years past, and their evidence was excluded, on the ground that their personal knowledge did not extend back twelve years to 1877.
    III. The guarantee of $60 a week is fully proved by three witnesses, entirely undisputed except by Davis.

      Campbell & Paige, attorneys, and Edward Winslow Paige, of counsel for respondents, on the questions considered in the opinion, argued :—
    None of the exceptions are well taken. (1). The evidence of the meaning of the words “ so much an order ” was properly admitted. Newhall v. Appleton, 17 J. and Sp., 23, 241 ; S. C., 114 N. Y. 140, 143. (2). Evidence as to the meaning of those words by witnesses who did not know their meaning at that time, but did know it since that time, e.g., now, was not admissible. We have a presumption of the continuance of fact, but none of the pre-existence of fact. Swords v. Edgar, 44 How, 139, 147. (3). The evidence as to the deliveries was properly rejected. It was wholly immaterial to the plaintiff’s canse of action, which was upon a contract, by which he was entitled to payment as soon as the paper subscriptions were delivered. The deliveries had nothing whatever to do with the matter. Having failed in the proof of his cause of action, he cannot recover upon a cause of action alleged in the answer. Romeyn v. Sickles, 108 N. Y. 650, 652 ; Neudecker v. Kohlberg, 81 Ib. 296, 301 ; Haughran v. Hebbard, 70 Ib. 54, 59,60.
   By the Count.—Sedgwick, Ch. J.

The action was brought upon a contract, as alleged in the complaint, by which defendants employed the plaintiff as a canvasser to obtain subscriptions or orders for serial publications and agreed to pay a specified sum of money “ for each and every order he obtained.” The action is the same that is reported in 114 N. Y. 140 ; 102 Ib. 133; 49 N. Y. Super. 238.

On the present trial, the defendants properly were allowed to prove that the term “ order” had a certain meaning in the trade of book canvassing. The defendants’ agent who made the contract with plaintiff had testified that the promise was to pay for “ good orders.” The testimony to prove the meaning, was of the following kind: Rowe, a witness for defendants, was asked by their counsel “ Do you know whether the words, so much an order, in that business have a settled meaning ? The answer was, Yes. Q. Please state what that meaning is ? What does the expression $4 an order mean ? A. It means $4 for each order that proves good. Q. And what do you mean by that ? A. I mean that the order shall be, etc. Q. And is that custom uniform in the business. A. I have never known an exception to it. Q. For how many years. A. Well, for at least fifteen years. Q. And the custom that you speak of was the custom in 1877, as it is now? A. Yes. Q. And it always has been uniform since your connection with the business ? A. Yes.” Other testimony of a like kind was elicited by the defendants. The present meaning was shown, and that the meaning was the same in 1877 and 1878.

To meet this kind of testimony the plaintiff proved by a witness, that from 1878 or 1879 “ he had been familiar all the time with the customs and trade meanings of the business.” He, however, did not know what the customs and trade meanings were in November, 1877, when the contract was made. Then the plaintiff asked, From what date do you know them ? This was excluded as immaterial and for a like reason was excluded the further question, Do you know the customs and trade meanings in that business now ?

If the question had been answered, the referee might have been persuaded that the meaning which defendants claimed existed in 1877, in November, had no existence from a time shortly after that date to the present time. Although the point of the issue as to this subject was the meaning, at the time of the contract, yet whatever was circumstantial evidence as to that meaning was admissible, especially in a case of contradictory testimony. If the meaning was in November, 1877, as described by defendants’ witnesses, with the prevalence, generally, fitness to the kind of trade, and duration they attributed to it, then a referee might find it must have continued down to at least 1879. If, then, it were shown that there was no such meaning in 1879, there might be validly a doubt of whether there was that meaning in November, 1877. It would be the case of determining , the existence of a cause, by proof that certain things were its effect. It would be relevant to show that the effect had not occurred.

In my opinion the questions excluded should have been admitted, and that for this reason there should be a new trial.

It was relevant to the issue to investigate whether or not the defendants had made the proper deliveries of the serials to the subscribers, as this was a condition precedent of the subscribers paying for ten numbers,, or whatever number, when paid for, was the test of the subscription being the kind of order intended by the contract.

