author: By the Court.—Sedgwick Ch. J.

text:
    EAST RIVER ELECTRIC LIGHT COMPANY, Appellant v. HUGH J. GRANT, as Mayor, etc., et al., Respondents.

      Board of electrical control, powers of—Termit to string wires on poles is a mere license reiocable at anytime and subject to the rules and regulations of the Board.

    The hoard of electrical control authorized plaintiff to string four wires on existing poles in Sixth avenue, from ISth street to Carmine street, in September, 18S8. At the time this permit was granted the Metropolitan Telephone and Telegraph Company and the Western Union Telegraph Company owned certain poles in Sixth avenue, and under some agreement with those companies the plaintiff placed their four wires on such poles. Subsequently, the latter companies, having no further use for these poles, abandoned them, and the board of electrical control revoked plaintiff’s permit to use the poles for its wires, and directed the defendants, Gilroy, commissioner of public work’s and Cummings, superintendent of the bureau of incumbrances, to remove the poles and the wires. Plaintiff commenced an action and sought and obtained a temporary injunction restraining the defendants from, removing the poles or wires, which was subsequently vacated by the court, and the motion of plaintiff to continue the same denied.

      Meld, that the permit granted was a mere license, revocable at any time by the board that granted it, and was subject to its rules and regulations, and the board having power to direct the removal of the wires and poles, and so directing such removal, the plaintiff had no right to insist that they should remain. That the plaintiff did not show a right to equitable and discretionary relief by injunction. That the permit necessarily referred to the poles as then rightfully there, and it was not implied thereby that the permit should continue to operate after the poles ceased to be rightfully in the street, as was the case.
    Before Sedgwick, Ch., Truax and Durgo, JJ.

      Decided March 4, 1890.
    Appeal by plaintiff from order denying motion for continuance of temporary injunction, and vacating the same.
    The following opinion was delivered by the court at special term:
    “ Ingraham, J.—By the permit of September 7, 1888, the board of electrical control authorized the plaintiff to string four wires on existing poles in Sixth avenue from 18th street to Carmine street. At the time the permit was granted the Metropolitan Tel. Company and ¡the Western Union Telegraph Company owned certain poles in Sixth avenue, and under some agreement with these companies the plaintiff placed the four wires on such poles.
    “ The power of the Board of Electrical Control to grant such permit, and the effect of such permit, when granted, depend upon the provisions of chap. 499 of the Laws of 1885, and chap. 716 Laws 1887. By the latter act all the powers and duties conferred or imposed by the Act of 1885 upon the commissioners appointed thereunder and all the powers and duties imposed upon the local authorities of the city or any of them in respect to, or affecting the placing, erecting, construction, suspension, maintenance, use, regulation or control of electrical conductors or conduits, or subways for electrical conductors in said city were transferred to, conferred and imposed upon and were thereafter to be exclusively exercised and performed by said Board of Electrical Control. This provision gave to the board all the power in regard to the electrical conductors in the public streets which before that Act had been exercised by any officer or department of the municipal corporation or by the commissioners appointed by the Act of 1885.
    “ There is nothing in the Act in question that would limit the power of the board to revoke a permit, or authorize the court to substitute its discretion as to the continuance of electrical conductors erected by permission of the board, nor does the fact that the board gave to a corporation permission to string its wires upon certain existing poles, amount to a guarantee that the poles shall always exist, or that-the board will keep the poles in the position in which they were at the time the permit was given. It is apparent that such a permit was to continue only so long as the poles should continue in the streets ; and when the poles as erected became unnecessary for the use for which they were originally or primarily intended, it is clear that the corporation could not compel the board or the owner of the poles to maintain them in the position in which they were at the time the permit was given. The permit was a mere license revocable at any time by the board that granted it, and when, in consequence of the removal of the wires of the companies that owned the poles, they became no longer necessary for the use to which they were primarily put, in the absence of an express contract, neither the board nor the city were bound to maintain the poles, nor see to it that . they were not removed.

      “ This is just what happened. It is clear that as , between plaintiff and the Telephone company, plaintiff could not compel the Telephone company to maintain these poles for the purpose of maintaining plaintiff’s wires. The Telephone company having no further use for the poles, have abandoned them, and the board has revoked plaintiff’s permit to use the poles for its wires, and I can see no ground upon which plaintiff can claim that either the Telephone company, or the Board of Electrical Control, is bound to keep the poles in position, so that the' plaintiff can use them.
    ‘1 The ordinance of the common council under which the plaintiff is acting, is expressly subject to the power of the electric commissioners. Upon that board, are conferred all the powers before conferred upon the local authorities. The permit under.which the plaintiff acted was subject to the rules and regulations of the board, and I think it is clear that the board, having power to say when the existing poles shall be removed, directed such removal, the plaintiff had no right to insist that the poles shall remain.
    “Motion to continue the injunction denied, and temporary injunction dissolved with $10 costs.”

      William H. Kelly and Michael J. Kelly, attorneys and of counsel, for appellant, argued:—
    I. The defendants are not state officers, and therefore are not protected against this injunction by section 605 of the Code of Civil Procedure. This objection was raised in several other cases ; but only in the case of the New York Electric Lines Company v. Crimmins, 3 Ann. Rept. Board Electrical Control, p. 85—and after a very elaborate argument in favor of the objection by Mr. Gibbens, the then counsel of the board, covering every phase of the question, was the point directly decided in the following opinion by Judge Freedman :—“ As to the preliminary objection which has been raised, I am of the opinion that section 605 of the Code of Civil Procedure does not protect the electric-subway commissioners against any injunctions which may be issued by this court in a proper case.” Judge O’Gorman, in the opinion in McGinness v. The Board of Commissioners of Electrical Subways—Ib., p. 94—does not hold the contrary, as appears from the following extract:—“The question whether the members of the Board of Electrical Control, created under the Subway Act of 1887,’ are officers or agents of the city or of the State of New York,” etc., “ are subjects entitled to careful consideration at the proper time, when the issues of fact and law raised in this case come to be finally determined.” Attorney-General O’Brien, in an opinion dated October 11, 1886, in reply to the request of the subway commissioners that he act as their attorney, says : “It is by no means clear to me that it is my duty to act as attorney for your commission. While the cases cited by you would appear upon a casual reading to hold by analogy that the commissioners were state officers, still I think there is a difference between the duties and authority of the officers referred to in those cases, and the electrical subway commissioners, who do not perform the duties of an administrative branch of the • state government, whose duties are local, the office itself existing only for a short time and the benefits resulting therefrom confined strictly to the people of certain prescribed localities.” In this case defendants appear by corporation counsel. It is further submitted that whatever doubt, if any there was, existed on this question under Act of 1885 (Chap. 499) which was a general act applying to all cities in the state, that doubt is entirely removed by the Act of 1887 (Chap. 716) which, as its title shows, is a special local act relating to the city of New York, and provides only for that city; and in it the commission is described and constituted the “ Board of Electrical Control in and for the city of New York.” The method of appointment has no bearing upon this point, and does not change the local character of the office or officer. Ryan v. Civil Service Comm., 17 Abb. N. C. 64 ; Bailey v. Mayor, 3 Hill. 539. This case is even stronger than above, as original commissioners of electrical control were appointed by mayor, comptroller and commissioners of public works. § 605 C. C. P. can be invoked only in cases which are practically suits against the state. Doody v. Fritscher, 24 Week. Dig. 474 ; S. C., G. T. 3d Dept.

