author: Coblett, J.: Maoomber, J.:

text:
    SIRAGAN S. COSTIKYAN, as Administrator of the Estate of STEPHEN K. BABASINIAN, Deceased, Respondent, v. THE ROME, WATERTOWN AND OGDENSBURG RAILROAD COMPANY, Appellant.

      Bailroad com/pamy — liability of, for the death of a passenger passing from one car to another while the can's were in motion.

    An action was brought to recover against a railroad company the damages resulting from the death of a passenger who, a short time after he had entered a passenger coach, on a train on the defendant’s road, went into the smoking car, and after smoking a cigarette started to return into the passenger coach. While he was in the act of stepping from the platform of the smoking car to the passenger coach, in the rear thereof, the coupling between those two cars broke and the deceased was thrown down a steep gorge, over which the train was passing at the time, and was killed.
    The jury found that the breaking of the' coupling was caused through the negligence of the defendant;.

      Beld, that the passenger, in the absence of instructions or notice from the company not to do so, only assumed, in going from one car to another while the train was in motion, the ordinary risks incident to such action on his part, and had a right to assume that the couplings and appliances were in a safe and proper condition, and that the railroad company was liable for the consequences of their not being so.
    Appeal by tbe defendant from a judgment of tbe Supreme Court, entered in the office of the clerk of the county of Erie on the 2d day of May, 1890, in favor of the plaintiff; and also from an order, made May 1, 1890, denying the defendant’s motion for a new trial made upon the minutes of the court.
    The action was brought to trial at the Erie County Circuit, at which a verdict was rendered for the plaintiff for the sum of $5,000)

      Edmund B. Wynn, for the appellant.

      Abram Ba/rtholomew, for the respondent.
   Coblett, J.:

On the 28th day of June, 1888, the deceased took passage on the defendant’s road from Niagara Falls to Watertown. The train consisted of an engine, baggage, smoking car and several, passenger coaches. A short time after entering the coach he went into the smoking car with a cigarette. After smoking he started back into the passenger coach. While he was in the act of stepping from the platform of the smoker to the coach in the rear, the coupling between them broke and the deceased was thrown down a steep gorge over which the train was passing and killed. The plaintiff was appointed administrator. This action was brought; a trial was had in April, 1890, which resulted m a verdict of $5,000 for the plaintiff. A motion for a new trial was made and denied, and the defendant appealed from the judgment and order to this court.

The evidence on the trial tended to show, and the jury found, that the breaking of the coupling was caused by the negligence of the defendant. The central contention of the defendant on this appeal is based on the assumption that it was negligence on the part of the deceased to go into the smoker and return while the train was in motion. It is undoubtedly true that ordinarily a passenger who goes from one car to another while the train is in motion assumes the risk incident to such, an undertaking. If the ordinary motion of the train should shake him from the platform, there being no defect in coupling or machinery, the company would not generally be liable. Not that the act of the passenger in passing from one car to another would be one of negligence, but because he would have just as good an opportunity as the defendant to know that there was some hazard attending a journey through the train while it was in motion. This fact being manifest, and as much within the knowledge and observation of the passenger as the company, in the nature of things he incurs the ordinary risk attending a passage from one car to another under such circumstances.

There is no statute or rule of the company forbidding a passenger from going from a passenger coach from which he is riding into the smoker and after that returning. In fact, a smoking car constitutes a part of the train for the accommodation of passengers; and in the absence of instructions or notices by the company to passengers not to go to it and return while the train is in motion, there is an implied license that they may do so subject, of course, to the ordinary risks obviously involved. It is not seen how they would incur any greater risks than the visible ones attending the journey. There is nothing tending to show that this accident would have happened except for the defective coupling. If the connection of the cars had been safe the deceased would have gone and-returned, so far as appears, in perfect safety.

It is not negligence per se for a passenger to stand on the platform while the train is in motion. (Nolan v. Brooklyn City and Newtown R. R. Co., 87 N. Y., 63; Marquette v. C. and N. W. R. R. Co., 33 Iowa, 570; Goodrich v. Penn. and N. Y. Canal co., 29 Hun, 50.) The position of the deceased was in many respects the same as that of an employee.