I do not find from anything upon record, that it is correct to attribute to the referee the impropriety of intention and action charged by the learned coun-. sel for the appellant. I may add that .the only subject before the court, is the character of his ruling. A slur is easily made upon an absent person and a court, especially, should not indulge in one. As I understand the testimony of the plaintiff, it sustains the finding of the referee, that the parties did not make the guarantee that is averred in the complaint.

The judgment should be reversed, the order of reference vacated, and a new trial had, with costs to abide the event.

Feeedman and Ingeaham, JJ., concurred.


author: By the Court.—Sedgwick, Ch. J.

text:
    ELIZABETH C. BARTLETT Respondent, v. THE NEW YORK AND SOUTH BROOKLYN FERRY AND STEAM TRANSPORTATION COMPANY, Appellant.

      Ferry boat, injury caused by bumping against landing-place, thereby throwing plaintiff down—Contributory negligence, matters not constituting— Negligence, presumption of, when not rebutted—Passenger and carrier, relationship of, establishment, continuation and termination of, effect of, effect of non-payment of fare.

    Plaintiff took passage at New York city on one of defendant’s ferry boats plying between that city and the city of Brooklyn. There is conflicting evidence as to whether when the boat reached Brooklyn, and while lying there, she left the boat and returned to it, or remained on board. She was, however, on board on the return trip. There was also evidence bearing on the payment or tender of the fare for the return trip. On the return trip she was in the upper saloon of the boat, and as it was running into the ferry slip, she prepared to descend to the cabin below for the purpose of disembarking. She had arrived to within about three feet of the head of the stairway leading to the lower deck or was descending the stairway without having hold of the stair rail, when the boat struck against the bridge so forcibly that it rebounded eight or ten feet, throwing her from her footing down to the bottom of the stairs, causing the injuries complained of. The striking of the boat in this manner was unusual. The plaintiff’s eyesight was impaired, and she was suffering from other physical weaknesses.
    On the question of contributory negligence, Held. (1) That the plaintiff standing at the head of the stairs or descending them at the time when the boat touched the wharf was not, as a matter of law, contributory negligence, there being nothing in the case either by way of evidence, legal presumption or judicial cognizance to indicate to her that an ordinary bump would so far disturb her footing as to call on her, in ordinary prudence, to foresee that either of the positions was dangerous. (2) That plaintiff’s impaired sight or other physical weakness did not, as matter of law, make such standing or descending contributory negligence ; and did not, as matter of law, make the non-exercise by h$r of a higher degree of care for her own safety contributory negligence. (3) That descending the stairs without talcing hold of the stair rail at the time when the boat touched the dock did not, as matter of law, constitute contributory negligence, it not appearing, as matter of law, that to so descend would be dangerous under ordinary circumstances, and that it follows that a refusal to charge as matters of law, that the defendant was not liable if the fact that the plaintiff did not take hold of the rail contributed to her injuries, was correct. (4) That all of such matters taken together did not, as matter of law. constitute con-tributary negligence. (5) The charge of the court, that if plaintiff was three feet from the gangway she was not, as matter of law, negligent, and that the jury must determine whether it was or was not negligence for the plaintiff to go down stairs under the circumstances of the case, was correct.
    On the question of defendant’s negligence, Held. (l)There being evidence that • the rebound from the bridge was unusual, an explanation was needed from defendant to meet the presumption of negligence thus created. (2) To overcome the presumption of negligence arising from an unusual occurrence taking place in the navigation of a boat, it is not sufficient to simply show that the pilot believed that the course pursued by him was necessary and acted on that, and that he and the engineer (the fault, if any, being attributed to them, or one of them,) were officers of skill, knowledge and experience, and that they used their best skill and judgment and that the xercise of such skill and judgment would not certainly insure the landing of the boat without incurring the result of an unusual shock or jar, and a refusal to charge requests based on the sufficiency of such matters, is not error.
    On the question of relation of carrier and passenger, Held, (1) It is immaterial whether one boarding a passenger boat, (there being no binding rule requiring fare to be paid before the boat started) for the purpose of being carried on its trip actually pays the fare or not; if he goes on the boat meaning to pay his fare and to be a passenger, the relation of carrier and passenger is formed and is not ended at least so long as he intends to pay at any point of the trip. (2) Conceding that the carrier may end the relation by reason of the non-payment of fare, yet he can only do so by demanding that the party either pay the fare or leave the boat. (3) As in the case at bar the jury might have found that plaintiff either remained on the boat or left it and returned, meaning to pay her fare and be a passenger, and as it was not shown that there was any final demand for payment and omission to pay accompanied by a declaration, or its equivalent, that she must go from the boat, and there being no proof of any rule of the company binding on her which required the payment of fare before the boat left the slip; the refusals to charge that if the jury found that plaintiff did not pay her fare for the return trip, then the defendant was not liable, and to charge that if the jury found that plaintiff left the boat when her fare for the return trip was demanded and subsequently returned without paying her fare then defendant was not liable, were correct. As to whether there was an attempt to evade the obligation to pay fare was not made a question for the jury.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 6, 1890.
    Appeal by defendant from judgment entered upon verdict of jury, and from order denying motion for new trial, made upon the minutes.

