text:
    Agnes Mickee, as Administratrix of the Goods, Chattels and Credits of Charles Mickee, Deceased, Appellant, v. The Walter A. Wood Mowing and Reaping Machine Company, Respondent.

      Negligence — master and serra/nt — risk not incident to the employment.— notice to employer.
    Where an employee is engaged in grading íor a railroad track, and a post, standing on end on the outside line of a building in process of construction owned by his employer, adjoining the railroad track, falls and kills him, the injury does not result from the ordinary risk incident to the work of grading and is not one which he assumes in entering upon such employment, and the questions whether the place was a safe one and whether the employer should be presumed to have had notice of the increased hazard should be submitted to the jury.
    » Appeal by the plaintiff, Agnes Mickee, as administratrix, etc., of Charles Mickee, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of Rensselaer county on the 8th day of March, 1893, upon a nonsuit granted upon a trial at the Rensselaer Circuit before the court and a jury.
    The action was brought to recover the damages resulting from the death of the plaintiff’s intestate while in the employ of the defendant, because of the alleged negligence of the defendant in neglecting to furnish and provide for such employee a suitable and proper place in which to work and perform the duties assigned to him by the defendant.
    It appeared upon the trial that the plaintiff’s intestate was engaged at the time of the accident in the work of grading preparatory to the laying of certain railroad tracks, and was injured by the fall of a post from the third story of a building belonging to his employer, which was in process of construction.

      Olin A. Martin, for the appellant.

      Mmsdill Parsons and George M. Greene, for the. respondent.
   Mayham, P. J.:

The plaintiff’s intestate was killed by the falling of a post which had been placed perpendicularly on end on a plate of a building of the defendant in process of construction. The plate on which the foot of the post stood was about thirty-five feet from the ground at the point when the accident occurred.

This post had stood there three or four d,ays before it fell. The foot of this post stood on a level with the third floor of the building, which was partially laid, and the post which fell stood, with several other posts, about twelve or fifteen feet distant from each other on the beam or plate on which the third floor was laid, on a line with the outside of the building flush out with the side of the supporting timber, and the railroad track on which the plaintiff’s intestate was at work, ran along that side of the building parallel with, and close to it. These posts were placed there to support the fourth story of the building, and the evidence does not disclose how they were secured or fastened in that position.

They were of spruce timber, ten inches square and about ten feet long. The building from which this timber fell was a new wood building in process of construction and was sided up to the timbers on which the foot of this post rested.

There seems to be no dispute but that plaintiff’s intestate was killed by the falling of this post, which fell upon him at the place at which he was directed to work, and while engaged in the service of the defendant, and the building and the railroad were the defendant’s property, and being constructed by it.

Intestate was not working on the building. The plaintiff was nonsuited on her own proof, no evidence having been given by the defendant, and the principal question raised on this appeal is as to whether or not the defendant furnished a reasonably safe place for plaintiff’s intestate to work, or whether under the evidence in this case, that question should not have been submitted to the jury as one of fact.

It is urged on the part of the respondent, as the condition of the building in process of construction was equally open to the observation of the intestate and the defendant, he was equally negligent with the defendant in not avoiding the danger if the place in which he worked was a dangerous one.

But the difficulty with that contention is that the evidence shows that the deceased did not work on the building and fails to show that he had any knowledge of its condition, or of any fact to put liim on inquiry as to the safety of the place in which he was required to work, while it was the absolute legal duty of the defendant to see to it that it was a reasonably safe place.

In Lorey v. Hall, 8 N. Y. St. Repr. 799, cited by the respondent, it was held that it is the duty of the master to use proper care and prudence in the selection of the place and appliances used by his servants in the discharge of the duties of his employment. Such duty is imposed by law, and implied against him by the contract with the servant. The servant has a right to shape his conduct and act in reliance upon the protection and security which the proper discharge of the legal duties and obligations of the master will afford.

It is true that the servant who undertakes the performance of hazardous duties assumes the risk, naturally and necessarily incident to such employment. (Evans v. Lake Shore & Michigan Southern R. R. Co., 12 Hun, 289.) But that risk must be such only as naturally arises out of the nature of the employment, and does not relieve the master from the obligation to furnish such reasonably safe place and tools as the nature of the employment may reasonably enable the master to furnish.

It is also true that if the servant has accepted the service with knowledge of the character and position of the structure from which he may be liable to injury, he cannot maintain an action against his employer for indemnity for such injury if it happen. De Forest v. Jewell, 88 N. Y. 264.)

We have examined all the cases cited by the learned counsel for the respondent, and find none that relieves the employer from the well-settled rule that requires him to furnish a reasonably safe place, considering the nature of the employment, for the performance of the work by the employed.

But it is insisted by the counsel for the defendant that the respondent had no reason to apprehend danger of the happening of the event which jjroduced the injury to the deceased, and we are referred to the case of Haskins v. Stewart (32 N. Y. St. Repr. 962), and several other cases of a kindred character upon that branch of the case. We are inclined to the opinion that whether or not the place was of the character from which the employer might be presumed to assume that it was free from danger not incident to the ordinary employment of the deceased, was one that should have been submitted to the jury for their determination, and that it was error to dispose of that question, under the circumstances of this case, as one of law.

It needed no evidence to show that a stick set up on end of the dimensions of the one by which the injury was inflicted, unless the same was well guyed and secured, was liable to fall. "With that fact in the case we think it was for the jury to say whether the place was such a one as was contemplated by the employment, and whether the defendant could safely rely upon the assertion that it had no reason to apprehend danger to the deceased.

The risk in this case was not the ordinary risk incident to grading on a railroad, and not, therefore, the risk which the decedent naturally assumed when engaging in that employment. The hazard was increased by the proximity to the unfinished building of the defendant which it was constructing, and we are of the opinion that the question of increased hazard was a proper question for the jury. (Kranz v. The Long Island R. R. Co., 33 N. Y. St. Repr. 46; Cullen v. Norton, 36 id. 362.)

The case presents a different question from that of Racine v. R. R. Co., decided at this term.

Judgment should be reversed, and a new trial ordered, costs to abide the event.

Putnam and Herrick, JJ., concurred.

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

       Reported ante, page 453.


source: Caselaw Access Project

author: Mayham, P. J.:

license: Public Domain

text:
    Helen A. Silliman, Appellant, v. John W. Paine and Others, Respondents.

      Ejectment — new trial under the statute — the former adjudication, how fa/r influential — adverse possession in default of paper title — inclosure.
    “WTiere the plaintiff in an action of ejectment, having been unsuccessful on the first trial and on an appeal therefrom, takes advantage of the provision of the statute allowing a new trial, and the facts developed upon such new trial are substantially the same as those established upon the first trial, the court should not disregard the light reflected upon the case by the examination and adjudication had upon the previous trial.

      Where tlie plaintiff in an action of ejectment does not succeed in affirmatively proving that his deed covers the land in question, and his claim of title is not, therefore, founded upon a written instrument, it is incumbent upon him to show an actual continued occupation, under a claim of title, for more than twenty years, in himself or his grantor, evidenced by a continued substantial • inelosure of the premises.
    Appeal by the plaintiff, Helen A. Silliman, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Rensselaer on the 23d day of June, 1891, dismissing the complaint, after a trial before the court and a jury at the Rensselaer Circuit.

      James Lansing, for the appellant.

      Lrvim,g LLayner and John H. Peck, for the respondents.
   Mayham, P. J.:

Appeal from a judgment entered upon an order of the trial judge dismissing plaintiff’s complaint at the trial.

This action has been once before tried 'before a referee, who reported in favor of the defendants, and on appeal from the judgment entered upon that report, the judgment was affirmed by this court, in a well-considered opinion by Justice Landon, reported in 16 N. Y. St. Repr. 324.

That decision has not been reversed, and unless the essential facts have been changed on this trial so as to lead to a different result, must, we think, be regarded as stare decisis in this case.

It is true, as the plaintiff saw fit to avail herself of the provisions of the statute providing for a new trial in actions of ejectment on payment of costs, that she is entitled to a new trial de novo, and to have her case disposed of substantially as if no trial had been previously had ; but if, on such new trial, the facts have not been substantially changed, this court should not disregard the light reflected upon the case by the examinations and adjudications of the court on the former trial.

We have examined the evidence on this trial and do not see that , it is essentially changed as to the location of the land actually embraced in the plaintiff’s deed.

Upon that question there seems now, as on the former trial, a want of evidence fixing any definite starting .point from which a survey can be made with sufficient certainty to locate this dividing line with accuracy within the narrow margin of six and one-half inches. Assuming, as we must, that the former decision on that question was correct, we see no change of facts which would change the legal conclusion reached on the former trial.

But it is insisted by the learned counsel for the appellant that the proof on the second trial clearly establishes in the plaintiff a twenty years’ adverse possession of this strip of land, and that, therefore, the plaintiff is entitled to recover, even though the proof fails to show that it is embraced within the description in the plaintiffs deed, or covered by the allegations of his complaint.

The plaintiff makes no claim in her complaint for land not embraced in lot No. 123, and seeks only to recover a part of that lot bounded on the north line of that lot.

That claim is, therefore, inconsistent with a claim to recover lands .lying northerly of that line.

But the complaint does specifically describe the piece of land sought to be recovered by boundaries from which, if the plaintiff should recover, the loom in quo could be taken possession of by the sheriff, and the plaintiff put in possession. It is a strip six and one-half inches wide from front to rear, parallel with the north line of the lot, and extending twenty-eight feet from Second street to the alley.

If, therefore, the proof in this case establishes an adverse possession in the plaintiff in this strip, within the provisions of sections 370, 371 and 372 of the Code, we think under this complaint she might recover.

