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

text:
    WILLIAM C. WERNER, Respondent v. SOLON WINTERBOTTOM, et al., Appellants.

      Vicious Animals—right to keep when properly restrained.—Volenti non fit injuria.

    Defendants were owners of a dog, which tq their knowledge was savage and prone to bite human beings, and which was kept by them chained. Plaintiff, at the suggestion of a fellow servant, and with the view of making the dog familiar with him by feeding the dog, voluntarily, and with knowledge of his propensities, went within his reach and was by him severely bitten.

      Held, (1) That the keeping of . the dog was not unlawful, he being properly restrained so that persons pursuing their ordinary or lawful avocations, were not exposed to danger.
    (2) That the suggestion of the fellow servant did not enlarge the responsibilities of defendants, there being no proof that the suggestion was within the scope of his employment, or was prompted or authorized by defendants.
    (3) That in either event, the plaintiff could not recover, the maxim volenti non jit injuria, being applicable.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 20, 1888.
    Appeal by defendants from a judgment entered upon the verdict of a jury against them, and from order denying their motion for a new trial.
    The facts appear in the opinion.

      Samuel Greenbaum, for appellants.

      JDeLagnel Berier, for respondent.
   Bv the Court.—Sedgwick, Ch. J.

The action was for damages from the bite of a vicious dog alleged to have been owned and kept by the defendants. It will be assumed, although it is very doubtful, that the defendants owned or kept the dog, and that the animal was savage and prone to bite human beings, to the knowledge of the defendants. This was not necessarily unlawful so that under all circumstances an injury bv the dog would give an action to the person injured. In Logue v. Link, 4 E. D. Smith, 63, the law is declared, as it is in other cases said or implied, that “ a man has a right to keep a dog or any other animal, provided he is kept under restraint, so that persons pursuing their ordinary or lawful avocations are not exposed to danger.”

In the present case, the dog was so chained that the plaintiff was free from danger. The danger arose only when at the suggestion of a third person, he voluntarily with knowledge of the dog’s propensities, went within reach of the dog, for the purpose of making the dog familiar with him by feeding him. The defendants if they were the owners, had performed their duty in restraining the dog so that others were not in danger from him.

The fact that this suggestion was made by a fellow servant and for the purpose of making the dog peaceable to the plaintiff at other times, when the dog would not be chained, did not enlarge the responsibilities of the. defendants. There was no proof, that the suggestion was made within the scope of the employment of the person who made the suggestion, or that it was prompted or authorized by the defendants.

If this were otherwise however, the maxim volenti non fit injuria, is applicable, as shown in Muller v. McKesson, 73 N. Y. 195, and which, is also relevant to the foundation of liabilities in such cases. It is there held that if a person with full knowledge of the evil propensities of an animal voluntarily and unnecessarily puts himself in the way of such an animal he would “be adjudged to have brought the injury upon himself and ought not to be entitled to recover.”

In the present case, the first movement of the plaintiff towards the dog caused the latter to snap at him.

I am of opinion, that the motion to dismiss the complaint should have been granted.

Judgment and order denying motion for new trial reversed, and a new trial ordered, with costs of the appeal to abide the event.

Freedman and Truax, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    RICHARD V. HARNETT v. ROBERT E. WESTCOTT, as President, etc.

      Notice entry judgment.—Time to appeal.—Appeal from order denying motion for new trial—Stay of proceedings under judgment, when proper on appeal from order denying motion for new trial.

    The notice of entry of judgment or order may be indorsed upon the copy judgment or order served therewith, and if the papers so served taken as a whole, contain an indorsement showing the name and address of the attorney of the prevailing party as prescribed by rule 2 of the General Rules, it is sufficient, because the rule does not require that these matters shall be stated more than once upon the same paper or set of papers.
    Where the notice of appeal is served in due time as to the appeal from the order denying motion for new trial, but is not good as to appeal from judgment, and said notice and the undertaking served therewith for the purpose of effectuating a stay, are returned with a notice claiming that they were not served in time for any purpose, and the respondent threatens to enforce the judgment, appellant has a right to apply for a stay, and a case is made out for the discretion of the court; and a proper exercise of this discretion in granting a stay will not be interfered with by the appellate court, though it at the same time, dismisses the appeal from the judgment.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.,

      Decided June 20, 1888.
    This case comes before the court (1) on a motion made by the plaintiff to dismiss defendant’s appeal from the judgment, on the ground that at the time of the service of the notice of appeal the defendant’s time to appeal from the judgment had expired, and (-2) on plaintiff’s appeal from an order staying all proceedings to enforce the judgment until after the determination o.f defendant’s appeal which was from the judgment, and an order denying defendant’s motion for a new trial.
    The plaintiff’s right to have defendant’s appeal from the judgment dismissed on the ground that it was not taken in time, depends upon the sufficiency of the notice of entry of judgment which was served.
    Section 1351 of the Code of Civil Procedure prescribes that an appeal to the general term must be taken within thirty days after service, upon the attorney for the appellant, of a copy of the judgment or order appealed from, and a written notice of the entry thereof.
    The issues having been tried at a jury term and a verdict having been rendered for the plaintiff, the appropriate judgment thereon was entered March 24, 1888, and on the same day a copy of such judgment was duly served on defendant’s attorney personally. The copy judgment so served filled one side of a sheet of white paper, and securely attached to the back of such sheet was another sheet of colored paper of the same size. The outside of the colored sheet contained at the top thereof the following notice, viz.: u Take notice, that the within is a copy of a judgment this day duly made in this action and entered in the office of the clerk of this court. New York, March 24, 1888. Yours, &c., Ira D. Warren, Plaintiff’s Attorney.

      “ To E. Luther Hamilton, Esq., Defendant’s Attorney.” And as folded up and served with the copy of the j udgment, the colored sheet further contained on its outside and in a plain and conspicuous manner the following indorsement, viz.: New York Superior Court.—Richard Y. Harnett against Robert E. Westcott, as President of Westcott’s Express Company.—Copy Judgment and Notice of Entry.—Ira D. Warren, Attorney for plaintiff, No. 170 Broadway, N. Y. City, N. Y.” Under precisely the same indorsement contained on a duplicate copy, the defendant’s attorney gave the following admission, viz. : “ Due and timely service of a copy of the within Judgment is hereby admitted. Dated New York, Mch. 24, 1888. E. Luther Hamilton, Attorney for Deft.”

      Ira D. Warren, for plaintiff.

      E. Luther Hamilton, attorney, and Austin G. Fox of counsel, for appellant:—
    I. The appeal from the order denying the motion for a new trial brings up all the questions that arise on the appeal from the judgment, besides the further questions whether the verdict is against the wreight of evidence, and whether errors were committed, even though no exception was taken. The remedy by motion for new trial is separate and independent from the remedy by appeal from the judgment. Ehrman v. Rothschild, 23 Hun, 273; Bostwick v. Barlow, 14 Ib. 177; Baylies New Trial & Appls. 46, 49 ; Alfaro v. Davidson, 39 Super. Ct. 463; Luddington v. Miller, 36 Ib. 1; Courtney v. Baker, 60 N. Y. 17; Pharis v. Gere, 107 Ib. 231; Thurber v. H. B. M. & F. R. R. Co., 60 Ib. 326 ; Schmidt v. Cohn, 12 Daly, 134; Walden v. Murdock, 23 Cal. 540; Martin v. Matfield, 49 Ib. 42; Derlette v. De Graaf, 51 Super. Ct. 369.
    II. The notice of entry of judgment did not contain the office and post-office address of the defendant’s attorney, and was therefore ineffectual to limit the defendant’s time to appeal. Kelly v. Sheehan, 76 N. Y. 325; Kilmar v. Hathorn, 78 Ib. 228; Forstman v. Shulting, 107 Ib. 644, § 1351 Co. Proc. The only admission given was of “ due and timely service of a copy of the within judgment.” There was no admission. of service of a copy of notice of entry of judgment, nor was such admission asked for.
    HI. The court, on appeal from an order, denying a motion for a new trial, has the power to grant a stay of execution, even when there is no intention to appeal from the judgment. §§ 1351, 775 Co. Proc., Hooper v. Beecher.
   By the Court.—Freedman, J. (after stating the facts as above)

Upon these facts it is clear that, if the notice of entry of judgment so served with a copy of the judgment was a sufficient notice, the defendant’s time to appeal from the judgment expired April 23, and the service of the notice of appeal on May 4, was too late so far as the judgment is concerned.

■ The defendant insists, however, that the notice of entry of judgment was insufficient because it did not contain the office and posboffice address of plaintiff’s attorney, as required by rule 2 of the rules • of the Courts, and upon this point he cites Kelly v. Sheehan, 76 N. Y. 325; Kilmer v. Hathorn, 78 Ib. 228 ; and Forstman v. Shutting, 107 Ib. 644.

An examination of these cases shows that in every one of them the papers served, taken as a whole, nowhere contained the address of the attorney for the prevailing party.

On the other hand it has been distinctly held in Falker v. The N. Y., West Shore & Buffalo Railway Co., 100 N. Y. 86, and in The People &c. v. Keator, 101 Ib. 610, that the notice of entry of the judgment or order may be indorsed upon the copy judgment or order served therewith, and that if the papers so served, taken as a whole, contain an indorsement showing the name and address of the attorney of the prevailing party as prescribed by the rule, it is sufficient, because the rule does not require that these matters should be stated more than once upon the same paper or set of papers. Under these decisions the notice of entry of judgment which was served in the case at bar, was sufficient, and consequently the service by defendant on May 4 of a notice of appeal from the judgment was too late. The motion to dismiss the appeal from the judgment must therefore be granted.

This, however, does not necessarily call for a reversal of the order granting the stay. . The order denying defendant’s motion for a new trial was entered April 9, 1888, and the notice of appeal, although ineffectual as to the judgment, was good as to the order. The notice of appeal and the copy undertaking served therewith for the purpose of effectuating a stay, having been returned with a notice which claimed in effect that they had not been served in time for any purpose, and the plaintiff having threatened to enforce the judgment, the defendant had a right to apply by motion for a stay. A case was thus made out for the exercise of the discretion of the learned judge below, and upon all the facts disclosed it cannot be maintained that such discretion was improperly exercised.