      Burrill, Zábrisláe & Burrill, attorneys, and John E. Burrill and J. Archibald Murray of counsel, for appellant, on the questions considered in the opinion, argued:—-
    I. Plaintiff stated that when the boat struck, she had risen from her seat on the upper deck, and walked forward to the stairway leading to the deck below, and was -standing up three feet from the top stair, and that her arms were occupied with her parasol, and she was buttoning one glove with her other hand, and that she had not hold of anything to sustain her, and had thus deprived herself of the means of protecting herself. The only difference between her and the defendant’s witnesses was as to where she was. Wherever she was at the time, she was in the condition stated. Defendant’s witnesses state that she was coming down the stairs, and had not hold of the stair rail. She says that she was not on the stairs at all, but admits that she was in the condition stated. The court first charged that if she was where she said she was, then, as matter of law she was not liable, and then charged that if she was where the defendant claims that she was, it was for the jury to determine whether she was negligent. The plaintiff’s recovery was had on the ground that the boat was moving at such a rate of speed as to render her striking the dock with force apparent to all, and to lead every one to conclude that the dock would be struck with such violence as to knock down those who did not protect themselves. Plaintiff from her seat on the upper deck had a clear view of the slip and bridge and of the “situation,” and must have known (if her wit- ' nesses testify truly), that the boat was moving rapidly, and under such circumstances as to render a collision inevitable. The evidence proved that the plaintiff was so feeble and that her vision was so defective as to have attracted the attention of the boat hands, one of whom assisted her on the boat. Under such circumstances we claim that the court erred in its charge in both respects. (1). It was necessary for the plaintiff to prove an absence of contributory negligence on her part. Arnold v. Canal Co., 15 N. Y. State Rep. 310; Rogeru v. Enoch Morgan Sons, 16 Ib., 693. Where negligence is the issue it must be an unmixed case, otherwise plaintiff will be non-suited, even though defendant is also negligent. Deyo v. R. R., 34 N. Y. 9; Reynolds v. R. R., 58 Ib. 250; Hale v. Smith, 78 Ib. 480, 483; Donelly v. R. R., 109 Ib. 16. (2). There was no presumption of law that the plaintiff by standing where she said she was, in the condition in which she was, was not guilty of negligence. On the contrary, the circumstances raise a presumption of negligence on her part. If there were any doubt on that point the question was for the jury. R. R. Co. v. Pollard, 22 Wall. 341; Nolan v. R. R. Co., 87 N. Y. 63, 67; Thurber v. R. R. Co., 60 Ib. 326, 331; Hayes v. Miller, 70 Ib. 117. (3) On the other hand, if the plaintiff was on the stairs and in the condition claimed by the defendants, her negligence was apparent, as no person exercising ordinary care would, under the circumstances, attempt to go down the stairs without leaving her hands free or protecting herself by taking hold of the railing, and it was not under the circumstances a question for the jury. (4). If the court was correct in submitting to the jury the question of negligence based on her being on the stairs, it was equally a question for the jury if she were where she claimed that she was. (5). Both propositions cannot be right, but one of them must be wrong. (6). The condition of plaintiff, the fact that her hands, arms and attention were all occupied at such a time materially impaired her ability either to perceive or to protect herself from impending danger, and constituted contributory negligence. Salter v. R. R. Co., 59 N. Y. 631; Palmer v. Dearing, 93 Ib. 7, 12. The plaintiff unnecessarily and improperly placed herself in a place of danger at the head of or on the stairs while the boat was entering the slip at a great rate of speed, and was thereby guilty of contributory negligence. Coleman v. 2d Ave. Co., 114 N. Y. 610 ; Dougan v. Champlain Co., 6 Lans., 430 (affd. 56 N. Y. 1). It is contributory negligence for a passenger to do any voluntary act which unnecessarily exposes him to the risk of such injuries as a traveller is liable to. He should neither sit nor stand at any place obviously not intended for the use of passengers on the journey. 2 Sher & Red. Neg., § 519; Ward v. R. R. Co., 11 Abb. N. S., 411 ; Solomon v. R. R. Co., 1 Sweeney, 298 ; Clark v. R. R. Co., 36 N. Y. 135. So far as the passengers were concerned, the stairway was merely a means of entrance to the upper deck of the ferryboat at the commencement and termination of the trip and the plaintiff went there during the trip at her peril. Dougan v. Trans. Co., supra.

