author: By the Court.—Truax, J.

text:
    HENRY SPICER, et al., Appellants, v. FRANCIS SPICER, et al., Respondents.

      Fraudulent deeds and assignments—Vacation of—Evidence.

    The burthen of proof establishing the fact that the conveyances in question were fraudulent, rests upon the party who alleges the same.
    A court will not presume fraud and undue influence from the fact that the conveyance in question was made by a sister to a brother.
    When question held not inadmissible under § 829 Code.

      Before Sedgwick, Ck. J., Truax and Bugro, JJ.

      Decided March 14, 1887.
    Ajipeal from a judgment entered on the report of a referee.
    The action was brought to set aside certain assignments and deeds on the ground that they were fraudulent and void.

      Edward F. Frown, for appellant.

      David Thurston, attorney, and Charles DeEay Townsend of counsel for respondent.
   By the Court.—Truax, J.

I cannot agree with plaintiffs that the burden of establishing that the transfers were not fraudulent, rests upon the defendants.

The plaintiffs allege that the transfers were fraudulent, and on them is the burden of establishing that fact. And while it may take less evidence in a case of this kind to convince a court that the transfers were obtained through undue influence, still it does require evidence of that fact, and a court will not presume fraud and undue influence merely from the fact that the conveyance is made by a sister to a brother.

I have read the evidence with great care, and I do not see how the referee' could have come to any other conclusion than the one to which he did come.

In fact there was no evidence presented by the plaintiffs—except the mere fact of the conveyance, which we have seen is not sufficient,—that the conveyances were made through fraud or-undue influence; while the evidence offered by the defendants tends to show that the person who made the assignments and conveyances understood what she did, and was simply carrying out the intentions that she had expressed before.

There were certain objections to the admission of evidence. The material objections arise out of the following state of facts: One of the defendants was asked how long a certain deed (which was one of the deeds that was sought to be set aside), had been in his possession ?

This question was objected to as incompetent, for the reason that it called for evidence of a transaction between the witness and a deceased person.

The objection was overruled and the plaintiff’s counsel excepted.

I am of the opinion that this question did not refer to a transaction between the witness and a deceased person. It may well have been that the deed was not delivered to the witness by the grantor personally.

A question very similar to this was before the Court of Appeals in the case of Lewis, Executor, v. Merritt, reported in 98 N. Y. 206.

That action was brought by an executor for the alleged conversion of certain promissory notes. The plaintiff as a witness ¿n his own behalf, testified that certain notes were for some time previous to the death of the testatrix, kept in a trunk in her room; that he saw them there on the morning before she died, and on examining the trunk on the following morning, he found that they had been abstracted.

He also testified to facts showing defendant’s presence in the room during the last hours of the testatrix’s life. The notes were afterwards found in the defendant’s possession. Defendant claimed that the notes were given him by the testatrix several days before her death; and as a witness in his own behalf, was asked if he took those notes from any trunk or any person; he also offered to show by his own testimony, that he had possession of the notes two days before the death of the testatrix.

This testimony was objected to, as incompetent under section 829 of the Code of Civil Procedure, and was ex-eluded. The Court of Appeals held this to be error and reversed the judgment.

This evidence was competent because it tended to show the falsity of the evidence given by the plaintiffs, or rather of the inferences which the plaintiffs sought to draw from that testimony. It tended to show that the papers had been drawn some two or three years prior to the death of the grantor, and that they had been delivered to the grantee, and that the grantor had allowed the papers to remain in the possession of the grantee for this two or three years. *

The judgment must be affirmed with costs.

Sedgwick, Ch. J., and Dugro, J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN H. WAUGH, et al., Respondents, v. SEABOARD BANK, Appellant.

      Petroleum, oil certificates—Contract for the transfer of.

    In a contract between a firm and a bank corporation for the transfer of certain certificates for 4,300 barrels of petroleum oil, that had theretofore been hypothecated to the bank by another firm, nothing was said about the kind or character of the certificates, or the oil they represented, beyond the fact that the hypothecated certificates were the subject of the contract.

      Held, that such a contract covered and related to the certificates in the condition they were at the time the bank contracted to transfer the same.
    At that time the oil in question was subject to charges for storage to the amount of $2,924.35.

      Held, that by the contract for the transfer of the certificates, the bank incurred no liability to pay the said storage charges, nor to free the oil from the same.
    In the absence of any agreement to that effect between the parties, and there being no evidence that the party sought to be bound thereby was a ‘ member of the Exchange, the rules or customs of the Petroleum Exchange and Clearing House connected with it, in regard to the payment of storage charges, on a sale, or transfer of oil or oil certificates, are immaterial, and have no relation to nor any binding effect upon, the parties, or the subject matter of the contract.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided March 14, 1887.
    Appeal from a judgment entered on the report of a referee.

      Taylor & Parker, attorneys, and Frederick 8. Parker, of counsel for appellant.

      Johnes, Benner & Willcox, attorneys, and Henry C. Willcox, of counsel for respondents.
   By the Court.—Truax, J.

The plaintiffs alleged amongst other things, that the defendant undertook and agreed to transfer to the plaintiffs certain petroleum certificates for 43,000 barrels, on which the firm of Hilton & Waugh had obtained a loan from the defendant, and that the defendant agreed that these certificates known as tide-water certificates, should be certificates of the United Pipe Line, with storage thereon paid to the date of the transfer; that defendants failed to perform its said agreement, in that it did not transfer to the plaintiffs United Pipe Line certificates with storage charges paid thereon, but on the contrary transferred to plaintiffs certificates, known as tide-water certificates, upon which there were accumulated storage charges in the amount of $2,924.35; and that by reason of such violation of its agreement the plaintiffs have suffered damages in the said sum of $2,924.35.

The defendant denied these allegations. The referee to whom the action was referred did not find as a matter of fact that such an agreement was made, but he found in substance that under and according to the rules of the Clearing House and of the Petroleum Exchange, and the custom of the members thereof and brokers, all deliveries of oil were required to be in oil that had all storage charges paid to the date of such delivery, and that of such rules and custom the defendant was aware at such times.

He also found that at the request of the firm of Hilton & Waugh, who were then the owners of the oil, and who had hypothecated the oil with the defendant, and at the request of the plaintiffs, the said defendant on or about the 15th day of May 1884, undertook and agreed to transfer and deliver to the plaintiffs from the certificates so hypothecated with it by Hilton & Waugh, certificates to the amount of 43,000 barrels of oil, which under the custom above mentioned necessarily Avould be United Pipe Line certificates, and have storage charges thereon paid to the date of such delivery or transfer.

It was on this finding of custom that the referee ordered judgment for the plaintiff.

The weight of the evidence tends to show that at the time the defendant was requested to make the transfer nothing was said about the kind of oil, and the term regular ” was not used at all.

It is true that one of the witnesses for the plaintiff testified that in a conversation with Mr. Nelson, the cashier of the defendant, he said: This is to be regular United Oil; ” to which Mr. Nelson replied, saying : “ It will be all right, Mr. Otters'tatter. Everything Avill be satisfactorily arranged.” But I am of the opinion that all the evidence on this point would not warrant the referee in finding that the defendant agreed to deliver plaintiffs oil, on which all charges had been paid.

There is no evidence that the defendant was a member of the Petroleum Exchange. The presumption is that it was not a member, and not being a member of the Exchange it Avould not be bound by the rules of the Exchange.

What was the custom of the members of the Petroleum Exchange and brokers was immaterial. When acting as a bank the defendant was not bound by the Clearing House rules of the Petroleum Exchange, nor was it bound by the custom of members of the Exchange or of brokers. All that it was required to do in the absence of an express agreement to do otherwise, was to deliver the oil to the plaintiffs in the condition in which the oil was at the time it promised to make the delivery. At that time these charges were oir the oil.

It was the duty of the plaintiff to ascertain whether the oil was or was not “ regular.” At least, I cannot see that the defendant was under any obligation to make the oil “regular” by paying the Pipe Line charges on it.

It is not necessary for us to determine whether or not this finding of the custom of brokers was warranted by the pleadings, as the evidence on that point was admitted without objection.

We are of the opinion that the judgment should be reversed and a new trial ordered, with costs to the party who finally prevails in the action.

Sedgwick, Ch. J., and Dugro, J., concurred.


author: By the Court.—Dugeo J.

text:
    JOSEPHINE BOYCE, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Negligence—-Action against carrier for personal injuries—Bequests to charge must be based upon evidence in the case—An objection to testimony must be specific and point out the grounds for the exclusion of the testimony— A general objection based upon grounds not disclosed by the counsel, may be disregarded on appeal.

    The main points raised and discussed by the appellants at the General Term, were upon alleged error of the trial judge in refusing to charge as requested by appellants, as to the legality of the form of one of defendant’s stations and the curve of the track, as appears in the opinion of the court.

      Held, that there was no error in the refusals, because there was no evidence in the case to sustain, or upon which to base said requests.