For the foregoing reasons I am of the opinion that plaintiff’s motion to dismiss defendant’s appeal should be granted in so far as said appeal relates to the judgment ; that the order granting a stay should be affirmed, but its operation limited to the appeal from the order denying motion for new trial; and that neither party should have costs against the other.

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


author: By the Court.—Freedman, J.

text:
    THE MAYOR, &c., OF THE CITY OF NEW YORK, Appellants v. MARY KENT, Impleaded, &c., Respondent.

      Appeal—When exception to dismissal of complaint necessary to bring up prior exception to ruling on evidence—When right of appeal is waived.

    On an appeal from a judgment entered on the direction of the court dismissing the complaint for want of sufficient evidence, to which direction for dismissal no exception was taken, an exception to the exclusion of testimony tending to support the complaint is not available.
    On the trial of an action against several defendants, a bond offered in evidence by plaintiff was obj ected to on the grounds that it varied the contract alleged in the complaint, and that it was a defective and incomplete contract not having been executed by all the parties named as obligors; a motion thereupon by plaintiff to amend the complaint so that it should conform to the facts, was granted, and the complaint dismissed as to the defendant who had not executed the bond; plaintiff’s counsel consented to serve an amended complaint as to the other defendants, and defendants’ counsel consented to serve an answer thereto, all of which was embodied in an order thereafter entered, and the new pleadings were subsequently duly served in accordance therewith, and the issues thereon noticed by plaintiff for trial.' The dismissal of the complaint as to the one defendant and the leave to plaintiff to amend, were granted without objection or exception by either party.

      Held, that the plaintiff’s right of appeal from said judgment of dismissal, if any ever existed, was waived.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 20, 1888.
    Appeal by plaintiffs from so much of the judgment as dismisses the complaint as to one defendant.
    Motion by defendant to dismiss appeal.
    The facts appear in the opinion.

      Henry B. Beekman, counsel to the corporation, and Henry B. Twombley, of counsel, for appellants, argued :—
    I. It is admitted that the general rule is that a party who obtains the benefit of an order of judgment in a cause and accepts the benefit, or receives the advantages, thereby waives his right to appeal. But it is also settled law that there is a waiver only where the party “ had availed himself of some benefit or favor granted or offered to him by such judgment, order or decree, as an alternative to exercising the right of appeal. Benkard v. Babcock, 17 Abb. Pr. 422; Bennett v. Van Syckel, 18 N. Y. 481; Radway v. Graham, 4 Abb. Pr. 468; Grumberg v. Blumenlahl, 66 How. Pr. 62.
    II. The case was a proper one for a several judgment as to each of the defendants.
    III. The order dismissing the complaint as to the one defendant Mary Kent was absolute, imposed nó conditions or stipulations, and was not connected in any way or dependent upon the other parts of the judgment. The fact, then, that as to the two other defendants against whom several judgments could have been taken, the order also provided that the complaint should be amended,—which amended complaint was afterward served,—operates in no sense as a waiver of the right to appeal from the separate and distinct provision of the order dismissing the complaint as against Mary Kent. Genet v. Davenport, 60 N. Y. 194.

      Benjamin Yates, for respondent:—
    I. The plaintiffs waived their right to appeal from this judgment, if such right existed, by serving the amended complaint, as to the other defendants, and the appeal should be dismissed. The right to amend, allowed by this order, was a substantial benefit, of which plaintiffs have taken advantage, and they cannot first avail themselves of the part of the order in their favor, and then appeal from the unfavorable part. Wallace v. Castle, 68 N. Y. 370-375; Murphy v. Spaulding, 46 Ib. 556 ; Bennett v. Van Syckel, 18 Ib. 481-484; Genet v. Davenport, 59 Ib. 648; Egbert v. O’Connor, 46 Super. Ct. 194 ; Porter v. Paunly, 38 Ib. 490 ; Taussig v. Hart, 33 Ib. 157.
    II. There is nothing for the court to review upon this appeal. No exception was taken to the dismissal of the complaint, as to the defendant Mary Kent, and it is difficult to conceive how any exception could have been taken.
   By the Court.—Freedman, J.

In this case the plaintiffs appeal from so much of the judgment as dismisses the complaint as to the defendant Mary Kent with costs, and the respondent moves for a dismissal of the appeal on the ground that the right of appeal has been waived. The appeal and the motion were heard together, -and the material facts are as follows:

The plaintiffs leased to Mary Kent certain premises for two years from May 1, 1877, at a certain rent, and the lease was secured by a bond conditioned for the prompt payment of the rent.

The complaint alleged the execution of the lease by Mary Kent, her covenant to pay rent, possession under the lease, and default in the payment of the rent, and then also alleged the making of the joint and several bond by the three defendants in this case, conditioned for the payment of the rent. The defendant Mary Kent answered by interposing a general denial.

On the trial it appeared that the bond had been executed by the other two defendants, but not by the defendant Mary Kent, the lessee. The counsel for the defendants then objected to the admission of the lease in evidence as against Mary Kent on the ground that the action was on the bond which had not been signed by Mary Kent. The trial judge gave it as his opinion that the complaint should be amended and that, if it was insisted upon to introduce the lease in evidence, the complaint should be dismissed as against Mary Kent. The ruling then and there actually made, however, to which the plaintiffs excepted, only went so far as to sustain the objection to the admissibility of the lease.

After further proceedings the case was finally disposed of as to all the defendants, so far as that particular trial Avas concerned, and in the course of such final disposition the complaint Avas dismissed as against Mary Kent, and to such dismissal no exception was taken. This state of facts would justify an affirmance of the judgment, irrespective of tire correctness of the ruling, if the right of appeal had not been waived.

But it further appears that such right was waived. The case shoAvs that during the last stage of the trial the defendant’s counsel objected to the introduction of the bond in evidence on the ground that it varied the contract alleged in the complaint, and on the further ground that the paper was a defective and incomplete contract, because it had not been executed by all of the parties named as obligors. Plaintiffs’ counsel then asked to be permitted to amend the complaint so that it should conform to the facts, which motion was granted, and thereupon the complaint was dismissed as against Mary Kent without exception being taken, and plaintiffs’ counsel consented to serve an amended complaint as to the other defendants within three days, and der fendant’s counsel consented to serve an answer to such amended complaint within ten days thereafter, all of which was embodied in an order subsequently duly entered. Moreover, the affidavit of the respondent’s attorney on which the motion to dismiss the appeal was made, distinctly states that the dismissal of the complaint as to Mary Kent and the permission to the plaintiffs to serve an amended complaint, were granted without objection having been made by either party; that subsequently the plaintiffs, did serve an amended complaint against the other two defendants, and said defendants answered the said amended complaint, and that thereupon the plaintiffs noticed the new issue so joined for trial. These statements are not denied by any counter affidavit. Under these circumstances it must be held that plaintiffs’ right of appeal, if any ever existed, was waived.

The appeal should be dismissed with ten dollars costs.

Sedgwick, Ch. J., and Truax, J., concur.


author: Freedman, J. Sedgwick, Ch. J.

text:
    LAWRENCE KILROY, Respondent v. THE PRESIDENT, &c., OF THE DELAWARE & HUDSON CANAL CO., Appellants.

      Negligence—evidence of custom.

    In an action brought by plaintiff who was employed by a stevedore engaged in unloading coal from one of defendants’ boats, for injuries alleged to have been sustained by plaintiff through the negligence of defendants, in the management of the derrick used in unloading said cargo of coal.

      Held, though it appeared that the stevedore was employed by defendants as such stevedore, to unload said coal, and the derrick and its appurtenances used for that purpose, belonged to said stevedore, yet it was competent for plaintiff to show that the unloading was to proceed according to a certain custom, and that it was part of the custom for the captain of the boat, or some one specially designated by him for that purpose, in the interest of the boat to attend to the guy rope and to direct the movements of the boy who managed the hoist horse.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided June 20, 1888.
    Appeal by defendants from judgment entered upon the verdict of a jury, and from order denying defendants’ motion for a new trial.
    Action to recover damages for personal injuries alleged to have been sustained by plaintiff through the negligence of defendants in unloading a cargo of coal from one of its canal boats.
    At the time of the accident plaintiff wras in the employ of a stevedore, named O’Brien, and was engaged in unloading coa.1 from a canal-boat belonging to defendants. In the process of unloading, the derrick used fell, and some portion of the tackle struck plaintiff on the head, causing a fracture of the skull. The derrick and all the things connected with it was the property of the stevedore, O’Brien.

      Matthew Hale and Frank E. Smith, for appellants.

      Louis F. Post and Samuel Ashton, for respondent.
   Freedman, J.

Although James O’Brien was employed as a stevedore to unload the coal from defendants’ boat, and the derrick with its appurtenances used for that purpose was the property of such stevedore, yet it was competent to show that the unloading was to proceed according to a certain custom, and that it was part of the custom for the captain of the boat, or somebody specially designated by him for that purpose, in the interest of the boat to attend to the guy rope and to direct the movements of the boy who managed the hoist horse.

In the case at bar evidence was given that pursuant to such custom the captain of defendants’ boat did undertake to attend to the guy rope and to direct the movements of the boy and the horse first in person and afterwards by a substitute, and that plaintiff’s injuries were caused by the manner in which said substitute performed the assumed duty.

The evidence was submitted to the jury with an instruction to the effect that if, in what he did, the captain acted as the servant of O’Brien, the plaintiff could not recover, but if he acted as the servant of defendants’ company, the company was chargeable with his negligence and the negligence of the person whom he substituted in his place. The jury were also instructed that the plaintiff could not recover unless the injuries which he sustained, were the natural and proximate result of negligence chargeable to the defendants. There was no error in such submission. Indeed the charge, as a whole, fully and fairly guarded every right of the defendants in every aspect of the case.

Upon the whole case no exception appears which constitutes ground for reversal.

The judgment and order should be affirmed with costs.

