author: Adams, J.:

text:
    Jeremiah Quill, Respondent, v. The Empire State Telephone and Telegraph Company, Appellant.

      Negligence — insulator falling from a cross arm of a telegraph pole and injuring a passer-by ■— liability of the party controlling the pole, although another party has the exclusive right to use the cross arm, — several proximate causes.

    Upon the trial of an action brought to recover damages resulting from the ■ alleged negligence of tlie defendant, a telephone and telegraph corporation, it appeared that the defendant owned and maintained a pole for wires ninety feet high, which stood at the junction of two streets in a thickly settled part of the city of Auburn, and had twenty cross arms which would contain about 200 insulators; that the method by which, an insulator was adjusted was to have a thread run upon the inside of it, which should hind upon a similar thread cut or raised upon the surface of a wooden peg, which peg was fastened into the cross arm; that an insulator thus affixed could not he detached unless the peg of the insulator itself was broken off; that at the time of the accident the lowest cross arm was, under an agreement with the defendant, used by the Western Union Telegraph Company, at which time a wire of the city fire alarm telegraph had become crossed with the wires upon the pole in question, and a lineman employed by the city of Auburn went upon the pole to clear the wire, in attempting to do which the wire caught under an insulator on the lowest cross arm and tlie insulator fell to the ground, seriously injuring the plaintiff, who was standing on the sidewalk near the pole. The evidence tended to show that the insulator in question was put upon the lower cross arm by the defendant and not by the Western Union Telegraph Company.
    Upon the trial the plaintiff claimed that the insulator was not properly affixed nor screwed on to the peg, and the court submitted that question to the jury. The defendant, upon its part, claimed that the cross arm from which the insulator dropped was used exclusively by the Western Union Telegraph Company, and that, therefore, that company should be charged with the consequences of the negligent act.
    Upon an appeal from a judgment in favor of the plaintiff,

      Held, that it was immaterial wliat precise relations existed between the defendant and the Western Union Telegraph Company, and that, whether or not the defendant affixed the insulator upon the pole, it was liable;
    That, as the defendant owned, maintained and controlled the pole, it was responsible for any negligent condition of its appurtenances which it permitted to exist by passive acquiescence, and that this was true whether such acquiescence followed actual knowledge or resulted from a failure to acquire knowledge;
    That while it might be true that, if tlie city lineman had not lifted the wire in question, the insulator would not have fallen when it did it, it must be assumed, in view of tlie verdict, that the insulator would probably not have fallen when the lineman raised the wire if the insulator had been properly affixed to the peg;
    That, therefore, the defendant was liable within the rule, that where several proximate causes contribute to an accident, and either of them is an efficient cause, without which the accident would not have happened, the accident may be attributed to any one cause or to all of them;
    That, although the accident was exceptional in its nature, it was one, the occurrence of which would not, in the minds of reasonable men, be in the highest degree unlikely, and that it was consequently an accident against which it was the duty of tlie defendant to guard the public.
    Appeal by tlie defendant, Tlie Empire State Telephone and Telegraph Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on tlie 19th day of January, 1895, upon tlie verdict of a jury rendered after a trial at the Cayuga Circuit, and also from an order entered in said clerk’s office on the 18th day of June, 1895, denying the defendant’s motion for a new trial made upon tlie minutes.
    This action was brought to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant, which is a duly organized corporation, owning and using tlie necessary poles, wires and other appliances, for the proper operation of its business of transmitting telephonic communications, with lines extending through some seven counties of this State, including the county of Cayuga.

      At the junction of Genesee and. Exchange streets, in the city of Auburn, it has caused 'to be erected a pole, ninety feet in heiglih, upon which it has placed about twenty cross arms which extend downwards from the top of the pole, and into these cross arms wooden pegs have been inserted at convenient intervals, to which are attached glass insulators, for the purpose of enabling the defendant to string and insulate its wires.
    These insulators are hollow cylinders and upon the inner surface thereof is a thread which corresponds with another thread cut upon the wooden peg, so that, when properly adjusted, it is firmly attached to the peg and cannot be detached from the cross arms unless either the peg or insulator is broken.
    At the time of the injury to the plaintiff, the top cross arm was used by the American Telephone Company; the next two or three were not in use at all, but the next thirteen were used by the defendant, while the lowest one of all, by an arrangement existing between the defendant and the Western Union Telegraph Company, was used by the latter corporation for the purposes of stringing thereon some of its wires.
    It appears that a wire belonging to the fire alarm system of the city of Auburn had, in some manner, come into contact with, or was crossed by, one of the wires passing over this pole and it became necessary to disconnect the same. To accomplish this, a lineman, in ■ the employ of the city ascended the pole upon the 2'Tth day of June, 1891, and in attempting to ■ raise a wire it caught under an insulator, threw it off from the peg upon which it rested, and in falling to the ground it struck the plaintiff, who was standing upon the sidewalk, in close proximity to the pole, upon the left shoulder, with such force as to produce an injury of so serio as a character that the arm was thereby rendered practically useless, and has remained so ever since.
    The insulator which fell was the third one from the inside upon the lowest cross arm, the one used by the Western Union Telegraph Company. It was produced and identified upon the trial and appeared to be smaller in size than those used generally by that company, but of the same size and style as those used by the defendant.
    The evidence tended to show that it was simply placed upon the peg from which it fell without having been screwed on, or in any other manner firmly attached.
    There was also evidence that, at the time of the accident, there were other insulators of the same size upon the cross arm in question, to which no wires were attached, and that the telegraph company did occasionally make use of this style of insulator.
    The case was submitted to the jury and a verdict of $4,000 in favor of the plaiiitiff resulted.
    Underwood, Storke cfi Seward, for the appellant.

      Rich (& Aiken, for the respondent.
    Present — Lewis, Bradley and Ward, JJ.
   Judgment and order affirmed on opinion of Adams, J.

The opinion of Adams, J., was as follows:

Adams, J.:

The only questions argued upon defendant’s motion for a new trial at Special Term were those which involve the plaintiff’s right to maintain his action against this defendant, the contention being that the evidence fails to establish any negligence upon the part of any one to which can be justly attributed the injury of which the plaintiff complains, but that if any is proven, it is negligence upon the part of the Western Union Telegraph Company, or an employee of the city of Auburn, and not upon the part of the defendant.

It will be well, therefore, to consider these several propositions in the order in which they are stated, and at the outset it may be conceded, as was suggested in the charge to the jury, that the circumstances attending the plaintiff’s injury were somewhat extraordinary in their nature. That the insulator which caused the injury should have been lifted from its resting place at the precise moment of time when the plaintiff was standing in a position where he could be struck as it fell, is a circumstance certainly peculiar to this case, and because it is exceptional, it is argued that the defendant was under no obligation to guard against a contingency which there was so little reason to anticipate.

It is unquestionably the rule, and a very just one, that no person can be charged with a negligent omission of duty for a failure to anticipate and guard against some contingency, which would not have arisen save under circumstances which are exceptional. (Hubbell v. City of Yonkers, 104 N. Y. 434.) The mere fact, however, that a similar accident never before happened does not necessarily repel the charge of negligence (Cleveland v. N. J. S. Co., 125 N. Y. 299)), the trim test being, as stated in the last case cited, whether it is one which “ might reasonably have been anticipated, or if its occurrence would not, in the minds of reasonable men, be in the highest degree unlikely.”

Measured by this standard, it is obvious, I think, that the case presented questions of fact which the plaintiff was entitled to have a jury pass upon, for although it may be claimed with great propriety that there was no good reason for anticipating an accident in all its details like the one in question, yet the possibility of a personal injury occurring by reason of the failure to properly adjust a glass insulator, of no inconsiderable size and weight, to its proper place upon a telephone pole can hardly be said to be so remote as to justify the claim that it is “ in the highest degree unlikely ” to happen. Here was a pole ninety feet in height with twenty cross bars or arms attached to it, and upon these arms were pegs for possibly 200 insulators, and over them were stretched a vast number of wires. This structure was located at the junction of two thoroughfares in a flourishing city, and by and around it hundreds of people were passing daily. The evidence discloses the fact that it frequently became necessary for the employees of the different companies using the pole to ascend it for the purpose of readjusting the wires, and, the better to accomplish this, a bridge had been constructed from an adjoining building which rendered the pole and wires easy of access. Now, if this glass insulator was simply placed upon its peg and tipped over upon one side without being screwed on, as described by one of the plaintiff’s witnesses, is it after all remarkable that in the frequent changing of the wires, or in the adjustment of new ones, it should be jerked off and made to-fall upon some person passing along the street below ? Or is it inconceivable that even the swaying of the wires by a brisk wind might have produced the same result ? In making these suggestions, I am not unmindful of the attempted demonstration upon the part of the defendant, of the utter impossibility of displacing an insulator from one of these wooden pegs, even when it is not firmly attached by means of the screw, but the evidence of the witness Ilulbert, the lineman, who was trying to disentangle the wires, cannot be ignored, and, if it could be, the fact remains that the insulator was in some manner displaced and thrown to the ground, and this, in the absence of any explanatory circumstances, would seem to establish a prima facie case of negligence upon the part of some one. (Mullen v. St. John, 57 N. Y. 567; Crozier v. Read, 78 Hun, 181; Morris v. The S. & W. Co., 81 id. 1.)

The claim that the fault, if any, was that of ITulbert, and not of this defendant, was submitted to the jury, and they were instructed that, if the insulator having been properly attached, was displaced simply because of the force which was employed by him in raising the wire of the fire alarm telegraph, the plaintiff could under no possible circumstances recover. The issue thus raised, having been submitted to the jury, their verdict must be regarded as conclusive upon the subject, and, therefore, it may be assumed that the insulator was placed upon the wooden peg in a careless and negligent manner, and so we have fairly presented for consideration the question as to the party who is responsible therefor.