    II. The court erred in its charge, and refusals to charge, on the question of defendant’s negligence. There is no claim that the pilot and other employees were not competent. On the contrary, it was shown that Olsen was a skillful, experienced man, using his best judgment, and that the boats of the company were, as a rule, extremely well handled. The accident was in this particular case unavoidable. Inevitable accident is where a vessel uses proper precautions against danger and an accident occurs. .“The highest degree of caution that can be used is not required. It is enough if it is such as is usual under similar circumstances, and has been found by long experience to be sufficient to answer the end in view—the safety of life and property.” The “ Austria,” 14 Fed. Rep. 298, 300; The “ Grace Girdler,” 7 Wall. 203. Carriers are not bound to provide against every possibility of danger to passengers. When a passenger travels by ship or by railway or any other public conveyance, he expects to .take and does take, the hazard of such accidents as may occur to him without any want of care or diligence on the part of the carrier. McPadden v. Railroad Co., 44 N. Y., 478, 489. The carrier is bound to furnish suitable and safe accommodations for passengers, but the duty is not imposed upon him of providing that they encounter no possible danger. Loftus v. Ferry Co., 84 N. Y. 455, 460. He is called upon to provide only against such danger as may reasonably be apprehended. Cleveland v. Ferry Co., 68 N. Y. 306, 310. The burden is on plaintiff to establish defendant’s negligence. It is not enough to prove, facts from which the conclusion of negligence or its absence may be drawn. Hart v. Bridge Co., 84 N. Y. 56. In any event the plaintiff cannot take advantage of the rule referred to, and charged, by the court, because if any presumption of negligence on the part of defendant was raised by plaintiff’s testimony, that presumption was sufficiently negatived by the evidence as to the violent and changeable cross-currents as above stated. And the question whether the preponderance of proof was in favor of defendant should have been submitted to the jury. In this respect the court erred. Seybolt v. R. R. Co., 95 N. Y. 562.
    III.—The court erred in refusing to charge in accordance with the requests to the effect that in view of her physical condition she should have exercised a higher degree of care.' The evidence shows that the plaintiff’s sight was very defective, and that she was weak and feeble in walking. Her eyes, even with proper glasses, had less than one-half of normal vision. The rule is that if one faculty of sense is defective common prudence requires that an increased vigilance should be exercised to avert danger. Gonzales v, N. Y. & H. Co., 1 Sweeny, 506; Same v. Same, 38 N. Y. Supr. 57; Pierce on R. R., p. 335; Beach Contrib. Neg., § 147. And the question whether, under the circumstances, it was negligence on the part of the plaintiff, considering her physical condition, to stand where she said she did with her hands occupied, is the precise question to be submitted to the jury. In a case where plaintiff’s sight was defective, and she was injured by falling into an opening in the street, held to be a question for the jury whether her presence in the street without an attendant was contributory negligence. Davenport v. Ruckman, 37 N. Y. 568, 573. These requests should have been charged. Coleman v. 2d. Ave. R. R., 114 N. Y, 610.
    IV. The court erred in refusing to charge in accordance with the requests as to non-payment of fare when demanded. We submit that the court did not place this before the jury in the manner in which under the evidence the defendant was entitled to have it submitted, and that defendant was ' entitled to a specific charge in accordance with these requests. Coleman v. Co., supra. The. demand for fare was made by the pilot on the upper deck.' He was the only person authorized to demand payment of her fare. The pilot testified that he demanded payment of her fare, and the plaintiff, after searching in her pockets, said she had no change and would go downstairs, whereupon she went downstairs without paying her fare. The witness saw her leave the ferryboat and go on to the ferry bridge. She then spoke to the deckhand who was on the bridge by the windlass, asking for change for five dollars, which he could not give her. The deckhand did not notice where plaintiff went after this conversation. The plaintiff on the other hand testified she never left the upper deck and paid her fare when demanded. Under these circumstances it is for the jury to say whether or not plaintiff refused payment of her fare and thereupon left the boat. If such was the fact, then plaintiff’s subsequent return to the boat without the knowledge or assent of the defendant as a trespasser or as a free passenger imposed no duty upon the latter to carry the plaintiff safely. Those who have not paid their fare and are on the carrier’s vehicle neither by his invitation, authorization nor consent, are trespassers. “ There must be a true undertaking to carry or the relation of carrier and passenger will not be held to subsist.” Beach Contrib. Neg., § 58; Robertson v. R. P. Co., 22 Barb. 91; Eaton v. R. P. Co., 57 N. Y., 382, Waterbury v. N. Y., Cent., 17 Fed. R. 671, Flower v. Penn. R.: R. 69 Pa. 210.