Sedgwick, Ch. J.

I am of opinion that the employment of the stevedore and his derrick, was not inconsistent with the captain of the boat being the servant and agent of the defendants in the management of the guy rope. The captain, as a witness for defendants testified, It is part of my duty as captain of the boat to handle the guy rope.”

Under the circumstances of the case the jury could rightly find, that the authority of the captain was not confined merely to holding the guy, but was more general in respect of its entire management so that he had authority to give its care and handling to a third person who thereupon became an agent of the defendants, and whose negligence if that occurred was imputed to the defendants.

I think that no exception was taken which calls for a reversal of the judgment and that it and the order appealed from, should be affirmed with costs.


author: By the Court.—O’Gorman, J.

text:
    HANNAH W. ANDREWS, as General Guardian, &c. v. JOHN TOWNSHEND,. et al.

      Vendor and purchaser—Assignee in bankruptcy, omission to obtain leave to bring action against, effect on decree and sale in mortgage foreclosure—Parties—right of general guardian to sue for infant in ejectment.

    A decree for a sale of property in this state in a foreclosure suit brought in the court of chancery against an assignee in bankruptcy under the act of 1841, as such where the assignee was duly served with summons, etc., and failed to appear, defend or make application for relief, is not void because of an omission to procure leave of the Federal court, to sue such assignee; and a sale of the property under such decree is valid, and furnishes no ground for rejection of a title made thereunder.
    Andrews v. Townshend, 53 Super. Ot. 522, followed as to propriety of bringing ejectment for infant in the name of the general guardian.
    Before Freedman and O’Gorman, JJ.

      Decided June 20, 1888.
    Verdict for plaintiff, subject to opinion of general term.
    Action in ejectment, for the recovery of certain lots of land, formerly a part of Harlem commons.
    A verdict for the plaintiff was rendered by instructions from the court, and an order was subsequently made under stipulation of counsel that the verdict should be set aside, and that a verdict should be entered for the plaintiff, subject to the opinion of the general term, that Elizabeth B. Andrews, an infant, is the owner of the real estate described in the amended complaint, and that the plaintiff,, as guardian, is entitled to the benefit of said real estate.
    The facts appear in the opinion.

      John Andrews attorney, and D. P. Barnard, of counsel for plaintiff :—
    I. The judgment against Finley’s administrators was valid. It was on personal service of the summons, and was proved by the written admission of the defendants. By § 138 Code this was sufficient to give the court jurisdiction. The omission to verify the admission is a mere irregularity. The judgment is good as between the parties and cannot be impeached collaterally. Read v. French, 28 N. Y. 285; Neusbaum v. Kein, 24 Ib. 325; Dunham v. Waterman, 17 Ib. 9; Sheldon v. Stryker, 34 Barb. 116.
    II. The order purporting to appoint a receiver was valid. The proceeding was by § 294 of the Code regular, as notice thereof was discretionary with the judge. The order appointing the receiver cannot be impeached collaterally.
    III. The proceedings for the foreclosure of the mortgage were legal. The general assignee was made a party and served, and the court had jurisdiction. The court of chancery in 1841 had concurrent jurisdiction to settle rights accruing under the bankruptcy law, especially where the general assignee made no objection. Anonymous, 10 Paige 20 ; Johnson v. Fitzhugh, 3 Barb. Ch. 360; Storm v. Waddell, 2 Sandf. Ch. 494. When as matter of law and fact it is found or conceded that a party named has title, that is sufficient—his possession is presumed; and the occupation by any other person is presumed to be in subordination to the legal title, unless it 'appear that the premises have been held adversely to such legal title for 20 years before suit brought. Stevens v. Hansen, 39 N. Y. 302. Objections to the proceedings in bankruptcy are not available to the defendant. “ The court had jurisdiction of the subject matter, and of the person of the bankrupt- and if there was any defect or irregularity it is to be impeached, if at all, by a direct proceeding, and cannot be availed of by this defendant as an impeachment of the title acquired thereby.” Ib.

    IV. If any party has been injured by any wrongful act of the executors of Andrews or of Lapaugh, or of the assignee appointed in this case, that party is not a defendant here, nor is the plaintiff in this action the party who inflicted such injury. Such act must be remedied in a proper action for that purpose in which all persons are parties, and the action must be commenced within the proper time.

      John Townshend and Henry Arden, for defendants.
    I. Action is improperly brought in name of and by non-resident general guardian of the infant. Action should have been in the name of the infant.
    II. The judgment in the foreclosure suit was void because brought without leave of the court. When the foreclosure suit was begun the title to the property was held by the assignee. U. S. Bankrupt Act, 1841, §§ 3, 5, 6, 9, 11. The position of an assignee in bankruptcy is identical with that of a receiver. The assignee is a trustee for the creditors. Van Sachs v. Kritz, 72 N. Y. 548. An action cannot be had against a receiver without leave first obtained from the court by which he was appointed. Melenda v. Barbour, 78 Va. 544; Reed v. Richmond, 4 So. E. Rep. 588; Phelps v. Sillick, 8 Bank. Reg. 390; High, Receivers, §§ 134, 139; Evelyn v. Lewis, 3 Hare, 472; De Winton v. Mayor, 28 Beav. 200; Wiswall v. Sampson, 14 How., U. S., 66; Bartow v. Barbour, 104 U. S. Rep. 126 ; Atty. Genl. v. Guardian Ins. Co., 77 N. Y. 272; Bavis v. Gray, 16 Wall. 203; Woodruff v. Jewett, 37 Hun, 208. The obtaining leave to sue a receiver is not a question of contempt but of jurisdiction. Bartow v. Barbour, 104 U. S. Rep. 126.
    III. Considering the judgment to be valid the sale was void. Clifton v. Foster, 103 Mass. 234; Yonley v. Lavender, 21 Wall. 276 ; Heidritter v. Elizabeth Oil Co., 112 U. S. Rep. 294; Lichtenburg v. Herdtfelder, 103 N. Y. 306.
    IV. The sale was unauthorized because at the time, in contemplation of law, the property was out of the state. Covell v. Heyman, 111 U. S. Rep. 182. Jones on Mortgages, § 1444; Burckle v. Eckhart, 3 N. Y. 137; Bosworth v. Vandewalker, 53 Ib. 597; Am. Un. Co. v. Middleton, 80 Ib. 408; Cragin v. Lovell, 88 Ib. 258-263. Abelman v. Booth, 21 How. U. S. 516 ; Tarble’s Case, 13 Wall. 397; Covell v. Heyman, 111 U. S. 183.
    V. The sale was void because, at the time it was made, the res, the subject of the action, was in the custody of the United States district court. Covell v. Heyman, 111 U. S. Rep. 182; Pittman v. Johnson, 35
      Hun, 42; Havens v. Brooklyn Bk. 6 T. & C. 346; Kilmer v. Hobert, 8 Abb. N. C. 426 ; Clifton v. Foster, 103 Mass. 234; Heidritter v. Elizabeth Oil Co., 112 U. S. Rep. 294; Borer v. Chapman, 119 Ib. 600; First Nat. Bank v. Dunn, 97 N. Y. 158 ; Wiswall v. Sampson, 14 How. U. S. 66, 67; Crouse v. Frothingham, 97 N. Y. 106-114; Phelps v. Sillick, 8 Bank Reg. 390; Peale v. Phipps, 14 How. 368; Hagan v. Lucas, 10 Pet. 400; Williams v. Benedict, 8 How. 107; Pulliam v. Osborne, 17 Ib. 471; Taylor v. Carryll, 20 Ib. 583 ; People’s Bk. v. Calhoun, 102 U. S. Rep. 256 ; Barlow v. Barbour, 104 Ib. 126; Phelps v. Sillich, 8 Bank Rep. 390; Lehigh Coal Co. v. Cent. R. R., 3 Cent. Rep. 95; Havens v. Brooklyn Bk., 6 T. & C. 346; Kilmer v. Roberts, 8 Abb. N. C. 426; Noe v. Gibson, 7 Paige 513; Albany City Bank v. Schermerhorn, 9 Ib. 373; Pulliam v. Osborne, 17 HoW. U. S. R. 471; Norton’s Assignee v. Boyd, 3 Ib. 636; Cleveland v. Boerum, 24 N. Y. 613; Tyler v. Gaff, 91 U. S. R. 521; Jerome v. Carter, 94 U. S. R. 734. _
    _ VI. As this is a case which may be carried to the supreme court of the United States the decisions of that court are authoritative. Palmer v. Hussey, 119 U. 8. Rep. 96.
    VII. The judgment against Finley’s administrators was void. The clerk had no power to enter a judgment, except on the proof of service of process and of a failure to answer. The admission indorsed on the summons was not equivalent to a service. The signatures were not proved and the court could not take judicial notice of them. Litchfield v. Burwell, 5 How. Pr. R. 346; Read v. French, 28 N. Y. 294-5; Hallett v. Righters, 13 How. Pr. 46. A judgment roll on failure to answer must contain proof of due and timely service of the summons. Macomber v. The Mayor, 17 Abb. Pr. 36-42; Bosworth v. Vandewater, 53 N. Y. 597; Archer v. Furness, 4 Redf. 88.
    VIII. The order purporting to appoint a receiver was void. It was made without any proceeding against the defendants in the action, and without any notice to such defendants.
    IX. The assignment by the receiver to the executors of Andrews was an assignment of the mortgage only. It did not even purport to assign the bond. Such an assignment is a nullity. Merritt v. Bartholick, 36 N. Y. 44.
    X. Although the executors of Andrews took nothing from the receiver, they might still enforce their one half of the mortgage, but in a proceeding so taken, to which the owner of the other one half of the mortgage was not a party, the plaintiffs could not divest the owner of such other one half of his rights. Schrauth v. Dry Dock Bank, 86 N. Y. 394.
    XI. There was no evidence to warrant a verdict against Catherine Williams. She was living with her husband on the premises. Sanford v. Pollock, 105 N. Y 452.
   By the Court.—O’Gorman, J.