The defendant sought to escape responsibility for the accident by claiming that the cross arm from which the insulator dropped was used exclusively by the "Western Union Telegraph Company, and that, therefore, that company, and not the defendant, should be charged with the consequences of the negligent act. It is true that the company did use this cross arm, so far as it was used at all; nevertheless, the evidence was such as would have warranted the jury in concluding that the insulator was placed in position by the defendant, for the telegraph company certainly had no wire attached to it, although it appears that one ran along by the side of it, and, as has been stated, it was of the same size and kind as the insulators used by the defendant.

But, assuming that the telegraph company did canse the insulator to be placed upon the peg in the manner described by the plaintiff’s witnesses, yet I fail to see how this relieves the defendant from all share of responsibility for the result which followed.

It is expressly admitted by the answer that the pole in question was erected and maintained by the defendant, and if it saw fit to permit some other person or corporation to, use a single cross arm as a matter of convenience, it nevertheless appeared, and was not disputed, that the defendant remained in virtual possession of the¡ entire structure, and exercised a supervisory power over it, for its; employees were constantly climbing the pole to readjust wires, and!. its superintendent testified that it was his business to inspect it, and that he knew what its condition was at the time of the accident.

It matters little, therefore, what was the precise relation existing between the defendant and the telegraph company, for if it was that of lessor and lessee, the pole being practically in the possession, and certainly under the control, of the former, it became charged with the duty of keeping it in such a condition of safety that travelers, upon the highway should be exposed to no unnecessary hazard therefrom (Khron v. Brock, 144 Mass. 516; Gray v. Boston Gas Light Co., 114 id. 149; Milford v. Holbrook, 9 Allen, 17), and ther.e is no reason why the same rule should not apply where the-partial occupation is that of a mere licensee. In either case, so far-as the present action is concerned, the negligence complained of' may be predicated of the dangerous condition of the insulator, or the failure to discover its condition by the omission of proper inspection.

In other words, the defendant owning, maintaining and controlling the pole, was responsible for any negligent condition of its, appurtenances which it permitted to exist by its passive acquiescence, whether such acquiescence followed actual knowledge or resulted from failure to acquire knowledge. (Gottlieb v. N. Y., L. E. & W. R. R. Co., 100 N. Y. 462; Goodrich v. The N. Y. C. & H. R. R. R. Co., 116 id. 398; Gray v. Boston Gas Light Co., supra; Coupland v. Hardingham, 3 Campb. 398; Anderson v. Manhattan Ry. Co., 21 N. Y. Supp. 1.)

But it is further insisted by the defendant’s counsel that, even though there was an omission to fasten the insulator securely upon the cross arm, such omission cannot be said to have been the proximate cause of the plaintiffs injury.

It is often a difficult matter to determine with any degree of-accuracy what is the “proximate cause” of an accident, and it frequently happens in cases of negligence that several causes con■cur to produce certain results, one or all of which may be denominated proximate.”

This is peculiarly true of the case in hand, for it is absolutely ■certain that the plaintiff would have escaped injury upon the day in question, but for the intervention of a third party, for whose acts the defendant is in no wise responsible, so that it may be asserted with equal certitude that the raising of the fire alarm wire by Hul■burt was a proximate cause of the consequences which followed. But, on the other hand, had the insulator been firmly attached to the peg upon which it rested — and once more, in considering this question, it must be assumed it was not — the raising of the wire probably would not have displaced it and caused its fall. It would .seem, therefore, that the case comes fairly within the rule which holds that where several proximate causes contribute to an accident, •either of which is an efficient cause, without which the accident would not have happened, it may be attributed to any or all of them. (Ring v. The City of Cohoes, 77 N. Y. 83; Phillips v. N. Y. C. & H. R. R. R. Co., 127 id. 657.)

The questions discussed ujion this motion, as well as upon the trial, possess great interest and are not wholly divested of embarrassing features, but mature reflection and careful consideration, with the aid of such light as is furnished by the authorities cited, incline me to believe that the case wras properly submitted to the jury, and that the verdict should not be disturbed.

The motion is, therefore, denied, with ten dollars costs.


source: Caselaw Access Project

author: Clarence A. Farnum, Referee :

license: Public Domain

text:
    Jefferson H. Beemer, Respondent, v. Warren Packard and Others, Appellants, Impleaded with William M. Hunter.

      Promise, to pay a party or to pay on its obligations a certain sum — pa/rol evidence of the statements and situations of the parties when a writing was made is competent to explain it — privity between the promisee and a third, person, its creditor'.

    In an action brought to recover upon a promise made to the Randolph Lumber Company by the defendants for the benefit, as alleged, of the plaintiff, it appeared that the defendants had indorsed for the Randolph Lumber Company, and for ■ that reason had claims against it amounting to §27,000; that the defendants wished to gain possession of the properly of the Randolph Lumber Company, consisting of mills and timber land; that at this time the Randolph Lumber Company was indebted to other parties, including the plaintiff, in the sum of $3,000; that the defendants agreed in writing to buy the property of the Randolph . Lumber Company, and to pay $30,000 for it “in cash or obligations owing by said Randolph Lumber Company.” It further appeared that the representative of the Randolph Lumber Company had insisted that the indebtedness of $3,000, of which the plaintiff’s claim was a part, should be paid, and there was evidence tending to show that the defendants had verbally agreed to pay it, and that, in reliance upon this promise, the representative of the Randolph Lumber Company had signed the written agreement.
    The referee, before whom the case was tried, admitted parol evidence upon the part of the plaintiff, tending to show that the expression “ obligations owing by said Randolph Lumber Company,” one of the means by which the vendees were permitted to make payment, was intended to cover the debt due the plaintiff, and that the agreement was that that debt should be paid by the defendants.

      Held, that the evidence was admissible;
    That, as the expression was vague, surrounding circumstances might be proved by parol, in order to show what particular obligations of the Randolph Lumber Company, if any, were mentioned by the parties, and were agreed to be paid;
    That the evidence did not tend to vary or contradict the written contract, but was admitted for the purpose of removing an ambiguity;
    That the agreement was not a contract of indemnity to the Randolph Lumber Company, but a promise to pay the debts of the Randolph Lumber Company, and that as the promisee was then indebted to the plaintiff, and the promise was made for the benefit of the plaintiff, he could recover upon it against the promisors.
    Appeal by the defendants, "Warren Packard and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 29th day of January, 1895, upon the report of a referee.
    The complaint in this action alleged that at the time in the complaint mentioned the Randolph Lumber Company was a copartnership composed of the defendant William M. Hunter and Mary A. Hunter, and until the 17th day of December, 1891, were engaged in the business of lumbering at and near Watsonville, Pa., and that the defendants are co-partners doing business at Watsonville under the firm name of Wood Brothers & Co.
    That on or about the 7th day of April, 1890, the plaintiff made and entered into' an agreement with the Randolph Lumber Corn pany, whereby the plaintiff agreed to sell to said company certain machinery at the agreed price of $300, which machinery the Randolph Lumber Company so contracted to purchase for the purpose of, and the same was used by said company in, erecting and equipping its steam mill near Watsonville, for the purpose of manufacturing lumber, etc., and was a part of the property transferred and delivered to the defendants about December 17, 1891; that it was expressly agreed by and between the plaintiff and the said Randolph Lumber Company that the absolute legal title and right to the possession of all said machinery and property should be and remain in the plaintiff until the said purchase price of $300 was fully paid, which was to be paid at the expiration of three months from said April 7, 1890, and that no part thereof has been paid.
    The complaint further alleged that prior to November 13, 1891, the Randolph Lumber Company was indebted to one George Hubbard for various articles of personal property sold and delivered to said company, for the purpose of being used, and which was used, by the Randolph Lumber Company in its business; that on that day the said company made, executed and delivered to the said George Hubbard its promissory note for the sum of $104.55, the consideration for such note being the property sold and delivered by said Hubbard to the RandoliDh Lumber Company ; that when such note became due and payable it was presented for payment, which was refused; that before the commencement of this action the said George Hubbard, for a valuable consideration, assigned said note to the plaintiff.
    The complaint further alleged that on or about the 17th day of December, 1891, the said Randolph Lumber Company sold, assigned and transferred to the defendants all the property and effects belonging to the said Randolph Lumber Company used in connection with and belonging to its business of lumbering; that as a consideration or purchase price for the said property and business so sold, transferred and delivered by the said Randolph Lumber Company to the defendants, the defendants on their part promised and agreed to pay off and discharge all of the indebtedness then owing by the Randolph Lumber Company, which was created in or incurred for or in connection with, and in establishing and carrying on the said business of the Randolph Lumber Company as fast as such indebtedness became due; and to pay off and discharge as part purchase price thereof the aforesaid indebtedness so owing by the Randolph Lumber Company to the plaintiff and said George Hubbard; that all of the indebtedness mentioned as owned and held by the plaintiff was incurred by the said Randolph Lumber Company in establishing, carrying on and operating its said business of lumbering,' and is a part of the indebtedness which the defendants undertook and agreed to so pay off and discharge.
    The answer of the defendants denied that they promised and agreed to pay off and discharge all of the indebtedness then owing by the Randolph Lumber Company which was created or incurred for or in connection with, and in establishing and carrying on the- said business of the Randolph Lumber Company as fast as such indebtedness became due; and to pay off, and discharge as part purchase price thereof the aforesaid indebtedness so owing by the Randolph Lumber Company to the plaintiff and said George Hubbard.’ And they denied that the indebtedness in the complaint mentioned was a part of the indebtedness which they undertook and agreed to pay off and discharge.
    The answer further alleged that, on or about the 17th day of December, 1891, at Watsonville, the defendants, composing the firm of Wood Brothers & ■ Co., purchased divers properties consisting of lands, saw and shingle mills, etc., and all the assets and properties of the Randolph Lumber Company and the defendant William M. Hunter, for and in consideration of the agreement on the part of the said Wood Brothers '& Co. to pay therefor the sum of $30,000 in cash or obligations owing by the said Randolph Lumber Company in connection with the property and business •theretofore done at Watsonville. That thereafter the said purchasers did pay and cause to be paid the said sum of $30,000, except an amount specifically assumed which was a lien upon the land, and which was not due at the time of the commencement of this action.
    The agreement of December 17, 1891, between the Randolph Lumber Company and William M. Hunter, of the first part, and Warren Packard, J. W. Spangenburg, George W. Wood and Charles L. Wood, as parties of the second part, contained the following provision in regard to the consideration for the purchase.
    “ Said second party accepts above property and credits and the assets, and agrees to pay therefor the sum of thirty thousand dollars, in the manner following, to wit: In cash or obligations owing by said Randolph Lumber Company in connection with the property and business heretofore done at this point, or that may be done thereafter.”