    II. The plaintiff’s electrical conductors, Sixth avenue south of Fourteenth street, have never become unlawful, and therefore cannot be removed. § 5, Chap. 716, Laws of 1887, prescribes in order to make electrical conductors unlawful and subject to removal, it must be “ the opinion of the board heretofore constituted, that in any street or locality of said city, a sufficient construction of conduits or subways underground, shall have been made ready under the provisions of this act, reference being had to the general direction and vicinity of the electrical conductors then in use overhead.” It is admitted in defendants’ answer at end of subdivisions 3 and 5 of paragraph “ First,” that there was and is no subway or underground conduit in Sixth avenue below Fourteenth street, suitable for electric light wires or conductors. The last linqs of subdivision 3 of paragraph 1 of answer, reads : “But they aver that there were subways and underground conduits for telegraph and telephone wires, but none suitable for electric lighting wires or conpuctors.” And the first lines of the third and last paragraph of the answer: “Further answering the said complaint, the defendants allege that the board of electrical control are now, and have at all times been, ready and willing to entertain an application by the plaintiff for a permit to string wires upon poles of reasonable size, suitable for the business of electric lighting, etc., etc.” ■ Here are two confessions that other facilities are needed, and that suitable facilities do not exist, either underground or overhead, if these electrical conductors be interfered with or cut' down. The answer, affidavit of Smith, complaint, permit, affidavit of Moore, affidavit of Kelly, and the bills,. checks and receipts, show that the wires are lawfully .on those poles. The case of the People v. Met. Telegraph and Tel. Co., 11 Abb. N. C. 304, can have no bearing, as that was a suit on behalf of the people to enjoin the maintenance of a nuisance, and the charge of the learned justice can have no bearing upon this ease, as the plaintiff makes no objection and does not deny defendant’s right to cut the poles in question down to a proper standard, but only denies their right to destroy its property under a false pretense of doing their duty and before they have complied with the statute by having subways prepared and giving proper notice. The poles were on Sixth avenue when the plaintiff’s wires were put on them, and it is not claimed that they were nuisances. The wires were put on them with defendants’ permission, and as long as those poles, or any portion of them, are or is necessary to support these wires, and until they become unnecessary for such purpose, they are not nuisances. No mere whim or opinion of the board of electrical control can make them nuisances, or liable to removal until the law has been complied with. Under the Act of 1879, chap. 512, as amended by the Act of 1882, chap. 73, the plaintiff was entitled to maintain its wires or electrical conductors upon complying with the law. The law was complied with by obtaining, for good and valuable consideration, a franchise from the common council and permission of the board of electrical control, and the rule printed on the back states that the permits are good till subways are provided. This made a full compliance with the law, and until the law which takes away its rights is complied with by defendants, no power short of an amendment to the constitution can divest it of those rights. The property rights of the plaintiff in these electrical conductors is not to be dealt with lightly. This company’s capital of $1,000,000, and its bonds amounting to $300,000 are invested largely in these electrical conductors which the law recognizes and the decisions hold to be property. American Union Telegraph Company v. Middleton, 80 N. Y. 408 ; N. Y. O. & W. R. R. Company v. Telegraph Company, 36 Hun, 205. The franchise to operate these electrical conductors is a thing of value and' is property. It was obtained from the mayor, aldermen and commonalty of the city of New York for a valuable consideration, to 'wit, one arc light to be furnished the city gratis for every fifty lights furnished private consumers. Concerning city franchises, in The People v. O’Brien, 111 N. Y. 41, Chief Justice Roger says : “It is, however, earnestly contended for the state that such a franchise is a mere license of privilege enjoyable duing the life of the grantee only, and revokable at the will of the state. We believe this proposition to be not only repugnant to justice and reason but contrary to the uniform course of authority in this country. The laws of this state have made such interests taxable, inheritable, alienable, subject to levy and sale under execution to condemnation under the exercise of the right of eminent domain, and invested with all the attributes of property generally.” •“ The contention that securities, representing a large portion of the world’s wealth are beyond the protection of the constitution, and are subject to the arbitrary will of successive legislatures to sanction or destroy at their pleasure or discretion, is a proposition repugnant to reason and justice as wéll as to the traditions of the Anglo - " Saxon race.” If the people represented in the legislature cannot destroy this property, a fortiori, a mere creature of the legislature created for local purposes cannot.
    III. The board of electrical control had no authority to revoke plaintiff’s permit without reason or reasonable notice. U. S. Ill. Co. v. Grant, 3 Ann. Rep., Com. El. Cont., pp. 135, 136, 142 and 144. (Opinion of Andrews, J.) The order in above case was reversed but upon the sole ground that the dangerous uninsulated wires were ipso facto a nuisance and therefore an incumbrance and the commissioner of public works in cutting the wires acted without regard to the board of electrical control. In all other particulars, the opinion of Judge Andrews was coincided with. Ib. pp. 151, 157, 160, 161, 162, (end), 163, 164, 165. The license of the board “ having been acted upon and something done by the license in consideration thereof, it has become invested with the qualities of a contract.” U. S. Ill. Co. v. Grant, etc., supra, p. 160, 161, (Opinion of Barrett, J.) ; Peo. v. O’Brien, supra.

    IV. The plaintiff has a right in and to part of the poles which support the electrical conductors. Not only do we contend that the bureau of incumbrance can not cut down the poles, if .by so doing the electrical conductors of the plaintiff are cut down ; but we offer incontestable evidence of plaintiff’s right to these poles. The defendants by giving permission to plaintiff to put its wires or electrical conductors on those poles, sanctioned their existence ; and as the greater always includes the less, and a grant or permission always includes that without which the grant or permission would be useless, so the right to string wires includes the necessary support for such wires, and as the cutting down of such poles cannot be unaccompanied by the destruction of the electrical conductors or wires any more than the taking away of a building foundation can be unac-' companied by its total collapse, so the poles cannot be cut down. Qui concedit aliquid, conceders videtur et id, sine quo concessio est irrita, sine quo res ipsa esse non protest. This is the law laid down by Lord Coke and followed by all courts from his time to the present.
    V. No possible injury could come to defendants by a retention of the injunction pendente lite, while its denial would work irreparable injury, not only to plaintiff, but to the public. In such a case the injunction should be granted, and that even where the equities may be fully' denied. Bank of Monroe v. Schermerhorn, Clark's Ch., 305 (end) ; Hammond v. Hammond, Ib. 151; Anderson v. Roberts, 2 John. Ch. 205 ; New v. Bane, 10 Paine, 502 ; Mead v. Richards, 4 Edw. Ch. 657 ; Carpenter v. Danford, 18 Abb. 227 ; N. Y. Jockey Club case, N. Y. Law Journal, Aug. 22, 1889.