      The following question was ¡nit to a sister of plaintiff, the action being for damages from, injuries caused by defendant’s alleged negligence: *• Please state to the jury generally what she has suffered and said about it, and what has been done for her comfort.” This question was objected to generally without the assignment of grounds. , The objection was overruled, and in answer the witness gave only facts of which she had personal knowledge. Previous to this, the witness had testified without objection : “ She (my sister) is not able to work at all. Cannot even sweep a room. I sleep with her. I have had opportunity to observe her condition and the pain she suffers. She suffers a great deal.”

      Held, (1) That the objection that the witness was incompetent to speak as an expert, or that the case was not one for expert testimony, was not available on an appeal. (2) That in view of the previous testimony received without objection, the answer to the question objected to did not prejudice defendant, and constituted no ground for reversal.
    Where there is testimony that the accident to the plaintiff was due to the existence of an unguarded hole between the cars and the station, and to insufficient lighting of the station, it is not error to exclude evidence in defendant’s behalf, that the form of the station causing the hole, e. g. a sharp curve, was necessary; the true question being only as to the safety of the means of exit provided by defendant.
    Before Sedgwick, Ch. J., and Dugeo J.

      Decided March 14, 1887.
    Appeal by the defendant from an order denying defendant’s motion for a new trial on the minutes; and from the judgment.
    Action for personal injuries caused by negligence of the defendant.

      T. Henry Dewey, for respondent.

      Davies, Cole, & Rapallo, attorneys, and Edward 8. Rapallo and Henry D. 8edgwick, of counsel for appellant.
   By the Court.—Dugeo J.

The main points raised by the appellant are the following :

1st. That the trial judge erred in refusing to charge “ that the South Ferry station as to its form and shape, was such as the legislature had authorized the defendant to use.”

2d. That he erred in refusing to charge “ that as to the rolling stock of the company at the time of the accident, inasmuch as it was such as the legislature had authorized the defendant to use as a railway—that as to that, there is no proof of negligence against the defendant.”

3d. That he erred in refusing to charge as follows: The South Ferry station as to its form and shape was such as the legislature had authorized the defendant to construct and use as a railway.”

There was no error in refusing to charge as requested, because there was no evidence in the case to sustain such requests. The defendant put in evidence a certificate dated December 30, 1879, signed by certain commissioners, which reads that pursuant to powers vested in them under the provisions of chapter 606 of Laws of 1875, and chapter 595 of the Laws of 1875, they approve of the “ New York Elevated Railroad Company the tracks.....curves, stations, platforms, rolling stock, motive power,.....at and from the intersection of Greenwich street and Battery place and the Battery .....to South, Hamilton and Staten Island ferries.

The commissioners who signed the certificate put in evidence, were appointed by the governor pursuant to chapter 595 Laws of 1875, which refers only to an Elevated Railroad along Greenwich street to 9th Avenue, and along 9th Avenue to the Harlem river. (See § 7 of said Act). The terms of said Act have no reference whatever to any railroad or part of a railroad south of Greenwich street; they are expressly restricted to an elevated railroad along Greenwich street and running north.

Section one of chapter 606 Laws of 1875 cited by defendant, enacts that the. commissioners shall be appointed by. a justice of the Supreme Court, and by section 36 of said Act the said commissioners, viz: those appointed by the Supreme Court, may fix and determine the route by which any elevated railway then in actual operation may connect with other steam railways or the depots thereof.

This disposes of appellant’s objections to these rulings of the trial judge. Appellant failed to show that this particular station, viz: the South Ferry station had been approved by any duly authorized commissioners, and there was no proof whatever that the legislature had authorized the defendant to construct the South Ferry station, or any station in any form or shape.

The learned trial judge directed the attention of the jury specially to the fact “ that she (the plaintiff) makes no contention about the construction in the first instance of the platform or station,” in other words the existence of the hole is not complained of, but as the judge charges, “the plaintiff says in her complaint that the defendant’s negligence consisted in this, that the defendant did not provide proper and safe means of exit from the car in which she was riding, but left a hole or space between the step of the car and the platform of the station, which was not properly guarded, nor was the station properly lighted.”

The unsafe means of exit, in that the hole was unguarded and" the station improperly lighted, is what is complained of. The defendant should not have invited passengers to alight at such a dangerous place. The defendant claims that no way of making exit safer was known to science. But it seems to us that common sense suggests several ways. The hole was left unguarded, and under the circumstances the question of negligence was properly left to the jury. We do not believe that the judge erred in excluding defendant’s testimony offered for the purpose of showing the necessity for the present form of structure etc., because ordinary intelligence without the aid of expert knowledge shows, that even if good and sufficient reasons necessitated the construction of the railroad at such a sharp curve, the means of exit from the cars could be made safe.

In the case at bar the contention is, as to whether the means of exit were safe, not the necessity of the particular curve. ' We can well imagine necessity of even a greater curve, and could it be contended therefore that no safe means of exit should be provided ? There was no evidence of contributory negligence on the part of the plaintiff, certainly not enough to warrant the court in taking the case from the jury, or in setting aside the verdict. The charge of the trial judge conformed with the law in every respect, and on the question of plaintiff’s negligence, and also of defendant’s negligence, he charged substantially as defendant had requested.

The remaining point to be considered is as to a question put to Rhoda Boyce, the plaintiff’s sister.

“ Ques : Please state to the jury generally what she has suffered and said about it, and what has been done for her comfort ? ”

The defendant objected to this question, and the objection was overruled. No reason for the objection was given.

The question seems to us to have been admissible, for the witness had testified prior to the question “She (my sister) is not able to work at all; cannot even sweep a room. I sleep with her. I have had opportunities to observe her condition and the pain she suffers; she suffers a great deal.” This objection cannot be considered now, as no ground was stated for it at the trial. An objection should be specific, and point out the grounds for the exclusion of the testimony, and a general objection based upon grounds not disclosed, may be disregarded on appeal. Levin v. Russell, 42 N. Y. 251; Quinby v. Strauss, 90 N. Y. 664.

There was no objection made that the witness was incompetent to speak as an expert, or that the case was not one for expert testimony, therefore the general objection was unavailing. Crosby v. Day, 81 N. Y. 242; Guiterman v. Steamship Co., 83 Id. 358, 366. The witness in answer gave only facts of which she had personal knowledge; and she could have given an opinion predicated upon such facts, if necessary. In view of the testimony given before objection, I cannot see how this answer prejudiced defendant.

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

Sedgwick, Ch. J., concurred.


author: By the Court.—Dugro, J.

text:
    MARTIN McINTOSH, Appellant, v. THE RECTOR CHURCHWARDENS AND VESTRYMEN OF ST. PHILLIPS CHURCH, &c., Respondents.

      Action for specific performance of contract—Lease, covenants and conditions of—Must be strictly performed on the part of the lessees, to entitle them to the fulfillment of the conditions and covenants on the part of the lessors, the fulfillment of which is based upon the conditions of the same being fully and strictly performed by lessees.

    In this case, the lessees were entitled to a renewal of the lease, in case they fully and faithfully performed and fulfilled all the covenants on their part, among which were covenants, that the lessees should build a dwelling house on the premises, also that they would not assign nor sublet the premises, without the consent of the lessors.
    After the execution of the lease, by another instrument, the lessors for a valuable consideration discharged the lessees from the covenant to build the dwelling house, and permitted the lessees to assign the lease to one Martin McIntosh, (the plaintiff) on the express condition that said McIntosh should not assign the lease nor sublet the premises without the consent of lessors. Said instrument also provided that said lease in all its parts shall be observed and acted upon by the parties, as though the covenant to build the dwelling house had not been inserted • therein. The plaintiff took possession under this instrument and an assignment of this lease, and erected upon the same a building for business purposes, and at the expiration of the term, on the lessors’ refusal to renew the lease, brought action to compel the specific performance of the contract to renew.
    During the term of the lease, the plaintiff assigned the lease to one Martha McIntosh, who afterwards re-assigned the same to him. The plaintiff in his complaint, alleged that this assignment and re-assignment was made with the knowledge and consent of the defendants (the lessors), who in their answer denied the same. This issue of fact and all the issues of fact thus made, were determined on the trial against the plaintiff, and the trial judge found that the leasings and sublettings were made without the knowledge or consent of the defendants (the lessors), and consequently there was no waiver of the covenant on the part of the lessors. Held, on appeal, that the rule is well established that where a party seeks to enforce a contract by action, he is not entitled to recover, unless performance by him of all its conditions is shown, or unless actual waiver is proved with full knowledge of the default.
    The defendants, although a religious corporation, have a right to insist upon the letter of the covenants in the lease being fulfilled, notwithstanding their enforcement works great injury to the plaintiff.
    Before Sedgwick, Cli. J., and Dugro, J.

      Decided March 14, 1887.
    Appeal from a judgment dismissing the complaint in an action brought by plaintiff against the defendant to compel specific performance of certain covenants contained in a lease.

      Jacob F. Miller, for appellant.

      Sidney S. Harris, for respondents..
   By the Court.—Dugro, J.

The lease in this case provided among other things, that if the lessees, their executors, administrators or assigns, should fully and faithfully perform all and singular the covenants, stipulations and agreements on their part to be fulfilled, that the lessors would at the end of the term grant a new lease, or at their (lessors’) option pay for the dwelling house which the lessees covenanted to erect on the demised premises. The lease also provided that the lessees would within a certain time erect a dwelling house on the lot that was leased. The lessees also covenanted that they would not assign or sub-let the said premises or any part thereof, or any part of their term or time without the consent of the lessors.