      James G. Jolmson, for the appellants.

      Henderson da Wentworth, for the respondent.
    Present — Lewis, Bradley, Ward ancl Adams, JJ.
   Judgment affirmed on opinion of referee, with costs.

The opinion of the referee was as follows :

Clarence A. Farnum, Referee :

The defendants urged upon the trial of the issues herein that they promised to pay to the Randolph Lumber Company, for the transfer of the properties to them December 17, 1891, $30,000 in cash or $30,000 in the obligations owing by the Randolph Lumber Company, and that there is no privity between this plaintiff and the defendants, and that the action cannot be maintained; that their promise was to the Randolph Lumber Company and not for the benefit of this plaintiff or any other person.

Against the defendants’ objection evidence was given showing the situation and surroundings of the parties at the time the written agreement was made. This evidence was received, not for the purpose of changing or modifying the written agreement made by the parties, but to place the court, so far as possible, in the-situation of the parties when they entered into the agreement that it might determine what the parties sought to do. It is impossible to say from an inspection of the writing that the promise to pay in cash or obligations owing by said Randolph Lumber Company ” is so definite or certain, or the meaning is so certain, that one thing only can be meant.

The defendants urge that they have the option to pay in cash or obligations of the Randolph Lumber Company. If so, they have-not exercised that part of it nor attempted to exercise that part by paying in cash, for they have not paid the Randolph Lumber Company a dollar in cash. Then, if the defendants are to or may satisfy their part of the agreement by paying the obligations of the Randolph Lumber Company, it does not appear so definitely by the writing but that evidence of the surrounding circumstances may be given to show what particular obligations, if any, were mentioned and "would satisfy their agreement.

It appears that at the time this writing was made the Warren. Packard Company, and G-. W. Wood’s Sons had indorsed largely for the Randolph Lumber Company, and then had claims against the-company of $27,000 on account of such indorsements, including; the amount unpaid on an executory contract for the purchase of timber land, and that the indorsers had an assignment of the land contract for the purchase of the timber lands, upon which the mills were erected, but the possession of the property was in the Randolph Lumber Company. For some reason the indorsers desired to have the possession of this property, and in order to get it they agreed to pay $30,000, $27,000 of which, including the amount unpaid on the-land contract was in obligations of the Randolph Lumber Company,, upon which they were liable as indorsers. William M. Hunter,, representing the Randolph Lumber Company, knew he wTas parting-with the possession of all the available assets of his company, and urged he could not do this unless $3,000 of obligations of his company, held at Randolph, N. Y., incurred for inateifals which went-into this plant, should be paid by the defendants. The defendants agreed to pay these obligations, amounting to $3,000, of which plaintiff’s claim is a part, if he would make such a transfer of possession, and relying upon it he consented to pass the possession of his property to the defendants, and the writing was then.signed by him and the other defendants.

The evidence admitted does not tend to establish any fact changing the contract entered into, nor to enlarge the liability of the defendants. It was offered for the purpose of showing that of such obligations $3,000 of them were held by Randolph parties, and must be paid by the defendants. The defendants contend that they have • paid $30,000 of obligations of the Randolph Lumber Company, and should be relieved from further payment. Their agreement was-that of this sum $3,000 of it should be paid to the Randolph parties- and they have failed to carry out that part of their agreement. It: can make no difference how large an amount of the general obligations of the Randolph Lumber Company has been paid if the ones-they expressly agreed to pay still remain unpaid.

I think parol evidence of the situation of the parties at the. time, this writing was made was competent.

In Agawam Bank v. Strever (18 N. Y. 502) the note sued upon was left with the bank as collateral security “for all liabilities incurred,” etc., and the court in speaking of this writing said: “ The language of that memorandum is as follows: ‘ The above note is left as collateral security for all liabilities incurred by Isaac ■S. Doane or Doane & Hoysradt to the Agawam bank.’ Now it is true that upon a strict grammatical construction of these terms, they would be held to embrace only liabilities which had been already incurred. The word ‘incurred’ being in the past tense, when used without other words to modify its meaning, would in strictness relate exclusively to past transactions. Were this memorandum, therefore, to be construed by itself, without the aid of any extrinsic •fact or circumstance whatever, I am inclined to think the interpretation contended for by the appellants’ counsel the one which should be adopted. * "x' * But its meaning can hardly be regarded as so entirely clear and unequivocal as to exclude all aid from the circumstances surrounding the parties at the time of entering into the contract. * * 'x' It was proper, therefore, upon the trial, to resort to evidence of the attending circumstances to assist in ascertaining the meaning and intention of the parties.”

In Thorington v. Smith (8 Wall. 1) it was held that where a contract was made during the late rebellion in one of the insurgent .States and provided for the payment of $45,000 the defendant was permitted to show that it was meant that this sum should be paid in Confederate notes. Chief Justice Chase, in writing the opinion •of the court, said: “ Such evidence does not modify or alter the contract. It simply explains an ambiguity, which, under the general rules of evidence, may be removed by parol evidence.”

So in Manchester Paper Company v. Moore (104 N. Y. 680) it was held that where goods were delivered under an agreement by which the buyer agreed to pay the “ ruling market rates,” and it .appeared there were two market rates, one for goods of the kind bought of importers and another for them as sold by jobbers, evi- ■ dence of conversations of the parties and the surrounding circum.stances for the purpose of showing which of the two was intended was competent.

In Goodrich v. Stevens (5 Lans. 230) the defendant, by an instrument in writing, “ bought of II. P. Smith his crop of flax, 200,000 pounds.” The trial court held that the-contract bound Smith to deliver to the defendant 200,000 pounds of flax of his own raising; that the contract was clear and unambiguous in its terms, and not susceptible of change by proof of the negotiations which preceded it, and that the plaintiff could not recover for any less amount, and nonsuited the plaintiff, and the court, upon appeal, held that the words in question would not bear so inflexible a meaning as to exclude proof of extrinsic circumstances to aid in their construction, and reversed the ruling below.

A like view was taken in a similar question determined in Walrath v. Thompson (4 Hill, 200).

Other cases might be cited illustrating the rule, but the doctrine laid down in them is elementary and finds approval in 1 Greenl. on Ev. (§§ 288, 288a); Taylor on Ev. (§§ 1194, 1198); Reynolds Stephens’ Ev. (Art. 91) ; Browne on Parol Ev. (§ 53, pp. 179-190; Id. § 54, pp. 190-195).

Numerous decisions have been cited by counsel for the defendants as authorities for the proposition that the promise made by the defendants, if any, would not permit the plaintiff to maintain an action upon it. It is often difficult to determine whether a promise is made for the benefit of a third person, and our decisions are not all in harmony. In this case the question turns upon a construction of the agreement, whether it was a contract of indemnity to the Randolph Lumber Company or an agreement to pay the Randolph liabilities of the Randolph Lumber Company. If the former, of course, the action cannot be sustained; if the latter, it may.

If parol evidence be competent to establish the promise, or rather to aid the court in determining from the writing and surrounding circumstances, if one was made, and I have held it is, then the promise was for the benefit of the parties holding this class of obligations. A long line of cases running from Schemerhorn v. Vanderheyden (1 Johns. 139) to Townsend v. Rackham (143 N. Y. 516) illustrate the doctrine that where a promise is made by one person to another, for the benefit of a third person, and the promisee is obligated to suoh third person, an action may be maintained by such third person upon the promise.

I must hold that the plaintiff is entitled to recover against the defendants the amount claimed in the complaint.


author: Lewis, J.:

text:
    The People of the State of New York, Appellant, v. Albin Gerber, Respondent.

      jSIile or possession of deer or venison — when a violation of the Q-a/me Law — chapter 488 of 1892.
    The possession or sale of wild deer or venison is absolutely forbidden by chapter 488 of the Laws of 1892between the fifteenth day of November and the fifteenth day of the following August.
    Its possession or sale during the period between the first day of November and the fifteenth day of November is also a violation of the statute, unless it be proved by the possessor or seller that such deer or venison was killed within the lawful period for killing within this State, or that it was killed out of the State.
    The object of this latter provision is to give hunters, permitted by statute to kill deer up to the first day of November, a reasonable time, after the season has closed, to dispose of the venison.
    Bradley, J., dissented.
    Appeal by the plaintiff, Tbe People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 16th day of September, 1895, upon the decision of the court rendered Ufter a trial at the .Steuben Circuit before the court without a jury.