      William H. Clark, counsel to the corporation, and David J. Dean of counsel, for respondents, argued :—
    I. The defendants are state officers, and this court has no jurisdiction to grant or to continue the injunction. § 605 of the Code of Civil Procedure requires that an application for an injunction restraining a state officer or board of state officers or person employed by him or them, from the performance of a duty imposed by statute must be made to the supreme court at a general term thereof. First— So far as the board of electrical control is concerned, there can be no question but that it is protected by the restrictions of the section. Without' reviewing the legislation touching the board of commissioners of electrical subways, it is sufficient to say that by chapter 716 of the Laws of 1887, the then members of said board were, with the mayor of the city, constituted a board of electrical control in and for the city of New York. The members of said board, therefore, held their office, not by virtue of appointment by any city officer or municipal ordinance, but under an act of the legislature of the state. The commissioners can be removed only by the governor of the state, who has power to fill all vacancies (see § 6, chapter 499, Laws of 1885, and § 1, chapter 716, Laws of 1887. They receive payment from the state comptroller (see § 7, chapter 503 of the Laws of 1886, and § 1, chapter 716, Laws 1887). The following authorities support the proposition: Maximilian v. Mayor, 62 N. Y. 160. In which case it was held that the commissioners of public charities and corrections of the city of New York, although appointed by the comptroller of the city, were officers of the state government and not of the city. Tone v. Mayor, 70 N. Y. 157. The case last cited followed the Maximilian case, and held that the comptroller, counsel to the corporation and recorder, who constituted the'board of revision and correction in the city of New York, were state officers. Heiser v. Mayor, 104 N. Y. 68. Which case holds that a board of assessors engaged in the improvement of Eighth avenue, in. the city of New York, was a board of state officers and not of city officers. In the case of McGinness against the present defendant, the board of electrical control, at a special term of this court, Judge O’Gorman declined to pass directly upon the question under consideration, as it was unnecessary in the determination of the matter then before the court, viz., the alleged unconstitutionality of the Act of 1887 ; but his opinion upon the point is clearly shown in these words : “It seems,to me that the intention of the Subway Act of 1887 was to create a board of commissioners representing the state and its authority for the purpose of regulating the use of the public streets of the city by apparatus necessary for the most convenient and advantageous conducting and diffusing of electrical power and light. That the right to do so exists in the state, through its legislature, seems to be beyond question.” Superior Court, MSS., September 24, 1887. Second—The defendants other than the members of the board of Electrical Control, in the performance of the work complained of, were also state officers or agents, and thus also within the provisions of § 605 of the Code. § 3 of chap. 716 of the Laws of 1887, creating the board of Electrical Control, declares, “This provision is made a police regulation in and for the city of New York, and in case the several owners of such wires, and the owners of such poles, fixtures or devices shall not cause them to be removed from such street or locality as required by such notice, it shall be the duty of the commissioner of public works of said city to cause the same to be removed forthwith by the bureau of incumbrances upon a written order of the mayor of said city to that effect.” This application is to restrain the officers above-named from the performance of the duty imposed by the statute quoted. In the performance of that duty they were obeying the command of the legislature, and were, pro hac vice, officers of the state and not of the city. The following authorities fully support this proposition : In Russell v. Mayor, 2 Den. 461. The facts are very similar to those of the present case. By an act of the legislature the mayor or recorder, with the consent of any two aldermen, were authorized to order any building which should be on fire, or which they might deem hazardous or likely to take fire, or to convey the fire to other buildings, to be pulled down or destroyed. Acting under the authority so conferred the officers named directed the destruction of a building containing a stock of goods owned by the plaintiff, to recover damages for which an action was brought against the city. It was held that the power conferred was a police regulation, and that the mayor and the other officers named were acting, not as officers of the city, but as officers of the state in the performance of an act. authorized by statute. Senator Porter fully considers the question and the authorities and reaches the following conclusion : “ I have therefore come to the conclusion, that the act of the mayor and two aldermen, in blowing up the store in question, was not the act of the defendants, nor one for which they are responsible, but that it was done by officers created by the law of the state, who are not amenable to the common council for their acts in the premises.” The court spoke with approval of the opinion of Mr. Justice Oaklet when the case was at the special term of this court, which opinion is also followed by the general term of this court, and upon this point was as follows : (See case above cited page 465.) “ The law, under which the mayor and two aldermen acted, does not make them the agents of the corporation; for it is clear that it invests them with power to act in the premises according to their own discretion, and against even the express prohibition of the defendants. * * * In truth, I consider the act as intended to create an agency, independent of the corporation, for the purpose of preventing the extension of fires. The corporation, as such, is not connected with it any more than it would have been if the law had designated three members of the chamber of commerce to perform the duties assigned to the mayor and the two aldermen. The corporation is not responsible for their acts any further than the law has made them so.” The general term, after quoting as above, states, “ this covers the whole ground.” To the same effect are the following, most of which have been, already cited : Maximilian v. Mayor (supra) ; Tone v. Mayor (supra) ; Hiser v. Mayor (supra) ; Lloyd v. Mayor, 5 N. Y. 374. It will be noted that in all the cases cited the controlling feature is that the grant of power is made not to the municipality so that the act is a corporate act, but to certain designated officers who thereby, for the purpose named, become agents of the state. The case of People ex rel. Ryan v. Civil Service, etc., of New York, 17 Abb. N. C. 64, is to be distinguished from the present case. In that case it was held that the aqueduct commissioners appointed by chapter 490 of the Laws of 1883, were city and not state officers. The question at issue was whether the employees of the board should be examined by the Civil Service board of the city or of the state. The opinion was given at special term by Mr. Justice Lawrence, and was largely based upon the terms of the act appointing the aqueduct commissioners, which he fully reviews, and holds that it was the intent of the legislature to make the work of building the aqueduct a corporate work of the city of New York, and the commissioners agents of the city. An examination of the exhaustive analysis of that act, as made by Mr. Justice Lawrence, will show that the provisions therein which led to his conclusion are not found in the act under which these defendants are doing the work complained of. The decision in the case cited was largely controlled by the judgment of the Court of Appeals in the case of Bailey v. The Mayor, 2 Den. 433, in which it was held that the commissioners of the old Croton aqueduct were city officers. That case, as reported in 2 Den., is immediately followed by the case of Russell v. The Mayor, (supra), decided by the same court at the same time, and Senator Porter, who delivered the opinion in the latter case, above quoted from, in the former case voted in favor of the proposition that the aqueduct commissioners were city-officers. It must be admitted that the facts of the present case are more nearly analogous to those of Russell v. The Mayor than to those of Bailey v. The Mayor or of the Ryan Case.
    II. The plaintiff shows no rights in respect of the poles in question. The argument of the learned counsel for the plaintiff is based upon the assumption that the plaintiff has a lease from, or contract with, the owners of the poles, giving to the plaintiff a right to the use thereof. An examination of the complaint and affidavit upon which this application is made discloses no such fact. The only allegation which even remotely touches the question is found in paragraph VII. of the complaint, in which the plaintiff says that the defendants have commenced to cut down the plaintiff’s wires, and the poles upon which the same are placed, “ notwithstanding the fact that said wires are lawfully upon said poles.” This allegation is but the statement of a conclusion, and is not sufficient to put in issue the right of the plaintiff to the use of the poles, especially in view of the fact that the plaintiff, while repeatedly alleging ownership of the wires, is careful not to allege ownership of the poles, or any facts showing a right to the use of the poles, except the conclusion above quoted that the wires are lawfully upon the poles. The defendants present the affidavit of William H. Eckert, one of the officers of the Metropolitan Telegraph and Telephone Company, which company is the lessee of a portion of the poles, showing that the plaintiff applied to him for permission to use said poles, which was refused, and that his company has no further use for said poles. Also the affidavit of W. C. Humstone, one of the superintendents of the Western Union Telegraph Company, the owner of the rest of the said poles, that the plaintiff has never received permission to string its wires upon said poles but has “ stolen the space which it occupies,” and that his company has no further use for the poles owned by it. It appears, therefore, that the poles in question have been abandoned by the owners and all entitled to the use thereof, and are unsightly incumbrances upon the avenue ; and it is therefore the manifest duty of the city officials to cause the removal of the same. ■ The poles, when they became unnecessary for the purposes for which they were erected, were nuisances and liable to be removed as such. People v. Metropolitan Telephone Company, 11 Abb. N. C. 304. In the case cited it was held by-Mr. Justice Lawrence, that poles which were of unnecessary height and size were a nuisance, even though poles of proper dimensions might be lawful. It must necessarily follow that when the poles were abandoned by those who were authorized to construct and use them, they became nuisances. If the plaintiff has seen fit to string its wires upon structures which are nuisances, such use cannot restore the lawful character of the structures, or if it has seen fit to string its wires without right or privilege, upon structures which but for such act would have become nuisances, such unauthorized use cannot make lawful the character of the structure.
   By the Court.—Sedgwick Ch. J.

The action was for an injunction restraining the defendants from proceeding to remove the wires of the plaintiff from certain poles in the 6th avenue from 18th street to Carmine street.

I am of opinion that the views expressed by the learned judge below in dissolving the temporary injunction were correct. Some considerations, not pertinent to the view he took, may be adduced in support of this result.

The complaint was demurrable. It placed the plaintiff’s right to use the poles upon his possessing a franchise under the terms of an ordinance as follows: “ that permission and authority are hereby given and granted unto the East River Electric Light Company to place, construct and to use wires, conduits and conductors for electrical purposes in the city of New York, and over and under the streets, avenues, etc., according to such plans as may be directed, approved or allowed by and subject to the powers of the Electrical Subway Commissioners and to the provisions of chapter 499 of the Laws of 1885.” There was, however,no allegation of fact to show that the plaintiff “ strung its electric wires” according to the plan and the provisions referred to in the ordinance. There was no averment that it had received a permit from the board of electrical control to use the poles for the wires. It alleged a matter of law only, that it strung its wires “ pursuant to the authority conferred upon it by law.”

The plaintiff did not show a right to the equitable and discretionary relief of injunction. The object of the relief as asked was to restrain the commission of a trespass. The facts, however, stated in the complaint and in the affidavit, did not prove that the. plaintiff could not obtain full and adequate relief by the recovery of damages.

It was admitted on the argument that the board of electrical control could, upon reasonable notice, for reasonable cause, require the plaintiff to remove its wires from the poles. It appeared that there was reasonable cause on which the board could act, for instance, the poles themselves were encumbrances which might be lawfully removed, and the poles were of a size that was not necessary to the business of the plaintiff. Therefore the right of plaintiff, construing all things most favorable to it, whs to maintain the wires until such reasonable notice. The plaintiff did not show what the time of reasonable notice would be ; and of course did not show the extent of the damages the plaintiff would suffer from not being permitted to retain its wires upon the poles during the lapse of that time.

The plaintiff in part relies upon a permit of the board that authorized the plaintiffs “ to string four wires on existing poles on 6th avenue from 18th street to Carmine Street.” The permit necessarily-referred to the poles as then rightfully there. It was not implied that the permit should operate after the poles ceased to be rightfully in the streets.

The order should be affirmed with $10 costs to abide the event and the disbursements to be taxed.

Truax and Dugro, JJ., concurred.


source: Caselaw Access Project

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

license: Public Domain

text:
    BERNARD BRADY, Appellant, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, Respondent.

      Trial—Stay of pending appeal to general term in another action.

    Before Sedgwick, Ch. J., and O’Gokman, J.

      Decided May 6, 1889.
    Appeal from order staying proceedings.
    This action is brought to recover a certain sum of money alleged to be due the plaintiff, as assignee of one John Brady, under a contract made between said John Brady and the city of New York for regulating and grading Ninety-fifth street. Previous to the commencement of this action twp judgments had been recovered against this defendant upon the same contract, one by John Brady and the other by Bernard Brady, his assignee. Before the action hereinafter mentioned brought by this defendant, the Laflin and Rand Powder Company and Henry Judson Morris, each claiming an interest in any moneys payable under said contract by virtue of assignments, had commenced actions against this defendant. Thereupon this defendant commenced an action in equity against this plaintiff, John Brady, the Laflin and Rand Powder Company and Henry Judson Morris, making in the complaint various allegations of fraud in procuring the contract, and the said two judgments, and praying that the defendant be ' restrained from offering in evidence the two judgments hereinbefore mentioned and from prosecuting the present action ; also, that said judgments be reviewed, vacated and set aside ; that the contract be declared void, and any moneys paid by the city in excess of the reasonable value of said work be recovered. At the commencement- of said action an order of injunction was granted by this court restraining the prosecution of this action and •-two actions in which the defendant, the Laflin and Rand Powder Company and Henry Judson Morris were, respectively, plaintiffs. The several defendants to that action demurred to the complaint. The demurrers were sustained at special term, and orders and interlocutory judgments sustaining them were entered. Thereupon the defendant in this action moved for an order staying it and all proceedings in it pending, and until the final determination of the said action brought by the defendant herein. Pending this motion, it appealed to the general term from said interlocutory judgment. The motion was granted at special term upon defendant making a stipulation as to the argument of the appeal. From the order entered on the motion plaintiff appealed to the general term.