After the execution of the lease the defendants (the lessors) executed another instrument wherein, for the consideration of five hundred dollars, they released and discharged the lessees and their assigns from the covenant to build contained in said lease, and in the same instrument they expressly permitted the lessees to assign the lease to Martin McIntosh, on the express agreement and understanding that the said Martin McIntosh should not at any time thereafter during the term of said lease let all or any part of said premises, or assign the same or any of the term to any person whomsoever, without the consent of the lessors in writing.

The said agreement further provided “ that the said lease in all its parts shall be acted upon by the respective parties as though such covenant to buildjiad not been made and inserted therein, and all other parts of said lease shall be interpreted accordingly.” Plaintiff accordingly took possession under said agreement. At the expiration of the term, on the defendants’ refusal to renew the lease, the plaintiff brought this action to compel specific performance of the covenant to renew.

He alleged in the complaint that all the covenants and conditions of the lease were complied with on his part; that by permission of, and agreement with the defendants, he erected on said premises a building other than a dwelling house, to be used for business purposes, which building the defendants accepted in lieu of the dwelling house mentioned in the lease; that afterwards and with the consent of the defendants, he assigned the lease to Martha McIntosh, who afterwards and with full knowledge of the defendants, re-assigned the same to him.

All these allegations were denied by the defendants, and thus the performance of everything necessary to entitle plaintiff to a renewal was made the issue in the case. All the facts were determined against the plaintiff by the trial justice.

That plaintiff should not assign or underlet the premises was, by express covenant of the parties, made a condition precedent to the right of renewal.

Plaintiff must show performance by him, or some sufficient excuse for non-performance, or show that the covenant was expressly or by operation of law waived by defendants, with full notice of the facts. Glacius v. Black, 50 N. Y. 145; Smith v. Brady, 17 N. Y. 189; Catlin v. Tobias, 26 N. Y. 217; People’s Bank v. Mitchell, 73 N. Y. 406.

We think there was sufficient evidence to sustain the conclusions of the trial judge, that the leasings and various sub-lettings were not made with the knowledge or consent of the defendants, consequently they did not waive this covenant. It is found as matter of fact that when they received rents they did not know that the lease was assigned, and that the premises were sub-let. Without knowledge of violation there can be no waiver. And the rule is well established that where a party seeks to enforce a contract by action, he is not entitled to recover, unless performance by him of its conditions are shown, or unless actual waiver is proved with full knowledge of the default.

This is a harsh case for the plaintiff, who, supposing he would get a renewal of his lease, or be paid for the building, spent twelve thousand dollars in the erection of a factory on the defendant’s lot. But the difficulty with the case is, that all the facts have been found against the plaintiff, and the court should apply the law to the facts as found. .

The defendants, though a religious corporation, have a right to insist upon the letter of the bond in the lease, even though the enforcement of their demand works great injury to the plaintiff.

Judgment affirmed with costs.

Sedgwick, Ch. J., concurred.


author: Opinion of the Trial Judge.—Freedman, J. Per Curiam.

text:
    MARY GALVIN, as Administratrix, Appellant, v. THE MAYOR, &c. of NEW YORK, Respondents.

      Negligence.

    In this case the judgment was affirmed because it did not appear that the accident complained of was to be attributed solely to the negligence of the defendants. There was no proof as to the way in which the accident happened, and the jury could not have properly inferred from the evidence that the deceased was free from contributory negligence. The views of the trial judge were held to be correct, and he held “ That to sustain a recovery, the negligence complained of must have been the primary cause of the injury, and in this case the injury did not result from the condition or fastening of this grating, but from the manner in which it was used. If there was negligence in its use, from the position in which it was placed by the co-servant of the deceased, it was not the general negligence of the city.'”
    Before Sedgwick, Ch. J., Teuax and Dugro, JJ.

      Decided March 14, 1887.
    Appeal by plaintiff from judgment entered on a dismissal of the complaint before a jury.
    The action was for damages from negligence.

      John C. Shaw, attorney, and E. J. Myers of counsel for appellant.

      E. Henry Lacombe, and David J. Dean, for respondents.
   Opinion of the Trial Judge.—Freedman, J.

To be actionable the negligence complained of must be shown to have been the primary cause of the injury complained of. The injury in this case resulted not from the general condition or the want of fastening of this grating, but from the manner in which it was used. The use that was made of it was made by John Purcell, who came there ahead of Galvin and who, with some others raised it. If it was as dangerous as the learned counsel for the plaintiff claims, to allow it to stand almost perpendicular and without any fastening, then it was John Purcell who put it in that dangerous condition, and the danger was open, notorious, and patent to all who had eyes to see. If, therefore, there was negligence in that, it was the negligence of the co-servant of the deceased which was the primary cause of the injury, and not the general negligence of the city.

On the other hand, it also appears that the deceased had been warned several times against this very grating. Such danger was open, notorious, and he had express warning, which was proven by a witness introduced by the plaintiff and, introduced as a witness, entitled to belief. As the deceased had express warning, and the danger was open and notorious to him, if he did look—and it must presumed that he did look—it was contributory negligence for' him to go down that slide without first taking means to fasten it. He. might have pressed a shovel, which he must have had, against it. He might have fastened it with a rope, or in a variety of ways; or he might have stayed out of that hole altogether.

The complaint must be dismissed.

Per Curiam.


author: Per Curiam.

text:
    THE NEW YORK LAND IMPROVEMENT COMPANY, Appellant, v. WILLIAM S. CHAPMAN, Respondent.

      False and fraudulent representations.

    The alleged false representations did not destroy any of plaintiff’s rights, nor induce plaintiff to discontinue or abandon any proceeding taken or act done towards the enforcement of his rights. All that appears from the allegation of the complaint, is that defendant, by Ms representations induced plaintiff to abandon an intention.

      Held, it is impossible to assess damages in such a case. The plaintiff parted with nothing of value because of the representations.
    Before Sedgwick, Ck. J., Tritax and Dugro, JJ.

      Decided March 14, 1887.
    Appeal from judgment entered on a dismissal of complaint before a jury.
    The complaint alleged that the plaintiff made to a firm, styled Groot & Chapman, composed of the defendant and two others, a lease of certain rooms for one year, to begin May 1, 1882, at the yearly rent of $4,500, payable quarterly, and in addition thereto $12 monthly for janitor’s fees; that the lessees entered; that on August 1,1882, $1,125 “became due as rent, besides some other amount for janitor’s fees; that the same was not paid, and the said lessees were in default for payment thereof; that by the terms of the lease, on default in payment of rent, the lessors were entitled to enter upon and take possession of said premises, and also to dispossess said lessees, in accordance with the statute in such case made and provided, and to lease said premises to others; that thereafter and about August, 1882 and afterwards, the defendant, William S. Chapman, to induce the plaintiffs not to re-enter and take possession of said premises or dispossess said lessees and lease said premises to others, but to allow said lessees to remain in possession and use thereof, fraudulently and falsely stated to and represented to plaintiff, that said lessees were entirely solvent and able to pay the rent of said offices, etc;” that “plaintiffs could at said time, have rented said premises to responsible persons for the remainder of the term aforesaid, at a rent at least as large as received in the lease aforesaid, and had applications at said time, for a lease of said premises and so informed said defendant, and said defendant for the purpose aforesaid, on said several occasions repeated said representations to plaintiff; that said representations were false and were made with the fraudulent purpose above set forth, of deceiving the plaintiff and inducing plaintiff to allow said lessees to remain in possession of said premises; that plaintiff, in reliance upon said representations and in consequence thereof; allowed said lessees to remain in possession of said premises, until January 1, 1883, and refrained from re-entering upon the premises or dispossessing said lessees, and refused to lease the same to the other parties applying therefor; ” that at the time, etc., the said lessees were insolvent etc., as the said defendant then and there well knew ; that “ plaintiff brought suit for said amount under the covenant in said lease, and recovered judgment thereon for the sum of $3,168.98; that execution has been issued against said lessees and returned unsatisfied, and said lessees state and declare that they have no property of any kind, nor has either of them, and are unable to pay the same; that by reason etc., plaintiff has suffered damage in the sum of $3,500.”
    On the trial, before any testimony was offered, counsel for defendant moved to dismiss the complaint. The motion was granted, and the appeal is from the judgment of dismissal.

      Parish & Pendleton, attorneys and F. K. Pendleton of counsel for appellant.

      Hector M. Hitchings, for respondent.
   Per Curiam.

The face of the complaint shows that at the time of the alleged false representations made by defendant, his firm, the lessees, were rightfully in possession of the term of the lease, and of the premises. The plaintiff’s right to re-enter for non-payment of rent or to dispossess for the same reason, did not put an end to the term or the lease. Until there was an actual exercise and enforcement of plaintiff’s right, the term would not be ended or the plaintiff have the power to oust the lessees. The alleged false representations did not destroy any of plaintiff’s rights nor induce plaintiff to discontinue or abandon any proceeding taken or act done towards the enforcement of its right. All that appears, in substance, on the face of, the complaint is that the defendant induced the plaintiff to abandon an intention. It is impossible to assess damages in such a case. The plaintiff parted with nothing of value. The learned judge was correct in dismissing the complaint on this ground. This result is sustained by considerations adduced in Wimple v. Hildrick, 10 Daly, 481.