Upon this branch of the case there was evidence from which the jury might have found that these premises were held by plaintiff and his grantors adversely for more than fifty years before the new barn was constructed on the defendant’s lot in 1864, provided they found that the same was so inclosed and occupied as to create an adverse possession within the provisions of sections 370, 371 and 372 of the Code of Civil Procedure.

I think that within the case of Barnes v. Light (116 N. Y. 34), the case upon this branch should have been submitted to the jury.

In that case it was held that an action of ejectment can be maintained upon an adverse possession, even against the true owner, and several authorities are referred to, to sustain that position.

As the plaintiff did not succeed in affirmatively proving that her deed covered this land, and her claim of title was not, therefore, founded upon a written instrument, it was incumbent on her to show an actual continued occupation under a claim of title for more than twenty years, in herself, or her grantor, evidenced by a continued substantial inclosure. (Code Civ. Proe. §§ 370, 371, 372-, swpral)

Upon this question there was evidence which we think raised a question of fact which should have been submitted to the jury.

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

Putnam and Herrick, JJ., concurred.

Judgment reversed, new trial ordered, costs to abide the event.


text:
    John A. Snell et al., Respondents, v. James Rogers et al., Appellants.

      Statute of JPrauds— original and collateral agreements — when a writing is unnecessa/ry.

    Snell, a sub-contractor, by oral agreement, under one Lally, who had engaged in the building of a railroad, performed a portion of the work under his contract and while such work was still uncompleted had a conversation with one Fauquier, the party who had employed Lally, in which it was claimed that Fauquier directed Snell to go on and complete the work and that he would pay for such labor.

      Held, that if, in reliance upon such promise, Snell went on and completed the work, the engagement with Fauquier was not void as being a parol collateral agreement by Fauquier to pay the debt of Lally, but became an original undertaking on Fauquier’s part to pay the plaintiff for the work thereafter performed, and did not, therefore, come within the provisions of the Statute of Frauds requiring a writing where an undertaking is made to pay the debt of a third party.
    Appeal by tbe defendants, James Rogers and others, from a judgment of the Supreme Court, entered upon the decision of a referee in the Franklin county clerk’s office on the 31st day of December, 1892, in favor of the plaintiffs, for damages and costs.

      Jolm P. Kellas, for the appellants.

      John P. Badger, for the respondents.
   Mayham, P. J.:

The complaint in this action alleges that the defendants are indebted to them in the sum therein specified for work, labor and services done and performed by plaintiffs, their agent, servant and teams for the defendants, and at their request.

The answer is a denial of the principal allegation in the complaint ; an allegation that the work was performed for a person other than the defendants, and that any alleged agreement by the defendants to pay plaintiffs for the same, was a parol collateral promise to answer for the debt of another, and void by the Statute of Frauds.

The case shows that the defendants as partners were contractors for the building of that portion of the St. Lawrence and Adirondack railroad as lies between the village of Malone and the northerly line of Franklin county.

That as such contractors they entered into a contract with one Martin T. Lally to perform the work required by their contract on a portion of the line of such railroad.

That contract was in writing, specifying the duties and obligations of the respective parties. The plaintiffs with their hands and teams, worked for Lally for some time, by the day, on this contract, and about the 26th of August, 1891, contracted with Lally through one Livingston, his agent, who was empowered by Lally to make such contract for grading and excavating at a place known as Cooney creek, at an agreed price per cubic yard, with an understanding that the agreement was to be reduced to writing, and presented for execution at a designated day in the future, and in the meantime, plaintiff with his hands and teams were to, and did, commence excavating and grading at that point.

A contract was afterwards prepared and presented for signature, but was not executed, for the reason assigned by the plaintiff, that it was not in accordance with the parol understanding between Lally, through his agent, and the plaintiff Livingston. The agent of Lally swears that the son of one of the plaintiffs said when the contract was presented that he would continue the work by the day until ‘the contract was perfected and signed, and the referee finds that Livingston assented to that proposition.

The contract was not signed by the parties, but the plaintiffs went on and completed the work in the Cooney creek cut and fill.

"While the plaintiffs were at work in that cut, a conversation occurred between the plaintiff John Snell and the defendant Fauquier, at which the plaintiff testifies, the defendant Fauquier told plaintiffs to go and complete this work and they (the defendants) would pay them for their labor. This Fauquier denies, but the referee finds that there was such an agreement. Whether there was or was not such an agreement is purely a question of fact, and while it is possible this court, from the printed record, might have reached a different conclusion if it were an original question, we do not feel authorized on this appeal to revise the findings of fact of the referee, as there is sufficient evidence to sustain this finding, especially as the referee enjoyed the advantage of seeing the witnesses and hearing their evidence as given upon the witness stand, an advantage which .the appellate court does not possess, and one which is always important in determining disputed questions of fact.

Assuming, therefore, as we must, that the defendants made this agreement, and that the work performed by the plaintiffs, after it was made, was done under it, and in reliance upon the defendants’ promise to pay for it,, the contention of the defendants that it was a parol collateral agreement by the defendants to pay the debt of Lally, cannot be sustained, but it became an original undertaking by the defendants to pay the plaintiffs for the work thereafter performed, and is not, therefore, within the Statute of Frauds, especially as the contract between Lally and the plaintiffs was never signed or executed, and the referee finds upon sufficient evidence that, until the contract was signed, the plaintiffs’ work was by the day; and as the work to be performed was for the benefit of the defendants on their job, the agreement to pay for it by the defendants was supported by a sufficient consideration. (Bayles v. Wallace, 32 N. Y. St. Repr. 341, 342; Gallagher v. Nichols, 60 N. Y. 445; Quintard v. De Wolf, 34 Barb. 97.)

But it is insisted that the contract to cut and fill at Cooney creek by the yard was a binding agreement between Lally and the plaintiffs, and that the alleged change to a contract by the day with Livingston was unauthorized, and, therefore, inoperative to bind the defendant.

But the plaintiffs, at the time of the alleged agreement with Fauquier, were at work on this job by the day, as the written contract had not been signed, and if, as we have seen, that was a valid agreement, we do not see how the question of Livingston’s authority can affect the question of the defendant’s liability to pay for the work done under it.

"We have examined the objections and exceptions'taken by the appellant to the receipt and rejection of evidence, and find no error affecting the result in this case, and as the questions upon which the case turns are largely questions of fact, and the findings and conclusions supported by the evidence, the judgment must, on this appeal, be upheld.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.


text:
    In the Matter of the Guardianship of Benjamin F. Sherman.

      Surrogate — jurisdiction of — decided on conflicting evidence.

    In a proceeding before a Surrogate’s Court for the appointment of a guardian for an infant, where there is conflicting evidence before the court in regard to the residences of the infant and the guardian, the decision of the Surrogate’s Court upon that question will not be reversed on appeal.
    While the Surrogate’s Court cannot acquire jurisdiction by the mere assertion thereof, yet when acting upon conflicting evidence it is required to settle the conflict, and if in so doing its determination is supported by any evidence, it must be sustained.
    Appeal by the petitioner, Susan A. Sherman, from an order made by the surrogate of the county of Saratoga, bearing date the 8th day of September, 1892, denying an application made upon an order and citation based upon the petition of said Susan A. Sherman, requiring Jesse O. Conde, as general guardian of the person and estate of Benjamin F. Sherman, an infant, to show cause why he should not be removed and why the letters of guardianship issued to him should not be revoked and set aside.
    The petitioner alleges. that she is the maternal grandmother of Benjamin F. Sherman, an infant of the age of about ten years; the death of the father and mother of the infant; the appointment of Jesse O. Conde as his guardian; charges that the appointment was made without notice to other relatives of the infant, and that at the time of the appointment, the infant and his guardian were not residents of Saratoga county, but residents of the city of Boston; alleges that the infant’s property consists of an annuity of about one thousand dollars ($1,000) created under the will of its father to be held in trust by a trustee appointed under said will.
    The petition was presented to the surrogate of Saratoga county about the 20th of May, 1892. On that petition the surrogate issued a citation directed to Jesse O. Conde as general guardian requiring him to show cause why the letters should not be vacated. On the return of that citation the guardian appeared and answered, denying each and every allegation of the petition, except the allegation relating to his appointment and the allegation of the relationship of the persons therein stated to the infant.' Accompanying said petition were various affidavits bearing upon the question of residence of the infant and of his guardian, which were used by and before the surrogate in his defense by-the guardian and in opposition to the motion of the petitioner. The surrogate also, on the application of the petitioner, admitted on her behalf affidavits in support of her petition. The affidavits and petition on the part of the guardian tended to prove that the guardian at the time of the death of the mother of the infant, resided at Ballston Spa, in the county of Saratoga, and that he continued to reside there up to the time of his appointment, and that he was a resident of Saratoga county, and from the time of the death of the mother of the infant, the infant had resided with him, or been supported by him, at the guardian’s own personal expense. And also that the infant had an interest in real estate .situate in Saratoga county.
    The affidavits also sought to explain the charge that he was a resident of the city of Boston, by showing that he was a traveling agent for a business house in Boston, and but temporarily residing there, and that his residence was at Saratoga, and that the infant resided with him, and, therefore, was a resident of Saratoga at the time of his appointment as guardian.
    This allegation of fact appearing by the affidavit, was challenged, and sought to be overturned by several affidavits used by the petitioner on this motion.
    It also appeared by the affidavits of the guardian, that he was the maternal uncle of the infant. There was some controversy before the surrogate over the fitness of the petitioner, and also of the guardian to act as guardian for the infant.
    The proof showed that the infant was strongly attached to the present guardian, and seemed to entertain a dislike for the petitioner, his grandmother; that the infant was tenderly and properly cared for by the guardian, who was of abundant means, and that the petitioner was without means, residing with her son.
    On these proofs the surrogate made an order denying the motion to vacate and set aside tlie letters of guardianship.