      L. Laflin Kellogg, attorney and of cot.nse_, _or appellant, argued :—
    I. The judge at chambers had no power to grant the order staying proceedings in this action. Spears v. Matthews, 66 N. Y. 128; Fellows v. Heermans, 13 Abb. N. S. 1; Emmons v. Campbell, 22 Hun, 582.
    II. If it were a matter of discretion, it should not be exercised in this or in any other case. First— Because it grants a provisional remedy where a judge of the same court, after full hearing upon all the facts, has denied the right to that provisional remedy. Second—Because it permits one judge to reverse the ruling of another judge of the same court, thus giving him powers which are only accorded to an appellate court. Third—Because the exercise of such a right would render it entirely useless for a person to move to vacate a temporary injunction if upon its vacation another judge could immediately reinstate it upon the same facts. Fourth—Because all the evidence, as appears upon the different appeals herein, shows that there was not the slightest justification for ever granting any injunction.
    III. It was certainly error in the judge at special term to grant a stay of proceedings until the final determination of the action. This order, in effect, says that, even if the general term of this court find against the city both upon the demurrer and upon the injunction, even in that case, notwithstanding the judgment of the appellate court, the stay shall be continued until the Court of Appeals has heard the case. This right should be exercised either, first, by the general term, or, second, after the general term had decided the case, or third, after the city had manifested an intention to or had appealed to the Court of Appeals.

      Henry R. Beekman, counsel to the corporation, and David J. Dean and Arthur H. Masten of counsel, for respondent, argued:—
    I. The books show numerous instances where similar orders have been made under analogous circumstances. Franklin v. Catlin, 43 Super. Ct. 138; Matthews v. Shaffer, 19 Week. Dig. 456; Brown v. May, 17 Abb. N. C. 205; Prems v. Smith, 10 Abb. N. S. 90.
    II. The order was a discretionary one, and will not be disturbed unless the court below improperly exercised its discretion. Peo. v. Northern Railroad Company, 53 Barb. 98 (affirmed 42 N. Y. 217; Schmidt Exr. v. Levy, et al., 66 Barb. 496.
    ITT, An entirely different principle was involved in Fellows v. Heermans, 13 Abb. N. S. 1. The decision was based npon the theory that the Code, by providing for an injunction in an action before judgment, impliedly excluded an injunction after judgment, and was expressly limited to the case of a judgment in the same action. Spears v. Matthews, 66 N. Y. 128; Emmons v. Campbell, 22 Hun, 582, etc., were decided upon the authority of Fellows v. Heermans.
   Bt the Court.—Sedgwick, Ch. J.

Under the circumstances of the case, I am of opinion that it was within the power of the court below to postpone the trial for the purpose of gaining the benefit of a decision at general term in the case of the Mayor, etc., against the present plaintiff and others. The order stayed proceedings generally, but the proceeding aimed at was the trial. I think, however, that there should not have been a stay until the final determination of the action.

The order should be modified and affirmed without costs.

O’Gorman, J., concurred.


author: The court

text:
    LUDWIG I. MAYER, Appellant, v. JOHN W. HAAREN, Respondent.

      Payment, testimony respecting when admissible, although defence not pleaded—Impropriety of action, questions as to knowledge of when admissible—Refusal to charge—New trial for newly-discovered evidence, whennot granted.

    This action was brought by the plaintiff, a real estate broker, upon a special contract for the sale of four houses and lots belonging to the defendant, under which plaintiff was to receive one-third of all the defendant should

      realize from such sale over and above $44,000. The complaint alleged a payment on account of the contract. The answer put in issue all the material allegations of the complaint. There was- no defence of payment.
    On the trial plaintiff testified that defendant had made a payment on account of the contract. Held, that questions on his cross-examination tending to show that even if a payment was made, it was not made on the contract, but for another and entirely different purpose and, as made, tended to confirm the theory of the defence, were properly allowed.
    Plaintiff having predicated his claim to an extraordinary large compensation upon the assertion that he could have secretly received and appropriated to himself $1,000; that at first he intended to retain that sum, but apprised the defendant of it because he thought he could do better by so doing. B.'eld, that questions on his cross-examination upon the point whether, as a broker, he knew that it would have been wrong to take the $1,000, were properly allowed; his appreciation of the obligations resting on him, whether he considered himself as defendant’s agent or broker being legitimate subjects of inquiry as affecting his credibility.
    Defendant having testified that it was part of the agreement that if plaintiff did not sell all the houses and lots, he should get only the usual commissions on what he did sell, Held, on this ground, as well as on the ground that the contract was indivisible, that a refusal to charge that on the one house sold the plaintiff was entitled to one-third of the amount realized in excess of $11,000, was correct.
    A new trial will not be granted on the ground of newly-discovered evidence unless it is of a character that would probably produce a different verdict if a new trial were had, nor where the party asking the new trial could with due diligence have procured the evidence before the close of the trial.
    Before Freedman and O’Gorman, JJ.
    Decided May 6, 1889.
    Appeal by plaintiff from judgment entered in favor of the defendant upon the verdict of a jury, and from order denying plaintiff’s motion upon the minutes for a new trial; also from an order denying his motion for a new trial on the alleged ground of newly-discovered evidence.

      Kaufman & Sanders, attorneys, and Lewis Sanders of counsel, for appellant.

      Henry H. Glass, attorney, and David Leventritt of counsel, for respondent.
   The court

(Freedman, J., writing, and O’Gorman, J., concurring) held the propositions set forth in the head note.


author: By the Court.—Truax, J.

text:
    PROSPER MONNET, et al., Respondents, v. FREDERICK HELLER., et al., Appellants.

      Consignees to sell on commissions, as to right of to charge against consignors a sum paid by them to compromise a suit brought against them for undervaluation of the goods—Error producing no injury, not cause for reversal as xohen the appellants were erroneously allowed (to which no exception was taken) a certain sum which was in excess of the sums claimed to have been erroneously disallowed them.

    Before Sedgwick, Ch. J., Trttax and Dugro, JJ.

      Decided June 28, 1889.
    Appeal from a judgment in favor of plaintiffs entered on the report of a referee.

      A. P. & W. Man, attorneys, and William Man of counsel, for appellants.

      Arnoux, Bitch & Woodford, attorneys, and William C. Wallace of counsel, for respondents.
   By the Court.—Truax, J.

The complaint alleged that plaintiffs consigned to the defendants, as agents, of said plaintiffs to sell on commission, certain merchandise, and that there was due plaintiffs from defendants upon an account between them $18,958.40 “ being a balance of said account in favor of said plaintiffs and against said defendants.”

The defendants admitted that plaintiffs consigned to them, as agents to sell on commission, certain merchandise, but denied that there was anything due plaintiffs from them, the defendants. The defendants also alleged, as a. further and separate defence and as a counterclaim, that they had been compelled to pay to the custom authorities of the United States the sum of upwards of ten thousand dollars to settle an action brought against them by said custom authorities because the plaintiffs had fraudulently undervalued in entry for duties the goods consigned by them to defendants ; that there was a suit pending to recover from defendants a large sum of money because of said fraudulent undervaluations and that they, the defendants had been compelled to employ counsel to defend themselves in the actions brought against them by the custom authorities of the United States, and had paid such counsel a large sum of money, and asked that they, the defendants, be credited with the moneys that they had paid to settle said action and to their counsel. The plaintiffs replied to those portions of the answer that constituted counterclaims.

The referee held on the trial, that defendants were entitled to be credited with one-half the sum that defendants had paid to compromise the action that had been brought against them by the government of the United States. The plaintiffs have not excepted to this ruling of the referee, but the defendants have excepted, and allege that the referee erred in not crediting them with the whole amount that they had paid to compromise said action, and they also say that the referee erred in computing the amounts paid by defendants to compromise said action. It does appear that the referee had made a small error in the computation of the amount paid as aforesaid, but defendants cannot complain of this because they were not entitled to any credit for the sums paid to compromise said actions.

The grounds of the action that was compromised, as aforesaid, are very generally, and not very definitely, shown in the appeal book. The attorney for the defendants in that action says, at folios 365—366 of the case, “ I cannot at this time state the details of that claim, but in a general way I remember that it was based upon a claim that dyes which had been imported by Heller & Merz had been invoiced at a less value than the market value of such goods in France (from which they mostly came) at the time and place of importation.”

The defendants had the burden of showing that they were authorized to compromise said action—■ that is that they were specially authorized by the plaintiffs in this action to compromise, or that they were authorized from the nature of their agency. They have failed to prove either one of these facts. The referee refused to find that the goods described in the invoices, that were made for the entry of the goods, had been undervalued, and his finding is warranted by the evidence. If there was no undervaluation there was no reason why the action should be compromised, and the defendants in compromising the action acted at their own peril.