Both the plaintiff and the defendants claim title, but in different ways, through William C. H. Waddell, general assignee in bankruptcy, and receiver of the assets of Ebenezer L. Williams, a bankrupt, deceased.

The real estate here in dispute, belonged to this Ebenezer Williams before his bankruptcy, in 1843, and had been mortgaged by him for the sum of $750, to John Finley and Benjamin Andrews, both deceased, and the main question in this case is, whether or not an action to foreclose that mortgage, brought by the executors of Benjamin Andrews, against the said Waddell as general assignee in bankruptcy, in the supreme court of this state, was well brought, and the judgment in favor of the plaintiffs therein, valid, and the sale thereunder in September, 1856, effectual to vest the title in the purchaser. If the proper answer to this question be in the affirmative, it sustains the title of the plaintiff.

The defendants, on the other hand, deny the validity of that judgment and sale in foreclosure, and claims title under a sale of the mortgaged premises, to himself, by the said assignee in bankruptcy, under deed dated January 13, 1863. In addition to this deed of the premises, he relies on an assignment, to himself, by the administratrix and heirs at law of John H. Finley, one of the mortgagees, by which assignment, all their rights to the mortgaged premises and to the bond and mortgage were conveyed. If this deed and assignment be valid and effectual, the defendants’ contention should prevail. The burden of proving her title rests on the plaintiff.

Before considering this cardinal issue in the case, a preliminary objection, made by the defendants, calls for consideration. It is contended that this action should have been brought, not in the name of the guardian of the minor, but in the name of the minor as plaintiff, and that the complaint should have been dismissed on that account. The general term of this court, in its opinion heretofore rendered in this case (53 Super. Ct. 522) considered and overruled that objection. See also Cagger v. Lansing, 64 N. Y. 417, in which an action, so brought, was sustained.

The main contention as to the validity of the judgment and sale in foreclosure, under which plaintiff claims, arises thus: Ebenezer L. Williams, the original owner of the premises, was declared a bankrupt in 1843. He had previously mortgaged them to John H. Finley and Benjamin Andrews in 1835. William C. H. Waddell, was general assignee in bankruptcy, and became assignee of the estate of Williams. Finley, one of the mortgagees, died intestate, and indebted to Benjamin Andrews, the other mortgagee, in the sum of $197.74. Benjamin Andrews died in 1850, leaving a will, and his son, Benjamin Andrews, and his widow, were appointed his executors. In 1852, they assigned to one Lapaugh, the claim against Finley for this sum of $197.74, and Lapaugh commenced an action to recover payment of this money against the administrators of Finley. In the judgment roll of this action, appears an indorsement on the summons: “ September 18, 1852. We admit personal service of a copy of the within summons on us this day. James Wilson, administrator of J. II. Finley, deceased. Sara S. Finley, administratrix of J. H. Finley, deceased.” No other evidence of service of the summons appears. In October, 1852, judgment in favor of Lapaugh in this action was entered for $197-74, and $161 interest. In 1854, an order was made by the surrogate, on notice to said administrators of Finley, deceased, that execution issue against them, for the amount of the judgment, and execution was issued and $70 made thereon. In 1855, Lapaugh obtained an order to examine Benjamin Andrews, said executor of his father Benjamin Andrews, deceased, as to property in his hands belonging to the estate of Finley. In obedience to this order, Benjamin Andrews, said executor, appeared and testified that he had found among the assets of his father the mortgage made by Williams in 1835, to Finley and Andrews, for $750. Thereupon in 1855, an order was made by Judge Clerke appointing J. F. Kendall, receiver of all property of the administrators of Finley. In September, 1855, the receiver assigned the mortgage to Benjamin Andrews and Elizabeth Andrews, as executors of Andrews, deceased. Thus, all the title to the mortgage became vested in these- executors of Benjamin Andrews, deceased, who had been originally one of the mortgagees, and entitled to one half of the amount lent on the mortgage, all the remaining interest, which had belonged to Finley, vesting in the said executors by this assignment from Kendall, as receiver.

The title to the mortgaged premises was vested in Waddell, the general assignee in bankruptcy of Williams the mortgagor, subject to the mortgage, and all equities, which would affect the bankrupt himself. Storm v. Waddell, 2 Sand. Ch. 503.

An action was thereupon brought against Waddell as such assignee, by Benjamin Andrews and Elizabeth Andrews, executors, for foreclosure of that mortgage-, in the supreme court of this state, and the summons and notice of the object of the action were duly served on Waddell personally. No appearance being made, and no defense being made- by him, judgment of foreclosure and sale was entered, and the mortgaged premises were sold by the referee to sell, to George G. Andrews, through whom the plaintiff claims.

The defendants contend that this judgment of foreclosure is wholly void, inasmuch as the defendant named therein wras an assignee and receiver in bankruptcy, and that an action against him in a state court was not well brought, unless the consent of the Federal court had first been obtained.

The defendants’ argument depends on the position that the jurisdiction of the Federal court in all cases of bankruptcy, and as to all claims against the property of the bankrupt, real and personal, is paramount, and excludes all action therein of a state court. I do not find that this position is sustained, either directly, or by necessary inference, in the authorities cited by the learned counsel for the defendants. In these cases the court is careful to confine its decision to the special facts on which the controversy arose.

In the courts of this state, it has been held that to bring a suit against a general assignee or receiver in bankruptcy, without first procuring the leave of the Federal court, is not a jurisdictional defect, although it may be perhaps regarded as a contempt of court. Cleveland v. Boerum, 24 N. Y. 615; Chautauque Co. Bank v. Risley, 19 Ib. 376.

The intendment of law is that the state supreme court of general powers, has jurisdiction both over the subject matter of the action and the person of the defendant, unless the contrary appears, and the record of judgment is prima facie evidence, and will be held to be conclusive, unless clearly and explicitly disproved. Bosworth v. Vandewater, 53 N. Y. 597.

In the case at bar, the assignee in bankruptcy received timely notice of the pendency of the action to foreclose, and could have appeared and defended, if any defense existed, or even after judgment was entered, would, no doubt, have been permitted, in the interest of justice, to present his defense. It is held that if he had appeared in the action he would have waived any objection, that might have been claimed to exist, as to the jurisdiction of the court. Eyster v. Gaff, 91 U. S. 521, 525. His failure to appear after service of the summons, etc., on him, should in justice and reason, have the same effect, and be treated as an admission that there was no real defense to the action.

The judgment in foreclosure being sustained, as being within the jurisdiction of the state supreme court, it follows that it cannot be assailed collaterally, and is of binding force and effect.

The defendants’ third objection that even if the judgment were valid, yet the sale was void, is not sustained. The defendants contend that the only office of the foreclosure suit in this case, was to establish the lien and determine the amount due, and that it had no power to decree a sale, because, by the decree in bankruptcy, the property was removed out of the jurisdiction of the state court. The authority on which the defendants rely in support of that position is Walling v. Miller, 108 N. Y 173. This case is not authority for the defendants’ argument, and has no bearing on the case at bar. It holds that where a receiver is appointed of chattel property, two days after levy of an execution against the judgment debtor the owner of the property, the sale of the property under this execution, without leave of the court appointing the receiver, and the taking of the same out of the possession of the receiver was unlawful. In the case at bar the property was real, not personal, and situate in the state of New York; the mortgage was a specific lien on that property; and all that the receiver in bankruptcy took by virtue of his appointment, was .the equity of redemption. The existence of the mortgage unpaid, gave the mortgagee a lien on the premises, constituting a valuable property, including the right to foreclose in the state court and sell in order to obtain payment, and that property could not be taken without due process of law The judgment in foreclosure being held to be valid, it follows that the sale of the property under the judgment was also valid, in the absence of any attempt by affirmative action, before any tribunal, to set it aside.

The fourth objection, viz., that the sale was unauthorized because the property was, in contemplation of law, out of the state, is not sustained. The premises were and are both actually and in contemplation of law in the city of New York.

The fifth and sixth objections are overruled.

The seventh objection is that the clerk had no power to enter a judgment in the action of Lapaugh v. Finley’s Administrators, except on proof of service of process and of failure to answer. The case of Read v. French, 28 N. Y. 285, cited by defendants, is not in point. There, it did not appear in what manner service was made, whether it was personal or by publication. In the action here in question, personal service is admitted. Any mere irregularities are covered by the judgment itself.

The ninth objection, that the assignment by the receiver, Kendall, to-the executors of Andrews, was an assignment of the mortgage only, is overruled. There is no evidence in the case that the bond did not go with the mortgage, or that the bond was at the time of the assignment in any other hands but his. The cases where the bond was placed in the hands of one person as security for one sum of money lent on it, and another and further sum was lent on the mortgage, have no analogy to the case at bar.

The tenth objection is overruled. The statement of the case shows that all the interests both of Benjamin Andrews and John H. Finley, the original mortgagees, vested in the executors of Andrews.

The eleventh objection is overruled. The case of Sanford v. Pollock, 105 N. Y. 452, cited by the defendants, relates to the question of liability of a married woman for rent on a lease, signed by her husband on her behalf, but without any evidence of his authority to bind her. It has no bearing on the case at bar.

These are the only objections which have seemed to me to require special attention or notice. The others are overruled.

The verdict for the plaintiff should be sustained, and judgment entered that the infant, Elizabeth B! Andrews, is the owner of the real estate in question, and that the plaintiff, as guardian, is entitled to the benefit of the same.

Freedman, J., concurred.


author: Per Curiam.

text:
    ANNA ROTT, Appellant v. THE FORTY-SECOND ST. & GRAND ST. FERRY R. R. CO., Respondent.

      Negligence—Street cars.

    Where the question of the negligence of the conductor in starting a car depends on the inferences to be drawn from surrounding circumstances, the case should go to the jury.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided June 20, 1888.

      Appeal by plaintiff from judgment dismissing complaint, upon the merits entered upon order made at the trial before the jury.
    The facts appear in the opinion.

      John Fennell, for appellant.

      Freling H. Smith, for respondent.
   Per Curiam.