      Thomas E. Bochfort, attorney, and with Edward B. Whitney, of counsel, for respondent, on the questions considered in the opinion, argued—
    I. As to the question whether the plaintiff paid her fare." The exception to the refusal to charge that if she did not pay her return fare defendant is not liable is disposed of by the case of Cleveland v. New Jersey Steamboat Co., 68 N. Y. 306; Thomson on Carriers of Passengers, pp. 43—4 and cases cited. The evidence would not support a claim of fraud, But intent to defraud was not claimed on the trial, Even if the question had been raised it would have been a question for the jury, not the court. MacCullar v. McKinley, 99 N. Y. 357. It is too late to raise the question now. The only question raised was, did plaintiff pay the return fare ? In Doran v. East River Ferry Co. 3 Lans. 105, plaintiff had crossed on the ferryboat and was on her return trip, not having paid the return fare. She was held a passenger, and her recovery for negligence sustained. The court’s refusal to make this charge was correct on the authority also of Carroll v. S. I. R. R. Co., 58 N. Y. 133. Bretherton v. Wood, 3 Broad & Bing. 54 ; Phil. R. R. R. Co., v. Derby, 14 How. (U. S.) 483 ; Reed v. Holbrook, 4 Bing. 628; Loomis v. Ferry, 17 Wend. 197. The request assumes as uncontradicted a fact not'in evidence, or, if in evidence, contradicted : namely, that if she did not pay her fare, she intended to defraud the company, and hence was a trespasser. This fact was for the jury; and hence the request was properly refused. Le Roy v. Park F. Ins. Co., 39 N. Y. 56. When requests to charge matters of law are founded on facts not conclusively proven, it is not error to refuse the requests. Soria v. Davidson, 53 Super. Ct. 470. The exception to the refusal to charge that if she left the ferryboat when her return fare was demanded and afterwards returned without paying fare, then defendant is not liable, fails for the same reason. Defendant’s requests are an attempt to obtain a charge that actions capable of an innocent construction are fraudulent as matter of law. But the fraud in this-case, if any, is a question cff fact Macullar v. McKinley, 99 N. Y. 357; Swarthout v. Merchant, 47 Hun, 107; Syracuse Chilled Plow. Co. v. Wing, 85 N. Y. 426; Starin v. Kelly, 36 Super. Ct. 366. Moreover, the latter request is vicious as assuming a thing of which there is no proof, namely, that plaintiff did not pay after returning to the boat if she left. The pilot admits that he was not the only person authorized to collect, and in the absence of evidence to the contrary, plaintiff is entitled to all presumptions of innocence and regularity. Morris v. Talcott. 