The referee did find that the defendants were authorized to retain and employ counsel to defend said action, and that they paid their counsel $2,276; but by mistake, presumably, he allows them $2,250 for fees to counsel. This is an error of the kind that, if it is to be corrected at all, should be corrected on motion and not on appeal, for the error appears on the face of the judgment roll. But we have seen that the referee has allowed the defendants one-half of the sum of ten thousand dollars and other sums, when in law and in fact he should not have allowed them more than $2,276. That is, he allowed the defendants $6,126.10 instead of allowing them $2,276. The defendants were not injured by this ruling.

The defendants also claim that the referee erred in charging them $4,995.05 for the goods on hand, whereas they should have been charged with $1,739.55 and $947.36, a total of $2,686.91. But even if the referee has erred in this respect, yet he has not given judgment against defendants for as large a sum as the evidence would have warranted him in giving.

The judgment is affirmed with posts.

Sedgwick, Oh. J., and Dugro, J., concurred.


author: Per Curiam.

text:
    MILAN G. CLAPP, Respondent, v. JOHN C. ATTERBURY, et al., Appellants.

      Order cannot he vacated on motion of a party on the ground that it is erroneous—The general term on an appeal from an order denying such amotion cannot inquire whether there was error in the original order. ■

    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 28, 1889.
    Appeal from an order denying a motion to vacate a former order.

      Norman T. M. Melliss, for appellants.

      Philip Carpenter, for respondent.
   Per Curiam.

The only ground on which the appellants could have claimed the order should have been vacated, was that the order was erroneous. It was not claimed that the former order was made without notice or that there was any irregularity of practice as to it. The order was valid until reversed for error. The learned judge below was not bound to hear an appeal from the order. Or, if he still thought there was no error, even if it were supposed that error existed, a refusal to vacate was not injurious to appellant, for he, unless there had been laches, could appeal and have the erroneous order reversed. And further this court cannot proceed to inquire if there were error in the order so long as it is not brought before it upon an appeal.

Order affirmed, with $10 costs.


author: Pee Cubiam.

text:
    JAMES T. SWIFT, et al., Appellants, v. FERDINAND MAYER, et al., Respondents.
    §§ 870-871-872 Code Civil Procedure, order construed as being made under, ffidavitfor, insufficiency of.

    Before Sedgwick, Oh. J., Tbtjax and Ingraham, JJ.
    Decided November 21, 1889.
    Appeal from an order vacating an order for the examination of the defendants before trial.
    The action is brought to set aside certain conveyances made in 1882, as fraudulent as to creditors. The affidavit on which (together with the pleadings, consisting of the complaint and answer,) the order for an examination was made, set forth as facts making the examination material and necessary as follows :
    “ The said parties not only have especial knowledge as to the whereabouts and condition of any property belonging to the defendants Ferdinand Mayer and Benjamin Mayer, but they and said Benjamin Mayer have substantially the only knowledge on the subject, and I verily believe that their examination will disclose the existence of such property. The plaintiffs seek to establish by this suit that certain real estate was conveyed to the defendant Regina or Rachel Mayer, with the intent to hinder, delay and defraud these nlaintiffs as creditors of Ferdinand Mayer and Benjamin Mayer, and that said Ferdinand Mayer and Benjamin Mayer, or one of them, paid the consideration for such transfer ; from the very nature of the case, the defendants are peculiarly able to give the facts in regard to this transfer, facts which the plaintiffs must be able to prove in order to safely proceed to the trial of this action, and of which they are themselves ignorant. I verily believe that such examination will elicit testimony which will prove the allegations of the complaint, and it is the purpose of the plaintiffs to use such testimony on the trial of this action.”
    The order ordered that the defendants Ferdinand and Regina or Rachel Mayer be examined as adverse parties and their depositions taken, and that for that purpose they appear, etc., and submit to examination under oath concerning all matters relevant to the issues in the action.
    The judge at special term on vacating the order wrote :
    “ Truax, J.—The order which the defendant moves to vacate is for a deposition to be taken as prescribed in article 1, title 3, of chap. 9, of the Code of Civil Procedure; it is not an order directing persons to appear and be examined under oath concerning matters pertaining to a discovery. The papers upon which the order was granted and the order itself shows this. The plaintiff is, therefore, wrong in contending that the papers upon which the order was granted need not conform to rule 83. The affidavit upon which the order was granted specifies no facts and circumstances which show that the examination desired is material and necessary; for though it be conceded that the persons sought to be examined “ have especial knowledge as to the whereabouts and condition of any property belonging to the defendants, Ferdinand Mayer and Benjamin Mayer, and they and the said Benjamin Mayer have substantially the only knowledge on the subject,” I cannot see how evidence as to the whereabouts and condition of any property belonging to the defendants, Ferdinand and Benjamin Mayer, will be material and necessary to the plaintiff in the trial of this action, for the affidavit is made in May, 1889, while the action is brought to have a conveyance made in 1882 declared to have been made in fraud, etc., of creditors. Although the facts and circumstances need be but slight to warrant an examination in a case such as this, those presented by the affidavit do not suffice. The papers raise a suspicion that the order is desired merely for inquisitorial purposes. The motion to vacate the order is, therefore, granted, with $10 costs.”

      Stickney & Shepard, attorneys, and Albert Stickney of counsel, for appellants.

      Donahue, New combe & Cardoso, attorneys, and Stephen C. Baldwin of counsel, for respondents.
   Pee Cubiam.

The order appealed from is affirmed on the opinion of the court' below.


text:
    FREDERICK L. DEGENER, Respondent, v. JOHN T. UNDERWOOD and Another, Appellants.

      Reference, motion for not barred by circumstance that the time for amendment of pleading as of course has not expired—Vacating order, an amended answer not changing the issues is not cause for vacator.

    Before Freedman and Ingraham, JJ.

      Decided November 21, 1889.
    Appeal from order referring the issues and from order denying defendants’ motion to vacate the order of reference.

      James A. Hudson, attorney and of counsel, for appellants, argued :—
    I. The Code does not authorize the making of such an order before the issues that are to be tried are definitely fixed. Section 1013 of the Code ; Keeler v. Poughkeepsie Plank R. Co., 10 How. 11 ; Sharp v. Mayor, etc., 18 Ib. 313 ; Simmons v. Bigelow, 6 N. Y. Sup. 435.
    II. An order of reference, in a case wherein the court has power to make it, is yet a discretionary order. The language of the statute is permissive, not mandatory. Under the conditions that existed at the time this order was granted, we respectfully submit that it was impossible for the court to exercise a judicial discretion in granting the order, because the necessary facts were yet in uncertainty, and would be until the issues should be definitely fixed. The complaint alone was sufficient to show only that the action was of the class that might be referred, to wit, on contract. This is all that is meant in Untermyer v. Bienhauer, 105 N. Y. 521, and Welsh v. Darragh, 52 Ib. 590, therein cited and quoted from. Indeed there was nothing to prevent the plaintiff from serving an amended complaint after the order of reference was made, and thereby present a non-referable cause.
    III. The amended complaint served after issue joined and the cause regularly noticed for trial destroyed the former issue, and the new issues are not •covered by the order of reference. Ostrander v. Conkey, 20 Hun, 421 ; Clifton v. Brown, 27 Ib. 231 ; Kline v. Corey, 18 Ib. 524. The “without prejudice ” clause contained in,section 542 must be considered as having a limited meaning, and so considered does not take the case out of the principle of above decisions. Robertson v. Bennett, 52 How. 287 ; Burril v. Moore, 5 Duer, 654 ; Brannigan. v. Palmer, 5 Week. Dig. 521. The case of Enos v. Thomas, 4 How. 289, will probably be cited against the appeal. That case only holds that the plaintiff could notice a motion for reference- before the defendant’s time to amend his answer had expired. It was a special term decision of another department made twenty years ago, and contains no argument nor citation of authority. Its broad language was not necessary to the determination of the question then before it.

      J. E. Hadden, attorney and of counsel, for respondent, argued :—
    I. The order of reference was properly granted, because it appeared upon the moving papers that the trial would require the examination of a long account, on the part of the plaintiff, and would not require the decision of any difficult questions of law. And the accounts to be examined are the immediate object of this suit, and are not collaterally involved ; that is to say, as the rendition of the services and materials were averred by plaintiff, and denied by defendants, it is necessary that they should all be proved, in order to sustain plaintiffs claim. Code of Civil Procedure, § 1013 ; Kain v. Delano, 11 Abb. N. S. 29 ; Welsh v. Darragh, 52 N. Y. 590.
    II. Nor was it any answer to say, that defendants intended to amend their answer, and thereby, in the opinion of defendant’s counsel, change the issues to be tried. § 542 Code Civil Procedure, Enos v. Thomas, 4 Plow. 290.
    III. The character of an action is determined by the complaint. The answer cannot change it. If the action is a referable one the answer cannot make it a non-referable one. Welsh v. Darragh, 52 N. Y. 590 ; Untermeyer et al. v. Bienhauer, 105 Ib. 521; Camp v. lngersoll et al., 86 Ib. 433-436.
    IV. The amended answer does not in any way change the issues to be tried, and therefore the motion to vacate was properly denied.
   Per Curiam.