      Charles II. Knijjj) and Soswell S. Moss, for the appellant.

      A. S. Kendall, for the respondent.
   Lewis, J.:

This action was brought to recover a penalty of $100 for a violation of the act for the preservation of wild animals in the State of New York (Chap. 488, Laws of 1892).

It is provided by section 40 of said act that wild deer shall not be killed between the first day of November and the fifteenth day of August following. Section 41 is as follows: “ Deer or venison, when not to be possessed.— Wild deer or venison shall not be possessed or sold between the 15th day of November and the 15th day of August following, and possession thereof, between the 1st day of November and 15th day of November is forbidden, and shall be deemed a violation of this section, unless it be proved by the possessor or seller that sncli deer or venison was killed within the lawful period for killing, or out of the State.”

By section 51 of the act a violation of its provisions is made a misdemeanor, and, in addition, the violator of sections 40 to 44, inclusive', and 46 to 48, inclusive, is liable to a penalty of $100 for each violation. ■

The action was tried at the Steuben Circuit before the court without a jury. The facts were stipulated, aud are as follows:

On the 3d day of January, 1893, the defendant herein had in his possession and offered and exposed for sale at his market or place of business in the city of Corning, county of Steuben and State of New York, the carcass of one wild deer or venison, which was killed outside of the limits of the State of New York, which was the carcass mentioned, as alleged in the complaint.

The trial court upon these facts held and decided that the defendant was not guilty of violation of the act, and dismissed the plaintiff’s complaint, and from the judgment entered upon such decision this appeal was taken.

The disposition which should be made of this case depends upon whether the closing words of section 41, as follows, “unless it be proved by the possessor or seller that such deer or venison was killed within the lawful period for killing, or out of the State,” apply to and qualify the whole of said section, as is contended by the defendant, or are limited in their application to that part of the section which prohibits possession between the first and fifteenth days of November, as is claimed by the appellant. Ye incline to-the opinion that the latter is the correct construction. Such construction, we think, accords with the language of the section and with its evident meaning, while the other construction is strained and unnatural. If the promoters of the law intended that the clause referred to should apply to the entire prohibited time, that is, between the first day of November and the fifteenth day of August following, they were exceedingly unfortunate in phrasing the section. Had such been their intention, they could have accomplished their purpose by simply providing that the possession of wild deer between the first of November and the fifteenth of August following should be deemed a violation of the law unless the person in possession proved that the killing took place within the lawful ■period for killing or outside the limits of the State. Giving such a construction to the section makes the fifteen-day clause entirely ‘superfluous and of no meaning whatever. The statute prescribes two prohibited seasons, one commencing November fifteenth and ■ending August fifteenth following. During that period possession of deer or venison is prohibited, no matter when or where the animals may have been killed. The other prohibited season is from the first to the fifteenth of November, during which time possession • ■shall be deemed a violation of the law unless the possessor or seller shall prove that the killing took place within the lawful period for killing or outside of the limits of the State. The purpose of the fifteen-day clause is quite apparent. The law permitted the killing at any time from the fifteenth day of August to the first day of November following, it being lawful, therefore, to kill deer as late as the thirty-first of October. It was very properly provided that there ■should be a limited period thereafter for the disposition of the carcasses ol: deer which might be killed during the last days of October.

Many statutes for the preservation of wild animals are found in-our statute books, and the same general scheme that was contained in the act of 1892 will be found in many of them.

It was provided by section 1 of chapter 721 of the Laws of 1871 that no person shall have in his possession or offer for sale or transport any moose, carriboo, elk or wild deer or fresh venison, save only during the months of August, September, October, November and December. * * * Any person offending against any of the preceding provisions of this section shall be liable to a penalty of fifty dollars for each moose, elk, carriboo, deer or fawn so killed, * * * and may be proceeded against in any county of the State, provided, however, that any person may sell or have in his possession the moose; elk, carriboo or deer aforesaid, between the 1st day of January and the 1st day of March, without liability to the penalties herein provided, in case he shall prove that such game was killed outside the limits of this State, and at some place where the law did not prohibit such killing.” It cannot be doubted that this latter provision of the section had reference only to the time between the first of January and the first of March. Sections 7 and 8 and 33 of the act of 1871 were construed in Phelps v. Racey (60 N. Y. 10). An action was brought to recover penalties for a violation of said sections. It was charged in the complaint -that, the defendant had in his possession and exposed for sale in the city of New York 100 quail on the 19th day of March, 1813. The answer admitted the allegations in the complaint, but alleged that defendant had invented an apparatus to preserve game, and that the game specified in the complaint was put up by him in said apparatus in the month of December, 1812, when the killing of it in this State-was not prohibited, or it was received from the States of Minnesota and Illinois, where the killing was, at the time, legal. Plaintiff' demurred to the answer upon the ground that it did not state facts sufficient to constitute a defense. The demurrer was sustained. The court, in construing the sections, said : “With the policy of the statute in question we have no concern, but that the acts complained of, viz., having in possession certain game birds after the first of March, although killed prior to the prohibited time or brought from another State where the killing was not prohibited, is within the restraint of the statute, there can be no doubt. The seventh section declares that no person shall kill or expose for sale or have in his or her possession after the same has been killed, any quail, between the first day of January and twentieth of October under the penalty of twenty-five dollars. The eighth section contains a similar provision relative to ruffed grouse or partridge and pinnated grouse or prairie chickens, fixing the time between the first day of January and the first day of September. The language of these sections is plain and unambiguous, hence there is no room for construction. It is a familiar rule that when the language is clear, courts have no discretion but to adopt the meaning which it imports. The mandate is. that£ any person having in his or her possession,’ between certain dates, certain specified game killed, shall be liable to a penalty. The time when, or the place where, the game was killed, or when brought within the State, or where from, is not made material by the statute, and we have no power to make it so. But if the intent in this respect was doubtful, section 33 would remove it. That section provides that persons selling or in possession of game shall not be liable to the penalty up to the 1st day of March, provided they prove that it was killed before the prohibited time or outside of the-limits of the State, where the killing was not prohibited. Provision is made by this section for the cases supposed not to be within the purview of the 7th or 8th section, but it is clear that the Legislature did not so suppose, but intended to qualify those sections by allowing possession to continue and a sale of game, lawfully killed or •acquired, for two months, but after that period the inhibition is absolute.” The acts of 1892 and 1871 are in substance quite similar. The case referred to is authority for the construction which we are inclined to give to the section in question.

Plaintiff, upon the facts, was entitled to a judgment against the defendant for the $100 claimed in the complaint. The judgment •appealed from should be reversed and a new trial granted, costs to abide the event.

Ward, J., concurred; Bradley, J., dissented.

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


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    Hosea Shipman, Appellant, v. Herbert A. Learn and Edwin Booth, Respondents.

      Malicious prosecution — charge of petit larceny — when the facts are undisputed, probable cause is a question of law.

    Where an action is brought for an alleged malicious prosecution and the facts are not disputed, the question whether they furnished a probable cause for a prosecution which had been instituted by the defendant, is one of law for the court.
    Upon the trial of such an action it appeared that one Jesse Slocum, being the owner of a chestnut orchard, arranged with the defendant Learn to gather the chestnuts on shares; that Learn had employed the defendant Booth to watch the orchard; that the plaintiff, and certain persons who were with him, stopped •at the orchard to gather chestnuts, although they had no permission to do so from any one, and while so engaged Booth appeared, found one of the parties in a tree and ordered all of them to leave the premises; returning soon after and finding them still near the orchard, he ordered them away again, at which time the plaintiff said they would pay for what they had taken.
    'Subsequently Learn and Booth preferred a charge of larceny against the plaintiff, and he was arrested, tried and acquitted, after which he brought this action.

      Held, that the action could not be maintained;
    'That the circumstances justified Booth in concluding that the plaintiff was engaged in committing the crime of petit larceny.

      Appeal by the plaintiff, Hosea Shipman, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Cattaraugus on the 13th day of June, 1895, upon a nonsuit granted by the court after a trial at the Cattaraugus Circuit before the court and a jury.

      Henry Donnelly, for the appellant.

      J. R. Jewell, for the respondents.
   Lewis, J.:

This action was brought by the plaintiff to recover damages for an alleged malicious prosecution of the plaintiff by the defendants. One Jesse Slocum was the owner of a chestnut orchard in the county of Cattaraugus. He had made an arrangement with the defendant Learn to gather the chestnuts in the orchard upon shares. Learn had employed the defendant Booth, who resided in the vicinity of the orchard, to look after the chestnuts and protect them from the depredations of others. The plaintiff, in company with some of his friends, had occasion so pass the orchard in question, on his way to another chestnut orchard in the vicinity, where he and his friends were intending to gather some chestnuts. As they came to the J esse Slocum orchard, plaintiff and his party stopped to get some chestnuts. The son-in-law of the plaintiff, Mr. Porter, climbed into one of the trees for the purpose of shaking off some chestnuts. The defendant Booth at this time appeared upon the scene, and inquired of the plaintiff and his party if they had permission of the owner to gather chestnuts. On receiving a negative reply, he directed them all to leave the orchard. Porter at once came down from the tree. Booth went away; he returned in about five minutes and found the plaintiff and his party still near the orchard. Booth thereupon again directed them to leave the premises, and threatened to make trouble for the plaintiff and his party. Plaintiff, upon being informed by Booth of Beam’s interest in the chestnuts, told Booth that he knew Mr. Learn, and would pay him for what chestnuts they had taken. The plaintiff’s party had with them a small pail and a grape basket. The defendants thereafter appeared before a justice of the peace of the county, and preferred a charge of larceny against the plaintiff and his son-in-law. The justice issued a warrant against plaintiff. The plaintiff was arrested, and tried and acquitted of the charge, and thereupon brought this action. Upon the motion of defendants’ attorney, the plaintiff was non-suited at the close of his evidence upon the ground that he had failed to establish a want of probable cause for the prosecution on the part of the defendants.