      W. D. Veeder and John L. Harming, for the appellant.

      J. 8. HAmoreaux, for the respondent.
   Mayham, P. J.:

It is insisted on the part of the petitioner, that the order of. the surrogate appointing Jesse O. Conde, guardian, should be set aside on the ground that at the time of the making of the order appointing said guardian, he was ineligible on account of his residence, and that the surrogate had no jurisdiction of the infant upon the same ground.

Section 2822 of the Code of Civil Procedure gives the surrogate of the county in which an infant resides, or if he do not reside in the State, of the county in the State in which his property, real or personal, may be, jurisdiction to appoint a general guardian for the infant.

The question whether the infant and guardian were, or were not,. residents of the county of Saratoga, was one to be determined by the surrogate to whom the application for the appointment of guardian was made. It was a question of fact, under the conflicting evidence in this case, whether the proposed Jesse O. Conde was a resident of the county of Saratoga or of the Commonwealth of Massachusetts.

That question of fact was determined by the surrogate in favor of the guardian, and there being some evidence before the surrogate to uphold that determination, this court, on appeal, should not reverse the decision of the surrogate on that ground.

While it is true that the assertion of jurisdiction by the surrogate in himself would not confer jurisdiction, yet, when acting upon conflicting evidence he is required to settle the conflict, and if in doing so, his determination is supported by any evidence, it must be sustained.

Assuming, therefore, that the surrogate had jurisdiction to issue the letters of guardianship to Jesse O. Conde, there is no reason shown on this application for his removal. The whole evidence tends to show that he is a proper man to exercise the trust, and that he is exercising the same prudently and humanely, and for the best interest of his ward. We see no reason for reversing the decision and order of the surrogate from which this appeal is taken, and the order must be affirmed, with costs.

Putnam and Herrick, JJ., concurred.

Order affirmed, with ten dollars costs and printing disbursements.


author: Putnam, J.:

text:
    Joseph Wood, Appellant, v. John A. Munson, Respondent.

      Physician’s claim for services — against the family attended and also against the town — effect of a town audit of the claim — evidence.

    In an action brought by a physician to recover the value of his services rendered in attending the defendant’s family through an epidemic of typhoid fever, it is sufficient evidence that the services were rendered under an employment by the town in which the family resided, and not by the defendant, that the plaintiff has presented to the town auditors a verified bill for the services in question, and that such bill has been audited by the town auditors for a portion of the amount claimed, and such amount has been accepted by him.
    The fact that the claimant testifies that he was not authorized by the board of health or the overseer of the poor to attend the family, simply presents a question for the consideration of the court, which is to determine what force, if any, it should give to such testimony of a party to the action, contradicted by his own affidavit and the action of the town board of auditors.
    Appeal by the plaintiff, Joseph Wood, from a judgment entered in the clerk’s office of Sullivan county on the 3d day of April, 1893, after a hearing in the Sullivan County Court on appeal from a judgment of a Justice’s Court in favor of the plaintiff, which was reversed by the County Court on the appeal thereto.

      George H. Decher, for the appellant.

      George H. Smith, for the respondent.
   Putnam, J.:

This action was brought in Justice’s Court to recover the sum of twenty dollars, a balance due plaintiff for services performed for defendant.

The latter is a physician, and the health officer of the town of Eallsburgh (where the parties reside) and had attended the family of plaintiff through an epidemic of typhoid fever — making forty visits, of the value of eighty dollars. He was paid twenty-five dollars, as below mentioned, on account of said services, and the balance, fifty-five, he set up before the justice as a counterclaim.

It was shown upon the trial that defendant, after the attendance upon the family of plaintiff as aforesaid, presented a verified bill to the town for said attendance, and for other services, of which the following is a copy, to wit:

“Town of Fallsburgh,
“ To Dr. J. A. Munson, Dr.
“As Health Officer of said Town.
“1888.
“July 6th, To distributing notice through town.......... $2 00
“July 10th, To distributing notice through town......... 2 00
“Aug. 17th, To investigating nuisance upon premises of Ed. Yielee........................................ 2 00
“To attending family of Joseph H. Wood through an epidemic of typhoid fever from Oct. 16, ’88, to Dee. 26, ’88 (inclusive), 40 visits at $2.00..................... 80 00
“ Dec. 18th, To meeting with board.................... 2 00
“ To reporting 19 births at 25 cts....................... 4 75
“ To reporting 14 deaths at 25 cts...................... 3 50
“Total..................................... $96 25
“ State of New YoeK,
Sullivan County,
ss:
“ Dr. J. A. Munson being duly sworn says the items mentioned and set forth in the annexed account have been in fact performed or rendered, and are correct, that the whole amount thereof is justly due and that no part thereof has been paid or satisfied.
“ De. J. A. MUNSON.
“ Sworn to before me this 6th day of November, 1889,
“BENJAMIN YeeNoot,
Notary Publio"

The bill was presented to the board of town auditors of said town, who allowed thereon the sum of forty-one dollars and twenty-five cents, twenty-five dollars of which was so allowed on the claim for attendance upon the plaintiff’s family.

The justice gave judgment for the plaintiff for the full amoirnt of his claim, disallowing the counterclaim of defendant. We think he reached a conclusion warranted by the evidence.

The defendant was a health officer and attended the family of plaintiff, who were ill with a contagious disease. He afterwards made out a bill charging the town for said attendance and for other services and verified it. The town officers acted on the bill and allowed it at forty-one dollars and twenty-five cents, which sum defendant accepted and received.

The verified bill of defendant so presented to the auditors was evidence, as against Mon, that he was employed by the town to attend the' family of defendant. In fact, in the affidavit attached to the bill, he swears he was so employed. The fact that the auditors allowed a portion of defendant’s charge for attendance on the family of plaintiff is also evidence tending to show such employment. The town auditors had no right to make the defendant a present of twenty-five dollars, or to make any allowance on account of the services in questioi:, unless a legal charge against the town. The justice, therefore, had sufficient evidence before him-to justify a finding that defendant’s bill for attendance on plaintiff’s family sought to be interposed as a counterclaim was a charge against the town. Tie had before him the claim of defendant to that effect sworn to and the action of the town authorities allowing a portion of the bill. It is true defendant testifies that he was not authorized by the board of health, or the overseer of the poor to attend plaintiff’s family ; but it was a question for the justice what force if any, he would give to the testimony of a party to tlie action, contradicted as he was, by his own affidavit and the action of the town board of auditors. . The justice was not compelled to believe what the defendant testified to. (Hodge v. The City of Buffalo, 1 Abb. N. C. 356.) He could properly determine on the evidence before him that defendant’s said services were performed on the credit of the town and on the employment of the town officers.

It follows, therefore, that on the evidence presented to him, the justice was authorized to find that defendant’s bill, interposed as a counterclaim, was for services performed for the town of Falls-burgh, and for which that town was liable. The defendant presented his bill against the town therefor, which was acted upon by the town auditors, and allowed at twenty-five dollars, which sum defendant voluntarily accepted and received.

The presentation, audit and acceptance, we think extinguishes defendant’s alleged counterclaim. He voluntarily presented it as a claim against the town, and the audit of the town board of auditors was a legal adjudication of the amount due thereon. (People ex rel. Myers v. Barnes et al., 114 N. Y. 317.)

The sum audited he accepted, and the effect of said transaction was necessarily to extinguish the claim as against the town. If there was any liability on the part of the plaintiff, as well as the town, for the defendant’s attendance on his family, which defendant might have properly claimed, his presentation of the bill to the town, and acceptance of the amount at which it was audited, we think must have the effect of also extinguishing the claim as against the plaintiff As said by Landon, J., in Coonley v. Wood (36 Hun, 559-561), a case where one of two joint and several debtors had obtained a satisfaction of a judgment as against himself, “ but if the debt is satisfied by either, nothing remains for either to pay. If the judgment was satisfied, the debt was satisfied, and to allow the plaintiff to recover again would be to allow him to receive satisfaction twice upon one debt.”

So, in this ease, defendant presented his claim to the town audit-' ors, as against the town, and accepted the sum that they allowed thereon in payment. Ve think the transaction extinguished his claim against the plaintiff, if any such claim ever existed.

The judgment of the County Court should be reversed, and that of the justice affirmed, with costs to appellant in this court and in the County Court.

Mayham, P. J., and HbeeioK, J., concurred.

Judgment of Justice’s Court affirmed, and that of County Court reversed, with costs in this and County Court.


text:
    Kate M. Brennan, Appellant, v. William Ellis, Respondent.

      Negligence — repairing leased premises — a mere direction to a contractor to do it does not exonerate the owner.

    Where an owner of real estate enters into an agreement with a contractor to do work thereon, the former is not ordinarily liable for damages arising from the negligence of the latter in the doing of the work; if, however, the work is a repair which the owner is bound to have done and the contractor fails to do it, the owner remains liable for the injury caused by the want of such repair, notwithstanding his agreement with the contractor.
    An owner of real estate, used as an apartment house, between which and the second stoi-y of a building in the rear thereof a bridge had been constructed and had become out of repair, in consequence of which a tenant in occupation of the premises, and entitled to make use of the bridge, fell through it and was injured, is not exonerated by the fact that he, prior to such yrjul7> entered into an agreement with a contractor to repair the bridge, where the contractor failed to make such repairs.
    Appeal by tbe plaintiff, Kate M. Brennan, from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of Rensselaer on the loth day of March, 1893, in favor of tbe defendant, and also from an order entered in said clerk’s office March 22, 1893, denying tbe plaintiff’s motion for a new trial, after a trial at tbe Rensselaer County Circuit before tbe court and a jury.
    Tbe action was brought by a tenant in occupation of tbe bouse and premises known as No. 27 King street in tbe city of Troy, New York, against tbe owner and landlord of tbe premises to recover tbe damages sustained by tbe plaintiff by reason of bis fall through a bridge or passageway leading from tbe second story of the building on tbe demised premises to a building in tbe rear thereof for tbe use of tbe tenants in said premises, which bridge, it was alleged, bad been, by tbe defendant, permitted to become and remain rotten, decayed, insecure and dangerous.