The moving papers upon which the order of reference was granted, and which included the pleadings, satisfactorily established that the trial of the issues would require the examination of a long account, containing' 714 items, on the part of the plaintiff, that it would not require the decision of any difficult question of law, and that an account between the parties in the proper acceptation of the term was directly involved. It was no answer to the motion to say that the defendants intended to amend their answer, Enos v. Thomas, 4 How. 290. The foundation of the practice in the courts rests upon acts, and not upon mere intentions. The case, as it appeared upon the moving papers, was clearly referable, and consequently no error was committed in granting the order of reference.

The amended answer which, was subsequently served, in no way lessened the necessity of a reference. The incorporation of a counterclaim rather increased the necessity. On the motion to vacate the order of reference on the ground that the issues had been changed by an amendment to the answer, the burden of proof was on the defendants to establish that the answer as amended rendered a reference unnecessary. This they wholly failed to establish.

The case presents only questions of practice and not of jurisdiction, and upon all the facts we cannot say that the several judges who made the orders appealed from abused the discretion vested in them.

The orders appealed from should be severally affirmed with costs and disbursements.


author: By the Court.—Freedman, J.

text:
    ISABELLA WEINBORG, Respondent, v. THE NATIONAL STEAMSHIP COMPANY, Limited, Appellant.

      Carrier of goods, proof of negligence of, the mere fact of non-delivery without any explanation is prima facie evidence of his own negligence—Exemption from liability for such negligence, the contract of carriage must in clear and explicit form embrace it—Married woman, baggage of what constitutes under a contract for the passage of herself and her children.

    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 6, 1890.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

      John Chetwood, for appellant.

      A. D. Pape, for respondent.
   By the Court.—Freedman, J.

Whether or not the missing goods in suit had been delivered to the defendant for transportation, was, upon evidence sufficient for that purpose, left to the jury as a question of fact, with the instruction that the burden of establishing a delivery was upon the plaintiff. The verdict of the jury determined the fact in favor of the plaintiff.

Upon the question of defendant’s liability it appears that the plaintiff was a passenger on a steamship of the defendant which sailed from Liverpool to New York ; that the missing goods were delivered by her to the steamship in a case or trunk as part of her baggage, and were not delivered to her by the ship on arrival at New York ; and that her contract for passage was a special one which in terms exempted the company from liability for loss occasioned by the negligence of the company’s servants, but which did not in terms nor by necessary implication exempt the company from liability for loss occurring through its own negligence. This left the company liable for its own negligence, for the authorities- of this state are to the effect that, although a common carrier may contract for exemption from liability for loss occurring through his own negligence as well as that of his servants, (Steers v. Liverpool, N. Y. & Phil. S. S. Co., 57 N. Y. 1 ; Poucher v. N. Y. C. R. R. Co., 49 Ib. 263 ; Magnin v. Dinsmore, 56 Ib. 168 ;) the contract is not to be deemed to include his own negligence by any general words, nor unless it in clear and explicit form embraces such negligence. Westcott v. Fargo, 61 N. Y. 542 ; Ghormley v. Dinsmore, 51 N. Y. Super. Ct. 196, and 53 Ib. 36. The defendant gave no evidence showing a loss by the negligence of any of its servants, nor does the evidence given by and on behalf of the plaintiff justify any such inference. In fact the case, at the trial, resolved itself into one of non-delivery without any explanation. As this was of itself • prima facie evidence of negligence in the defendant, (Canfield v. Balt. & Ohio R. R. Co. 93 N. Y. 532,) and the question of defendant’s negligence was upon all the facts and circumstances left to the jury as a question of fact, with the instruction that the burden of establishing negligence in the defendant was upon the plaintiff, the defendant has no cause of complaint.

The only remaining question relates to the amount of the verdict. The contract was for the passage of the plaintiff and her two children. Plaintiff’s bill of particulars amounted to $452. At the close of the testimony on both sides the counsel for the defendant made several motions for reductions, on the ground that some of the items did not constitute baggage, and that some belonged to plaintiff’s husband. These motions were denied, and exceptions were taken to some, but not all, of the denials. The exceptions which were taken, appear to be untenable ' for the reason that the several motions to which they relate were, in view of the facts, too broad. Moreover the trial judge finally disallowed numerous items, and then instructed the jury that the possible amount of plaintiff’s recovery could not exceed $226, to which instruction no exception was taken. There is no exception anywhere to the allowance of the children’s clothing, nor was any request made for any further instruction. The verdict of the jury did not exceed $226, and under all the circumstances no substantial reason appears for a disturbance of the verdict. Under the decision of Dexter v. The Syracuse, Binghampton & N. Y. R. R Co., 42 N. Y. 326, baggage includes all articles designed for the personal use of the passenger and the members of his family and customarily carried by travellers as baggage, although they are not intended to be used and are not necessary for the use, comfort or convenience of the passenger on the journey.

If there was any reason to doubt the statement of the plaintiff that, as between herself and her husband, the articles recovered for were hers, the defendant, should have requested a submission of the question of ownership to the jury as a question of fact. No such request was made.

The judgment and order should be affirmed with costs.

Sedgwick, Ch. J., and Ingraham, J., concurred.


author: By the Court.—Ingraham, J.

text:
    WILLIAM P. THORP, Respondent, v. HENRY A. RILEY, Appellant.

      Trial conduct of, as to failure to request the submission to the jury of questions of fact as to admission of evidence producing no injury, as to written communications by the court to the jury, the parties and their counsel being present, as to sending papers to the jury after their retirement.—Infant, immaterial instruction as to acquiescence by in contract, an instruction as follows: •“ J do not wish to charge you that mere delay on the part of the plaintiff in making a demand after arriving at maturity is of itself an acquiescence in the contractmadeby him while an infant”—held immaterial in view of the charge as actually delivered which in effect withdrew from the jury all question as to invalidity of the contract by reason of the infancy of the plaintiff and submitted the case to their determination solely on the question as to whether the contract had in fact been made and the plaintiff had received the advantage of it.

    Before Sedgwick, Oh. J., Freedman and Ingraham, JJ.

      Decided January 6, 1890.
    Appeal from judgment entered on the verdict of the jury.

      A. Walker Otis, for appellant.

      Francis Speir, Jr., attorney, and with Frederick P. Forster, of counsel, for respondent.
   By the Court.—Ingraham, J.

This action was brought to recover the- sum of $1,000, being the balanee of a sum of $2,500, which the defendant had received from the plaintiff to be invested in Dakota and Nebraska tax certificates and small loans on personal property, and defendant rests his right to retain the $1,000 upon an alleged verbal agreement between himself and plaintiff by which the defendant was to be paid the sum of $1,000 for accompanying the plaintiff to Dakota and obtaining for him an interest in the banking business there.

The existence of this agreement to pay the defendant $1,000 for the services mentioned was denied by the plaintiff, and that was the question that was litigated upon the trial and was submitted to the jury to determine. The court at the end of the charge to the jury stated: “If the contract was that the defendant was to receive $1,000 on the plaintiff’s entering into a satisfactory agreement with a banker in the west, and that he did enter into a satisfactory agreement; and, if he went on under the agreement and made money under the agreement, that all that transaction became an affair of the past, being an agreement executed on both sides, then I charge you that the infant is not justified in a case of that kind in taking advantage of his infancy. Therefore, the great issue in this case is, was the contract made. Did the plaintiff receive from the defendant such help as the defendant alleges that he gave to obtain a position in the bank in Dakota. Did the plaintiff go on with that and succeed to a reasonable extent. If so, I charge you that the contract that was made was executed, the plaintiff received the advantage of it, and h¿ is liable to pay whatever the contract calls for.”

If, therefore, the jury had found the contract was made as claimed by the defendant, or in other words had believed defendant’s testimony under this direction, the defendant was entitled to a verdict, and thus the only question submitted to the jury was the truth or falsity of the defendant’s testimony as to the agreement between himself and the plaintiff; and the jury in finding a verdict for the plaintiff must be assumed to have found that no such agreement was made.

There was, I think, a sufficient demand for the repayment of the $1,000. The plaintiff testified that before the defendant left Dakota to come home, in 1885, he (defendant) insisted upon his right to retain this $1,000 for the services rendered, to which the plaintiff objected, and in the subsequent transactions between the parties it does not appear that at any time defendant made any other claim, except that he was entitled to retain absolutely as his own this $1,000.

Whether or not the defendant was bound to repay the $1,000 to plaintiff depended upon the existence of the alleged agreement, and the defendant having claimed his right to retain the $1,000, under that agreement, and having failed to request the court to submit to the jury any question as to the demand, he cannot now insist that no demand was made.