In Goodrich v. New York Central and Hudson River Railroad Company (116 N. Y., 398) it was held that a railroad corporation owed its employees the duty of furnishing cars properly equipped with safe and suitable appliances. All the cases are to the same effect. The same is true in the case of a passenger. The company owes him the duty of providing safe machinery and appliances, and, if by its negligence in those respects a passenger is injured, no reason is seen why it is not liable for the damages sustained, in the absence of negligence on his part which contributed to the injury.

It was not shown on the trial that, in the present case, the deceased in any way contributed to produce tbe accident which caused his death'. The evidence tends to show the reverse. He only assumed the visible risks incident to going from one car to another while the train was in motion. In doing so he had a right to assume that the couplings and appliances were in a. safe and proper condition. The injury was caused by the want of safe couplings. The case was properly submitted to the jury. (Palmer v. D. and H. C. Co., 120 N. Y., 170.) No errors appear on the record which would authorize a reversal.

The judgment and order must be affirmed.

Maoomber, J.:

I concur in the result reached in the opinion herein of Mr. Justicé Corbett.

On account of the decision of this court in the case of Goodrich v. Pennsylvania and New York Canal and Railroad Company (29 Hun, 50), which is in principle the same as this, we should, I think, affirm the judgment, irrespective of the reasons hereinafter expressed. There is also language used by the Court of Appeals in Nolan v. Brooklyn City and Newtown Railroad Company (87 N. Y., 67), which though possibly, as is claimed by appellant, not necessary to the decision of that case, cannot be ignored by us. There Judge Finch says : The rule is settled that, independent of the mandate of the statute, * * * it is not, even in the case of steam cars, negligence per se for a passenger to stand on the front platform of a moving car,” referring to those cases where the passenger was unable to procure a seat within the car.

But I think it extremely doubtful if the statute (Laws of 1850, § 46, cl\ap. 140), known as the general railroad act, ana the regulations thereunder made by the defendant, áre applicable to the case of a passenger passing carefully upon a lawful errand from one car to another while the train is in motion. The language of the statute is: “ In case any passenger on any railroad shall be injured while on the platform of ,a car, or on any baggage, wood or freight car, in. violation of the printed regulations of the company posted up at the time in a conspicuous place inside of its passenger cars then, in the train, such company-shall not be liable for the injury; provided said company at the time furnished room inside its passenger cars sufficient for the proper accommodation of the passengers.”

The language there used is broad enough to include passengers in getting on and off the cars at proper times and places. But, clearly, no such construction can be put upon the statute, notwithstanding the comprehensiveness of the words used while on the platform of a car,” etc. A passenger must pass upon the platform both in getting on and getting off the train. If, while in that act, he is injured, say by the giving away of the platform, could it be reasonably contended that there could be no recovery because he. was “injured while on the platform,” and while there was sufficient room inside the cars for the proper accommodation of passengers ? The question is not debatable, though the words in a literal sense would in the case supposed exempt the company from liability.

The true meaning of this section is, that the passenger shall not stand or remain on the platform while the cars are in motion, when there is sufficient accommodation Inside the car. It does not make the presence of the passenger on the platform per se an act of negligence, and such has been its practical construction and application by railway companies. The regulation of this defendant, posted inside its cars, printed on metal, is as follows: “ Passengers are not allowed to stand on the platform.”

Passing from one car to another while in motion is not of itself a violation of these regulations. In so doing it may well be conceded that even outside the statute the passenger takes upon himself the ordinary hazards attending the act, such as the perils of the lurching and jerking of the train, of the elements, of his own misstep or want of nerve and other like hazards. But I am not prepared to hold that his presence on the platform while returning from the smoking car, where he went to smoke, to his seat in another coach, when the train was running at its usual speed, is per se such a reckless act as to absolve the defendant from the duty of furnishing couplings sufficient to hold the cars together, thus by its negligence adding to the well-known and ordinary perils of transit the unknown and extraordinary, namely, the omission of duty of the company to provide suitable and proper appliances for holding the cars together, a failure of obligation to the public which is inexcusable under the law governing the liability of common carriers of passengers for hire. In my judgment, the jury was justified by the evidence in finding that, except for the defective couplings, the plaintiff’s intestate would have passed in safety from the one car to the other.

The judgment should be affirmed.