96 N. Y. 107. The court is not required to change an assumed state of facts not proven on the trial. Pratt y. Ogdon, 34 N. Y. 20. Defendant should have introduced the element of intent to defraud into its request if it wished for an exception. But in that case the court might have granted the request. As a matter of fact, the court by clear implication charged the jury that the plaintiff was not a passenger unless she paid her fare thus favoring defendant more than the law would warrant. The whole charge must be read together, and isolated portions cannot be excepted to for incompleteness if the whole conveys the correct impression. Caldwell v. N. J. S. B. Co., 47 N. Y. 282 ; Losee v. Buchanan, 51 Ib. 492.
    II. Defendant’s negligence. In an action of this character, it is necessary only for the plaintiff to show a situation which must have been produced by abnormal causes. The onus then rests on the defendant to prove that the injury was caused without his fault. Seybolt v. N. Y., L. E. & W. R. R. Co. 95 N. Y. 568. Such a situation was shown by plaintiff. Defendant knowing that the onus rested on it attempted in vain to explain the accident as due to extraordinary conditions. The charge is fully sustained by the case of Seybolt v. N. Y. L. E. & W. R. R. 95 N. Y. 566; Breen v. N. Y. C. & H. R. R. Co. 109 Ib. 297. Smith v. British, &c. Packet Co. 46 Super. Ct. 87. There was no error in the charge that defendant was bound to use utmost care. Carriers of passengers are bound to use every precaution which skill, care and foresight can provide Caldwell v. N. J. S. B. Co. 47 N. Y. 288, “ utmost vigilance ” Carroll v. S. I. R. R. Co., 58 N. Y. 137; “ utmost care” Maverick v. Eighth Ave. R. R. Co. 36 N. Y. 381; Kelly v. Manhattan Ry. Co. 112 Ib. 443, 451, “ highest degree of care ” Smith v. British, &c., Packet Co., 46 Super. Ct. 86.
    III. As to contributory negligence. It cannot be necessary to argue that a lady has the right to stand three feet from the stairway and put on her gloves while the boat is coming into port, and that this cannot in any case be contributory negligence. But defendant cannot argue that this point should have been left to the jury, for he made no such request, but, on the contrary, asked a direction of verdict in his own favor on the point. He is, therefore, estopped to deny that the court had the right to treat the question as one of law. Stratford v. Jones, 97 N. Y. 586 ; Dillon v. Cockroft, 90 Ib. 649 ; Ormes v. Dauchy, 82 Ib. 443-448 ; Herendeen v. De Witt, 49 Hun, 53 ; Goodwin v. Bunzl, 6 Civ. Pro. 226 ; Gregory v. The Mayor, 11 State Rep. 506.
   By the Court.—Sedgwick, Ch. J.