Judgment affirmed with costs.


author: Pee Curiam.

text:
    CHARLES J. BULKLEY, as Executor, Respondent, v. ALBERT BACK, et al., Appellants.

      Offer of judgment—The question of costs after such offer.

    If the offer of judgment is not accepted, the plaintiff must recover a larger amount to entitle him to recover costs against defendant, and if he does not, the defendant is entitled to his costs, and to have the same set off against the amount recovered in the entry of the final judgment.
    Before Sedgwick, Ch. J., and Ditgeo, J.

      Decided March 14, 1887.
    Appeal from a part of a judgment allowing a set-off of defendants’ costs against amount recovered by plaintiff.
    Appeal from order denying defendants’ motion to compel clerk to enter a separate judgment for defendants in the amounts of costs taxed in their favor.

      Blumenstiel & Hirsch,, for appellants.

      L. Laflin Kellogg, for respondent.
   Pee Curiam.

The plaintiff’s action was upon contract. The defendants made an offer of judgment for plaintiff in a certain amount. On the trial the plaintiff recovered no more than that amount. The costs of plaintiff up to the offer were taxed. The subsequent costs were taxed for defendants. The defendants moved that the clerk be directed to enter a judgment, which should provide that the defendants recover their costs as taxed. This motion was denied. The clerk entered judgment for plaintiff, which after reciting the proceedings, gave a recovery in a single amount, "which was the result of deducting the defendants’ costs as taxed, from the amount of the plaintiff’s recovery and costs.'

It is objected that the defendants’ costs as taxed, could not be offset by a part of the debt due to plaintiff, because the defendants’ costs, it is said, were the property of their attorney. The answer to this is that primarily the costs was a debt due by plaintiff to defendant. The attorney could only have an interest in them, after the defendants’ right to them was established and as soon as this debt existed, the equity that is the ground of set-off was applicable, and on its being applied there was nothing on which the attorney could have a lien or which could become his property.

The cases cited for a contrary position, are those where costs being recovered in a different proceeding, the attorney’s right accrued before the set-off could be claimed.

The order appealed from should be affirmed with $10 costs.

The appeal from the judgment involves the same point only. The judgment should be affirmed with costs.


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

text:
    ROSA SCHULE, Respondent, v. DANIEL CUNNINGHAM, Appellant.

      Negligence—Admissibility of the declarations or entries of a deceased person, made in his lifetime, in the course of a professional duty.

    In this case the plaintiff was a tenant of the defendant, and claimed that a heavy pole that the defendant was bound to keep firm and safe, fell upon and injured her. As part of her proof, and against the defendant’s objection, she was allowed to put in evidence entries in a book kept by a physician, who had died before the trial, which were as follows: “Mrs. Rosa Schule, 752 2nd Avenue, was hurt on the 7th of January. Found her suffering pain in side; found ribs broken ; shoulder on left side was disabled; also left parietal was contused; was deaf on left side; could only hear watch 6 inches to 18 inches on the right side; she had intense headache, and acted very nervously. I returned that night again and found her spitting blood, the ribs having pressed against. March 19, bled from nose profusely.”
    These entries were all in handwriting of the physician. The objection was general to the competency of the entries as testimony.

      Held, that the general objection was sufficient, and the admission of the entries as testimony in the case was error, for the following reasons : The entries were the declarations of a person not sworn upon the trial, and offered for cross-examination. The conditions under which the entries were made were not proven, namely: There was no proof of the time when they were made, and the entries did not disclose when they were made; but a portion of the same indicated that they were made some time after the fact stated had occurred. It seemed to be a condensed history of observations made at times previous to the entry. No testimony was given dehors the book itself that tended to show that the entries were made by the physician contemporaneously with the meetings of the physician and the plaintiff.
    Before Sedgwick, Ch. J., and Dugro, J.

      Decided April 13, 1887.
    Appeal by defendant from judgment entered upon verdict for plaintiff and from order denying motion for new trial made upon the minutes.

      Appeal by defendant from order denying motion for new trial made at special term upon the case as settled, and affidavits.

      Wilcox, Adams & Machlin, attorneys, and George Bethune Adams of counsel for appellant.

      Ira Leo Bamberger, for respondent.
   By the Court.—Sedgwick, Ch. J.

The action was for damages from the alleged negligence of the defendant.

The plaintiff was a tenant of the defendant. She claimed that a heavy pole that the defendant was bound to keep firm and safe, fell upon her. As part of her proof, against defendant’s objection, she was allowed to put in evidence entries in a book kept by her physician, who had died before the trial. The entries were as follows : Mrs. Rosa Schule, 752 2nd Avenue, was hurt on 7th January. I saw her first on the 9th day of January. Found her suffering pain in side; found ribs broken; shoulder on left side was disabled, also left parietal was contused ; was deaf on left side ; could only hear watch 6 inches to 18 inches on the right side. She had intense headache and acted very nervously.

I returned that night again and found her spitting blood; the ribs having pressed against; March 19, bled from nose profusely.” This all was in the handwriting of the physician.

The objection was in general to the competency of the entries as testimony. I think the general objection was sufficient. The entries were the declarations of a person not sworn upon the trial and offered in cross-examination. The plaintiff was bound, in order to be entitled to their admission, to prove all the conditions which the law affixes to their admissibility. One of these conditions is “ the entry must have been made at or about the time of the transaction recorded.” Greenleaf, Ev. § 115; The entry did not disclose when it was made. Indeed, part of it -indicated that that part was made after the fact referred to was declared to have occurred. Take it altogether, it seemed to be a condensed history of observations made in times that had passed. No testimony was given dehors the book, that tended to show that the entries in it were made by the physician contemporaneously with the meetings of the physician and the plaintiff.

On the argument of the appeal there was no discussion of whether the rule admitting entries made by deceased persons in the course of a professional duty, included matters like those in the present controversy.

For the reason that has been given, the judgment and order made upon the minutes should be reversed, a new trial ordered with costs to the appellant to abide the event.

The notice of motion for a new trial made upon the case as settled, did not specify any grounds. The ground stated was that it appeared by affidavits that the testimony given by the plaintiff on the trial was false, especially as to the extent of her pretended injuries, and that on a new trial testimony could be produced that would show the falsity. The learned judge properly held, that the defendant by the use of ordinary diligence could have produced on the trial the testimony that was said to have been newly discovered, and that the issue as made called upon him to produce all the testimony he could procure.

The order appealed from should be affirmed with costs to respondent to abide event.

Dugbo, J., concurred.


author: By the Court.—Sedgwick, Ch. J. Ingraham, J. (dissenting).

text:
    HANNAH S. BRICK, Respondent, v. ROBERT CAMPBELL, Appellant.

      Assignment—Married woman—Legal and equitable poioer of disposition of her separate property—Policy of insurance on the life of husband payable to the wife, the premiums being paid by the husband—Consideration and construction of the statute, Laws 1873, chap. 821, § 2.
    The nature of the gift of a policy of insurance by the husband on his life as a provision for the wife after her husband’s death, raises the question, whether these facts do not limit the power of the wife to dispose of it during the husband’s lifetime. Also whether as against creditors the husband had the right to use his money in payment of the premiums, if such use were fraudulent as to the creditors. In the latter case the statutes on the subject of these insurances make it legal and not fraudulent as to creditors for the husband to take out these policies, to a certain amount or for the wife to take them out, the premiums to a certain amount to be paid out of the husband’s property. Said statutes make no provision as to the wife’s power of disposition, but they declare that such policies in favor of the wife shall be her sole property.
    Prior to the Act of 1873, chap. 821, page 1235, the courts held that it was the implied intent of the statutes, that the wife should not assign insurance, taken out under tire statutes (Eadie v. Slimmon, 26 N. Y. 15, and other cases following), but since the Act of 1873, the statutes do not imply such an intent in respect to a policy, made payable to a married woman, and in which children have no legal or equitable interest. In such a case, the wife during life, is solely interested. Olmstead v. Keyes, 85 N. Y. 593.
    In this case the plaintiff respondent made an instrument which on its. face was an assignment of polices which had been issued under the statute. The assignment was made as security for advances made on the faith of it to her husband. After the death of plaintiff’s children the policies were not re-delivered to the defendant assignee. They remained in his possession from the time of the assignment. By the testimony the indications were that the plaintiff assented to the possession of the policies by the defendant after the death of the children. From January, 1882, no child was living. In June, 1884, the plaintiff first made a demand for them.

      Held, That the inference is, that during the intervening time, plaintiff had assented to the claim of defendant, and that the policies were effectively assigned, and assigned for a valuable consideration.

      Before Sedgwick, Ck. J., Freedhak and Ingraham, JJ.