The appellant also'objected to the introduction of the note given by the plaintiff to his mother for the money which was advanced to the defendant and especially to the endorsement upon the note of the words, “ This is the Riley loan.” It does not appear from the case, however, that this endorsement was ever read to the jury or was in evidence ; the note itself and not the endorsement was offered in evidence. The attention of the court was not called to the endorsement and no specific objection to it was taken. The fact that the $2,500 was paid by the plaintiff to the defendant was conceded, and the receipt given shows that it was in the nature of a loan to Riley. The note, therefore, and its endorsement was simply evidence of the conceded facts in the case, and could not have injured the defendant in the slightest. It had no relation to the subsequent agreement between plaintiff and defendant, and while it would appear that the evidence was immaterial it had absolutely no bearing upon the only issue in the case that was in dispute and could not in the slightest degree have injured the defendant. Nor did the fact that, at the time the action was brought, a portion of the sum received by the defendant was still invested under the original agreement between the parties require the court to dismiss the complaint. In that case, if the plaintiff’s story was. true, he would be entitled to recover under any circumstances the amount of the $1,000 over and above the $426, that still remained so invested, and the defendant did not request the court to charge the jury that as to that amount the plaintiff could not recover.

There was no exception taken by the defendant to the charge as made, and it must be assumed, therefore, that the question was submitted to the jury in a manner satisfactory to the defendant.

But one other question remains in the case and that is, as to the occurrence that happened after the jury had left the court-room to deliberate upon its verdict. At that time the court announced to the counsel for both parties its intention to send to the jury the follpwing statement: “ I do not wish to charge you that mere delay on the part of the plaintiff in making a demand after arriving at maturity is of itself an acquiescence in the contract made by him while an infant.”

In view of the charge as actually delivered by the court this was entirely immaterial, for, as before stated, the court had in substance charged that if the contract had been made and executed the defence of infancy would not avail.

At that time counsel for the defendant asked that this proposition be modified by an addition thereto, which the court refused. Counsel for the defendant then stated:

“ I object to requests being submitted to the jury at this time, and I except to your honor’s refusal to charge my last proposition.”

The objection that the jury were not present at the time, or that the communication was not made to them orally instead of in writing, was not made.

Nor did the counsel except to the statement made by the court to. the jury or to the determination of the court that further instructions should be sent to them. The" only exception was to the refusal of the court to charge the additional request made by the defendant which in view of the charge as given was as before stated entirely immaterial.

The case then states, that plaintiff asked that certain papers be submitted to the jury, to which defendant’s counsel objected upon the ground that the papers should have been submitted when the jury retired, to which the court replied, “ Any papers that the defendant desires I will send up also.” It does not appear, however, that any papers were sent to the jury nor was any exception taken by defendant’s counsel to any action taken by the court.

I do not think that this occurrence would justify the court in setting aside the verdict and granting a new trial. No communication was made to the jury in the absence of counsel for the respective parties, and there was no exception taken to the action of the court at the time.

The authorities cited by the defendant which show that where communications are made to the jury in the absence of counsel and without their knowledge the verdict will be set aside, do not apply, for in this instance counsel were apprised of the proposed action of the court, and no exception was taken.

An examination of the whole record has satisfied us that the case was fairly tried ; that the defendant has no legal ground of complaint, and that the judgment and order appealed from should be affirmed with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.


author: Per Curiam :

text:
    PROGRESSIVE HANDLANGER UNION NO. I., Appellant, v. THE GERMAN SAVINGS BANK IN THE CITY OF NEW YORK, Respondent.

      Savings Banks, interpleading in action by depositor, persons not parties claiming the deposit under Laxos 1882, chap. 439, § 259.
    Before Freedman and Ingraham, JJ.

      Decided February 6, 1890.
    Appeal from order of interpleader.
    This action is brought to recover a certain sum deposited by the plaintiff with the defendant. The defendant on an affidavit showing that certain persons, naming them, not parties to the action, made a demand on it for the identical sum; that such demand was made without collusion of defendant or any of its officers, and that defendant was ignorant of the rights of the respective parties, moved to interplead the named parties. The judge at special term, on granting the motion, wrote as follows:—
    “ Sedgwick, Oh., J.—The application should be granted under-§ 259, ch. 439, Laws 1882. That section contemplates that, as in the present case, an action of law may be brought by a person in whose name the account with the bank is, and then that a third person may claim the deposit as a fund equitably belonging to the third person, and that in such a. case the section should be applied. I have a little doubt as to whether the claimant actually claims the whole of the deposit. If this be so, I am of opinion that the section will still apply. Motion granted.”

      Goodhart, Phillips ■ & Rosenberg, attorneys and of counsel, for appellant.

      Sanders, Wagner & Auerbach, attorneys, and Lewis Sanders of counsel, for respondent.
   Per Curiam :

The order appealed from should be affirmed with $10 costs and disbursements upon the opinion rendered by the learned chief judge at special term.


author: The Court

text:
    John Weckmann, Respondent, v. Charles G. Am Ende, Appellant.
    Decided May 6, 1889.
    Appeal by defendant from judgment entered in favor of plaintiff upon the verdict of a jury and from order denying defendant’s motion on the minutes for a new trial.
    Talcott & Meyer, for appellant.
    Frederick A. Dotty, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J. The only question in this case was whether there was sufficient evidence of negligence on the part of the defendant to carry the case to the jury.
   The Court

(Freedman, J., writing, and Sedgwick, Ch. J., concurring) held there was, and affirmed the judgment entered on a verdict for plaintiff.


author: Per Curiam:

text:
    William Jukes, Respondent, v. Amos R. Eno, Appellant.
    Decided May 6, 1889.
    Appeal from judgment entered upon verdict of jury, and from order denying motion for new trial, made upon the judge’s minutes.
    Thomas C. Ennever, for appellant.
    Wager & Acker, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam:

Judgment and order affirmed with costs.


text:
    Louisa Lenner, Appellant, v. Jean Westen, Impleaded, etc., Respondent.
    Decided May 6, 1889.
    Appeal from judgment entered upon a direction of judge dismissing the complaint on a trial before a jury.
    Arthur Furber, for appellant.
    Fettretch, Silkman & Seybel, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam:

The testimony upon the trial required the decision made below. Judgment affirmed with costs.


text:
    Dwight Ashley and Another, Appellants, v. James W. Whitney, et al., Respondents.
    Decided May 6, 1889.
    Appeal from order denying plaintiffs’ motion for a reference.
    Baldwin & Blackmar, for appellants.
    Arnoux, Ritch & Wood-ford,. for respondents.
    Before Freedman and O’Gorman, JJ.
   Per Curiam:

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


text:
    Francis H. Ferry, Respondent, v. The Manhattan Railway Company, Appellant.
    Decided May 6, 1889.
    Appeal by defendant from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion for a new trial.
    Davies & Rapallo, for appellant.
    Benjamin G. Hitchings, for respondent.
    Before Freedman and O’Gorman, JJ.
   The Court held (Per Curiam),

that the exceptions urged on the appeal were • without merit, and affirmed the judgment and order with costs.


text:
    Jacob R. Shipherd, Appellant, v. Aaron B. Cohu, et al., Respondents.
    Decided May 6, 1889.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    Motion by appellant for a re-argument, on the ground that the Court mistook a fact.
   The Court held (Sedgwick, Ch. J., writing, Freedman and O’Gorman, JJ., concurring),

that there was no mistake of fact, and that, even if there was a mistake and the fact was as claimed, the result would not have been different, and denied the motion with costs.


text:
    William S. MacFarlane, Respondent, v. Thomas H. Walter, Appellant.
    Decided May 24, 1889.
    Appeal from order directing judgment for plaintiff on demurrer as frivolous.
    W. T. Birdsall, for appellant.
    F. E. Anderson, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam.

Order affirmed with $10 costs.


text:
    William S. MacFarlane, Respondent, v. Thomas H. Walter, Appellant.
    Decided May 24, 1889.
    Appeal from order denying motion to vacate attachment.
    Same counsel. Before Sedgwick, Ch. J., and O’Gorman, J.
   Per Curiam.

Order affirmed with $10 costs.


text:
    Thomas C. Avery, Respondent, v. William H. Starbuck, Appellant.
    Decided June 3, 1889.
    Appeal from a judgment entered upon the verdict of a jury in favor of plaintiff, and from an order denying defendant’s motion for a new trial on the minutes.
    Holmes & Adams, for appellant.
    James C. Anderson, for respondent.