      James Lcmsing, for tbe appellant.

      James LL. Ryan and Henry L. Landon, for tbe respondent.
   Putnam, J.:

Tbe action was brought to recover damages for the alleged negligence of tbe defendant, the- owner of an apartment bouse in tbe city of Troy, in allowing a bridge laid from the second story of said bouse to the water-closet in the rear, to remain out of repair, in consequence of which plaintiff was severely injured.

It is not denied that it was the duty of defendant to use reasonable care in keeping the bridge in a safe condition, nor that the testk mony in the case rendered it proper to submit to the jury the question whether said care was in fact used.

The court in his charge used the following language, viz.: “ So that the question is not necessarily disjiosed of when you find (if you should find) that Mr. Wylie did not nail these boards. You may say it is sufficient, that it was sufficient, for this defendant to go to an experienced carpenter, if he did as he says he did, and as the carpenter says he did, and say £ This structure, which was originally safely constructed, is out of repair, and I want you to go over it and look it over and make repairs, and put it in condition.’ Now, that, he testifies he did; that Mr. Wylie testifies he told him to do, and that he says he undertook to do. * * * If you say as prudent, reasonable men that in your judgment that is all that could be expected of a man under such circumstances, that it is what any other careful and prudent man would do, it would be your duty to find, of course, that he had not neglected to perform any duty which he owed to this plaintiff, or to any other tenant in the occupation of this building.”

The only question necessary to be considered is as to the propriety of the portion of the charge above quoted.

Assuming that the relation of master and servant, or principal and agent, did not exist between defendant and Wylie, and that the latter occupied the position of a contractor (see Larow v. Clute, 37 N. Y. St. Repr. 859; Wood v. The City of Watertown, 58 Hun, 304), the question arises whether defendant, being notified of the dangerous condition of the bridge, discharged his duty by contracting with a competent man to repair it, and was not thereafter liable, although the contractor failed to do the work.

It is well settled that where an owner enters into'an agreement with a contractor to do work, the former is not ordinarily liable for damages arising from any negligence of the latter m the doing of the worTc. But we understand that if the work is a repair which tbe owner is bound to have done and the contractor fails to do it, the owner remains liable for the injury caused by the want of such repair. (Sturges v. The Theological Education Society, 130 Mass. 414, 415; Gorham v. Gross, 125 id. 232-240.)

In Pickard v. Smith (100 Eng. Com. Law Rep. 470), it is held (page 479): If an independent contractor is employed to do a lawful act, and in the course of the work he or his servants commit some casual act of wrong or negligence, the employer is not answerable. * * * That rule is, however, inapplicable to cases in which the act which occasions the injury is one which the contractor was employed to do; nor, by a parity of reasoning, to cases in which the contractor is intrusted with the performance of a duty incumbent upon his employer, and neglects its fulfillment, whereby an injury is occasioned.” (See, also, Worthington v. Parker. 11 Daly, 545, 546.)

We think, therefore, that the defendant was not relieved from liability for the defective condition of the bridge in question, by employing a competent contractor to repair it, and that, in consequence of the instructions above quoted, given to the jury by the trial court, there should be a new trial.

We think, also, that the exception of plaintiff to the refusal of the court to charge as requested, sufficient to raise the question above considered. But if not, this is a case where a new trial should properly be granted without an exception, within Whittaker v. D. & H. C. Co. (49 Hun, 400-405); Roberts v. Tobias (120 N. Y. 5, 6).

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

Herrick, J., concurred.

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


text:
    Adaline Matson, William A. Matson, Julia A. Matson, Robert Matson, Charles Matson and Adaline Brooksby, Respondents, v. Louise J. Abbey, as Administratrix of the Goods, Chattels and Credits of Austin Matson, Deceased, not Administered, Appellant.

      Insurance — assignment of an interest in an estate — the delivery of the writing is a delivery of the property — Statute of Limitations — action against an administrator.

    The transfer of a claim or a chose in action, such as the interest of the assignor in that part of the estate of a deceased person, derived from a life insurance policy, hy a written instrument under seal, duly executed, has the effect to divest the title of the assignor in the assigned property the same as an actual delivery thereof.
    The delivery of the assignment is deemed a delivery of the property conveyed.
    Acceptance by the assignee in such case may be implied where the gift, otherwise completed, is beneficial to him.
    A testator by his will 'devised and bequeathed his estate to his executors, in trust, to apply the rents and income thereof in support of his widow during her life and of his daughter until her marriage, or the death of the widow, in which estate was included a policy of insurance upon the life of the testator’s son, payable to the testator, his executors or assigns, and subsequent to his death the children and legatees of the testator, by a sealed conveyance, assigned all their interest in that part of the estate derived from this life insurance policy.

      Held, that the Statute of Limitations did not begin to run against the claim of the assignee until the death of the widow, his assignors having no claim against the estate until that occurrence.
    An action against an administrator is not prematurely brought, within one year after the issue of letters of administration, where the claim upon which it is based has been presented to the administrator and rejected by him. In such case the action, if not absolutely necessary, is at least a proper one.
    Appeal by the defendant, Louise J. Abbey, as administratrix of the goods, chattels and credits of Austin Matson, deceased, not administered, from a judgment of the Supreme Court, entered in the office of the clerk of Rensselaer county on the 13th day of March, 1893, in favor of the plaintiffs, after a trial before the court, -without a jury, at the Rensselaer County Circuit.
    The action was brought to recover the sum of $2,000 received by the executrix and executor under the will of Austin Matson, as part of his estate, from the Mutual Life Insurance Company • of Newark, New Jersey, under a policy issued upon tlie life of testator’s son, Austin Matson, Jr., in favor of the testator, Austin Mat-son, his executors or assigns.
    The plaintiffs claimed to recover under an instrument of assignment executed, by the only heirs at law and next of kin of said Austin Matson then surviving, and the only persons interested in his estate after the death of Maria T. Matson, his widow and a life beneficiary under his will, to Adaline Matson, widow .of Austin Matson, Jr., and William A. Matson, Julia A. Matson, Robert Matson, Charles Matson and Adeline Brooksby.

      George H. Stevens and A. T. Clearwater, for the appellant.

      Martm, I. Townsend, for the respondents.
   Putnam, J.:

On December 4, 1863, Austin Matson insured the life of his son, Austin Matson, Jr., in the sum of $2,000 payable to himself, his executors or assigns. Austin Matson died December 1, 1864, leaving a will afterwards admitted to probate by the surrogate of Rensselaer county, in which he appointed his widow, Maria T. Matson, and James N. Ring his executors and trustees. They qualified on the 13th of April, 1865. After specific bequests the will devised and bequeathed the whole of his estate to his executors in trust for the purposes therein specified. They were directed to apply the rents and income of the estate to the support of his widow during her life and the support of his daughter, Emily, until her marriage or the death of his said widow. Among other directions they were instructed to pay the yearly premium of seventy-eight dollars upon the policy of insurance upon the life of Austin Mat-son, Jr., provided he should not pay the same. He died on the 19th of February, 1866. The executors of Austin Matson, Sr., thereupon collected as part of his estate the $2,000 insurance money. The executor Ring died on July 12, 1878, and the executrix Maria, on the 13th day of June, 1891. Defendant was appointed administratrix with the will annexed of Austin Matson, Sr., on July 13, 1891. This action was begun on the 20th day of November, 1891. On January 27, 1869, the children and devisees of Austin Mat-son, Sr., by a sealed conveyance assigned all their interest in that part of the estate of deceased derived from tbe life insurance policy aforesaid to the plaintiffs, tbe widow and children of Austin Matson, Jr. It was shown on tbe trial that defendant as administratrix, received of personal estate $8,534.26, and no debts against tbe estate were alleged or proven. Prior to tbe commencement of this action a demand was made by tbe plaintiffs from defendant for tbe sum of $2,000 out of tbe estate of Austin Matson, Sr., so assigned to tbe plaintiffs, and payment was refused.

Defendant insists that there was no valid delivery of tbe money claimed in this action and no valid transfer or gift thereof, and hence that tbe trial court erred in directing a judgment for tbe plaintiffs. __

In fact, it is well settled that to establish a valid gift, a delivery of tbe subject gf tbe gift must be shown to some person so as to divest tbe possession and title of tbe donor. (Young v. Young, 80 N. Y. 422; Beaver v. Beaver, 117 id. 421.)

But we have always understood that a transfer of a claim or chose in action by a written instrument under seal, duly executed, has tbe effect to divest tbe title of tbe donor in tbe assigned property, and has tbe same effect as an actual delivery. The delivery of the assignment is deemed a delivery of tbe property conveyed. . ''

Thus in Irons v. Smallpiece (2 Barn. & Ald. 551, 552), it is said by Abbott, Ch. J.: “I am of opinion that by tbe law of England, in order to transfer property by gift, there must either be a deed or instrument of gift, or there must be an actual delivery of tbe thing to tbe donee.” In Fulton v. Fulton (48 Barb. 581, 590, 592), tbe doctrine stated in tbe above case is approved. And it is held that “ where a gift inter vivos is perfected by delivery of possession of the thing or delivery of a deed of gift, it is complete, although made without consideration.” (See Ham v. Van Orden, 84 N. Y. 257-269; De Caumont v. Bogert, 36 Hun, 382; Hurlbut v. Hurlbut, 49 id. 189; Carpenter v. Soule, 88 N. Y. 251.)