      Decided April 13, 1887
    Appeal by defendant from judgment, entered upon findings at special term.
    The relief demanded by the complaint was that the defendant re-assign and deliver five policies of insurance of the life of her husband, which had been assigned by her to the defendant. Judgment in accordance with, this demand was entered, after a trial.
    The opinion rests upon the construction of the following statute, ch. 821, Laws of 1873, p. 1234, § 2 : “ Any policy in favor of a married woman, or of her and her children, or assigned in her, or in her and their favor, on written request of said married woman, duly acknowledged before a commissioner of deeds, or other officer authorized to take acknowledgments of deeds in the same manner as required by law, to pass her dower right in lands of her husband, and on the written request of the policy holder, may be surrendered to and purchased by the company issuing the same, in the same manner as any other policy. And such married woman may, in case she have no child or children born of her body, or any issue of any child or children born of her body, dispose of such policy in and. by a last will and testament, or any instrument in the nature of a last will and testament, or by deed duly executed and acknowledged before an officer authorized to take acknowledgments of deeds, in the same manner as required by law to pass her dower right in lands of her husband, which disposition lawfully made shall invest the person or persons to whom such policy shall have been so bequeathed, or granted and conveyed, with the same rights in respect thereto .as such married woman would have had in case she survived the person on whose life such policy was issued, and such legatee or grantee shall have the same right to dispose of such policy as herein conferred on such married woman.”
    The instrument made by the plaintiff and claimed by the defendant to be a valid assignment of the policies, was acknowledged in the manner required by the statute.

      George W. YanSlyck, for appellant.

      Jacob F. Miller, for respondent.
   By the Court.—Sedgwick, Ch. J.

Four of the policies assigned by the plaintiff were in terms payable to her executors and administrators, and not in any contingency to children. These choses in action were her separate property. In equity, she had exclusively the power of disposition of her separate property in general, when it was personal, if the grant of it to her or perhaps the nature of her interest in it did not express or imply a hmitation of her power of disposition. Seymour v. Fellows, 77 N. Y. 178 ; Rawson v. Penn. R. R. Co., 48 N. Y. 216, and other cases; Olmsted v. Keyes, 85 N. Y. 593. The statutes of this state give a legal power of disposition of separate property to a married woman. If there be a doubt of whether these statutes comprise the case of a gift of the husband to the -wife, there is no doubt, that in equity, she has the same power over such gifts, as over any other kind of separate property.

In the instance of a¡ policy of insurance of the life of a husband, payable to the wife, the premiums being paid by the husband, there would be a question as to whether the nature of the gift as a provision for the wife after the husband’s death, did not limit her power to dispose of it, in her lifetime. Beyond this, as against creditors, the husband would have no right to use his money in payment of the premiums, if such use were fraudulent as to the creditors.

The statutes on the subject of these insurances, make it legal 'and not fraudulent as to creditors, for the husband to take out these policies to a certain amount, or for the wife to take them out, the premiums to a certain amount to be paid out of the husband’s property. These statutes make no provision as to the wife’s power of disposition. They declare that the policies, in favor of the wife, shall be her sole property.

The courts have held in Eadie v. Slimmon, 26 N. Y. 15, and in the cases that follow it, that it was an implied intent of the statutes, that the wife should not assign insurances taken out under the statute.

Since the act of 1873, ch. 821, p. 1235, the statutes do not imply this intent in respect of a policy, made payable to the married woman and in which children have no legal or equitable interest. In such a policy the wife during life is solely interested. Olmsted v. Keyes, supra. If a married woman, provided she have no children living at the time, can assign a policy payable to her and partly or contingently to children, there can be no room for arguing that the implied prohibition against assigning when there is a child living, is made for her benefit. The benefit to children which the statute relates to, is of the slightest possible kind. There is no provision which contemplates that the widow on death of the husband shall use for the benefit of children any part of the money, her sole property collected from the policy.

The doubt that the latter part of the section was intended to apply to policies that are payable to the married woman and children, or to her or children, and not to policies payable to her alone, cannot be entertained under the decisions as I understand them.

In Brummer v. Cohen, 6 Abb. N. C. 409, the policy was made payable to the wife, or her executors, administrators or assigns. There were children living at the time of the action and these children were in being at the time of the assignment. The court, in first instance, held that the policy was unassignable and that as the plaintiff had children at the time she assigned the policy to the defendant, the act of 1873, chap. 821, did not help the assignment. The Court of Appeals said in the case, “ The legislature in conferring by subsequent acts a limited power of assignment, have recognized the policy, attributed to the legislation of 1840. Ch. 821, Laws of 1873, chap. 248, Laws of 1879. The assignment in this case was not within the authority conferred by these acts.

It is proper to state here that it may be assumed that the statute of 1873, intended that there should be no assignment without its execution being acknowledged by the married woman, as at the time was necessary to a conveyance to pass her dower right.

If there is no difference between this case and that of Brummer v. Cohn, the plaintiff here had a right to a judgment, that the assignment made by her was invalid. In the present case the difference of fact is, that while at the time of the assignment there were children, they had afterward died and before the action.

Was it possible for her to make a valid arrangement, which might bind her, which would not operate during the lifetime of the children, but upon their death would operate as an assignment ? It seems clear that in their lifetime she had a property interest in the policy, which in its nature was assignable. There was no objection to her making any grant of her interest which would not contravene the intent or policy of the statute, which was that she should remain in possession of her interest while any child was living. But she could not make any instrument, on its face a grant, which would operate as a grant during the lifetime of the children. The plaintiff did make an instrument which on its face was an assignment. If after the death of the children she should re-affirm this and then procuring the piece of paper on which the chose in action was written, deliver it to the assignee named, there would be no doubt in the case. The instrument would be at least what is called a precedent declaration, which would be effective as a grant upon the policy coming to the assigned after the death of children. McCaffrey v. Woodin, 65 N. Y. p. 462 et seq. The notes to Ryall v. Bowles, W. & T. Leading C. in Eq. 2 vol. 1611, illustrate this principle.

It is assumed that during the life of the children she might by act or verbally, annul the instrument, so that it would cease to be effective. The judge below found that on or about the 29th day of May, 1880, and at several other times before the commencement of this action, the plaintiff demanded the re-transfer and re-delivery of the said policies to her. The testimony shows that the demand referred to, was made by the husband of the plaintiff. He did not use the word demand. He asked for the policies and said it was about time they were given up—about time they were surrendered. The connection in which this testimony was given shows that this was not a denial, of the efficacy of the assignment, but a claim that the purpose for which it had been given, as security, had been fulfilled. The policies were to be surrendered because the debt, to secure which they were assigned, as the witness assumed, had .been paid. There was no other demand made until July, 1884, after the death of the children.

The facts were, as the judge has found, that the consideration of the assignment was the assumption by the defendant of the obligation of the husband, and the assignment was made as security for the defendant’s reimbursement of any sums he should pay, under the assumption; that the defendant had paid on account of these obligations, for which he had not been reimbursed, a sum exceeding the face value of the policies, that is, $14,100.

It is the fact that after the death of the children, the policies were not re-delivered to the defendant. They remained from the assignment, in the possession of the • defendant. If they remained so for any time with the plaintiff’s consent, under his claim to them, the assignment became finally operative. The taking and giving them again, would have been a mere form. It is not necessary to decide that the defendant could not, against the wish of the plaintiff, have held the policies and subjected them to the operation of the assignment. So far as that is referred to by the testimony the indications are that the plaintiff assented to the possession by the defendant under the assignment, after the death of the children. These indications are the nature of the assignment which was never revoked or recalled during the lifetime of the children; the not revoking the assignment and the moral obligation on her part growing out of thé payments made by the defendants, as she had in fact requested, which would be a motive to her to assent to his holding the policies after the death of' the children. The presumption of fact would be that she acted in accordance with the motive until there was evidence that she ceased to be influenced by it. In June, 1884, she first made a demand. From January, 1882, no child was living. The inference is that in the intervening time, she had assented to the claim of the defendant and that the policies were then effectually assigned.

The facts that have been stated disclose that the policies were not assigned as security for an antecedent indebtedness of the husband to the defendant, but for. money, that the defendant should thereafter pay on account of the husband’s indebtedness.

Another policy was payable to the plaintiff for her sole use if living, in conformity with the statute, and if not living to the children of said person whose life is hereby insured, or their guardian for their use.” The statute that has been examined, does not say and probably does not imply, that an assignment by the wife, at the time when there is no "child living, would cut off the interest in the policy, which by the terms of the contract might belong to a child, after the death of the husband and born after the assignment. It permits in the case . provided that the wife may assign. The interest passing would be such as would be ascertained by her living after her husband’s death. The reasoning that has been applied to policies payable solely to the wife is properly applicable to this policy. The assignment of it became operative when there was no living child, and the policy remained thereafter in the hands of the assignee, with the consent of the wife.

For these reasons 1 am of opinion there snould be a new trial.

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

Freedman, J., concurred.

Ingraham, J. (dissenting).

It issettled in this state by the case of Olmsted v. Keyes, 85 N. Y. 600, that one to whom a policy of life insurance is payable or to whom such policy has been assigned, may with the consent of the insurer, deal with a valid life policy as he can with any other chose in action, selling it, assigning it, disposing of it and bequeathing it by will, except so far as such transfer is prohibited by statute.