      Before Sedgwick, Ch. J., and O’Gorman, J. The questions involved on the appeal were whether there was sufficient evidence to sustain the verdict, and whether the decision of the trial court in denying defendant’s motion to amend the answer by setting forth in substance that since the commencement of this action and the service of the answer herein the plaintiff had prosecuted in the United States courts an action by way of libel commenced there before this action for the same cause as is here involved, and that after a trial on the merits judgment was there rendered for the defendant herein, was correct.
   The Court (O’Gorman, J., writing, Sedgwick, Ch. J., concurring)

held, that there was sufficient evidence to sustain the verdict, and that the decision of the trial court in refusing to allow the amendment was correct, and affirmed the judgment and order appealed from with costs.


text:
    Odile H. Southwick, Respondent, v. Andrew S. Hamersley, Appellant.
    Decided June 28, 1889.
    Appeal by defendant from an order denying, without costs, his motion to set aside an inquest taken.
    August P. Wagener, for appellant.
    S. Jones, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   The Court (Freedman, J.,and Sedgwick, Ch. J., both writing)

affirmed the order with $10 costs and disbursements.


text:
    Augusta G. Genet, Appellant, v. President, Managers & Company of The Delaware and Hudson Canal Company, Respondent.
    Decided June 28, 1889.
    George C. Genet, for appellant.
    Frank E. Smith, for respondent.
   Before Sedgwick, Ch. J., Freedman and Truax, JJ. Order modified.


text:
    Peter McCarthy, Respondent, v. Thomas H. Thorn, et al., Appellants.
    Decided June 28, 1889.
    Appeal from a judgment in favor of the plaintiff entered on the verdict of a jury and from an order denying a motion made upon the minutes “ to set aside the verdict and grant a new trial upon the exceptions taken on the trial, and because the verdict is for excessive damages and is contrary to the evidence, and is contrary to law.”
    Robert A. B. Dayton, for appellants.
    George G. Tabell, for respondent.
    Before Sedgwick, Ch. J., and Truax, J.
   The Court held (Truax, J., writing, Sedgwick, Ch. J., concurring)

that the only question in the case was the one presented by the defendant’s exception to the refusal of the court to dismiss the complaint, and that there was sufficient evidence to carry the case to the jury, and affirmed the judgment and order with costs.


text:
    Bessie C. Pfeiffer, as Administratrix, etc., Respondent, v. The American Surety Company, Impleaded, etc., Appellant.
    Decided June 28,1889.
    Appeal by defendant from judgment entered on verdict of jury.
    Stickney & Shepard, for appellant.
    F. F. Nugent and William H. Arnoux, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam.

Judgment affirmed with costs.


text:
    The Holmes and Griggs Manufacturing Company, Respondent, v. G. Livingston Morse, Appellant.
    Decided June 28, 1889.
    Appeal by defendant from judgment entered on report of referee.
    A. C. Ellis, for appellant.
    Sidney H. Harris, for respondent.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
   Per Curiam.

The decisions of the supreme court on the subject involved in this action, are to be followed.. Judgment reversed, order of reference set aside and new trial ordered, with costs to abide event.


text:
    Joseph Atkinson, et al., Respondents, v. Titus B. Truesdell, Appellant.
    Decided November 21, 1889.
    Appeal from an order re-settling an order granted at special term denying defendants’ motion for a new trial on a case, etc., by striking out from that order the words “ ten dollars ” leaving in lieu thereof a blank space for the insertion after taxation by the clerk of the amount of statutory costs allowed by the code on a motion for a new trial on a case.
    Edward P. Wilder, for appellant.
    Samuel W. Weiss, for respondents.
    Before Truax and Ingraham, JJ.
   The Court held'(Ingraham, J., writing, Truax, J., concurring),

that as the records before the general term showed that the motion was made on a case, and was argued and decided on the merits, the objection that under § 1002 it could not have been made on a case, inasmuch as it was not made at the term at which the case was tried, or before the time in which the defendant could take an appeal from the judgment had expired, was untenable. The case of Forstman v. Schutling, 38 Hun, 485, distinguished.


text:
    Garret Fitzgerald, as Administrator, Appellant, v. Charles Fach, Respondent.
    Decided January 6, 1890.
    Appeal from judgment entered upon verdict for plaintiff, and from order denying plaintiff’s motion for a new trial made upon, the minutes.
    George C. Coffin, for appellant.
    Thomas F. Grady and Theodore Connolly, for respondent.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
   Per Curiam.

Judgment and order affirmed with costs.


text:
    Sophie E. Minton, Respondent, v. The New York Elevated Railroad Company, et al., Appellants.
    Decided January 6, 1890.
    Appeal by defendants from judgment entered upon the decision of a judge at special term.
    George V. N. Baldwin, for respondent.
    Davies & Rapallo, for appellants.
    Before Freedman and Ingraham, JJ.
   Per Curiam.

The judgment should be affirmed with costs.


text:
    S. Charles Welsh, v. The Metropolitan Elevated Railroad Company, (action No. 2.)
    Decided January 6, 1890.
    Before Freedman and Ingraham, JJ.
   Per Curiam.

The questions presented on this appeal are all determined by the decision in Welsh v. The Metropolitan El. Ry. Co., action No. 1. See ante, page 408. For the reasons there stated the judgment should be affirmed with costs.


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

text:
    CHARLES B. GUMB, Respondent, v. THE TWENTY-THIRD STREET RAILWAY COMPANY, Appellant.

      Negligence—Refusals to charge the jury as requested by defendant; also approval of charges made and, excepted to.

    The trial judge refused to charge the jury as requested by defendant’s counsel “That if, as matter of fact, the plaintiff thought he had so stopped his wagon as to leave room for the defendant’s ear to pass, and the defendant’s driver also thought he had room to pass, and both were mistaken, the plaintiff cannot recover.” Held, that the refusal was not error, because if the plaintiff’s thought was the result of the exercise of observation and a prudent judgment required by the circumstances, and on the other hand the defendant’s driver’s thought was without previous'Observation and prudent judgment, the plaintiff would be free from negligence and the defendant’s driver guilty of it.
    So also as to the refusal to charge “ that if the plaintiff stopped his wagon just across the track without looking at all to see whether he had left room for the car to pass, and the defendant’s driver thought he had room to pass but misjudged the distance, the plaintiff cannot recover.” Held, it was not error, because it was not matter at law that the plaintiff should have looked to see where the hind-wheels of his wagon were. It was for the jury to determine whether ordinary prudence required the plaintiff to look, and it may have been negligence in the driver to think that he had room to pass.

      So also as to the refusal to charge the jury “ that if the jury believed that the plaintiff knew that his wheels were standing upon defendant’s track and saw the car approaching at a rate of speed that rendered a collision imminent, and he made no attempt to avoid that collision, that he was negligent.” Held, that there was no error in this refusal because the facts would permit the jury to find that no attempt that a due diligence would call upon the plaintiff to make would have resulted in avoiding the collision, and the plaintiff was not bound, as a matter of law, to believe that the rate of speed, as first observed, if continued, would end in a collision, or that said rate would, as matter of fact, continue. *
    Before Sedgwick, Ch. J., and Truax, J.

      Decided March 4, 1890.
    Appeal by defendant from judgment entered upon verdict of jury for plaintiff, and from order denying motion for new trial made upon the minutes.

      Leslie W. Russell and Welton Percy, for appellant.
    ■ H. B. Closson and Charles M. Hough, for respondent.
   By the Court.—Sedgwick, Ch. J.

The testimony required that the court should submit to the jury the issue that related to the negligence of defendant and the absence of negligence of plaintiff.

In my opinion, the court was right in refusing to charge the request of defendant to charge “ That if, as matter of fact, the plaintiff thought he had so stopped his wagon as to leave room for the defendant’s car to pass, and the defendant’s driver also thought he had room to pass, and both were mistaken, the plaintiff cannot recover.” This was not correct, for if the plaintiff’s thought was the result of the exercise of observation and a prudent judgment required by the circumstances, and on the other hand the defendant’s driver’s thought was without previous observation and prudent .judgment, the plaintiff would be free from negligence and the defendant’s driver would be guilty of it.

The same consideration applies to the request to charge, “ that if the plaintiff stopped his wagon just across the track, without looking at all to see whether he had left room for the car to pass, and the defendant’s driver thought he had room to pass but misjudged the distance, the plaintiff cannot recover.” It was not matter of law that the plaintiff should have looked to see where the hind-wheels of his wagon were. It was for the jury to determine whether ordinary prudence would require the plaintiff to look. And it may have been negligence in the driver to think that he had room to pass.

Another request was to charge the jury, “ that if the jury believe that the plaintiff knew that his wheels were standing upon defendant’s track and saw the car approaching at a rate of speed that rendered a collision imminent, and he made no attempt to avoid that collision, he was negligent.” I think there was no error in refusing to charge this. The facts would permit the jury to find that no attempt that a due diligence would call upon the plaintiff to make, would have resulted in avoiding the collision. And the plaintiff was not, as a matter of law, bound to believe that the rate of speed which, when first observed, if continued would end in a collision, would in fact continue.

The plaintiff gave, on the trial, testimony which would have justified the jury in finding that the bodily injuries he had received in the accident prevented him from attending to his business. He was a butcher. He testified further, that he hired two men, who did in .his business whát he had done before the accident. He was then asked, what he had paid those men ? The question was objected to on the ground, that what was paid was no part of damages that the plaintiff had a right to recover. My opinion is, that the plaintiff had a right to repair the wrong done in disqualifying him from attending to his business, and the reasonable expense of repairing that wrong might be recovered. Thé witness testified what he paid and also that the sum paid was the reasonable value of the services. He was qualified to testify as to such reasonable value. Of course if the plaintiff should recover these sums, he was not entitled also to recover damages from his being disabled to attend to his business. Such a question was not raised upon the objection and it would have been matter for direction to the jury subsequently. The direction to the jury on this subject was correct and was not excepted to. Hoffman v. Union Ferry Co., 68 N. Y. 385.

Judgment and order appealed from affirmed with costs.

Tbuax, J., concurred.