Judgment and order appealed from affirmed.


source: Caselaw Access Project

author: Macombeb, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant, v. THE BOARD OF HEALTH OF THE TOWN OF SENECA FALLS, Respondent.

      Board of health—power of, to direct the abatement of a nuisance, without giving notice to the pa/rty cJiarged with maintaining it.

    The Board of Health of the Town of Seneca Falls, acting under chapter 270 of the Laws of 1885, as amended by chapter S09 of the Laws 1888, made an order without notice to a railroad company, requiring the latter to make two openings of a hundred feet each, in an embankment extending from the west shore of Oayuga lake, upon which it operated a railroad, so as to permit the free flow of the waters of the lake through them northwardly.

      Held, that the duties of the board, in respect to inquiring into and determining whether or not a nuisance existed, were of a quasi judicial nature, and that the omission to give notice to the railroad company of the action proposed to be taken, was fatal to the regularity of the proceedings.
    That the power given to the Board of Health, by subdivision 4 of section 8 of the said act, “to receive and examine into the nature of complaints made by any of the inhabitants concerning nuisances,” etc., by necessary implication, required the board to give a reasonable notice to the person who was charged with the maintenance of a nuisance that complaint had been made, or that such fact existed, so that he might be heard, in his own behalf, in refutation of the charge made against him.
    In the absence of any prescribed length of notice a reasonable opportunity is implied, and should be afforded to the party charged with maintaining a nuisance, to defend his conduct.
    Appeal by the relator, the New York Central and Hudson River Railroad Company, from an order made at a Special Term, held in the city of Rochester on the 30th day of June, 1890, and entered in the Seneca county clerk’s office, July 2,1890, vacating and setting aside, witli ten dollars costs, a previous order of tire Special Term, granted March 21, 1890, which latter order directed that a writ of certiorari issue, directed to the Board of Health, and the members thereof, of the town of Seneca Falls, in the town of Seneca, to review its action; and, further, that all proceedings on the part of said Board of Health to remove the nuisance comjflained of in the papers annexed to the petition, upon which such order was made, or in any way to interfere with, change, alter, modify or remove the embankment of the petitioner, be stayed.
    The order appealed from vacated the injunction and the writ of cerUorari granted by the aforesaid order of March 21, 1890.

      Oarnp c& Dwnvjell, for the appellant;

      O. A. MacDonald, for the respondent.
   Macombeb, J.:

The Board of Health of the Town of Seneca Falls, on the 7th day of November, 1889, made an order, without notice to the relator, requiring the latter to make two openings of a hundred feet each in the embankment extending from the west shore of Cayuga lake, upon which it operates a railway, so as to permit the free flow of the waters of the lake through them northward. ' The board further directed that, in case the relator should fail to comply with said order, the work should be done under the direction of such board and the expense thereof assessed upon the relator’s property. The motion at Special Term having been made, alone, upon the papers on which the writ was issued, the affidavit of the relator’s assistant-engineer used on the original application, to the effect that such expenses to the railroad company would be $70,000 or $75,000 stands uncontradicted.

The ground upon which such action’ was taken is stated in the resolutions of the Board of Health to be, that this embankment caused an impediment in the current or natural flow of the waters and made a deposit of sediment and decaying vegetable matter, and the formation of marshes and a thick growth of weeds, grass and flag along the west shore of the lake at that point detrimental to the health of the community.

Tliis embankment had existed, substantially in the condition in which it was at the time the Board of Health took this action, for a period of forty-two years. The relator has maintained embankments from both shores of the neck of this lake, bnt the same were connected by a bridge over the middle, resting upon stone cribs, between which are openings at intervals for a distance, in the whole, of 1,522 feet, through which the waters of the lake freely flowed towards.the north. Shortly prior to the action of the Board of Health the railroad company began the construction- of a new bridge, by which the openings between the cribs through this space of 1,522 feet would be lessened in extent and reduced to a distance of 611 feet in the clear. By this improvement, which materially lessened the number of feet through which the waters of the lake flowed northward, the pre-existing cribs, located at intervals 'through the 1,522 feet, were dispensed with; so that, under the facts disclosed in the papers, the flow of the lake would not be retarded by the change.