We think, therefore, tbe donors in this case having duly executed and delivered a written and sealed assignment of that part of the estate of deceased sought to be recovered in the action, that tbe trial court did not err in finding a valid gift of tbe claim or money sought, to be recovered by tbe plaintiffs.

Tbe gift, being consummated by a delivery of tbe assignment, could not be revoked. "When the writing was received by the plaintiffs, the title to that part of the estate of deceased mentioned 'therein at once vested in tire plaintiffs, subject to the life interest of the widow.

It is suggested by counsel for appellant that there was no proof of an acceptance of the gift by the plaintiffs. But acceptance by the donees in such a case may be implied where the gift, otherwise completed, is beneficial to them. (Beaver v. Beaver, 117 N. Y. 421.)

But the learned counsel for the defendant claims that if the transaction in question amounted to a gift to plaintiffs of the money sought to be recovered in the action, their claim is barred by the Statute of Limitations. We think this .position is not well taken. Under the will of Austin Matson, the widow was entitled to the use and income of all his estate during her life, including that part received from the insurance on the life of Austin Matson, Jr. The plaintiffs, therefore, had no claim against the estate until the death of the widow, which occurred on the 13th day of June, 1891. It would seem, therefore, that the plaintiff’s claim is not barred. (Pelts et al., Admrs., v. Schultes et al., Admrs., 46 N. Y. St. Repr. 216; Matter of Hodgman, 31 id. 479.)

The claim of plaintiffs to said money is no more barred than that of the other legatees named in the will of deceased, to. the remainder of the estate, the life interest of the widow having terminated.

It is also urged by defendant that the action is prematurely-brought, being so brought less than one year after the issuing of letters of administration. But plaintiff’s claim for the $2,000, it is admitted, was presented to the defendant, and rejected by her. Hence, the action, if not absolutely necessary, was proper. (§§ 217, 218, 219, Civil Code; Peck v. Peck, 3 Dem. 548; Riggs v. Cragg, 89 N. Y. 479; Matter of Application of Macaulay, 94 id. 574.)

We are not aware of any statutory provision or any reason why such an action as this, the claim being disputéd, cannot be brought at any time after the issuing of letters of administration. Execution can only be issued on the judgment obtained in such an action by leave of the surrogate, and only for such a sum as is properly applicable thereon from the estate. (§§ 1825, 1826, 1827, Civil Code.)

We have entertained some doubt as to the propriety of awarding ' costs against defendant, under tlie circumstances. But, as this objection is not urged by appellant, we do not deem it necessary to discuss the question. It is doubtful whether sections 1835, 1836 of the Civil Code apply to such an action, and whether, in an action of this nature, costs cannot properly be awarded under section 3246.

The judgment should be affirmed, with costs.

Hayham, P. J., and Herrick, J., concurred.

Judgment affirmed, with costs.


text:
    Arthur W. Shultes, Appellant, v. Nicholas A. Sickles, Respondent.

      Ejectment — writ of possession may be issued after twenty years — effect of a judgment against the party in possession and of his attornment.

    In an action of ejectment, where the plaintiff offers in evidence an order of the Special Term-of the Supreme Court of June 19, 1883, giving leave to him, as assignee of a judgment, for the non-payment of rent, of April 38, 1864, to issue execution thereon, an objection to its reception in evidence, on the ground that the statute provides that no writ shall be issued to revive a judgment after ten years from the time of filing the judgment roll, and that the court had consequently no power to issue the writ, is not well taken.
    An execution, by leave of the court, may be issued on such a judgment at any time, even after the lapse of twenty years from the rendition thereof.
    The statute in such a case only requires notice of the application for leave to issue execution to be given to the defendant in the action.
    In an action of ejectment for non-payment of rent, it is only necessary to make the party in possession of the demised premises a party defendant, and the judgment against such defendant, while not conclusive upon the rights of the owner of the leasehold interest under whom such defendant is in possession, will enable the party entering under such judgment to defend his title and possession as against such owner of the leasehold interest.
    An attornment by the party in possession of the premises, after their recovery under a judgment in ejection, to the owner of the landlord’s interest, the holder of such judgment, is not in violation of the provisions of the statute.
    Appeal by tbe plaintiff, Arthur W. Shultes, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Albany on the 27th day of October, 1892, after a trial before . the court and a jury at the Albany Circuit, at which a verdict for the defendant was directed by the court.

      The action was in ejectment. The complaint alleged that, prior to the 1st day of April, 1876, one Joseph I. Shultes was the owner in fee of the premises therein described, and on that day entered into a written contract with the defendant, Nicholas A. Sickles, for the sale thereof, under which the defendant, Nicholas^ A. Sickles, entered into possession of the premises; and that the defendant, Nicholas A. Sickles, had failed and neglected to comply with the terms and conditions of the contract by neglecting to pay the sum of money therein provided to be paid by him.
    The answer admitted the making of the contract and further alleged that the defendant was the owner and in possession of the premises by virtue of a deed of conveyance thereof, executed by "Walter S. Church, who was the real owner of said premises prior to and at the time of said conveyance, and denied that the plaintiff was the owner thereof.

      W. Youmcms, for the appellant.

      G. L. Stedman, for the respondent.
   Putnam, J.:

This is an appeal from a judgment entered in Albany county on October 27, 1892, upon a verdict for the defendant directed by the trial court. The action was ejectment. Both parties derived title Under the lease executed by Stephen Van Rensselaer to Johannes Shafer, dated May 29, 1797, reserving an annual rent.

Under said lease the lessor, Van Rensselaer, obtained judgment of ejectment for non-payment of rent on April 28, 1864, against John Sickles, then in possession of the premises in question. The rights of Van Rensselaer in said judgment and premises were duly ti’ansferred to Walter S. Church prior to January, 1883. The latter on June 19, 1883, obtained an order of the Special Term giving leave to him, as assignee of the judgment, to issue execution thereon, the order reciting that it was granted on the affidavit of Walter S. Church, and on proof of the due service of said affidavit and notice of motion. Execution was issued, and the return of the sheriff indorsed thereon shows that Church was put in possession of said property on July 27, 1883. On that day John Sickles, the defendant in the action, and Nicholas A. Sickles, who were in possession of said premises at the time, executed a paper whereby they surrendered the possession thereof to Church and acknowledged that they held the same as tenants at will under him. óhurch after-wards executed a deed of the land to defendant. •

If the proceedings of Church under the judgment of ejectment were regular and authorized, it is clear that defendant as assignee of the landlord's interest i/n said lease has a title to the farm in question under the judgment of re-entry superior to that of the plaintiff who claims title under the lessee named in said durable lease.

When the order of June 19, 1883, allowing the issuing of’ the writ of possession or execution was offered in evidence the only objection made by plaintiff to its reception was that the statute provides that no writ shall be issued to revive a judgment after ten years from the time of filing the judgment roll, and the court had no power to issue the writ. This objection was not well taken. (Van Rensselaer v. Wright, 121 N. Y. 626.) An execution by leave of the court may be issued on such a judgment at any time, even after the lapse of twenty years from the rendition thereof.

It is suggested by plaintiff that the notice of motion should have been served on Shultes, the plaintiff. But no such objection was made on the trial. Perhaps, if then made, it could have been obviated. Again, the statute only requires notice to be served on the defendant in the action. Therefore, it was not necessary to serve on Shultes. (Civil Code, § 1378.)

In the action of ejectment for non-payment of rent brought by Yan Bensselaer, John Sickles, the party in possession of the demised premises, was properly made a defendant. ’ It was not necessary to name Shultes as a party to the action, and the judgment against Sickles, while not conclusive against Shultes as to the averments of the complaint, yet, as it was obtained against the person in possession of the farm, it enabled Church and his grantee to defend his title and possession against plaintiff. (Bradt v. Church et al., 110 N. Y. 537.)

The plaintiff proved by the certificate of the sheriff that he delivered possession of said property to Church on July 27, 1883, and also read in evidence a written attornment made by John Sickles, the defendant in the action, and Nicholas A. Sickles, who were then in possession of said premises. The judgment having been obtained in pursuance of tlie provisions of the durable lease under which plaintiff claims title to said premises as lessee, and the effect of the judgment being to terminate the lease (Van Rensselaer v. Wright, supra), we think the attornment was not in violation of the provisions of the statute. (See Witbeck v. Van Rensselaer et al., 64 N. Y. 32; Newell v. Whigham et al., 102 id. 20.)

Under the execution, Church having been put in possession of the premises on July 27, 1883, the writ and return thereon were filed in the county clerk’s office on August 4,1883. After the lapse of six months from the time the landlord was so put in possession under said judgment, viz., on January 27, 1884, his title to the property became absolute. The lease then, if not before, was terminated. Church then became the owner of the property, the rights of the tenants therein being extinguished the same as if said lease had never been executed.

But it is claimed by the plaintiff that Church released to the plaintiff his right to said premises derived under the aforesaid judgment and the execution issued thereon.

The release executed by Church to Shultes on January 12, 1885, does not appear to be intended as a release or conveyance of his interest in said farm, of which the former had become the absolute owner. It was apparently not so intended, for on the same day Church conveyed said premises to the defendant. Again, Church having absolute title, and the time for redemption having expired, could only convey to plaintiff the premises in question by an instrument under seal. Again, the paper in question does not purport to be a release by him of his right derived under the aforesaid judgment, on a redemption by the tenant. It is apparently intended to be a mere release to Shultes from liability for rents that had accrued upon the lease.