The burden was upon the plaintiff to prove by circumstances or otherwise that the defendants had no probable ground for instituting the prosecution. (Kline v. Hibbard, 80 Hun, 50.) The facts and circumstances of the case being undisputed, whether they amounted to a probable cause for the prosecution was a question of law for the decision of the court. (Hazzard v. Fleury, 120 N. Y. 223.) Booth found the plaintiff and his party in the act of appropriating to their own use property which did not belong to them, without the consent of the owner. They had with them a basket and a pail, convenient articles with which to take away any chestnuts which they might obtain. The evidence thus presented to Booth was quite sufficient to justify his conclusion that they were engaged in committing the crime of larceny. Without expressing any opinion as to the good taste and propriety of the defendants preferring the serious charge of larceny against the plaintiff, under the circumstances, it cannot be doubted that there was sufficient evidence to justify the defendants in the belief that the plaintiff had been guilty at least of the technical crime of petit larceny.

Plaintiff had appropriated to his own use the property of another under circumstances which, so far as they presented themselves to the. defendants, amounted to the crime of larceny. (§ 528 of the Penal Code.)

It is urged by the appellant’s counsel that the prosecution was instituted by the defendants for the purpose of revenge, and our attention is called to the declaration of the defendant Booth, that he would report the facts to Learn, and if he could have his way he would prosecute the plaintiff, with a view of having revenge. If, as wre have suggested, the facts and circumstances were such as to' justify the defendants in believing that the plaintiff had been guilty of the crime charged against him, and they instituted the prosecution believing that he had committed the crime of larceny, they are not-liable in an action of malicious prosecution, even though the plaintiff Booth may have been actuated by motives of revenge in instituting the prosecution. The plaintiff, we think, failed to make a case entitling him to a verdict.

The judgment appealed from should be affirmed.

Bradley and Ward, JJ., concurred.

Judgment affirmed.


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    William H. Rowerdink, Appellant, v. William H. Bitner, Respondent.

      Municipal Court of Rochester — offer of judgment — appeal to the County Court, which denies under a mistake an application to open a default therein.

    Where a Municipal Court lias made an error in allowing a plaintiff costs, after an offer of judgment had been made by the defendant, followed by a recovery not more favorable to the plaintiff than the offer, the County Court should not, upon appeal, reverse the judgment entirely.
    It has power to correct the error by modifying the judgment so as to allow the defendant the costs accruing after the offer, which costs should bo deducted from the judgment of the court below in favor of the plaintiff.
    Where, however, an offer of judgment made is, in fact, not more favorable than the recovery of the plaintiff, and a motion made by the plaintiff to open a default iu the County Court, upon an appeal by the defendant from such judgment, is denied by that court upon the assumption that the offer was more favorable than tlie recovery, the order, having been denied upon an untenable ground, should be reversed.
    Appeal by the plaintiff, William II. Rowerdink, from an order of the Monroe County Court, entered in tlie office of the clerk of tbe county of Monroe on tlie 22cl day of May, 1895, denying the plaintiff’s motion to vacate a judgment theretofore entered in the action.

      John B. Kiley, for tlie appellant.

      Hircm B. Wood, for tlie respondent.
   Lewis, J.:

This action was commenced in the Municipal Court of the city of Rochester. The complaint alleged that the defendant was indebted to the plaintiff on a promissory note dated January 5, 1893, for forty dollars and interest tbereon from that date. Other causes of action were alleged in the complaint.

The answer admitted the making and delivery of the note and alleged certain counterclaims and partial payments. Upon the return of the summons in the Municipal Court, the defendant filed a written offer to allow judgment to be taken against him for the sum of thirty-nine dollars, with interest thereon from January 5, 1893, and costs.

The case was tried on the 10th day of January, 1895, and a judgment was rendered for the plaintiff for forty-four dollars and sixty-six cents damages, being the amount of the note mentioned, with interest from its date, 'and eleven dollars and sixty cents costs.

The defendant appealed to the County Court of Monroe county, where a judgment reversing the judgment of the Municipal Court was rendered by default, and the defendant recovered judgment against the plaintiff for fifty dollars and thirty-four cents costs of such appeal.

The plaintiff moved in the County Court upon affidavits of himself and his attorney to open such default. The facts stated in the moving papers tended very strongly to excuse plaintiff’s default in not appearing in the County Court when the case was reached. The court did not consider the question of excuse, but denied the motion upon the ground, as stated in the order, that the defendant would, in any event, be entitled to a judgment of reversal.

It appears from the record presented to us that the offer of judgment in the Municipal Court was not considered by that court in rendering its judgment for the reason that the offer had been inadvertently removed from the files of the court, and the judge when rendering his judgment was not aware that the offer had been made, and, therefore, omitted to consider the question of the defendant’s right to costs after the service of the offer. It is the contention of the respondent that the judgment in the Municipal Court was not-more favorable to the plaintiff than the offer of the defendant, and that, therefore, the defendant was entitled to costs after the offer, and that for the error in not allowing him costs the judgment must necessarily be reversed on the merits, and that seems to have been the view taken by the County Court. No other reason for denying the motion appears in the papers.

A simple computation of interest upon the amount for which judgment was offered shows that the offer was less, by nearly one dollar, than the amount of plaintiff’s recovery in the Municipal Court. The judgment in the Municipal Court seems to have been, in all respects, entirely correct.

If, however, there was error in the allowance of costs to the plaintiff in the Municipal Court after the service of the offer of judgment, the judgment should not have been entirely reversed for that reason, for the County Court had power to correct the error by so modifying the judgment as to allow the defendant costs after the offer of judgment was made, and deducting the amount from the judgment. (Shaw v. Davis, 55 Barb. 390, and cases cited.)

The motion having been denied upon a ground which had no real foundation, and no other error appearing to uphold the order appealed from, it should be reversed.

Having come to this conclusion, it is not necessary to consider the question as to whether the return not having been filed in the county clerk’s office until the day appointed for the term of the County Court to begin, gave the County Court jurisdiction of the case to render a judgment by default.

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

Bradley and Adams, JJ., concurred; Ward, J'., not sitting.

Order reversed, with ten dollars costs and disbursements.


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    Winifred Collins, as Executrix, etc., of Lawrence Collins, Deceased, Appellant, v. New York, Chicago and St. Louis Railroad Company, Respondent.

      Personal injuries —failure to look for an approaching train — illegal rate of speed of the train at a highway crossing is no excuse.

    Where it appears that a person attempting to cross railroad tracks at the intersection of such tracks with a city street did not look for an approaching train until he had stepped upon the tracks, and that he could have seen a train coming if he had looked, there can be no recovery for injuries resulting from his being struck by such train.

      The fact that the train was running at a greater rate of speed than was allowed ’ by the ordinance of the city through whose streets it was running, did not absolve such person when approaching the railroad crossing from the necessity of using his senses to avoid the threatened danger.
    Appeal by the plaintiff, Winifred Collins, as executrix, etc., of Lawrence Collins, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 21st day of August, 1895, upon the dismissal of the complaint directed by the court after a trial at the Erie Circuit before the court and a jury.

      Frank Brundage, for the appellant.

      John G. Milburn, for the respondent.
   Lewis, J.:

The plaintiff’s testator, Lawrence Collins, while attempting to cross a railroad track of the Lake Shore and Michigan Southern Railroad Company, on Seymour street in the city of Buffalo, was struck and killed by one of the defendant’s trains of cars passing across Seymour street upon the track of the Lake Shore Company. The plaintiff, as executrix, brought this action to recover the damages sustained by the next of kin by the death of the testator.

The death was concededly caused by the negligence of the defendant, which consisted in its train of cars being run at from twenty-five to thirty miles an hour, in violation of a city ordinance, which limited the running of trains in the city to a rate of speed not exceeding six miles an hour. At the close of the plaintiff’s evidence a nonsuit was ordered, upon the ground that the plaintiff had failed to show that the deceased was free from contributory negligence. The accident occurred about seven o’clock in the morning of the 11th day of November, 1894, at a point where the State Line railroad tracks cross Seymour street. Seymour street runs nearly east and west. The railroad tracks run north and south, and cross Seymour street at grade about at right angles. All these tracks are near together. The deceased, so far as it was disclosed by the evidence, was first seen, just prior to the accident, coming from the west, and walking easterly upon the northerly sidewalk of Seymour street. He came to the intersection of Grosvenor and Seymour streets, which is just west of the westerly rail of the New York Central tracks. There are two tracks of the New York Central crossing Seymour street; just east of, and parallel to, the Central tracks are two tracks of the Lake Shore railroad. Jacob Flierl and Pauline Schrobe, two of plaintiffs witnesses, were. standing at the junction of the streets mentioned, waiting for a freight train, which was running southerly upon the easterly Lake Shore tracks, to pass across Seymour street. Collins stood there with them for a minute, and then' all three continued along on the northerly side of Seymour street across the tracks of the Central railroad, and when they came to the westerly Lake Shore track the freight train had not yet passed over the crossing, and they halted for a moment, and then they all stepped in between the rails of the westerly Lake Shore track, the deceased being a little in advance of the others. The deceased and Flierl then looked to the north and south along the track on which they were standing to see if a train w^as approaching. They discovered a train, composed of a locomotive and four cars, approaching on the track on which they were, from the south, close to them. Flierl and Miss Schrobe stepped or jumped back from between the rails; the deceased stepped or jumped forward' over the easterly rail of the westerly track into the space between the two Lake Shore tracks. The engine passed without hitting him, but the corner of the first car behind the engine struck him.