It is also settled that chapter 80 of the Laws of 1840 as amended, prohibits the assignment of policies of insurance issued under the provisions of section 1, of that act except as such transfers are allowed by section 2 of the act, as amended by chapter 821 of the Laws of 1873. An assignment of such policy is therefore void unless made in compliance with the terms of the second section of that act. Barry v. Equitable Life Assurance Co., 59 N. Y. 592; Brummer v. Cohen, 6 Abbott’s N. C., 411.

A policy of insurance which insures the life of a married man for the benefit of his wife, or in case of her death before the decease of her husband, for the benefit of her children, is a policy issued under the provisions of section 1 of the act of 1840, and can only be assigned, or transferred as allowed by section 2 of the act.

The policies Exhibit A, New York Life Insurance Co. for $3,100, Exhibit C, Mutual Life Insurance Co. for $2,000, and Exhibit.E, Washington Life Insurance Co. for $4,000, were plainly issued under the statute above named. The insurance is to be paid to the wife of the person whose life is assured, and the prohibition contained in the statute applies.

The power to assign these policies must be found, if it exists, in section 2 of the Act. That section provides that any such married woman may, in case she has no child born of her body, or any issue of any child or children born of her body, dispose of such policy.”

In order to make such assignment valid therefore, it must appear that such married woman to whom the policy was payable, at the time of the execution of the assignment had no child or children or issue of any child or children, and if such fact does not appear, the authority given by the section to make a transfer of the policies does not apply.

The fact that subsequent to the assignment of such a policy a child living at the time the assignment was executed, was dead, would not validate the assignment void when made. The ground upon which the prohibition has been applied is, “ That the act was special and peculiar, and looking to a provision for a state of widowhood and orphanage, and that it would be a violation of the spirit of the provision to hold that a wife insured under that act, could sell or traffic with her policy as though it was personal property or ordinary security for money. Barry v. Equitable Ass. Society (supra).

I think it would be as clearly opposed to the spirit of the statute to allow assignments or transfers to be made, the validity of which would depend upon the death of children of the person for whose benefit the policy was made, and the terms of the amendment of 1873, is explicit that a transfer can be made only in case there should be no child.

There is nothing in this case that would- estop the plaintiff from claiming that the assignments are void. It does not appear that defendant paid anything on the faith of the assignment of these policies after the death of the child, or that he had suffered in any way by the failure of the plaintiff to sooner assert her claim.

I am of the opinion therefore that the assignments of policies marked Exhibits A., C. and E., were void, and that so far as the judgment directs the re-assignment of such policies to the plaintiff the judgment should be affirmed. As to the policy Exhibit B., it was issued by a Massachusetts corporation, dated at Boston, Massachusetts, payable at Boston, Massachusetts, and provides that the contract should be governed and construed by the laws of Massachusetts.

As to Exhibit D., the policy is made payable to R. A. Brick, the plaintiff’s husband, or his representatives. The policy is not payable to the plaintiff, and does not comply with the terms of the act of 1840.

It is clear that an assignment of that policy to the plaintiff by her husband, fraudulent as to creditors, would not be protected by the terms of the act of 1840.

It is very clear from this provision that this policy could not have been issued in compliance with the act of 1840, and thé prohibition contained in that act does not therefore apply. These policies therefore come under the rule as laid down in Olmsted v. Keyes (supra) and are assignable.

I am unable therefore to agree with the chief judge, that the assignment of all the policies^ was invalid.

The judgment should be reversed and a new trial ordered as to the two policies marked Exhibits B. and D., but the judgment should be affirmed as to the three policies, Exhibits A. C. and E.


text:
    OTTO G. MAYER, Respondent, v. WILLIAM G. DEAN, et al., Appellants.

      Sale of property by sample.

    Though the rule prohibiting the reception of parol evidence which varies or modifies a written agreement, does not apply to a collateral undertaking, yet a warranty as to the present quality and condition of the property sold is connected with and applies to a contract of sale as one of its elements, and is not a collateral undertaking exempt from the application of the rule.
    In this case the contract of sale was in writing, and contained no warranty of the qualify or condition of the property sold, and consequently under the rule, evidence offered by the appellants on the trial, that before the contract of sale was reduced to writing the respondent falsely and fraudulently represented that the mustard seed, the subject of the contract, was free from dirt, could not be given. "Eighmie v. Taylor, 98 N. T., 288. .
    An authority to make a contract for another does not carry with it by implication authority to cancel that contract. Von Wein v. Scottish Insurance Co., 52 N. T., Super Ct., 490.
    Before Sedgwick, Cli. J., Truax and Dugro, JJ.

      Decided April 13, 1887.
    Appeal from a judgment in favor of the plaintiff.
    The action was brought to recover for mustard seed sold and delivered by the plaintiff to the defendants.
    The answer admitted the sale, but it alleged that the sale was by sample, and that the seed was falsely represented to be clean, free from dirt or any impurity; that said sample appeared to be of good quality, free from dirt and impurities of any kind and fit to be manufactured for sale and use, and that no dirt was observable therein upon ordinary inspection; that said mustard seed was not as represented by the plaintiff, and not as the said sample appeared to be; that it contained dirt and other impurities, which fact only became apparent and known to the defendants thereafter when a portion thereof was ground, and not before, and that dirt and impurities therein could not be observed by an inspection, and only became apparent and known to the defendants when the same was ground, and that such mustard seed, by reason of the dirt and impurities therein as above stated, was not worth the price agreed to be paid therefor, and was of little or no value.
    The defendants further alleged that the plaintiff knew the condition of the said mustard seed, and that the same contained dirt at the time the said representations were .made, and that said representations were fraudulently made to cheat and deceive the defendants, and to prevent an examination and test thereof, and to induce said defendants to make said purchase.
    The defendants also alleged that the sale was rescinded by mutual consent and agreement of the parties hereto, and that the goods were returned to and accepted by the plaintiff.

      H. D. Birdsall for appellants.

      J. Hampden Dougherty for respondent.
   By the Court.—Truax, J.

The contract of sale between the parties was reduced to writing. By it, it appears that the defendants bought from the plaintiff “ 81 bags French Brown Mus bard Seed like sample.” One of the errors alleged by the appellants is that they were not allowed to show on the trial that at and before the time the contract of sale was reduced to writing, a person whom they claimed was the agent of the plaintiff, falsely and fraudulently represented to them that the mustard seed was free from dirt.

There was no error in the ruling of the trial judge on this point. While it is true that the rule prohibiting the reception of parol evidence which varies or modifies a written agreement does not apply to a collateral undertaking,- a warranty as to the present quality and condition of the property sold, is connected with and applies to a contract of sale as one of its elements, and is not a collateral undertaking.

Evidence that there was such a warranty cannot be given where the contract of sale is in writing and contains no such warranty. Eighmie v. Taylor, 98 N. Y., 288.

The appellants also complain that they were not allowed to prove on the trial that the agent who had made the sale had also agreed to rescind the contract of sale.

There was no evidence that the agent, Berian, who was simply a general broker, had any power to rescind the contract of sale. An authority to make a contract for another does not carry with it by implication authority to cancel that contract. Von Wein v. Scottish Insurance Co., 52 N. Y., Super. Ct. 490.

The judgment appealed from is affirmed with costs.

Sedgwick, Ch. J., and Dugro J., concurred.


text:
    LOUISA M. LENT, Respondent, v. THE NEW YORK CENTRAL & HUDSON RIVER R. R. COMPANY, Appellant.
    Negligence— Contributory negligence.

    The coupling of ears attempted at a point where the track is on a curvo and the probability of success in effecting a coupling is a matter of uncertainty ; the absence of any chain or other physical means of preventing passengers from attempting a passage from the full cars to the empty one, until a proper coupling was effected: and the fact that no person was stationed on either of the cars, at the point of passage, to warn passengers when an attempt to pass would be dangerous, or to prevent them from making such an attempt,—raises a question of negligence on the part of the railroad company—plaintiff being injured by falling between the cars—that should be submitted to the jury.
    The imputation of contributory negligence against the plaintiff depends in such a case very much upon the observance of all proper precautions on the part of the defendants. Dickens v. Central B B. Co., 1 Keyes, 47.
    In this case, the absence of guard chains and of any person to warn the passengers, the passage of other persons before plaintiff into the adjoining ear, and the rushing and crowding of people by her, held, all circumstances tending to show that the case should not be withheld from the jury on the ground of contributory negligence.
    When the facts of contributory negligence are undisputed, and are such that it would be impossible for fair-minded men of intelligence to draw from them any inference to relieve the plaintiff from the charge of contributory negligence, then the conclusion becomes a question of law for tile decision of the court. Kellogg^. N. Y. Central R. R. Co., 79 N. Y. 76, 77; Greany v. Long Island R. R. Co., 101 N. Y. 425.
    In this ease the court held, that the question of contributory negligence was properly submitted to and determined by the jury.
    Before Sedgwick, Ch. J., Truax and Dugbo, JJ.

      Decided April 13, 1887.
    Action for personal injuries caused by negligence of the defendant.
    Appeal by defendant from an order, denying a motion made upon the judge’s minutes to set aside a verdict in favor of plaintiff and grant a new trial. Exceptions to be heard in the first instance at General Term.

      Frank Loomis, for appellant.