¥e are unable to see that the rights of the parties are at all affected by the two offers made by Church to plaintiff. The first offer, dated in October, 1883, recited the recovery of the judgment in favor of Yan Rensselaer against John Sickles, and that Church, on July 27, 1883, had duly taken possession of the premises, and offered, within the time prescribed by statute for redemption, to receive from Shultes, who, the notice stated, claimed some interest in said land, $300 as his proportion of the rents, and on payment of said sum, to release tbe judgment. There is no evidence whatever that Shultes accepted the proposition, or complied with the terms of the offer, or ever paid the $300. The second offer, dated November 12, 1884, as far as pertinent to the question under consideration, contains an agreement on the part of Church, that on the payment of the judgment for $1,500 obtained by Nicholas A. Sickles, against Joseph I. Shultes, which was assigned to Church on or before April 1, 1885, to release Shultes from “ arrears of rents and reservations and soil on the land and premises known as the Sickles farm.” The offer provided that notice should be given of acceptance by said Shultes within five days from date. It was not shown that Shultes ever gave such notice, or, acted upon the offer.

"We think the learned trial judge took the correct view of this case, and that the judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concurred.

Judgment affirmed, with costs.


author: Putnam, J. :

text:
    Ella D. Sands, Appellant, v. Henrietta Church and Joseph Drum, Respondents. Charles Shafer, Appellant, v. Henrietta Church and Joseph Drum, Respondents. Edward Shafer, Appellant, v. Henrietta Church and Joseph Drum, Respondents.

      Champerty• — the claim must be under a specific title — complaint in ejectment setting up a prior judgment recovered by defendant and alleging fraud — proof of fraud.

    In an action of ejectment an objection that the conveyance under which, the plaintiff claims title is void for champerty, made on the ground that the property was at the time of such conveyance in the possession of the defendant, who claimed to hold it under a title adverse to that of the grantor of the plaintiff, is not well taken unless it appears that at the time of such alleged conveyance to the plaintiff the defendant was in possession of the premises, claiming under a specific title thereto.
    "Where the complaint alleges all the facts necessary to he stated in an action of ejectment, accompanied with allegations of fraud which are outside of such allegations as are necessary to the ejectment suit, a recovery may he had in ejectment, although there is no proof offered in support of the allegations of fraud.

      Where a complaint alleges the facts necessary to sustain an action of ejectment and in addition thereto alleges that a third party, against whom judgment had been recovered in an action of ejectment brought by the defendant in the present action, under a complaint alleging that such third party was in possession of the premises, was not in fact in possession thereof and had conveyed his interest therein to the predecessor in title of the present plaintiff at the time of the bringing of such action, and that such judgment so obtained by the defendant against said third party was fraudulent, these allegations cannot properly be deemed a part of the cause of action or be taken advantage of by the defendant to establish affirmatively his defense thereto.
    If, under such circumstances, the complaint could be deemed to assert two causes, of action, one in ejectment and one to set aside the fraudulent judgment, a recovery could be properly had in the former, although the latter cause of action remained unproved.
    Appeal by tlie plaintiff in each, of the above-entitled actions from a judgment of the Supreme Court, entered in the office of the clerk of the county of Albany on the 22d day of October, 1892, after a trial at the Albany Circuit before the court and a jury, at which the complaint in each action was dismissed upon the plaintiffs’ proofs.
    The complaint was in ejectment, and among other things contained the following allegations:
    “And plaintiff further shows, that on the 26th day of March, 1873, Ann Eve Shafer, for a good and valuable consideration, executed and delivered to George "W". Quackenbush a warranty deed of said premises, which deed was duly recorded in Albany county clerk’s office July 18, 1873, in book 265 of Deeds, on page 274. * * *
    “And plaintiff further shows the court, that George W. Quackenbush, on the 5th day of May, 1875, duly executed and delivered a. deed of said premises to Joseph I. Shultes; that said Joseph I. Shultes died intestate subsequent to the date of said deed, leaving Arthur M. Shultes and Louisa M. "Wright his children and only heirs at law.
    “And plaintiff further shows the court, that on the 31st day of March, 1890, Arthur "W. Shultes and Eugene Shultes, his wife and Louisa M. Wriglit, duly conveyed said premises to Ella D. Sand, Charles II. -Shafer and Edwin Shafer, who are the children and only heirs at law of John W. Shafer, deceased.
    “II. The plaintiff further complaining alleges and shows the court, upon information and belief, that prior to the 8th day of May, 1879, Walter S. Church, claiming to have some interest in and to said premises, by fraud and collusion with one George W. Quackenbush attempted to gain possession of said premises and to cut off any reversionary interest which the plaintiff might have under said will, entered into an agreement with said George W. Quackenbush, by which an action in the Supreme Court of the State of New York was to be brought in favor of said defendant "Walter S. Church and against said George W. Quackenbush, claiming that there was a large amount of rent in arrear; that said action was fraudulently commenced by the service of a summons upon said Quackenbush, and such proceedings were thereupon had that a judgment by default for the recovery of the possession of said premises together with $32.19 costs, was fraudulently entered and judgment fraudulently docketed in Albany county clerk’s office on the 8th day of May, 1879 ; that a writ of possession was pretended to be issued by the sheriff of Albany county, September 9, 1879, and purporting to have been returned to said office June 5, 1889; that said writ of possession was never executed according to law, nor in fact, and the possession of said premises was never delivered to said Church under said writ.
    “ That at the time of the pretended service of said summons and entry of said judgment, and the pretended execution of said writ of possession, the said defendant George W. Quackenbush, in said judgment named, was not in possession of said premises and had no right, title or interest therein, he having on the 5th day of May, 1875, conveyed away said premises and his interest therein to Joseph I. Shultes as aforesaid, and plaintiff alleges that said action was brought by the defendant Church and judgment entered therein without the knowledge of this plaintiff, and a judgment by default obtained against said Quackenbush by fraud and collusion between said Church and Quackenbush, and to prejudice and cut off the reversionary interest of the plaintiff and in fraud of her rights.
    “And the plaintiff further shows the court, that on or about the 10th day of March, 1881, the defendant Walter S. Church, to gain possession of said premises and the interest of Ann Eve Shafer, made and entered into the following contract or agreement. * * *
    “ III. And plaintiff alleges that she is the owner in fee of an undivided one-third part of said premises, and is entitled to the immediate possession thereof. That all the rent which has accrued upon said, premises has been fully paid and satisfied, but should any rent be found due and in arrear upon said premises, or any costs and charges legally incurred properly chargeable against said property, the plaintiff is willing and ready to pay the same and to perform all the agreements which ought to be performed by the first lessee in said lease, and the plaintiff is ready and willing to pay said rent and charges.”

      W. Youmcms, for the appellant.

      Mamaus T. Hum,, for the respondent Henrietta Church.

      William S. Dyer, for the respondent Joseph Drum.
   Putnam, J. :

These are actions in ejectment, each brought to recover an undivided one-third part of the premises described in the complaint.

On the trial plaintiffs established leasehold title to said lands, and it being admitted that defendants were in possession thereof, rested. A motion was then made by defendants for a nonsuit, which motion the court granted, plaintiffs duly excepting. Plaintiffs also asked to go to the jury on the questions of fact involved in the case. This motion was denied, and plaintiffs excepted.

One of the grounds urged by the defendants on the motion for a nonsuit, and upon this appeal to sustain the judgment, is that the conveyance from Arthur W. Sliultes and others to plaintiffs on March 9, 1890, was void for champerty, as the property was then in possession of defendants, who claimed to hold it under a title adverse to that of said grantors.

After a careful examination of the evidence I am unable to believe that this position is well taken. The evidence does not show that Church claimed possession under any specific title. The complaint alleges that when the action against Quackenbush was commenced the latter had no title or interest in the demised premises, and was not in possession thereof. And that the writ of possession issued under the judgment in said action was never executed according to law, nor in fact, and the possession of said premises was never delivered to said Church under said writ. The complaint also alleges that Church entered into possession of said premises by virtue of an agreement with Ann E. Shafer set out in the complaint. There is no allegation that Church was in possession of said premises under the judgment against Quackenbush when the premises were conveyed to plaintiffs. Nor does the evidence show any claim of a specific title adverse to that of plaintiffs’ grantors by Church. The complaint does not aver nor does it appear what title, if any, Church claimed. Hence the deed to plaintiffs was not void under the Statute of Champerty. (See Crary v. Goodman, 22 N. Y. 170; Dawley v. Brown, 79 id. 396.)

The defendants also urge that the plaintiffs in their complaints allege a title to the premises in controversy in fee simple, and the proof shows their interest, if any, is a leasehold title. The complaints are somewhat indefinite and obscure, and had a motion been made by defendants for an order requiring them to be made more certain and definite I have no doubt such a motion would have prevailed. But no such motion was made and defendants entered upon the trial of the cases with the complaints as they are. I think it appears from the whole pleadings that the plaintiffs intended to allege a leasehold title. For instance, in stating the agreement between Church and Quackenbush they alleged that it was agreed that an action should be commenced on a claim that there was a large amount of rent in arrear; again, they state in the complaints, that all the rent which has accrued upon said premises has heen fully paid and satisfied ; that should rent be found due and in arrear, plaintiffs are ready to pay the same and to perform all the agreements which ought to be performed by the first lessee in said lease, and plaintiffs are ready and willing to pay said rent and charges. Plaintiffs in their complaints also ask that an accounting be had of the use and occupation of said premises, and that the same be set off against any rent and charges which may have accrued. I think, although defectively stated, the intent of the pleader in the complaints to allege a leasehold title in plaintiffs is apparent.