The action was for damages from negligence alleged in the complaint. The plaintiff according to her own testimony and that of her daughter, accompanied her daughter into a car of defendant. The daughter testified that she told the conductor that the plaintiff was not a passenger, and the plaintiff turned and proceeded to leave the car. At a point when she was about to step from the platform down to the street, as she testified, the conductor, as she also testified, rang the bell. The car moved forward and the motion threw the plaintiff upon the street. At the end of the testimony, the learned judge thought that there was not enough testimony to justify the jury in finding that the conductor had any reason to think that the plaintiff did go upon the car as a passenger, or that he knew that she was proceeding to leave the car or intended to leave it, at the time he rang the bell.

The declaration to the conductor that the plaintiff was not a passenger, accompanied with circumstantial evidence such as the place where he stood, his field of vision there, the probability of the direction of his observation in the ordinary performance of his duty, made the case such that it should have been submitted to the jury.

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


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

text:
    THE MAYOR, &c., OF NEW YORK CITY, Respondents v. JOHN H. STARIN, Impleaded, &c., Appellant.

      Injunction against general and ordinary business of corporation—void under § 1809 Code, when granted without notice.

    An injunction order suspending what is, in fact, the general and ordinary business of a corporation, upon the ground that said business is unlawful or ultra vires, is void, unless granted upon notice to the proper officer of the corporation, as provided in § 1809 of the Code, without regard to the question whether said business is or is not illegal or ultra vires.

    Where the injunction order is also directed to an individual joined as defendant with the corporation, and if obeyed by him, would suspend the general and ordinary business of the corporation, such order is void as to said individual defendant.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 27, 1888.
    Appeal by defendant John H. Starin from an order adjudging him guilty of contempt of court.
    The facts appear in the opinion.

      A. J. Bittenhoefer, attorney, and Roscoe ConJcling, Charles C. Beaman and James McNamee, of counsel for appellant:—
    I. The injunction order of August 11 was absolutely void under § 1809 of the Code of Civil Procedure, and all proceedings based upon it must be dismissed, it having been obtained without notice, and its effect being to suspend the general and ordinary business of the corporation. §§ 1809,1812, Code Civ. Broc. There can be no doubt that these sections cover this very case. Here is a corporation organized in another state for the express purpose of running steamboats and carrying on a transportation business by water between points on Staten Island and in New York city, and said city is one of the places of doing business named in the articles of incorporation. It is charged with running steamboats between such points and transporting passengers and freight thereon. If it were not so it would not have been made a defendant, and the complaint and affidavits show that it was the practical operator of these boats. This was the business—the daily, general, ordinary business it was carrying on when this order was made. The plaintiffs wished to stop this business. The order they obtained, without notice, is aimed directly at this business, and is very comprehensive. It enjoined the company from running any boats between any point on Staten Island and any point on Manhattan Island, and the boats were at once stopped.
    Plaintiffs urge that the words “ general and ordinary business” should not be construed to cover the business which this company was conducting, first, because the company was not organized to ran a ferry which the complainant alleges it was doing; second, because the running of such a ferry was in contravention of a statute of the state, and therefore illegal; and third, the business it was transacting was unlawful because it infringed upon the ferry rights of New York city, (a) As to the first point, a proposed New Jersey corporation expressly designing to do a ferry business, must organize under this act or it cannot organize at all. (b) As to the second point, the authorities we will hereafter refer to show most clearly that even if there were a statute prohibiting the running of a ferry, this would not dispense, in an action of this kind, brought in aid of a private right and in no way to enforce any statutory penalty, with the giving of notice. But no such statute exists, (c) If it be said that it is unlawful for this company to run this line or alleged ferry, because the city of New York claims to own the route, it may be said that this is the very question which this suit is brought to decide, and if prejudgment can be permitted under such a specious pretext, the section is worthless as a protection to corporations, because in every injunction suit the allegation is that the defendant, person or corporation, is doing something unlawful, and infringing the rights of the person asking for the injunction. But this point has been met by the courts. Town of Middletown v. The Rondout & Oswego R. R. Co., its Directors and Others, 43 How. Pr. 144, 481; Wilkie v. Rochester & State Line R. R. Co., 12 Hun 242. If any one wishes for any reason to stop the general and ordinary business which is .being carried on by a corporation he cannot do so in any way but by first giving the corporation an opportunity to be heard.
    II. It was suggested on the argument, that, though the injunction is void as against the corporation, it is valid as against Mr. Starin and Mr. Clark. The first and simple answer to that is that the order is in terms one and indivisible, making no distinctions between the defendants, and aiming to stop the transportation business which was being carried on by the company in combination with the other defendants. Its aim must be interpreted by the facts set out in the moving papers and it must be confined in its operation to the case there made. Conway v. Taylor’s Exr., 1 Black. 632 ; 115 U. S. Rep. 258. The statute declares “ such an injunction order ” void. It is a plain, unequivocal statutory provision, which makes no reservations, but, so far as the language goes, abrogates the entire order. Its spirit is against any reservation (cases cited above). A second consideration militating against this proposal to validate the order sufficiently to accomplish the substantial object sought by it is that the plaintiffs’ statements in their papers as to the relation which these two persons bear to the Steamboat Company, taken in connection with the statute, render this point untenable. Mr. Clark, a pilot, was an employee of the company, as were the three other defendant pilots and four defendant engineers. The allegation is that Clark was “ master.” As to all these persons whose services were indispensable to the transaction of the general and ordinary business of this corporation, the claim of the plaintiffs now is that the injunction was valid, while as to the company it was not. To what an absurd position does this interpretation reduce the act and the courts! In this view the courts should say to the company, you can go on and transact your ordinary business, while they say to all its employees (for if they can say so to one they can say so to all) you shall not lift a hand to carry on the business of this company. The practice of making parties defendant of persons thus situated or employed was severely condemned and an injunction set aside in Grover v. Swain, 29 Hun 454, and its advocates ought not to be assisted out of their difficulties by the courts. As to Mr. Starin the case stands upon the same principle. The plaintiffs say of Mr. Starin, that he conceived the organization of this company, caused his employees and tools to incorporate it, furnishes it the boats to run, this company is a scheme devised for his personal business and benefit and he is really the person now actually operating the ferry purporting to be operated by said company. The city made to the court these sweeping declarations as to Mr. Starin’s support of the company so as to induce an injunction against him also, on the theory that he was essentially the life of the company and that without him it could not carry on its business. If the statements of the plaintiffs as to Mr. Starin’s connection with this company are true, and, on this appeal, which is based altogether on the city’s • papers, they must be assumed to be true, let the court imagine what possible result could follow the granting of such an injunction order, though good against Mr. Starin alone, except the total stoppage of the general and ordinary business of this corporation. It is the effect of the injunction, not its mere words or the frame of the suit, that must be considered in determining whether the order is in violation of the statute. It should be observed that the language of section 1809 does not limit the operation of the section to cases where the injunction order bears directly against the corporation by name. If the operation of the order “suspends the general and ordinary business of a corporation ” that is enough to vitiate it. If it be said that the corporation can go on with its ordinary business by severing its connection with Mr. Starin and getting its boats, docks, supplies, etc., from some other party, we reply that, as the plaintiffs have stated the facts, that is a practical impossibility. They connect him too closely with the company to render it possible for it to shake him off. But were anybody else, whether one person or more, to supply the same facilities ascribed to Mr. Starin, an injunction, by parity of reason, would go against such other person or persons. What the statute prohibits is the suspension of the business of the corporation. Can it be said that where a company is compelled to suddenly change, without previous notice, all the persons on whom it relies in order to carry on its business,- this can be done without a suspension, if only a temporary one, 'of its business ? But this is what, under the allegations of this complaint, this company would have to do, if Mr. Starin is enjoined from doing what he is charged with having done till now.

      Henry R. BeeJcman, corporation counsel, and Thomas P. Wickes and Alex. I). Keyes of counsel, for respondents :—
    I. The “ general business ” of the company was not suspended. The certificate of incorporation names the places where the business of the Independent Steamboat Company may be carried on, and includes all places accessible by water on the coasts of Long Island, and Staten Island, on the Kill von Kull, Raritan bay, the Hudson river and the tributaries of these waters. The injunction only restrained the running of ferry boats between New York and Staten Island. The (l general ” business of the company might still continue. At most an extremely small part of the business of the company was suspended. The boats of the company might still carry on “ the business of common carriers ” over a vast extent of waters, covering hundreds of miles, undisturbed by the injunction of the city. People v. Edson, 19 J. & S. 244; Golden Gate Mining Co. v. Super. Ct., 65 Cal. 187; Doty v. Menasha, 14 Wis. 81; Reed v. Jones, 6 Ib. 680.
    II. The “ ordinary business ” of the corporation was not suspended. In the certificate of incorporation there is not one word to indicate that the object of the company was to engage in the ferry business. On the contrary, it is there expressly stated that the business of the company was to be that of common carriers. That the business of common carriers and the business of running ferries are entirely distinct kinds of business with different rights and liabilities has been definitely settled bv the court of appeals. Mayor v. Starin, 106 N. Y. 1; Wickoff v. Queens Co. Ferry Co., 52 N. Y. 32. To prove that the suspension of a business entirely different from that for which a corporation was organized is not the suspension of that same corporation’s ordinary business requires no argument. At best, the ferry business may have been an incidental part of the business of common carriers and was not its ordinary and general business. (Cases cited under Point I.)
    III. The legislature could not have intended to protect the general and ordinary business of a corporation, if such general and ordinary business constituted a crime. Penal Code, § 416; Hobbs v. The Amador Canal Co., 66 Cal. 161. The Penal Code, § 416, provides that one who maintains an authorized ferry, shall be punishable by a fine of twenty-five dollars for each time of crossing or running of such ferry. That the defendant, the Independent Steamboat Company, did maintain an authorized ferry, has been decided by the court of appeals. Mayor v. Starin, 106 N. Y. 1. That the word “ business,” in § 1809, means lawful business, seems to follow from the construction given by Hogeboom, J., in People v. Troy House Company, 44 Barb., to 1 N. Y. Stat. at Large, 557.
    IY. No construction of the statute can make the order void as to the defendant, Starin. Section 1809 only applies to corporations and their officers. It was not claimed that defendant Starin was an officer of a corporation. It is true the complaint alleged that Starin controlled the Independent Steamboat Company. But Starin’s ansiver denied this allegation. The question does not arise whether the Steamboat Company might not have disregarded the injunction. The point is could the defendant, John H. Starin, disregard it ? The fact that the injunction issued against a corporation that it could not bind (admitting this contention to be well founded) does not excuse disobedience on the part of those whom it could bind through one injunction issued against both on the same principle that a judgment against two joint debtors may be void as to one and yet valid as to the other. The question therefore may be considered as if the defendant Starin alone had been enjoined from running a ferry. In such a case he would have been bound to obey the order provided the court had jurisdiction of his person and of the subject matter. That the order was irregular or erroneous would be no excuse. People v. Sturtevant, 9 N. Y. 263; Mayor v. N. Y. & S. I. Ferry Co., 66 Ib. 622.
   By the Court.—Sedgwick, Ch. J.