It was forty-five feet between the junction of the streets mentioned, along the northerly side of Seymour street, to the first rail of the west Lake Shore track. The Lake Shore tracks southerly from Seymour street were straight for a distance of about 500 feet; then they bent to the east slightly. The deceased had been employed for a number of years as a flagman at a street crossing in the immediate vicinity of Seymour street, and must have been entirely familiar with the railroad tracks across Seymour street, and with the running of trains. There ivas nothing to prevent his seeing the approaching train, had he looked in that direction, at any time while he was walking the forty-five feet between the junction of the streets mentioned and the Lake Shore tracks. It was daylight at the time. The evidence and circumstances show, beyond any question, that he would have seen the train had he looked in the direction from which it was coming. He walked the distance mentioned in plain sight of the train, paying no heed to it until he was upon the track on which the train was coming, when he for the first time looked, but it was then too late to avoid the accident. If what occurred after the deceased arrived upon the westerly Lake Shore track, and first saw the approaching train, was the only thing to be considered upon the question of his contributory negligence, a case would have been presented which should have been submitted to the jury. The contributory negligence on the part of the deceased consisted in his going upon the track without having looked to see if a train was approaching. He was entirely familiar with the crossing ; he knew that a train was liable at any moment to pass along the track; he knew that the track just east of him was occupied at the time by a passing freight train, which was an obstacle to his escape in that direction, and yet, notwithstanding all this, he went upon the track without having made use of his senses to avoid danger, which he must have known was to be apprehended.

It is urged by the ajipellant’s counsel that the deceased had a right to assume that a train would not be running at a greater rate of speed than that fixed by the city ordinances. The rule referred to does not go to the extent of absolving a person when approaching a railroad crossing on which a train is liable to be running from making use of his senses to avoid danger. (Wilcox v. Rome, Watertown & Ogdensburgh R. R. Co., 39 N. Y. 358; Cullen v. Delaware & Hudson Canal Company, 113 id. 667; McGrath v. N. Y. C. & H. R. R. R. Co., 59 id. 468.)

The judgment should be affirmed.

Bradley, Ward and Adams, JJ., concurred.

Judgment affirmed.


author: Lewis, J. :

text:
    Charles A. Bird, in his own Behalf and in Behalf of all Others Similarity Situated, etc., Respondent, v. Erwin H. Lanphear and Earl M. Lanphear, Appellants, Impleaded with Arthur C. Tadder.

      Hquity — members of several syndicates — induced by misrepresentations to purchase lands — remedy against tiie promoter fraudulently receiving commissions on the sale — receiver, when and of what appointed.

    In an action brought in equity by the plaintiff, in his own behalf and that of all others similarly situated, it appeared that Erwin II. Lanphear, the father of Earl M. Lanphear, formed, for the purchase of three several blocks of land, three several syndicates, which were not all composed of the same persons; that it was represented to them that they were all to go into the speculation upon the same footing; that in this belief they made certain cash payments, and that the properly was deeded in trust for the owners to Erwin II. Lanphear and Arthur C. Tadder, who was associated with him in the matter in trust for the owners; that the representation was false; that upon receiving the deed of one block the grantees had given back to the grantor a purchase-money mortgage; that this mortgage was assigned to Earl M. Lanphear for commissions of his father, which, as the associates subsequently discovered, were to amount to a large sum, and were to be paid by the original owners of the property to Erwin II. Lanphear as compensation to him for making the sale; l.hat the stockholders made payments to Erwin II. Lanphear, supposing that they were to be applied upon the purchase price of the lands, but that Erwin II. Lanphear paid a considerable part of these moneys to his son in part payment of the mortgage which had been assigned to him by the original grantors. The complaint charged false representations, in that the father was to receive these large commissions, and it also charged that the son held this mortgage for the use and benefit of his father.

      Held, that the plaintiff, and those similarly situated, could maintain an action to compel the payment to the association by the defendants of the commissions earned by Erwin II. Lanphear, and to have it declared that the mortgage in question was held in trust by Earl M. Lanphear for the benefit of the associates;
    That it was proper to appoint a receiver, pending the action, to receive the moneys which had been paid the defendants, or any of them, by the original owners as commissions for selling that property;
    That although Erwin H. Lanphear appeared to be responsible, it was proper to appoint a receiver, as it was shown that much of his property was out of this State, and that he was trying to dispose of the property which he had within the State.
    Appeal by the defendants, Erwin H. Lanphear and another, 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 Steuben on the 3d day of June, 1895, appointing a receiver during the pendency of the action.

      DeMerville Page, for the appellant Erwin H. Lanphear.

      Edwa/rd L. Jellineh, for the appellant Earl M. Lanphear.

      Erederieh Golli/n, for the respondent.
   Lewis, J. :

The defendant Erwin H. Lanphear, in the early part of the year 1891, through the agents of the owners, obtained options for the purchase of three blocks of land in a tract in the town of Tonawanda, near Buffalo, known as the Englewood tract. Said blocks were known and distinguished as blocks 1, 8 and 16 of said tract.

Lanphear resided at the time in the city of Hornellsville. He secured these options Avitli the intention of inducing others to join with him in purchasing these blocks, and to accomplish his purpose he intervieAved a large number of his neighbors and acquaintances residing in and around Hornellsville, and informed them about the options which he had secured. With a view to inducing them to join him in making the purchase, lie represented to the plaintiff and others that land in this Englewood tract, including the blocks mentioned, AAras rapidly increasing in value, and that there Avas no reasonable doubt but that, at the prices for Avliich they could be purchased, there AAras a fine opportunity to make money by investing in the property. He stated that he Avas required to pay $15,000 for block J, the same amount for block 8, and $11,'000 for block 16; that he Avas Avilling to and Avould alloAv the plaintiff, and any others who wished to join him in making the purchase, to come into the deal on equal terms Avitli himself. He stated further, that no one Avas to receive any commissions for selling the lots.

Relying upon these representations and believing them to be true, the plaintiff and a large number of others joined the defendant Erwin H. Lanphear in forming three different syndicates to purchase the property. Fifteen persons, including the plaintiff and the defendants Tadder and Erwin H. Lanphear, entered into a written agreement with the owners to purchase block No. 8 for the sum of $15,000. The plaintiff, with the two defendants mentioned, together with nine others, entered into a written contract with the owners to purchase block 16 for the sum of $11,000. Some of those who composed the syndicates for the purchase of blocks 8 and 16 joined with the defendants Erwin H. and Earl M. Lanphear, and entered into a contract with the owners to purchase block No. 7 for $15,000. The plaintiff was not a member of the last-named syndicate. The members of the different syndicates, with the exception of the defendants, advanced money to make the down payments upon said purchases, amounting to the sum of $3,000 for each block, and by the terms of the various contracts the purchasers agreed to pay, and did pay, $150 a month upon each block of land until the sums required to be paid as a condition to the giving of the deeds were paid, when deeds were given. By arrangement between the stockholders, the conveyances ran to the defendants Erwin H. Lanphear and Arthur C. Tadder, in trust for the owners.

After having made these various payments, it came to the knowledge of the plaintiff and others who had taken shares in the purchases, that the statements and representations of the defendant Erwin II. Lanphear, made to induce them to join in the purchase, were false; that, instead of their having been permitted to join him upon equal terms in making the purchases, the- owners of the property, through their agents, had agreed to pay him commissions for making the sale, amounting to some twenty per cent of the contract price, which amounted in all to from $10,000 t'o $12,000, and that a part of these commissions had been paid to him in money; that upon receiving the deed of block 16, the defendants Erwin II. Lanphear and Tadder had given to the grantor a purchase-money mortgage for $9,500, and that thereafter the mortgagee assigned said mortgage to the defendant Earl M. Lanphear in payment of the balance of the commissions agreed to be paid to Erwin II. Lanphear. The plaintiff and other shareholders continued to make payments after the conveyances were executed, to Erwin H. Lanphear with the expectation and understanding that he was to apply the money towards the payment of the unpaid purchase price of the land. Erwin H. Lanphear paid a considerable portion thereof to the defendant Earl M. Lanphear in part payment of the mortgage thus assigned to him. It was charged in the moving papers that this transfer of the mortgage to Earl M. Lanphear was in pursuance of a collusive arrangement entered into between himself and the defendant Erwin LI. Lanphear, who is the father of Earl M., and that the mortgage was in fact held by Earl for the benefit of his father.

It was further charged that a small portion of the commissions received by the defendant Erwin II. Lanphear were paid by him to the defendant Tadder.

It was made to appear by affidavits read in opposition to the motion, that the defendant Earl X. Lanphear had, prior to the commencement of this action, sold said mortgage, and was not, at the commencement of the action, the owner thereof; but it did appear, as stated, that there had been paid to him thereon a considerable sum of money. Plaintiff commenced this action in his own behalf and in behalf of all others similarly situated, who desired to come in and assist in its prosecution, to compel the payment to the stockholders of the money received by the defendants as and for commissions, according to the amount of each one’s share in said purchase, with interest, and to obtain an adjudication that the mortgage mentioned and assigned to the defendant Earl X. Lanphear was held in trust by him for the benefit of the plaintiff and the other parties, as their interest might appear, and for such further or other relief as under'the facts the plaintiffs might be entitled to.

All of the parties to the various contracts, with the exception of the defendants and two others, gave notice to the plaintiff of their desire to take part in prosecuting the action, and retained the attorneys for the plaintiff to act in their behalf in prosecuting the action.