The defendants having entered upon the trial of the cases with the complaints as they are, with an indefinite, contradictory and obscure statement of title, I do not think that a nonsuit should have been granted, because it appeared upon the trial that plaintiffs’ title was leasehold.

Had it alleged, however, an absolute fee in the plaintiffs and the proof had shown merely a leasehold title, I douht whether the varianee conlcl be deemed material. In either case the plaintiffs were entitled to a judgment for the possession of the premises ; whether owners in fee or lessees, plaintiffs could recover the premises in suit. Such a variance should not be deemed material. (§§ 539, 540, Civil Code.) The complaint, if necessary, could be amended on appeal. (Smith v. Long, 12 Abb. N. C. 120.)

Defendants also claim that the judgment of nonsuit was properly rendered because the complaint sounded in tort and a recovery could not be liad thereunder in ejectment.

The complaint, however, alleges all the facts necessary to be stated in an action of ejectment. That the plaintiffs are -the owners of the premises in question and entitled to the immediate possession thereof, and the defendants are in occupation.

I incline to regard these cases more like those considered in Graves v. Waite (59 N. Y. 156); Bell v. Merrifield (109 id. 206); Ross v. Terry (63 id. 614), and kindred cases, than like Barnes v. Quigley (59 N. Y. 265); Degraw v. Elmore (50 id. 1); Place v. Minster (65 id. 101).

In the latter case, the complaint alleged fraud, and the following language is used in the opinion: “It is, of course, necessary to prove fraud, and the plaintiff could not recover on entirely different grounds, unless there were additional averments in the bill or complaint upon which such recovery can be had.” In these cases there were allegations of fraud, but outside of those were all the allegations necessary to be contained in an action of ejectment. In Ross v. Terry (supra), it was held: “ That the cause of action was not necessarily ex delicto because of the averments of false representations ; that they were not the controlling facts, but the gravamen of the action was ex contracUo. (Connaughty v. Nichols, 42 N. Y. 83; Ledwich v. McKim, 53 id. 308; Graves v. Waite, 59 id. 156.)”

In the cases under consideration, the actions were brought to recover the possession of one-third of the premises described in the complaint. That the plaintiffs are the owners of the premises and entitled to the immediate possession thereof, and that the defendants are in occirpation thereof, is stated in the complaints. In addition to the allegations stating the cause of action, plaintiffs, in anticipation of defendants’ defense, have inserted an averment as to an alleged fraudulent judgment obtained by Church against Quackenbush. The complaints allege, however, that when the action against Quackenbush was commenced, the latter was not in possession of the demised premises and had conveyed his interest therein to Joseph I. Sliultes, and had no interest whatever in said lot, and also possession of the premises in question was never delivered to said Church under said judgment. Of course, the said allegations in the complaints show that the plaintiffs’ rights are not at all affected by the judgment or proceedings in the action of Church against Quackenbush. The object of the pleader seems to be to set out in the complaint a cause of action in ejectment, and anticipating that defendants would interpose as a defense the above-mentioned judgment and proceedings thereunder, to assert the facts showing that said judgment and the proceedings thereunder, as to plaintiffs, was of no effect. I do not think that the allegations contained in the complaint in regard to the said Quackenbush judgment can properly be ■deemed a part of the cause of action. • They are, in fact, irrelevant, and might have been stricken out on motion. The object of the •action is to recover the possession of the premises described in the complaint. If the complaints, however, could be deemed to assert two causes of action, one in ejectment, and one to set aside the fraudulent judgment, a recovery could be properly had in the former, although the latter cause of action remained unproved.

The plaintiffs, as above stated, when they rested, had shown title to the premises in suit, and that defendants were in occupation thereof. If, in fact, Church, as owner of the landlord’s interest in the lease, re-entered, for the non-payment of rent, and Quackenbush was in possession when the action was commenced, and when the writ of possession was issued, and Church was put in possession under the judgment, such a state of facts would constitute a defense. But those facts did not appear upon the trial. I think, on the facts .appearing, plaintiffs were entitled to a judgment, and hence, that the judgment should be reversed, a new trial granted, costs to abide the •event.

Mayham, P. J., and Herrick, J., concurred.

Judgment (in each easel reversed, new trial granted, costs to abide event.


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    Eugene H. Ladd and William E. Smallman, Appellants, v. Ætna Insurance Company, Respondent.

      Insurance policy — waiver of condition as to ownership — manufactory ceasing to be used — when the policy is made void thereby.

    An indorsement upon an insurance policy, that “ It is hereby understood that the title of this property is now vested in P. King and N. Trushaw. Loss, if any, is made payable to Ladd and Smallman as interest may appear ” covers any insurable interest which Ladd and Smallman may have in the insured property, and waives the condition of the policy requiring a specific statement of such interest therein.
    A condition in an insurance policy to the effect that, if the property insured be a manufacturing establishment and ceases to be operated for more than ten consecutive days, or if the building therein described, whether intended for occupation by the owner or a tenant, be and become vacant or unoccupied and so remain for ten days, that the policy should be void, is not violated by the brief temporary suspension of the operations of the mill, caused by the sickness of the owner of the property, although exceeding the period of ten consecutive days named in the policy.
    The suspension of work that would avoid a policy in such a case must be either permanent or something more than a suspension of work from some temporary cause.
    Appeal by tbe plaintiffs, Eugene LI. Ladd and William E. Small-man, from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of Franklin county on tbe 14th day of January, 1893, and also from an order denying tbe plaintiffs’ motion for a new trial, made upon tbe minutes of tbe court.
    The policy of insurance to recover for a loss, under wbicli this action was brought, provided, among other things, that it should be void if tbe property insured ceased “ to be operated for more than ten consecutive days, or if any change other than by death of an insured take place in tbe interest, title or possession of tbe subject of insurance (except change of occupants without increased hazard), whether by legal process or judgment or by voluntary act of tbe insured or otherwise, or if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.”

      John P. Pellas, for the appellants.

      A. H. /Sawyer, for the respondent.
   Putnam, J.:

It is not claimed that the policy of insurance on which this action was brought, when issued, was invalid. Plaintiffs were the owners of the property insured, and received the policy from the duly authorized agent of defendant.

But it is urged that the policy became void in consequence of the contract executed, after the issuing thereof, to King & Trushaw, which transferred to the latter the equitable title to the mill, and by the alleged erroneous indorsement on said policy, that the title was vested in them.

Notwithstanding the contract, plaintiffs remained the legal owners of the property, and could insure it, probably for the whole value, but certainly to the extent of their interest in it. (Ins. Co. v. Updegraff, 21 Penn. St. 513; Tallmam, v. Atlantia Fire and Marine Ins. Co., 4 Abb. Ct. App. Dec. 345; Wood v. The Northwestern Ins. Co., 46 N. Y. 421.)

Plaintiffs remaining the legal owners of the property and with an insurable interest therein, their valid policy did not become invalid, in consequence of the contract, if they correctly represented to defendant’s agent the facts as to such transfer. There was evidence on the trial from which the jury could have found that defendant’s agent was notified that the sale to King & Trushaw was by contract, and hence, a nonsuit having been granted, we must now assume that the agent was truly informed as to the said contract. Under such circumstances we understand it is well settled that the mistake of the agent in making the indorsement will not avoid the policy. (Mowry v. Agricultural Ins., 64 Hun, 144; Van Schoick v. Niagara Fire Ins. Co., 68 N. Y. 434; Berry v. American Central Ins. Co., 132 id. 49.)

We do not regard the cases cited by respondent (Quinlan v. P. W. Ins. Co., 133 N. Y. 356-364; Allen v. G. A. Ins. Co., 123 id. 6) parallel to the case under consideration. These are not cases where a valid policy was issued to the insured and by a mistake of the agent of the insurers the proper indorsement of a transfer was not placed upon the policy of insurance, the agent being duly and properly notified of such transfer.

The indorsement made -was as follows:

“End’t made on policy No. 9932 AEtna Ins. Co., June 30, 1891.
“ It is hereby understood that the title of this property is now vested in P. King and N. Trushaw, loss, if any, is made payable to Ladd & Smallman as interest may appear,
“S. B. SKINNER, Agent”

It has been decided that the company by the words “ as interest may appear ” insured the plaintiffs for any insurable interest which they might have in the insured property and waived the condition requiring a specific statement of such interest in the policy. (De Wolf v. Capital City Ins. Co., 16 Hun, 116; Burke et al. v. The Niagara Fire Ins. Co., 34 N. Y. St. Repr. 702, 703.)

We have assumed that in making the indorsement above set out the agent incorrectly stated that the title to said insured property was in King & Trushaw. The latter, however, under the contract, were the equitable owners of the property, and there are authorities holding that such vendees who have taken possession under a contract have the title and may insure as the owners. (Pelton v. The Westchester Fire Ins. Co., 13 Hun, 23; 77 N. Y. 605.)

We, therefore, conclude that the policy was not avoided in consequence of the contract to King & Trushaw.

The court below granted the nonsuit on the ground that the insured property, being a manufacturing establishment, ceased to be operated as such for at least ten days at some time prior to the fire, and hence, under the conditions in the policy, it became void. The conditions referred to provide that if the subject insured be a manufacturing establishment and ceases to be operated for more than ten consecutive days, or if the building therein described, whether intended for occupancy by the owner or a tenant, be and become vacant or unoccupied and so remain for ten days, that the policy shall be void.

We think the position of appellants correct that ordinarily the term “occupy,” as applied to such a sawmill, must be deemed synonymous with “ operate.” It is held that “ to constitute occupancy of a building used for manufacturing purposes, there must be some practical use or employment of the property.” (Halpin v. Phœnix Ins. Co., 118 N. Y. 174.)