The action was for damages, from the negligence of defendant’s servants in managing a steamboat. The boat ran on a ferry belonging to defendant. The boat entered the slip on the New York side of the East river and • struck against the bridge so that the boat rebounded from the bridge eight or ten feet as the jury might have found. At this time the plaintiff was upon the upper deck, two or three feet from the head of a stairway leading to the lower deck. The re-bound of the boat threw her from her footing down to the bottom of the stairs. The testimony of the defendant’s witnesses contradicted the testimony of the plaintiff. The jury gave a verdict in her favor.

The learned counsel presents as an error which requires the reversal of the judgment, that the judge refused to charge, that if the jury find that the plaintiff was standing at the top of the stairs on the ferry boat, or was descending the same at the time when the boat touched the wharf, then the defendant is not liable.

If the request were valid, it would be so on the ground that the position of the plaintiff, referred to in the request, would indicate the contributory negligence of plaintiff. There would be no such indication, however, if the plaintiff, in taking the positions, had no reason to think that if the boat was about to touch the bridge in the ordinary way and not in the way exhibited in the case, she would lose her footing. There was no proof in the case, nor is there any legal presumption, nor is it matter of judicial cognizance, that an ordinary bump of the boat against the bridge would so far disturb the plaintiff’s footing, that the plaintiff was bound in ordinary prudence to foresee that either of the positions was dangerous.

The court also properly refused to charge the . matter of the request, that if the jury are satisfied that it was not safe for the plaintiff, in view of her impaired sight or other physical weakness, to stand at the top of the stairs on the ferry boat, or to descend the same while the boat was entering the slip, then they must find that she took the risk of any accident that resulted from being there.

The existence of the impairment of plaintiff’s sight, did not contribute to the accident unless she was bound, perhaps, to think that her sight if not impaired would inform her that the boat was on a dangerous course, likely to end in bodily harm to' her. But she was not bound to foresee the likelihood of an unskilful management of the boat, or, if by chance she did perceive that, to further foresee the actually dangerous result of that unskilful management. Nor is the request correct in supposing that the plaintiff could not recover if it was not safe for her to do the thing specified. She was not bound to be safe in fact, but to use ordinary means to secure the safety that would exist under ordinary circumstances, excepting so far as she was bound to perceive that, in fact, the circumstances were extraordinary.

I am of opinion that the request was properly refused which embodied the proposition, that, if the plaintiff descended the stairs without taking hold of the stair-railing at the time when the boat touched the dock, then the defendant is not liable. It is to be said of this, that it did not appear, as matter of law, that it would be dangerous under ordinary circumstances not to have the hand on the railing before a shock that might be anticipated should occur. If it were of ordinary character, a jury might find that a prompt taking hold of the railing might make one safe; and, on the other side, if the shock had unusually quick and extreme results, the jury would be at liberty to find that such results could not be guarded against by a taking hold of the rail simply.

If it were not matter of law that the plaintiff was negligent in not taking hold of the rail, then the court was right in, refusing to charge, as matter of law, that the defendant was not liable if the fact that the plaintiff did not take hold of the rail contributed to plaintiff’s injury.

1 The court charged, that if the plaintiff were three feet from the gang-way, as' she said she was, then she was not negligent. In my opinion this charge was correct. Negligence is omission, and to establish it there must be proof that those circumstances existed which called for the prudence which was not used. Nothing in the case showed that if the boat had struck the bridge in an ordinary manner . the plaintiff was in danger of being injured, because she was three feet from the stairs, much less in danger of being thrown downstairs.

The court then further charged, that the jury must determine whether it was or was not negligence for the plaintiff to go downstairs under the circumstances of the case. I have already expressed the opinion, that whether or' not the plaintiff was bound to apprehend that there was to be an ordinary or extraordinary shock, it was • not matter of law that she should not use the stairs, or, if she did use them, should have had her hand upon the rail. To make .it matter of law, it should have appeared, at least incontrovertibly, that there was reason to foresee that a person descending the stairs would be thrown from her balance in a dangerous direction, for the jury might find that there was one direction that was not dangerous, for instance, toward the rail itself, or the casing opposite to the rail.

The court was right in refusing the request to charge, that if the jury find that the pilot brought the boat into the slip at no higher speed than he believed to be necessary, the plaintiff should not recover. At least the proposition was incorrect in being placed upon the fact of belief, irrespective of that belief having been the result of an exercise of ordinary diligence in observing the condition of things and of ordinary judgment as to that condition. He may have acted as he believed to be necessary, without being properly careful in forming that belief.