      Martin & Smith, attorneys, and Messrs. A. P. Whitehead and George A. Strong of counsel for respondent
   By the Court.—Dugro, J.

This action was brought recover on before Ingraham, J., and a jury, the plaintiff had a verdict for $1,000.

It appears from the evidence that on July 6th, 1884, the plaintiff, her brother, Mr. Russell, and her brother-in-law, Mr. Gilbert, were at Peekskill and purchased tickets for New York, intending to take the train due in Peekskill at 7.46 p. m. The train was late, and a large number of passengers on the station platform were waiting for it. When the train arrived plaintiff and her companions stepped aboard. They could find no seats, the cars were crowded with people standing up. The conductor directed them to get off and stated that another car would be put on. Alighting from the car, they, with a number of people, walked forward to obtain seats in the new car. When they came forward the train had been separated, and they got on the forward end of the car where the break was; the plaintiff went inside the car and stood in the forward part. The engine and other cars backed down to be attached. Mr. Russell stood next plaintiff, just inside the door, and Mr. Gilbert stood between Russell and the platform, and there were a number of persons on the platform. When the cars came together, either the conductor or the brakeman called out “ all aboard,” and the passengers at once began to enter' the empty car. A number of persons safely passed from the car in which plaintiff was, into the new car over the platform (there being no guard chains at the ends of the cars). The plaintiff then passed forward and just as she had lifted her foot to step upon the platform of this forward car, the cars separated and she fell between them on the bed of the road and was injured.

It seems that the cars separated because the coupling was not properly effected at the time the cars came in contact; this was on account of the failure of the draw-heads to catch, caused by the inability of the engine to move with exactly sufficient force to accomplish the purpose. It was testified to by defendant that the success or failure of an attempt to couple cars depends on varying conditions, and all that is possible is the exercise of the best judgment of competent and experienced men.

At the close of plaintiff’s testimony the defendant moved to dismiss the complaint on the ground that no negligence had been shown on the part of the defendant and that it appeared plainly that there was negligence on the part of the plaintiff. The motion was denied, and defendant excepted. The motion was renewed at the end of the case and again denied; and the learned trial justice also denied defendant’s motion to direct a verdict in its favor on the ground -that no negligence had been shown on the part of the defendants, and that the plaintiff’s negligence had contributed to the injury. The court denied the motion, and submitted all the questions of negligence on the part of the defendant, and of contributory negligence on the part of the plaintiff fully and fairly to the jury.

The requests to charge, made by defendant’s counsel were unnecessary, the judge having in effect charged as requested. No error was committed by the learned trial judge in his rulings on the motions to dismiss, and for judgment for the defendant. The charge was as favorable for the defendant as the law and the circumstances permitted, and was a correct and succinct statement of' the law of negligence bearing on the case. There was no error in the judge’s refusing to charge as requested by the defendant that the plaintiff was bound to wait on the car where she was in a safe place until the coupling was complete.” The plaintiff could not know except by supposition when the coupling was complete, and there was sufficient evidence, in the contact of the cars and the action of the other passengers, tending to show a reasonable ground for belief that the coupling was effected—to go to the jury.

There were no guard chains on the platforms at the end of these cars. Ames, one of the defendants’ witnesses, says that defendant had such chains on drawing-room and sleeping cars. We believe that when the coupling of cars was attempted at a point where the track was on a curve and the probability of a success in effecting a coupling was a matter of uncertainty, the absence of any chain or other physical means of preventing passengers from attempting a passage from the car in which the plaintiff was standing to the empty car, until a proper coupling was effected, taken with the fact that no person was stationed on either of the cars at the point where a passage would naturally be made, to warn passengers when such an attempt would be dangerous or to prevent passengers from making such an attempt, raises a question of negligence which it was proper that the jury should determine.

The imputation of negligence against the plaintiff depended very much upon the observance of all proper precautions on the part of the defendant. Dickens v. N. Y. Central R. R. Co., 1 Keyes, 47.

Although it be conceded that plaintiff did not look toward the platforms, the absence of guard chains, the passage of others before her into the adjoining car, the rushing of people by her, in fact all the circumstances of the case, are such as raise a question in regard to contributory negligence on the part of the plaintiff which should have been determined by a jury.

When the facts are undisputed, and are such that it would be impossible for fair-minded men of intelligence to draw from them any inference to relieve plaintiff from the charge of negligence, then the question of negligence becomes a question of law for the court. Kellogg v. N. Y. Central R. R. Co., 79 N. Y., p. 76 and 77.

Judge Danforts in the case of Greany v. Long Island R. R. Co., 101 N. Y. p. 425 says: “I know of no exception to the doctrine that where there is any evidence direct or inferential of care or caution on the part of the person injured, the question whether it was in compliance with that rule is for the jury.”

As it does not appear that there was entire absence of inferential evidence that the plaintiff did exercise care or caution, the question went properly to the jury.

The order denying defendant’s motion to set aside the verdict and grant a new trial must be affirmed with costs.

Sedgwick, Ch. J., and Truax, J., concurred.


text:
    WILLIAM Y. MORTIMER, and another, as Executors, etc., Respondents, v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

      Elevated Railroad—Judge's charge, error in fact claimed, must be shown affirmatively.

    In an action for damages to plaintiffs’ house on Division street by the construction and maintenance of defendants’ elevated railroad in front of said house, the trial judge charged the jury that the plaintiffs owned the fee of one half of the street in front of his house. The appellants maintained that the charge was erroneous in point of fact, but did not show this affirmatively from the evidence in the case.

      Held, That the appellants were bound to show affirmatively that this error was committed.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided April 13, 1887.
    Appeal by defendants from judgment entered on verdict of jury and from order denying motion for new trial, made upon the judge’s minutes.

      Edward Sapallo and Davies & Sapallo, attorneys, and Julien T. Davies, and Charles A. Gardner, of counsel, for appellants.

      John E. Parsons and John W. Pirsson, attorneys, and John Alex Beall, of counsel, for respondents.
   Per Curiam.

This was an action for damages during certain years to plaintiffs’ house, abutting on Division street, from the maintaining by the defendants of their elevated railway, in front of that house. The learned judge charged the jury, that the plaintiffs owned the fee of one h°.1f of the street, in front of the house. The appellants maintain, that this charge was erroneous. The appellants are bound to show affirmatively that an error was committed. This has not been done. The case states, that by stipulation “ Exhibits 2, 5, 6, 7, 8 and 9, deeds showing title to the property in suit, are not printed” but may be produced on the argument of the appeal. These have not been produced, and may have of themselves been a sufficient ground of the eharge.

The exceptions that relate to the admission of testimony should be overruled. The matter admitted consists of circumstantial evidence as to the rental values in dispute.

Judgment and order affirmed with costs.


author: Per Curiam. Per Curiam.

text:
    THE SIXTH AVENUE RAILROAD COMPANY, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      'Complaint, service of, and answer to—Effect of, on motion pending.— Practice.

    A motion was made by defendant before answer served, that plaintiff be directed to state separately several causes of action claimed by defendant to be set up in the complaint. This motion was denied, and defendant had appealed from order of denial, and appeal was pending, when an answer was served. *

      Meld, That the service of the answer was an abandonment of all claims under the order appealed from, and an abandonment of the right to appeal, and the appeal was dismissed.

      The plaintiff appealed from a part of same order directing Mm to furnish the defendant with a bill of particulars setting forth with reasonable precision the nature of the damages sought to be recovered in the action. On this appeal this part of the order was affirmed, the General Term holding that this appeal did not embrace a consideration of the effect of serving an answer after the order was made.
    Before Sedgwick, Ch. J., Truax and Dttgro, JJ.

      Decided April 13, 1887.
    Appeal by defendant from a part of an order, which part denies a motion of defendant that plaintiff be directed to state separately several causes of action, claimed by defendant to be set up in the complaint.
    Motion by plaintiff to dismiss the appeal on the ground that since the making of the order, the defendant has served an answer.

      Davies, Cole & Rapadlo, attorneys, and Edward S. Rapadlo of counsel for appellant.

      Burrill, Zabriskie & Burrill, attorneys, and J. E. Burrill and Geo. Zabriskie, of counsel for respondent.
   Per Curiam.

The defendant by answering has es tablished the complaint as it is, as the complaint, and of course, the only complaint in the action. The defendant cannot require the plaintiff to make another complaint or reform the present complaint. There cannot be two complaints. The one already served is the foundation of an issue, which the plaintiff has a right to have tried and which the defendant has voluntarily made. The service of the answer was an abandonment of all claims under the order as appealed from and an abandonment of a right to appeal.

The motion to dismiss the appeal is granted with $10 costs. '

Appeal by plaintiff from a part of the same order, requiring plaintiff to “ furnish to the defendant a bill of particulars, setting forth, with reasonable precision, the nature of the damages sought to be recovered in this action.”

Per Curiam.

The court below had to make the order appealed from. Its discretion was properly used in the present circumstances. The complaint was general in its terms, in averring the damages. Ordinarily this is sufficient, because ordinarily the claim for damages points the defendant to the direct consequences of the wrong. In the present case it is clear that the damages consist of several heterogeneous kinds. An important part of the litigation will concern the relation between these kinds and the cause of action as claimed. There should be no doubt as to the claim the defendant is called upon to answer. No injustice is done to the plaintiff. It is not required to make a bill of a rigidly exact kind. There is to be reasonable precision and under the order as made, the court will be called upon perhaps to determine what will be a compliance with this direction.