Upon these facts the court, upon motion of the plaintiff, appointed a receiver during the pendency of the action, and, by the terms of the order, the defendant, Erwin II. Lanphear, was directed to pay over to the receiver all moneys received by him as commissions, and Earl M. Lanphear was ordered to pay over to the receiver the amount received by him on account of the mortgage heretofore referred to. From the order thus made this appeal was taken.

It is claimed by the appellants that the plaintiff Bird, not being a party to the purchase of block 7, has no interest therein, and that, therefore, the order, so far as it directs the repayment of any commissions received from the sale of that lot, is erroneous.

While the plaintiff Bird has no direct interest in block 7, he and the shareholders in block 7 are jointly interested in the mortgage of $9,500 mentioned, and in any moneys which may have been paid to Earl H. Lanphear while he was the holder of said mortgage, and the shareholders in block 7 having signified their desire to become parties to the action, block 7 was properly included in the order, so that in case the plaintiffs succeed in the action, a final distribution of the entire fund may be had.

It may, and probably will be, difficult to trace the funds paid as commissions, but they have been paid to and received by Erwin II. Lanphear, and the plaintiffs are entitled through the receiver to seek to obtain possession of the money. (American Sugar Refining Co. v. Fancher, 145 N. Y. 552.)

The parties to these various agreements joined in these ventures with a view of speculating in this real estate. They allege in their moving papers that they were induced by false and fraudulent representations to enter into these contracts, and that they have been defrauded by the misconduct of the defendants. It is a case where the court, if they succeed in establishing their cause of action, will exercise its general equitable powers to compel the defendants to restore to those entitled thereto, the moneys which have been improperly appropriated, and to that end the court, as a part of its incidental power, can impound the fund in litigation during the pendency of the action. (Decker v. Gardner, 124 N. Y. 334.)

It is contended that a receiver should not have been ap]3ointed, for the reason that the defendants are financially responsible and able to respond in any damages which the plaintiffs can in any event recover. Erwin II. Lanphear was shown to have considerable property, but there was evidence that he had property interests in the State of Pennsylvania, and that he had been trying to dispose of his property in this State.

We think the granting of the order was within the discretion of the Special Term, and fail to find any reason for disturbing it.

The order should be affirmed, with ten dollars costs and disbursements.

Bradley, Ward and Adams, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    John O’Malley, Respondent, v. The People’s Building, Loan and Savings Association, Appellant.

      Building and loan association certificates — the articles of association and by-laws cm a part of the contract — a fixed, period of maturity unauthorized — amount recoverable under the certificates.

    Where an action is brought to recover upon a certificate of a building fund association upon the maturity thereof, the articles of association and the by-laws of the association must he treated as a part of the contract.
    Such an association has no power to issue a certificate having a fixed period of maturity, and any time of maturity specified therein will be considered to be an estimated time.
    A shareholder is not necessarily entitled to recover the face value of the certificate, but may recover only the amount which such certificate has earned.
    Appeal by tlie defendant, Tlie People’s Building, Loan and Savings Association, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in tlie office of the clerk of the county of Ontario on the 23d day of July, 1895, upon the decision of the court rendered after a trial at the Ontario Circuit before the court without a jury.

      Chester M. Elliott, for the appellant.

      George L. Bachman, for the respondent.
   Lewis, J.:

This action was brought to recover the sum of $500, claimed to he due upon a certificate of five shares of stock issued by the defendant to the plaintiff, of the par value of $100 a share.. The principal question presented is, whether the plaintiff is entitled to recover the par value of the shares, or whether his recovery shall be limited to tlie sum of $371, that being the amount, as claimed by the defendant, which the shares had earned, at the time this action was commenced.

The defendant is a building, loan and savings association. It was organized in tlie month of December, 1887, under chapter 122 of the Laws of 1851, entitled “ An act for the incorporation of building, mutual loan and accumulating fund associations,” and the acts amendatory thereof and supplemental thereto. Its principal office is in tlie village of Geneva, Ontario county. Its capital stock is $5,000,000, represented, by 50,000 shares of the par value of $100 a share.

It is provided by section 1 of the act of 1851 that any number of persons, not less than nine, may associate in forming an incorporated company for the purpose of accumulating a fund for aiding its members in acquiring real estate, making improvements thereon and removing incumbrances therefrom, and for the further purpose of accumulating a fund to be returned to its members who do not obtain advances upon their shares of stock, when the funds of the association shall amount to a certain sum per share, to be specified in the articles of association.

The act provides for the filing of articles of association which are to be subscribed by the incorporators, in which shall be stated, among other things, the amount of the entrance fee of new members and new shares ; the monthly or weekly dues per share ; the redemption fee on shares on which advances shall be made; the fines and penalties for non-payment of dues or fees, or other violations of the articles of association; the manner of redemption of shares by advances made thereon ;\ the mortgaged security to be taken on such advances; how tire same may be redeemed or exchanged, and the ultimate amount to be paid to the owners of unredeemed shares.

It was further provided by said act that corporations formed under it should have the power to borrow money for temporary purposes, not inconsistent with the objects of their organization, but that no loan for such purposes should have a longer duration than two years.

Articles of association were duly subscribed and filed by the incorporators of the defendant. It is provided therein that persons on. becoming members of the association shall duly subscribe a written application for the shares desired to be purchased, and pay an admission fee of one dollar on each share, and thereafter pay one dollar a month on each share, and in addition thereto the sum of twenty-five cents every three months.

The scheme or plan of the association is, briefly, to issue its shares of stock to persons desiring to purchase the same, and with the moneys paid by the shareholders and the fines and penalties which may be imposed upon' the members to accumulate a fund which, after paying the expenses of the association, is to be loaned or advanced to the holders of the shares of stock who may make application therefor to the amount of the par value of the stock. The moneys advanced are to be secured by the bond of the applicant, and by a mortgage, upon unincumbered real estate, conditioned to pay on the amount borrowed, annual interest at the rate of five per cent, and in addition thereto a premium of five per cent per annum, the interest and premium to be paid in weekly installments until the mortgage matures. The certificates of stock upon which advances are not made may be held by the owner as au investment simply. The holder thereof is entitled to the dividends which may be made thereon from time to -time.

It is provided by the defendant’s by-laws that any member, in lieu of paying the monthly and quarterly installments, may at the time of making application pay sixty dollars a share, and receive a paid-up certificate with a maturity face value of $100.

The holders of these paid-up certificates are not liable for any admission fee, fines or to have their stock canceled; and they may, upon the surrender thereof, withdraw the amount they have paid on the same at any time after three years from the date of issue thereof and before maturity, together with annual interest at the rate of six per cent.

The by-laws also provide that the directors may, in lieu of the admission and other fees, deduct from paid-up certificates two per cent per annum on the maturity face value of the stock, for the estimated maturity period of five years, and place the same in the expense fund to defray the expenses of the association.

The purpose of the law, it will be seen, is to provide an opportunity for people of limited means to invest a portion of their income, making payments in small sums from time to time, and thereby secure to themselves homes which they might not be able to do if they were required to make their payments in large amounts.

If the affairs of such associations are conducted in conformity to the law and their articles of association and by-laws, the investments of the shareholders are reasonably safe; but if, on the contrary, they are improvidently and carelessly managed, they are quite sure to fail in their purpose.

There was issued to the plaintiff, upon his written application therefor, on the 2d day of December, 1889, a certificate for five shares of the defendant’s stock.

It whs provided in the certificate that the plaintiff was constituted the holder of five shares of stock of the defendant of $100 each, “in consideration of the entrance fee, together with agreements and full compliance with the terms and conditions printed on the back of this certificate and the articles of association and by-laws adopted by the said association, all of which are hereby referred to and made a part of this contract.” The certificate further stated that the defendant agreed to pay said shareholder or his heirs, executors, administrators or assigns, the sum of $100 for each of said shares at the end of five years from the date thereof, or, in case of his death before the expiration of said term, then a sum of money equal to the amount of monthly installments paid on the shares, together with all dividends which had accrued thereon, “ all of -which are payable in the manner and upon the conditions set forth in the articles of association and by-laws and terms and conditions printed on the back of this certificate.”

The plaintiff, in all respects, complied with the rules and regulations of the defendant, and upon the expiration of the five years from the date of the certificate, he presented it to the defendant and demanded the amount of its par value.

The defendant declined to pay the $500, for the alleged reason that the shares had not then earned that amount, but stated that the amount they had earned was $871, which the defendant offered to pay to the plaintiff upon the surrender by him of the certificate. The plaintiff declined to accept the amount so offered, and thereupon brought this action.

The trial court construed the certificate to be an absolute, unconditional promise to pay the $500 upon the expiration of five years from its date, and directed a judgment accordingly.

The main question presented by the appeal,- as stated, is whether the plaintiff is entitled to recover the face value of the certificate, or whether his recovery should be limited to the amount the shares had earned.

If the language of the certificate alone is to be considered, there can be but little doubt that the decision of the trial court was right.

In construing this contract the defendant’s articles of association and by-laws must be considered as part of the contract, and be given their proper effect. (Gibbs v. Long Island Bank, 83 Hun, 92; Matter of Commissioners of Washington Park, 52 N. Y. 131.)

It is reasonably certain that if the construction contended for by the plaintiff is to prevail, it will thwart the scheme and purpose of the association, and probably bankrupt it. The plan of the organization contemplates that the holders of certificates shall be entitled to share equally in its earnings; it is a mutual association. It cannot with any propriety be claimed that under the defendant’s articles of association and by-laws it was contemplated that there should be any distinction in the time for the maturity of the shares of stock.