The case is stated by the counsel for respondents to be as follows:—

“Starin was engaged in running an unlicensed and • therefore unlawful ferry boat between Staten Island and New York by means of a corporation called the Independent Steamboat Company. This company was incorporated under the New Jersey .Act of April 7, 1875. The incorporators were persons other than Starin. The company’s business was to be that of common carriers and was to be transacted at, to and from all the places in New Jersey accessible by water on the Hudson river, Kill von Kull, Raritan bay, and their tributaries, and the cities of New York, Brooklyn, and all places on the Hudson river, Staten Island and Long Island. It also appeared that the incorporators of this company were men in the employment of or under the control of the defendant Starin; that the boats used by the company belonged to Starin or to corporations controlled by. him; and that its real business was to run ferries between New York and Staten Island.”

An injunction order was made restraining the Independent Steamboat Company and Starin, from running the steamboats named in the order, as ferry boats between New York and Staten Island, or any other boats or vessels as ferry boats between those places.

Starin, it is assumed now, disobeyed the order, and was found guilty of contempt in disobeying it. He appeals from that order, and on this appeal claims that the injunction order is void under sections 1809 and 1812 of the Code, as made without notice to the proper officer of the defendant corporation and as it suspends'the general and ordinary business of the corporation.

The facts that have been cited show that the running of the steamboats enjoined by the order, was the real business of the defendant corporation. It was not a particular thing done in the course of the business. It was a business and the defendant corporation had no other business, as matter of fact. I am satisfied that the Code refers to a business done in fact by a corporation, whether or not the charter permits them to do some other kind of business which it might do but does not do. The fact that really it ran a ferry unlawfully, necessarily involved according to the purpose of the injunction, that its business should be stopped. Its business was stopped, so that the plaintiff might prevent the running of the ferry. The Code says the business shall not be stopped for any reason.

It is said that its incorporation did not justify its doing the business of running a ferry, and that in that sense it was not within its corporate powers. Several things might be said. It is enough to say, that when the injunction asked for, is to be aimed at the general and ordinary business of a corporation, the section necessarily although impliedly forbids that whatever must be determined against the corporation as the foundation or part of the foundation of the injunction, shall not be passed upon, if notice has not been given to a proper officer of the corporation.

In a case like this, a judge would call upon the plaintiff to show why such an order could be granted. The plaintiff would answer the business of the corporation is unlawful or ultra vires. The judge is obliged to say that a determination of that, cannot be made, without notice to the defendants. On notice they may meet the position.

In other words, the statute, when it prohibits such an injunction, prohibits the means by which such an injunction can only be made. I am of opinion then that the order was void against the defendant corporation.

For reasons of a similiar kind it wTas, as I think, void against Starin. What cannot be done directly, cannot be done indirectly. The injunction order against Starin, when obeyed would suspend the general business of the corporation-defendant. I mean to confine the bearing of what I say upon a case where the individual is joined as defendant with the corporation.

The case of the plaintiff substantially is, that, while it must be conceded that Starin is one person and the corporation is another' person by law, yet the corporation is a sham as far as it can be, after the law has created it and given it definite rights, against all including the plaintiff and Starin, and. Starin is really or in effect the corporation. If all this be true, yet in fact the corporation was the person who did the business. The injunction supposed that the two were one, and that if Starin exercised his authority over the incorporators as his employees, as alleged, or over the boats as their owner, then, what has been here held to be the general business of the corporation would be stopped. I am. of opinion that the injunction against Starin is against the intent and letter of the Code.

If the injunction was against Starin as an agent of the corporation, there can hardly be a doubt that it would be void against him. On this case, as it is framed by the complaint and the positions taken by the plaintiff under it, it appears that substantially the relief as against Starin is ancillary and subordinate to the relief asked against the corporation. The former should follow the other and abide its disposition.

I am of opinion that the order adjudging the appellant guilty of contempt should be reversed with $10 costs and disbursements to be taxed, and the motion to punish denied with $10 costs.

Freedman and Trtjax, JJ., concurred.


text:
    HORACE SECOR, Jr., et al., Appellants v. MARY J. CLARK as Executrix, &c., Respondent.

      Assignment to one holding fiduciary relation to assignor—When set aside— see subduement of will evidence of—fiduciary relation when exists.

    Where one who has received, and holds in a fiduciary capacity, a sum of money, insists upon retaining and does retain thereout, for his own use, a portion thereof, and procures a sealed assignment to him of the right and interest of the party entitled thereto in and to the whole of the moneys so received and held, paying at the same time to the assignor the portion not retained, under circumstances warranting the conclusion that the assignment was not willingly given, but was procured through the will of the assignor being subdued by fear of the possible loss of the whole amount, and through an unfair advantage taken by the assignee of the position of comparative dependence in which the assignor was placed, Hold, that a court of equity will set aside the assignment, unless the assignee affirmatively shows that the transaction was consistent with perfect good faith and involved no unfair advantage as against the assignor, and no influences tending to disturb his judgment or force upon him a concession which otherwise he never would have made.
    In the case at bar, the assignor testified in relation to the execution of the assignment sought to be set aside, as follows: “ I signed the assignment because I believed that Clark would use every device to prevent or delay the collection of the money; also because I believed it would take some time to recover a judgment against him for the money, and after the recovery of a judgment I feared our ability to collect it; and I thought the amount was too large to hazard its remaining with him pending a suit for its collection ; and therefore I unwillingly signed the assignment.” Held, in connection with the above facts, sufficient evidence of the subduement of the assignor’s will.
    An attorney prosecuting an action under an agreement that he should receive a certain percentage of the recovery for his compensation, assigned a portion of his claim to the extent of $10,000. Thereafter the attorney died leaving a will of which his law partner was executor. Thereafter, the action was settled and the said executor received for the attorney compensation $25,000. He then paid the attorney’s assignee $8,500, and took the assignment above mentioned, Held, that there was a fiduciary relation between the- executor and the assignee of the attorney, and that the assignment to the executor having been obtained under the circumstances above .stated should be set aside.
    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided June 26, 1888.
    Appeal from a judgment of the special term, on dismissal of the plaintiffs’ complaint. (See report of this case on appeal from judgment entered on order overruling demurrer, 54 Super. Ct. 494.)
    The main question now to be considered is,- whether, on the evidence, giving it the interpretation most favorable to the plaintiffs, it sustained their contention that an assignment in writing and under seal, executed by them to Lemuel B. Clark, of all their claim to $10,000, in consideration of $8,500 paid to them by him in cash, was void as against them, as being the result of duress, or of fraud on the part of said Clark, while he bore a fiduciary relation towards them. The action is brought to set aside that assignment, and for recovery of the sum of $1,500, claimed by plaintiffs to have been their money and to have been unjustly retained and withheld by the said Clark from them.
    The material evidence in the case is as follows: Freeman J. Fithian, a lawyer in this city, having been employed by the New England Iron Company, as their attorney and counsel in their action against the Metropolitan Elevated Railway Company of New York, an agreement in writing and under seal was executed between him and the first named company, by which it was provided that he should receive as his compensation for liis services in said action, a certain percentage on the amount recovered by the company in that litigation. It was also therein provided that the agreement should operate as an assignment and transfer to him, Fithian, his heirs, executors, or assigns, of a right or interest in the moneys so to be recovered or obtained, to the amount and extent mentioned in the agreement. Shortly after the making of said agreement, said Fithian executed a written assignment to Horace Secor, Jr., one of the plaintiffs, which is in the words f olloAving: “ In consideration of the sum of five thousand dollars, the receipt whereof is hereby acknowledged, I, Freeman J. Fithian, of the city of New York, do hereby assign, transfer, and set over to Horace Secor, Jr., of the same place, an interest or claim of ten thousand dollars, in and to the claim or demand or commissions to which I am now, or may hereafter become entitled, under and by virtue of the annexed agreement or assignment made by and between the New England Iron Company, a Massachusetts corporation, and Edwin R. Wiggin, to and with myself, dated March 28, 1883. And I, said Fithian, covenant that said Secor shall be entitled to collect and receive said ten thousand dollars, before any moneys shall be collected or received by myself under said agreement or assignment from said Iron Company. And I further covenant that I have not executed any other assignment of any interest in and to said agreement or assignment to any other person or corporation. And I further agree and covenant that I will notify said Secor when the claim mentioned in said agreement dr assignment shall be collected or adjusted, at once. This agreement shall apply to and be binding upon the heirs, executors, administrators or assigns of the parties hereto. Witness my hand and seal this eighth day of August, A. D. 1883.
    “In presence of F. J. Fithian, [Seal.]”
    “ C. B. Page.”
    On or about August 4, 1884, said Fithian died, leaving a will, and appointing his law partner, Lemuel B. Clark,' as his executor, and on February 23, 1886, Clark received from the New England Iron Co. the sum of $25,000, in full satisfaction and discharge of the said agreement between that company and Fithian, deceased. Clark gave a receipt therefor, as executor of said Fithian, and as survivor of the late firm of Fithian & Clark.
    On February 24, 1886, Clark sent to the plaintiff, Secor, by a clerk in Clark’s employment, a check for $7,500, and a written assignment to Clark of Secor’s claim under the agreement between Fithian and him. At this time, Secor had not been informed by Clark, or otherwise, of the said payment made by the New England Iron Co., to Clark. Secor refused to execute the assignment or to receive $7,500, in full of his claim under the agreement between Fithian and him. In the course of the day, however, he learned, by inquiry at the office of the attorneys for the New England Co., and elsewhere, that the litigation had been settled, and that $25,000 had been received by Clark. On the next morning Clark sent to Secor a check for $8,500, with another assignment, which Secor did sign, together with the two other plaintiffs, who had a subordinate pecunary interest in the contract between Fithian and Secor.
    This assignment is in the words and figures following: “ In consideration of $8,500 paid to the undersigned, the receipt whereof is acknowledged, we and each of us hereby sell, assign, transfer and set over unto Lemuel B. Clark, of the city of New York, all our right, title and interest in and to the annexed agreement, and all moneys, benefits and advantages to be derived therefrom.