This appeal does not embrace a consideration of the effect of serving an answer by the defendant after the order was made.

Order affirmed with $10 costs.


text:
    JULIA M. FERRY, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Negligence—Conflict of testimony in regard to, calls for examination and construction by the jury, and should be submitted to their consideration.

    The appellant claimed in this case that there was error in the trial judge charging that there was a conflict of evidence on the point as to how the train started, and also in refusing to charge as requested, that there was no conflict of evidence as to how the train started, and also in refusing to charge that the jury was bound to believe the uncontradicted evidence of two of the witnesses as to the manner in which the accident occurred.
    The General Term, after a full review and consideration of the testimony in the case held, that there was no error on the part of the trial judge in the premises.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided, May 2, 1887
    Appeal by defendant from judgment for plaintiff entered upon the verdict of a jury.
    The facts and the questions raised appear in the opinion.
    Davies, Cole & Sapallo, attorneys, and Hugh L. Cole and Howard Townsend of counsel for appellant.

      Benjamin T. Hitchings, for respondent.
   By the Court.—Sedgwick, Ch. J.

The action was for damages from the negligence of defendant’s servants. The plaintiff was a passenger upon the cars of the defendant. The train had stopped. Several passengers had left the car. The plaintiff was stepping upon the station platform, when the train moved on and caused the plaintiff to fall. She was seriously hurt.

At the close of plaintiff’s case no testimony had been given which tended to show specifically what had caused the train to move before the plaintiff had alighted. The defendant’s counsel then moved to dismiss the complaint on the ground that there was no testimony to show that the moving of the train was due to any negligent act of the defendant’s servants. It will not be necessary to pass upon this proposition for the reason that before the case went to the jury there was testimony from which the jury were at liberty to infer the negligence of the defendant.

The defendant examined a brakeman or guard named Borst, whose place was between cars nearer the engine than the platform from which the plaintiff was stepping. He proved that he gave the signal which caused the train to move. He also testified that it was his duty not to signal until he had received a signal from the brakeman at the place where the accident happened. The name of the latter was McTaggart. There was no doubt that McTaggart had not given any signal to Borst. In the usual course of things the signal from McTaggart would be his pulling upon a rope passing through the car near its top, and which Borst would be holding. Borst testified that he did receive a signal through the rope, of the same kind that McTaggart would give in the usual course of things. The plaintiff, however, in rebuttal, produced witnesses who testified that Borst had said in their presence that he had not received a signal, and he did not know how it was that he came to signal. The jury could therefore competently find, if there were no other testimony on the point, that the train had been started by Borst as he admitted, but that his statement as to his receiving the signal was not to be credited. The case would then be of the company being responsible for the train moving without explanation that would show that due care had been used. The jury might infer from this that the defendants were negligent.

The defendant in order to make the necessary explanation called other witnesses than Borst. The testimony of these witnesses was of a kind that called for examination and construction by the jury. H the jury found that these witnesses did not show that Borst received a signal, then the defendant’s case was without a benefit from their testimony. The jury did not necessarily discredit the witnesses for untruthfulness. They probably did not. These witnesses did not assume to testify directly to the fact that Borst received a signal. They testified to some facts, which in the judgment of the jury did not amount to proof that Borst had received the signal.

These witnesses were passengers standing at the time of the accident about eight feet from the platform where McTaggart was on duty. They, as the jury might find they intended to testify, were standing in the car with other passengers about them, when the train stopped at the station in question quite suddenly. This caused some passengers to lose their balance and fall, as it were, against Schneider, one of the witnesses. To keep himself from hitching back he involuntarily raised his hand and took hold of what he believed to be a strap, placed there for standing passengers to use. He himself did not think he had a hold upon the rope that has been spoken of until his companion, the other witness, named Knewitz, said to him: “Do you know that you caught hold of the bell rope ? ” Then he took his hand from the rope and then the train started ahead. Undoubtedly the witnesses honestly believed that Schneider in taking hold of the rope gave a signal which started the train. But a scrutiny of their testimony shows some things inconsistent with their belief, and the jury might have believed that the facts they swore to had existed and yet not have been convinced that Schneider communicated a signal to Borst.

I therefore think that it did not appear from the whole case that there was no proof of negligence.

The judge charged the jury: “If you find that the-train was started by the witness Schneider in the manner that he says he started it, then the defendant was not negligent and the plaintiff cannot recover. I charge you if on the other hand, you find that the train was not started by the witness Schneider, in the manner that he says he started it, that is, if you find that he did not give the signal to the brakeman Borst, which caused Borst to give the signal to the other brakeman, that then' the defendant was negligent and the plaintiff is entitled to recover.”

In substance, this gave to the defendant the benefit of a ruling in its favor of all questions of law that it could raise. The jury were told that if the facts are as the def endant claims, th en the verdict should be in its favor. It was unnecessary for the judge to charge as requested, that there was no proof of any defect in the system of communicating signals, or that the method of fixing the bell rope was not the best method of fixing it, or to charge other requests of the same ldnd. If the jury observed, as it is presumed they did, the charge of the judge, they could not have found against the defendant on any of the matters referred to in the requests.

It is argued that there was error in the judge charging that there was a conflict of evidence on the point as to how the train started, and in refusing to charge as requested, that there was no conflict of evidence as to how the train started, and in refusing to charge that the jury were bound to believe the uncontradicted evidence of the witnesses Schneider and Knewitz as to the manner in which the accident occurred.

The witnesses named did not give testimony as to facts —apart from their opinions that were intermixed in their statements with facts—that conclusively showed that a signal was given to Borst. But between the testimony of Borst as to his receiving a signal and an inference from the testimony of the other witnesses that Schneider had not sent a signal to Borst, there was an opposition that was not improperly termed by the judge a conflict of evidence. The judge was not in error in his action in the respects now noticed.

The judgment should be affirmed with costs.

Freedman and O’Gormar, JJ., concurred.


text:
    WILLIS H. WINN, Respondent, v. SAMUEL HOBSON, Appellant.

      False imprisonment, damages for—Power of police officer to arrest without warrant.

    By the law of this state, a police officer has no legal power to arrest a person for a breach of the peace, without a warrant, unless the breach of the peace was committed in Ms presence.
    A private person has no power to arrest another for a breach of the peace, or for disorderly conduct, except at the time he is engaged in such breach or conduct. He has no power to arrest a person for his preceding conduct, after the person has ceased to be disorderly. (Phillips v. Trull, 11 Johns. 486.)
    On the consideration of the facts in this case the General Term held, that the trial judge was right in his view that the arrest of the plaintiff by the police officer, was illegal, and that the defendant was responsible for directing the officer to arrest the plaintiff. They were virtually joint tort feasors.

    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 2, 1887.
    Appeal by defendant from judgment entered upon verdict of jury in favor of plaintiff, and from order denying motion for new trial made upon judge’s minutes.

      James H. Staribrough, attorney, and Clifford A. H. Bartlett, of counsel for appellant.

      Thomas V. Cator, attorney, and Frederick, Fder, of counsel for respondent.
   By the Court.—Sedgwick, Ch. J.

The action was for damages from false imprisonment. The arrest was actually made by a police officer. It was made at the demand of the defendant. The judge on the trial ruled as matter of law that the arrest was illegal, because it was made without warrant and upon a charge, not of felony, at a time when the plaintiff was not committing a misdemeanor or breach of peace or was doing acts tending to a breach of the peace. This ruling is the only matter that calls for attention on this appeal.

It appeared that the plaintiff was the tenant of a room let to him by the defendant, in a house otherwise occupied by defendant. About nine o’clock in the evening the plaintiff went into the house from the street and in going through the hall broke a globe of glass upon a gas fixture. There was no testimony that tended to show that the globe was not broken accidentally. The plaintiff as the jury might have found made more noise in the house, and in entering it, than was necessary or usual. The defendant, attracted by the noise, went into the hall and addressed the plaintiff. The jury might have found that then the plaintiff was guilty of conduct that tended to a breach of the peace. The defendant did not then arrest or try to arrest the plaintiff or say or do anything that could signify that his purpose was to detain the plaintiff until he could be put in the hands of a peace officer, but only sent for an officer. The plaintiff at the time said, that he would wait for the officer. The officer came in ten or fifteen minutes. In the course of that time the plaintiff had become quiet and when the officer arrived, he was not noisy, or disorderly, or doing anything that called for arrest.

By the law of this state the officer had no legal power to arrest the plaintiff for a breach of the peace, without warrant as it was not committed in his presence. The defendant, a private person had no power to arrest for the preceding conduct after the plaintiff had ceased to be disorderly. Phillips v. Trull, 11 Johns. 486. The judge was therefore right in his view, that the officer’s arresting the plaintiff was illegal and that the defendant was responsible in directing the officer to arrest the plaintiff..

They were virtually joint tort feasors.

The judgment and order are affirmed with costs.

Freedman and O’Gorman, JJ., concurred.