For a reason of the same kind, the court rightly refused to charge, that if the jury find that the pilot and engineer were officers of skill, knowledge and experience, and that they were using their best skill and judgment in the handling of the ferry boat, and that even the exercise of such skill and judgment would not certainly insure the landing of the boat without incurring the result of such a shock or jar as is disclosed by the evidence, then the fact that such a shock or jar did occur, does not entitle plaintiff to recover. It may perhaps be the law, that the shock or jar, by itself, would not have justified a recovery. The matter, however, was stated as the consequence of the earlier part of the request being correct. This involved the use of such experience, skill and knowledge as the pilot and engineer had, which may have been in less than such experience, skill and knowledge as the defendant was bound to provide, that is, an amount of experience and skill ordinarily fit to meet the exigencies of such occasion and that might have been anticipated.

As there was evidence that the rebound from the bridge was unusual, there was needed an explanation from the defendant to meet the presumption of negligence there created, and the complaint could not have been dismissed" on the ground that there was an absence of testimony that tended to show defendant’s negligence. The testimony did not show, incontrovertibly, a sufficient explanation of the negligence presumed.

In my opinion the court was not called upon to charge the jury, that if they should find that if the plaintiffs sight was impaired or that she was suffering from weakness or any other physical disability, then it was her duty to exercise a higher degree of care for her own safety in order to compensate for such impaired sight or other physical disability, and if she did not use that higher degree of care the plaintiff was not entitled to recover. The plaintiff was bound' to use that average degree of care, suggested by the circumstances. And perhaps she was bound to consider her physical infirmities as circumstances, and to act in view of them and the other facts. But it was not a matter of law that her consideration of them should have led her to believe that her not using the higher degree of care, intended by the request, would likely contribute to the accident that occurred.

The defendant’s counsel asked a charge, that if the jury find that plaintiff did not pay her fare for her return trip ■ on defendant’s ferry boat from Brooklyn to New York, then the defendant is not liable.

The case was such that the jury might have found that the plaintiff did not pay her fare. Yet the not paying the fare, under the facts, was not conclusive that the defendant was not bound to use as respects the plaintiffs rights, the care due to a passenger. The jury might have found that the plaintiff went upon the boat meaning to pay her fare, and to be a passenger as of law and according to the implied request of the defendant, was her legal right. Until the relation then formed was legally ended, the defendant was bound, as respected her, to use the care due to a passenger. At least so long as she intended to pay her fare at any point in the trip, the relation was not ended by her conduct. That she intended to evade her obligation. was not made a question for the jury. It is not necessary to decide that the defendant might have ended the relation by demanding that she pay the fare or leave the boat. If there were a demand, as the pilot testified, that she pay the fare, and she omitted at that time to pay, it was not conclusively shown that the demand and omission were accompanied by the declaration, or its equivalent, that she must go from the boat. She acceded to the rightfulness of the demand and excused her not paying forthwith by asserting that she had lost a small coin. The pilot of the defendant testified. “ I said, I have got to collect the fare,’ and she said, ‘ I can’t find ten cents, and I will go downstairs. ’ ” Whether this, under the circumstances that it is not necessary here to give, was a peremptory assertion that she must leave the boat or gave her a further opportunity to pay her fare, was a question for the jury. If such an opportunity were given, then she remained possessed of the rights of a passenger until there should be a new demand of fare, another refusal, and action thereon by the defendant. The case did not show any new demand. I therefore think the ruling in this respect was valid.

The other request on the same subject was properly refused. It was, that if the jury find that the plaintiff left the ferry boat when her fare for her return trip was demanded, and that subsequently she returned to said ferry boat without paying her fare, then defendant is not liable. If she returned, prepared and meaning to pay her fare, she was entitled to the protection due to a passenger, although she did not thereafter pay, if there were no demand of it. There was no proof in the case that a rule of the company, that bound the plaintiff, required a payment of fare before the boat should leave the slip. The facts adverted to in the request might have made testimony relevant to the question of whether the plaintiff meant to defraud the defendant. That subject was not presented upon the trial.

The exceptions that relate to ruling upon matters of evidence have been specifically considered. None of them call for a reversal of the judgment.

The judgment and order appealed from should be affirmed with costs.

Freedman and Ingraham, JJ., concurred.