      “ Witness our respective hands and seals this 25th day of February, 1886. “ Horace Secor, Jr. [Seal.
    “ C. B. Page. "Seal."
    “ George W. Berger,
    “ Per Horace Secor, Jr., [Seal.]

      “ Agent.”
    The annexed agreement there referred to, was the said agreement between Fithian and the New England Company.
    The following is the opinion of the court below, on dismissing the complaint.
    “Freedmar, J.—The evidence given at the trial establishes no such subduement by Lemuel B. Clark of the will of the plaintiffs, at the time of the execution of the assignment, as is necessary to constitute duress. It establishes neither fraud nor a trust relation. The seal to the assignment is presumptive evidence of consideration, deliberation and intent on the part of these plaint: iffs, and the presumption has not been removed by evidence.
    “ The defendant is entitled to judgment dismissing the complaint with costs.”

      John T. Cornell and Horace Secor, Jr., for appellants.

      George W. Cotterill, for respondent.
   By the Court.—O’Gorman, J. (after stating the facts as above)

The retention by Clark of the $1,500, from the amount of $10,000, to which Secor was clearly entitled, was not warranted by any principle of law or equity, or by any consideration disclosed by the evidence. The whole sum of $10,000, when it reached the possession of Clark, was, under the terms of the agreement between Fithian and Secor, the property of Secor, to the possession of which he was entitled, even before the right of Fithian to the payment of his claim on the New England Iron Co. accrued.

The assignment made by Secor to Clark, was not to Clark as executor of Fithian, but to him individually, and he had no right or title to demand such assignment. His retention of this $1,500 was wholly indefensible.

It cannot be claimed that it was agreed to, as part of a settlement of a disputed claim to that money, and it can only be sustained on the theory that it was a gift by Secor, to Clark. The relations of Secor to Clark, however, were such as would render a gift by Secor to Clark inadmissible.

When Clark received $10,000, the property of Secor, being part of the larger amount of $25,000, he held that $10,000, in a fiduciary capacity, until paid over by him to Secor, and a gift, in such a case, could not be sustained in equity, but would have been a constructive fraud. Story’s Équity Jurisprudence, §§ 307, 321, 322 and 323.

The motives which led Secor to consent to this deduction from the amount, wdiich he was entitled to receive, are thus stated by him in evidence: “ I signed the assignment because I believed that Clark would use every device to prevent or delay the collection of the money; also because I believed it would take some time to recover a judgment against him for the money, and that after the recovery of a judgment I feared our ability to collect it, and I thought the amount was too large to hazard its remaining with him pending a suit for its Collection; and therefore' I unwillingly signed the assignment.”

From this it appears that Secor was not a willing party to the acquisition by Clark of this $1,500, but, on the contrary, that his will was subdued by fear of the possible loss of the whole amount, unless he accepted the terms imposed on him by Clark. The parties were clearly not on equal terms, and, as the evidence now stands, it must be presumed that an unfair advantage was taken against the plaintiff, Secor, of the position of comparative dependence in which he was placed.

In the case of Fisher v. Bishop, 108 N. Y. 25, the rule of equity in cases of this kind is clearly stated. The opinion of Lord Cranworth is there cited and is as follows: “ There is no branch of the jurisdiction of the court of chancery, which it is more ready to exercise, than that which protects infants and persons in a situation of dependence, as it were, upon others, from being imposed upon by those upon whom they are so dependent. The familiar cases of the influence of a parent over his child, of a guardian over his ward, of an attorney over his client, are best instances.” And Lord Eldon is also cited as holding that to be “ the great rule applying to trustees, attorneys, or any one else.” Ch. J. Rugee in the same case says: “ It will be seen that the rule is not limited to cases of attorney and client, guardian and ward, trustee or cestui que trust, or other similar relations, but it holds good wherever fiduciary relations exist, and there has been a confidence reposed which invests the person with an advantage in treating with the person so confiding. When this relation is shown to exist, it imposes the burden of proof upon the person taking securities, or making contracts enuring to his benefit, to show that the transaction is just and fair, and that he has derived no unfair advantage from his fiduciary relation.”.....“ The doctrine of equity0concerning undue influence is very broad. It reaches every case and grants relief, where influence is acquired and abused, or where confidence is reposed and betrayed.” Ib.

One who occupies a position of trust towards another, should, in good faith and common honesty, be precluded from taking advantage of his situation and using the information therein acquired to the detriment or disadvantage of his employer.

In my opinion, the facts of the case at bar sufficiently show that Clark held toward Secor a fiduciary relation, and a position so controlling and so suggestive of danger to Secor, that the burden was cast upon Clark of showing that the transaction on his part was consistent with perfect good faith, and involved no unfair advantage as against Secor, and no influence tending to disturb his judgment, or force upon him a concession which otherwise he never would have made.

There is no good reason, and no real consideration for the retention by Clark of any part of this $10,000, which was the property of Secor. In the absence of all proof that he was justified in withholding it, it seems to be the clear duty of a court of equity to interpose its protection against so manifest a wrong. Story’s Equity Jurisprudence, page 311, notes, and page 321.

In fine, I have arrived at the conclusion, which I believe to be in harmony with the authorities above cited and with the principles of equity, that Clark, when the $25,000 were paid by the New England Company to him, held $10,000 thereof, as the money of Secor, and for his benefit, and was bound to pay over the same to him in full on demand; that Clark held the said sum of $10,000, in a fiduciary capacity, and any agreement, gift, or concession, or assent, on the part of Secor, to the retention by Clark of any part of the said money is open to the examination and criticism of a court of equity; and such agreement, gift, concession, or assent should not be held valid and binding on Secor, unless Clark proved affirmatively that he had acted in good faith in the transaction and that he rendered sufficient consideration therefor; that there is sufficient evidence in this case, as it now stands, that Secor in signing the assignment of his claim for $10,000 to Clark for $8,500, was induced by the fact that Clark held towards him in the transaction, an attitude of superior and oppressive power, by reason of which his free will was controlled to his injury and loss, and that the assignment, so far as it contained an assent to the retention by Clark of $1,500 out of the $10,000, was of no binding force or effect on Secor; that the evidence does not disclose that any actual consideration was given by Clark for any such gift, agreement, or assent on the part of Secor.

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

Sedgwick, Ch. J., concurred.


text:
    GEORGE FILBERT, Respondent v. THE PRESIDENT, &c., OF THE DELAWARE & HUDSON CANAL CO., Appellants.

      Personal injuries sustained through negligence, Damages for same.

    The work assigned by defendants to plaintiff, was the uncoupling of cars while they were slowly moving upon the rails. At the time the injury was sustained, he was proceeding to uncouple cars, in such manner as he had been previously instructed. He stepped with his left foot upon the track, raising his left arm to uncouple the cars. His left foot fell into a hole between the rails, which caused his body to fall until his left arm was caught between the bumpers of the cars, and as thus caught, he moved or was moved some distance beyond this hole, while the cars were moving, and the injury was sustained, resulting in the loss of the arm of plaintiff.
    The negligence of defendants in the premises was predicated and claimed on the ground, that it was their duty to keep the place where the hole was, in such state and condition that the plaintiff in the course of the work and duty assigned to him, would not fall therein.