The officers of the defendant, however, assumed to issue to the plaintiff a certificate -which upon its face states that the association at the end of five years will pay to the holder thereof the sum of $100 a share.

Plaintiff’s payments, were thirteen dollars a year on each share of his stock, amounting upon his five shares to sixty-five dollars a year, and in five years to the sum of $325 ; interest computed at six per cent per annum on the payments from the time they were respectively made until the end of the five years, amounts to between forty-five and forty-six dollars, which, added to the payments, make $371, the amount, which the defendant claimed the shares had earned, and which it offered to pay. If the plaintiff is entitled to recover the $500, his investment earned .him from twenty-two to twenty-three per cent per annum, an amount of interest which, if paid upon all the certificates issued by the defendant, would, in all probability, bankrupt the association, a result which it would seem must have been apparent to the parties when the transaction took place. •

The plaintiff was presumably aware of the general plan of the association, for it was stated in his certificate that the articles of association and the by-laws were to form a part of the contract, and, as stated, the general plan of the association contemplated that all the shareholders should be entitled to a pro rata share of its earnings. He must have been aware that it was not at all probable that the earnings of the association would be sufficient to pay the rate of interest which his construction of the contract calls for. It was not possible to know at the time the certificate was issued to the plaintiff when it would mature by the accumulation of dividends,. for that necessarily depended upon the earnings of the association,, and they could not be determined in advance.

The dues, fees and penalties paid by the shareholders, with the' interest and premiums paid by the borrowing members, make up and constitute the income of the association, and provide the fund from which the dividends upon the stock are paid. (People ex rel. Fairchild v. Preston, 140 N. Y. 549.) The dividends can only be paid out of the earnings. (§ 7 of chap. 122 of the Laws of 1851, as amended by chap. 564, Laws of 1875.) If the five-year clause be construed as an estimated time for the maturity of the certificate, then the certificate conforms to the general scheme of the organization and to the statutes.

The authority to issue a certificate with a fixed period of maturity is. not expressly given either by the statute or by the articles of association' or by-laws of the association. "We are of the opinion that the defendant did not possess the power or authority to issue a certificate specify, ing a fixed maturity period, and that the clause in the certificate in-question should be construed as an estimated period of maturity. The amount actually earned by the certificate at the time it was. presented by the plaintiff for payment was only $371.

The judgment should be reversed and a new trial granted, costs-, to abide the event, unless the plaintiff within twenty days stipulates-to reduce the recoyery of damages to $371, and interest thereon-from December 2, 1894; and, in that event, the judgment be so modified, and as modified, affirmed, without costs of this appeal to-either party.

A like disposition should be made of the case of John M. Church-against the same defendant.

Bradley and Ward, JJ., concurred; Adams, J., not sitting.

Judgment reversed and new trial granted, costs to abide the event,, unless the plaintiff within twenty days stipulate to reduce the recovery of damages to $371, and interest from December 2, 1894;, and, in that event, the judgment be so modified, and as modified, affirmed, without costs of this appeal to either party.


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    William Brigden, as Executor, etc., of Marania A. P. Brigden, Deceased, Respondent, v. Charles H. Osmun, Appellant.

      Practice — submission of a case upon a mistake as to a fact — new trial.

    Where an executor brought an action to recover two sums of money alleged to be due to his testator’s estate, and a defense was interposed that his testatrix had released both sums, and it appeared conclusively that one of the sums was paid by the executor himself after her death, and that the testatrix consequently had no knowledge of the existence of such claim, but by an oversight of the plaintiffs counsel that fact was not brought to the attention of the justice upon the trial, it was held that as to the claim based upon the sum paid by the executor, a new trial must be ordered unless the defendant stipulated to allow the sum in question.
    Appeal by the defendant, Charles H. Osmun, from an order of the Supreme Court, made at the Cayuga Circuit and Special Term and entered in the office of the clerk of the county of Cayuga on the 15th day of February, 1895, granting the plaintiff’s motion for a new trial upon the payment of the costs of the former trial and ten dollars costs of the motion.
    On the 16th day of May, 1880, Milo Pierce, the father of the plaintiff’s testatrix, died seized of about $30,000 worth of real and personal property, leaving a last will and testament, by the terms of which the plaintiff’s testatrix, who was a daughter of the said Milo Pierce, was given a legacy of $500.
    Thereafter the defendant represented to the plaintiff’s testatrix that the will of the said Milo Pierce was invalid and entered into an agreement with her by which he undertook to prevent the probate of such will. By the terms of this agreement the defendant was to conduct the necessary litigation, the costs and expenses of which were to be advanced by the plaintiff’s testatrix, and each of the parties was to have a one-half interest in the share to which the plaintiff’s testatrix should be entitled after deducting said expenses and costs.
    The defendant thereupon instituted proceedings to have the said will declared invalid, which resulted in a compromise being effected, by which the will was withdrawn from the surrogate’s office, an administrator appointed, and an agreement entered into between the widow and all the heirs of the said Milo Pierce in pursuance of which the testator’s property was divided among such widow and heirs, and each agreed to pay their proportionate share of whatever deficiency might arise on the settlement of the testator’s estate.
    Under this agreement the plaintiff’s testatrix received $6,400, half of which she paid over to the defendant.
    Subsequently Hannah P. Gibson, one of the heirs of Milo Pierce, brought an action to set aside such agreement, alleging that she was an infant at the time such agreement was entered into, and that it was fraudulent and void as against her. She succeeded in that action, and, as a result, a judgment was entered, in pursuance of which the plaintiff’s testatrix restored $1,800 of the sum which she had received from her father’s estate.
    Thereafter the administrator of the estate of Milo Pierce accounted, and it appeared thereon that there was a large deficiency, for $643.23 of which the plaintiff’s testatrix was liable.
    In the meantime the said Marania A. P. Brigden died, and the plaintiff, as her executor, paid her share of the deficiency and commenced this action to recover one-half of the amount of the moneys paid by his testatrix upon the Gibson judgment and one-half of the moneys paid by himself in liquidating that part of the deficiency of the estate of the said Milo Pierce for which his testatrix was liable.

      Demid M. Dean, for the appellant.

      8. Edwin Day, for the respondent.
   Lewis, J.:

The conclusion we have reached as to the proper disposition to be made of this appeal makes it necessary-to state but a very few of the many facts which were fairly established by the evidence. The plaintiff’s testatrix, during her lifetime, advanced and paid out the sum of $1,800, under circumstances which made the defendant liable to refund and pay to her one-lialf of said amount.

By an arrangement made between the widow and heirs at law of Milo Pierce, deceased, the principal part of his estate was divided betweeii them. This division occurred before any judicial settlement of the estate had taken place. The testatrix was a daughter of the deceased, and as such received her proportion of the property so divided. The amount she received was $7,000. When the final Settlement of the estate was had, the assets remaining were not sufficient to pay the debts. The testatrix died after receiving the money and before the final settlement of the estate was had. The amount which the estate of the testatrix was liable to pay to make up its proportion of such deficiency was $643.23, which sum the plaintiff, as executor, paid on the 25th day of November, 1892. It was established upon the trial that the defendant was legally liable to • the plaintiff for one-lialf of the sum so paid.

Two causes of action were stated in the complaint. The first was for the $900 paid by the testatrix for the defendant. The second cause of action was for the. one-lialf of the $643.23 paid by the plaintiff, as stated. The testatrix died in the month of April, 1892. The question, and the only question about which there was any controversy upon the trial, was as to whether the deceased had, during her lifetime,' released and discharged the defendant from any and all claims on account of the payment of said sums of money. Such a defense was not pleaded by the defendant, but, notwithstanding his omission to interpose such a defense, the question was litigated and the jury rendered a general verdict for the defendant. By the inadvertence and oversight of the plaintiff’s counsel the court’s attention was not called to the fact which had been assumed upon the trial, that the $643.23 was in fact paid by the executor after the death of the testatrix; that she(was not aware of the existence of such a claim, and lienee could not have released and discharged the defendant therefrom.

The case, as settled, states that “ payment of the sum of $643.23 by plaintiff to William Pierce, administrator, etc., of the estate of Miffi Pierce, deceased, and that the same was paid on November 25,1892, were facts assumed on the trial.”

It is the contention of the appellant’s counsel that this statement was not' sustained by the evidence. It was inserted in the case by direction of the justice before whom the trial was held. It was not claimed in the complaint that the $643.23 was paid by the testatrix, but, on the contrary, it was claimed to have been paid after her death. We assume, in deciding the appeal, that the fact was as stated in the case.

Upon the attention of the trial court being called to this error, an order was granted setting aside the verdict and granting a new trial upon the payment by the plaintiff of the costs of the former trial and ten dollars costs of the motion. As to the claim of $900 paid by the testatrix during her lifetime, there would seem to be no good reason why the plaintiff should have a new trial. The jury found that the defendant had been released from any liability to pay that claim. As to the other claim, by the oversight and error of his counsel, the plaintiff was unjustly defeated, and is entitled to relief. The order should be affirmed, with ten dollars costs and disbursements, unless the defendant, within twenty days, gives to the plaintiff a stipulation consenting to allow judgment, to be entered against him in said action for the sum of $321.61, with interest thereon from the 25th day of November, 1892, with costs of the action. If such stipulation be given, then the order appealed from should be modified accordingly, without costs of this appeal to either party.

Bradley and Ward, JJ., concurred ; Adams, J., not sitting.

Order affirmed, with ten dollars costs and disbursements, imless the defendant within twenty days stipulates to allow judgment to be entered against him for $321.61 and interest from November 25, 1892, with costs of the action, and in that event the order appealed from be so modified, without costs of this appeal to either party.