A condition of the kind above set out is to be construed in view of the circumstances and character of the property insured, and in view of the contingency as to its use within the reasonable contemplation of the parties. (Caraher v. Royal Ins. Co., 63 Hun, 93.)

The property insured was a sawmill run by water power. It was destroyed by fire on January 9, 1892. The mill was kept running up to December ninth, when King, the sawyer, was taken ill, and work was suspended until three days before the fire, when the witness Trushaw sawed two logs. He testified he was intending to go to the mill, the following Monday, to saw the logs there. When King became ill, he had arranged to saw out a-bill of lumber the next day. There was quite a quantity of logs at the mill to be sawed, and arrangements had been made to have others drawn, and logs were drawn there during King’s illness, and up to the time of the fire, and lumber taken away. He stopped work on account of the illness.

If an insurance policy on a sawmill run by water power is vitiated by a temporary suspension of the operation of the mill in consequence of the illness of the sawyer, absence of logs, low water, or any circumstances which must necessarily cause such suspension from time to time, such a policy would have but little value.

Whitney v. Black River Ins. Co. (72 N. Y. 117; 9 Hun, 37) was a case of insurance upon a sawmill; at the time of the fire no sawing had been done for sixteen or eighteen days, but there were logs in the yard which the plaintiff intended to saw; lumber piled in the yard and in the mill from which sales were made from time to time before the fire. It will be seen that the facts were similar to those in this case. In that case it is said: “ Delays and interruptions incident to the business of conducting a sawmill, although involving a temporary discontinuance of the active use of the mill, for sawing purposes, would not, we think, make the mill vacant and unoccupied ’ within the. meaning of the policy. Take the case of the insurance of a church building or schoolhouse, or cider mill. Would the fact that the church was closed for six days consecutively each week be a violation of the condition in question, or would the schoolhouse in vacation time, or the cider mill, when no apples were to be had, be without the protection of the policy ? These illustrations serve to show that the condition against vacancy and non-occupatiori is to be construed and applied in view of the subject-matter of the contract, and of the ordinary incidents attending the nse of the insured property.”

In Poss v. Western Assurance Co. (40 Am. Rep. 68), it was held that a clause similar to the one in question in an insurance policy is not avoided by a temporary cessation of work caused by an epidemic. In Albion Lead Works v. Williamsburgh City Fire Ins. Co. (2 Eed. Rep. 480), it is determined that such a clause is not violated by a temporary suspension of work at the mill.

Ve think the above-cited cases place the proper construction on such a provision in a policy. The suspension of work that would avoid a policy in such a case must be either permanent or something more than a suspension of work from some temporary cause. The distinction between this case and such cases as Halpin v. Phœnix Ins. Co. (118 N. Y. 165), is apparent. In the latter case the insured property had been occupied as a morocco factory, but the tenant had left, and the building was locked up and in the hands of the agent to rent, and it remained in that position for months. It had ceased to be operated at all until another tenant could be found. The suspension of work in the case ci^ed was very different from the temporary suspension in the case under consideration, which was only continued during the illness of the sawyer.

We conclude that the policy of insurance in question was not rendered void by the brief suspension of the operations of the mill in consequence of King’s illness, and that the court erred in taking the case from the jury, and in granting the motion for a nonsuit, and hence, without considering the other questions raised in the case, the judgment should be reversed, a new trial granted, costs to abide the event.

Mayham, P. J., and Herrick, J., concurred.

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


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    George N. Cottrell, as Supervisor of the Town of Poestenkill, Respondent, v. The Marshall Infirmary in the City of Troy, N. Y., Appellant.

      Negligence — giving way of a damn, — charge of the court.

    In an action brought to recover the damages resulting from the giving way of a dam alleged to have been occasioned through the defendant’s negligence, there was evidence tending to show that such negligence existed on its part, but not so decisive as to require the trial judge to withdraw the case from the jury, which was charged by the court to the effect that the dam should have been constructed in such a manner as to resist such extraordinary floods as might have been reasonably expected, occasionally, to occur, but that if the damage was caused by a phenomenal flood that no one could expect, the defendant was not liable therefor.

      Held, that the charge in this respect was proper.
    Appeal by the defendant, the Marshall Infirmary in the city of Troy, N. Y., from a judgment of the Supreme Court, entered in the clerk’s office of the county of Rensselaer on the 4th day of March, 1892, and also from an order entered- in said clerk’s office, denying a motion for a new trial made upon the minutes of the court.
    The action was brought to recover the damages alleged to have resulted to the plaintiff from the negligence and wrongdoing of the defendant, who owned and controlled certain land in the town of Grafton, upon which it constructed a dam for the purpose of retaining in a reservoir the waters of Poestenkill creek.
    The complaint alleges that the dam was carelessly and negligently constructed, and was carelessly and negligently kept and maintained, and that by reason of insufficient and improper construction, control and 'maintenance on the part of the defendant, the dam gave way and a large accumulation of water held by the dam was precipitated violently upon the land below and injured certain highways, culverts and bridges of the town of Poestenkill, of which the plaintiff was supervisor.

      Matthew Male, for the appellant.

      Charles E. Patterson, for the respondent.
   Putnam, J.:

The position of the learned counsel for defendant, that negligence must be shown in order to make the defendant as owner of the dam liable, is undoubtedly correct. (Losee v. Buchanan, 51 N. Y. 487, and cases cited.)

But we think there was testimony in the case which rendered the submission of the question of defendant’s negligence to the jury proper.

There was no waste weir to the' dam or flagging over the dirt filling between its walls. The expert witness, Rickets, testified : “ It is not the proper and safe construction of a dam to build it without a waste weir.” Also, “ I don’t think you could speak with safety ’ in connection with such a dam; I don’t think there is any such term to be used.” The witness Baerman, called by defendant, testified as to the dam, “ it was a good construction of its kind.” “ Q. Do you consider that it was safe to build such a dam .as that without building a waste weir ? A. I would not build one, but there are other circumstances which might modify somebody else’s opinion.” There was other evidence in the case indicating an improper construction of the dam and hence negligence on the part of the defendant, which it is unnecessary to recapitulate. On the part of defendant much testimony was produced tending to show proper construction of the dam. We do not think, however, that such testimony was so overwhelming as to compel the trial judge to withdraw from the jury the question as to the construction of the dam.

The trial judge in his charge in stating the degree of care a party should use in constructing such a dam quoted from “'Angelí on Water Courses” as follows: “It must be in proportion to the extent of the injury which will be likely to result to third persons, provided it should prove insufficient. And it is not enough that the dam is sufficient to resist ordinary floods, for if the stream is occasionally subject to great freshets, those must likewise be guarded against, and the measure of care required in such cases must be that which a discreet person would use if the whole (risk) were his own.” He also charged as follows: “ The duty of the defendant was to so build it in the first instance that it would resist all the water that it was constructed to store in the first place. It must resist the pressure of all the water that could be got in it, relieved as it was or was intended to be by this bulkhead and this flume. If it failed to do that it was improperly constructed in law. It must resist all the storms and all the water that would flow into it by the storms common to the locality; and not only that, but all the water that would flow into it by extraordinary storms such as do sometimes occur and are likely to occur, although at irregular intervals in this vicinity. Was it so constructed 1 That question is for you. * * * It does not follow that the defendant was bound to guard against a very unusual storm that had never occurred but once before in the history of this vicinity, and that long years ago. The law does not exact any such thing as that of a party. Although a thing extraordinary in eharacter, of a phenomenal type has once occurred, it does not follow it is to be anticipated that it will occur again, and the law does not require anybody to guard against anything that is so phenomenal that it has only occurred once in the history of mankind. It is only such things as experience teaches are likely sometimes to occur that men must foresee and guard against. I must submit to you, and I do submit to you, the question whether this was not an extraordinary, a very extraordinary storm, one that had never occurred before in this vicinity.”

We are unable to discover any error in the charge of the learned trial judge. (Angell on Water Courses, § 336; The Mayor, etc., of New York v. Bailey, 2 Denio, 433, 440, 441; Gray v. Harris, 107 Mass. 492.)

In The Mayor, etc., of New York v. Bailey (supra), it is held that “ the dam should, therefore, have been constructed in such a manner as to resist such extraordinary floods as might have been reasonably expected occasionally to occur.” The trial judge in this case so charged, at the same time instructing the jury that if damage was caused by a phenomenal flood that no one could expect, defendant was not liable.

We think there was evidence justifying the submission of the case to the jury, indicating that the freshet which caused the dam to give way was one of the extraordinary floods which might be occasionally expected to occur, and not a phenomenal one, which no one could expect ever to occur.

The witnesses Hull, Dustin and Goyer testified to other occasions when water was as high as when the dam gave way. It also appears that in 1869 there was a larger rainfall than that which occurred at the time in question. The testimony justified the submission of the question to the jury, whether the flood which caused the dam to give away was a phenomenal one, such as defendant was not compelled to guard against, or one of the extraordinary rainfalls occasionally occurring, and which, as stated in The Mayor, etc., of New York v. Bailey (supra), defendant should have anticipated.

We think that the evidence in the case rendered the submission of' the question as to the proper construction of the dam, to the jury, necessary, and that the verdict on such evidence cannot be disturbed.

We do not discover any error in the charge of the judge as to the liability of the defendant in the construction of the dam, assuming that the exception taken by defendant on the trial is sufficient to raise this question. The passage in the charge criticized by the learned counsel for appellant, should be considered in connection with other parts of the charge. The instruction given by the court to the jury, taken together, we think correctly states the law applicable to the case.

Nor do we think the court erred in the charge as to the duty of Wager, the gatekeeper. There was testimony indicating that Wager discovered the dam washing away several days before the accident in question, and took no measures whatever to protect it.

The judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concurred.

Judgment affirmed, with costs.