      Held, that it was the duty of the defendants to have a covering over the hole or pit, that would protect the servant who was working above the same. At the least it was for the jury to say whether the defendants had used due diligence in respect of their duty to provide a safe cover or covering over this hole or pit. It was not a risk of the plaintiff’s employment, which he took upon himself when he chose to enter the employment of the defendants. The plaintiff had no reason to believe that the track was not safe at all times when he was called to step upon it in the performance of his work, or that there was any risk or danger to him in doing so. Whether the plaintiff was guilty of contributory negligence, was a question for the determination of the jury.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided October 25, 1888.
    Appeal from judgment fof $5,367.07 entered upon the verdict of a jury, for the plaintiff, and from an order denying a motion for a new.trial.
    The facts appear in the opinion.
    . Edwin Young, attorney, and Matthew Hale and Frank E. Smith of counsel for appellants, argued:—
    I. No negligence on the part of defendant, causing or contributing to plaintiff’s injury, was proved; if there was any such negligence, other than that of plaintiff, it was that of his fellow-servants for which the defendant is not liable. 1. The general rule, established by a vast number of decisions, that a master is not liable to his servants for the injuries occasioned by the negligence or want of care of fellow-servants, who have not been negligently appointed or retained in the service, will not be questioned. Wright v. N. Y. C. R. Co., 25 N. Y. 562; Malone v. Hathaway, 64 Ib. 5, 8. 2. Nor do we question the qualification oí this rule that where the master fails to furnish proper, perfect and adequate machinery or other materials and appliances necessary for the proposed work, or neglects to employ skillful and competent fellow-servants or tó use due and reasonable care to that end, he is liable to a servant for an injury occasioned by such neglect. Laning v. N. Y. C. R. Co., 49 N. Y 521; Flike v. B. & A. R. Co., 53 Ib. 549. This qualification is well stated by the late Judge Allen in the following language: “ When the middleman or superior servant employes and discharges the subalterns, and the principal withdraws from the management of the business, or the business is of such a nature that it is necessarily committed to agents, as in the case of corporations, the principal is liable for the neglects and omissions of duty of the one charged with the selection of other servants in employing and selecting such servants and in the general conduct of the business committed to his care. This is the extent and effect of the decision in Laning v. New York Central Railroad Co., 49 N. Y. 521, which I think has been greatly misapprehended. It was not intended in that case to disturb the general rule of law, limiting the liability of masters to their servants for injuries received while in their service, or to enunciate any new proposition......Flike v. Boston and Albany Railroad Company, 53 N. Y. 549, was decided upon the same general principle that the “head conductor,” whose duty it was to make up the morning trains and employ and station the brakeman, was pro hao vice the general agent and representative of the corporation for whose acts and neglects the latter was responsible, and that his neglect to furnish bralcemen sufficient in number and capacity for the service, was the neglect of the defendant to perform a duty which the law cast upon it. The dissents in that case as well as that in Laning’s Case were not to the principle, but to the application of it to the facts and circumstances of those cases and the position of the employees for whose faults the employer was charged.” Malone v. Hathaway, 64 N. Y. 5, 9, 10, 11. 3. The learned judge below was correct in holding that the question involved did not depend on the question “whether the co-servant ivas an overseer or a high director of the work being done; the question is as to the nature of the work itself; if it were work that the defendant should have done and were responsible for doing, then the act of this servant, whether he be high or low, was the act of the defendant himself.” This was substantially the doctrine which has been repeatedly laid down by the court of appeals. In Crispin v. Babbitt, 81 N. Y. 516, the law is laid down as follows:
    “The liability of a master for an injury to an employee, occasioned by the negligence of another employee, does not depend on the grade or rank of the latter, but upon the character of the act, in the performance of which the injury arises.
    “If the act is one pertaining to the duty the master owes to his servants, he is responsible to them for the manner of its performance; but if the act is one pertaining only to the duty of an operative, the employee performing it, whatever his rank or title, is a mere servant and the master is not liable to a fellow-servant for its improper performance.” See, also, McCosker v. L. I. R Co., 84 N. Y. 77; Slater v. Jewett, 85 Ib. 61; Brick v. Rochester, etc., R. R. Co., 98 Ib. 211; Neubauer v. N. Y., L. E. and W. R. R. Co., 101 Ib. 608.; Loughlin v. State of N. Y., 105 Ib. 159. 4. The facts in this case, assuming the truth of the testimony of the plaintiff and his one witness (although overwhelmingly contradicted, as will be seen, not only by the testimony of the numerous witnesses called by defendant but by facts as to which there can be no dispute), show that the case comes plainly within the principle exempting the master from liability.

      Baldwin & BlacJcmar, attorneys, and Abel JE. Blaelemar of counsel for respondent, argued:—
    I. That there was evidence of the defendant’s negligence.
    Upon the facts in the case there can be no doubt of the liability of the defendant, unless there is something in the relation of master and servant, existing between the defendant and plaintiff, which operates to relieve the defendant from liability. We understand that the defendant claims that the rule exempting a master from liability to one servant for the negligent acts of a fellow-servant- in the course of the same general employment, operates to relieve the defendant from liability in the case. This rule originated in Priestly v. Fowler, 4 M. & W., was amplified and applied in Farwell v. The Boston & A. R. R. Co., 4 Met. 49, and was adopted in this state in Coon v. R. R. Co., 1 Seld. 492. It was held to be a branch of the rule that a servant assumes all the ordinary risks of his business. Sherman v. R. R. Co., 17 N. Y. 153. Soon after the introduction of this rule into law, an exception, or rather, a collateral law was introduced. This was that the servant did not assume the risk of injuries from negligence in the performance of the master’s duty, no matter to whom the performance of such duty was delegated; and that it was the duty of the.master to “exercise care and prudence, that those in his employment be not exposed to unreasonable risks and dangers.” Keegan v. R. R. Co., 8 N. Y. 175; Ryan v. Fowler, 24 Ib. 410; Flike v. B. & A. R. R. Co., 53 Ib. 549; Kirkpatrick v. R. R. Co., 79 Ib. 240; Fuller v. Jewett, 80 Ib. 46; Pantzar v. Tilley F. Co., 99 Ib. 368; Benzing v. Steinway, 101 Ib. 547.
    II. The true test of defendant’s liability is whether or not there is any default in any duty which the master owes the servant, and we are not to look to the authority with which the particular person who is guilty of the negligent act is clothed, but only to the respect wherein he has been negligent. Crispin v. Babbitt, 81 N. Y. 516. And if there is negligence in the performance of the master’s duty, the master is not released from liability because the negligence of a fellow-servant concurred with the master in bringing about the injury. Ellis v. N. Y., L. E. & R. R. Co., 95 N. Y. 546; Flike v. R. R. Co., 53 Ib. 549; Cone v. R. R. Co. 81 Ib. 207. It is the master’s duty to keep the premises on which the work is done in a safe condition, or, to put it in another way, to afford the servant a reasonably safe place to do his work. Ryan v. Fowler, 25 N. Y. 410 ; Plank v. R. R. Co., 60 Ib. 607; Deforest v. Jewett, 88 Ib. 264; Pantzar v. T. F. Co., 99 Ib. 368; Benzing v. Steinway, 101 Ib. 547. And also to warn the servant of any element of danger beyond the ordinary risks of the business, which the master knew or should have known of. Davies v. England, 10 Jur. (N. S.) 1235; Baxter v. Roberts, 44 Cal. 187; Homer v. Everett, 91 N. Y. 641; Stark v. McLaren, 10 N. Sess. (Sc.) 3, Series 31. In short, to use due care and prudence to prevent injury to servants. Noyes v. Smith, 28 Vt. 59. It is evident that the rule that a master is not liable to a servant for the negligence of a fellow-servant in the ordinary course of his employment, and that a master is liable for his neglect in furnishing the servant safe facilities for doing business, are but branches of the same general rule, viz.: That the servant assumes all the ordinary risks of his business, but not such risks as the master by the use of ordinary care can shield him from. Abel v. Del. & Hud. Canal Co., 103 N. Y. 581. The master’s duty is co-extensive with his ability to perform it. No amount of care on the part of a master can protect a servant from the results of the negligence of fellow-servants. This the servant knows as well as the master, and therefore in entering the service he assumes this risk which is inseparable from it. On the other hand, a sufficient amount of care on the part of the master may keep the premises on which the servant does his work in a reasonably safe condition.' This is accomplished by proper inspection and supervision, which is the peculiar province of the master, therefore the servant does not assume this risk.
   By the Court.—Sedgwick, Ch. J.

The work assigned by the defendants to the plaintiff to be done for them, was uncoupling cars while they were slowly moving upon the rails. At the time of the occurrence, in question, he was proceeding to uncouple in a manner in which he has been previously instructed. He stepped with his left foot upon the track, raising his left arm to uncouple the cars. His left foot fell into a hole between the rails, which .caused his body to fall until his left arm was caught between the bumpers of the cars, and as thus caught he moved some distance beyond the hole, while the cars were moving.

The negligence of defendants is predicated on their omission of duty to keep the place where the hole was, in such a state that the plaintiff, in the course of the work given to him, would not fall in it. The hole, as it was called, was at some part of the top of a regularly made pit, in which a wheel and ropes attached to it were placed, to manage cars upon the track above. In the usual condition of affairs, a set of planks completely covered the hole, so that it was entirely safe to workmen walking over it. These planks were taken up occasionally, only and for specific purposes connected with repairing the wheel and ropes. In such instances they were pried up by a crow-bar or a like tool, and afterwards replaced. On the day before the accident the planks had been removed, and it may be assumed had been replaced, with the exception of two, which had been injured in their removal, and in their stead two others were used. The plaintiff knew of the uncovering, but the jury were not bound to find that he knew of the manner of the re-covering or that there was any imperfection in it.

Upon the record of plaintiff’s testimony here, it was competent for the jury to find that he did not mean to testify that the pit was entirely uncovered, and that the hole that his foot fell in was the uncovered pit. They might find that the hole he meant, was an imperfection in the covering, made by a short plank or one that was loose. And here it may be said that the testimony of the numerous witnesses for the defense, who said that the hole was covered, or was not uncovered, did not oblige the jury to find that their evidence was conclusive—that there was no imperfection in the covering in which the plaintiff’s foot might have fallen.

I know that the complaint charges that the hole was open and uncovered, and those words were used through the trial, yet the actual issue referred to a space over the pit where the plaintiff’s foot might have fallen, and where he testified it did fall.

I am of opinion that it was the duty of the master, that is the defendants, to have a covering that would protect the* servant in working above the pit. Evidently the method of covering was not of a kind, like a trapdoor of a single piece, that a single motion may lift and return. These were single planks, unconnected with each other, and when they were taken off no cover existed, and the duty of the master returned to the point where it was in the first place, that is, to make the pit safe for the workmen. At the least, it was for the jury to say whether the defendants had used due diligence in respect of their duty to provide a safe cover or covering.

It was not a risk of the plaintiff’s employment which he took if he chose to enter the employment. In Muller v. McKesson, 73 N. Y. 204, a case where a servant was injured on the premises, where he was employed, by a savage dog kept by the master, the court said: What were the risks of his employment here as it respects the dog ? He was informed, it is true, of the nature of the animal, but he was also told that the dog would be kept fastened, and the uniform habit was to notify him when the dog was loose. . . . The most that can be said is that he assumed the risks consequent upon the keeping of a ferocious dog, which was kept fastened except when he was otherwise notified. Beyond this the plaintiff is entitled to the same protection as other persons.” The plaintiff had no reason to believe that the track was not safe at all times when he was called to work upon it, or that there was any risk.

Whether the plaintiff was guilty of contributory negligence was for the jury to determine.

I see no exception which calls for a reversal of the judgment.

Judgment and order affirmed with costs.

Freedman and Tritax, JJ.,concurred.