It is further claimed on behalf of the relator that, if there is any obstruction to the free passage of the waters, the same is caused by reason of certain structures made by the State in the vicinity of Mild Lock on the Seneca canal, below the relator’s bridge, where all the waters of the lake are required to flow through a space of 252 feet.

It is not necessary to go into all the facts claimed to exist, as stated in the petition and affidavits; for, if the conclusion to which we have arrived is correct, the merits of the case are not necessarily before us, but they may be presented to the court in a subsequent step in this or in some other proceeding.

It is established, without dispute, that the action taken by the defendant was without notice to the relator. This omission we deem to be fatal to the regularity of the proceeding and to cause a reversal of the order appealed from. The proceeding is instituted pursuant to chapter 2?0 of the Laws of 1885, which was amended by chapter 309 of the Laws of 1888, in particulars not material to this appeal. Hnder subdivision 4 of section 3, the board of health of towns has power to receive and examine into the nature of complaints made by any of the inhabitants concerning nuisances, or causes of danger or injury to life and health within the limits of its jurisdiction; to enter upon or within any place or premises where nuisances or conditions, dangerous to life and health, are known or believed to exist, and by appointed members or persons to inspect and examine the same, and all owners, agents and occupants shall permit such sanitary examination; and said board of health shall furnish said owners, agents and occupants a written statement of results or conclusions of such examinations; and every such board of health shall have power, and it shall be its duty, to order the suppression and removal of nuisances and conditions detrimental to life and health found to exist within the limits of its jurisdiction.”

By subdivision 6 of the same section, the board has power to make such order and regulation in special or individual cases, not of general application, as it may see fit, concerning the suppression and removal of nuisances and concerning all other matters in its judgment detrimental to public health. By subdivisions 8 and 9 it has power to employ necessary persons to carry its orders into effect and to impose penalties for the violation thereof. Section 4 makes willful violation of such orders a misdemeanor, and in addition thereto, in case of non-compliance therewith, the board may enter the premises and abate the alleged nuisance and may recover the expense thereof from the persons maintaining such nuisance.

That the writ of cerbiorari may be issued in a case of this character admits of no doubt. Section 2120 of the Code of Civil Procedure preserves the writ as it existed at common law, except where expressly taken away by statute. So far a& the board of health could render its determination upon the matters before it, the decision which it made was a final adjudication from which no appeal could be maintained by the relator, and hence the ease is not brought within one of the exceptions to the rule. (Id., § 2122; Stone v. Mayor, etc., 25 Wend., 167.)

The duties of the board in respect to inquiring into and determining whether or not a nuisance existed are quasi judicial in their nature, and it is the duty of this court to determine, by means of such writ, whether jurisdiction was obtained by the board of health, and whether the authority conferred upon it has been pursued in' the mode required by law in order to 'authorize it to make the determination. (Code, § 2140, subs. 1, 2, 8.)

Without any notice, the defendant has taken steps which, if legal, will cause a great expense to the relator. While it may be true that a suit in equity to restrain the defendant from proceeding further with its illegal acts might be maintained, yet that additional remedy of the aggrieved party is no obstacle to the validity and regularity of the writ in this instance. But the appellant’s counsel carry their contention too far. It is claimed by them that the act under which the board of health has proceeded is unconstitutional, being in violation of the provisions of the Constitution, that no person shall be deprived of life, liberty or property without due process of law. In this, however, we think they are in error. This act did not undertake to give the entire procedure necessary to charge any person with the offense of maintaining a nuisance. Had it declared that such a proceeding could be maintained without notice to the parties most interested therein, then the question of its constitutionality would have fairly arisen and would have been easily decided. It was similarly attempted to'be raised in the case of the Metropolitan Board of Health v. Heister (37 N. Y., 661). But such folly cannot be ascribed to it. Though no special provision is made in the act for notice to the offending party, yet the power given to the board by subdivision 4 of section 3, “ to receive and examine into the nature of complaints made by any of the inhabitants concerning nuisances,” etc., requires, by necessary implication, the board to give a reasonable notice to the person against whom the maintenance of the nuisance is alleged, that complaint has been made or that such fact exists, so that he may be heard in his own behalf and, if possible, to refute the charge made against him. No proper inquiry leading to a final order affecting private rights can be made without hearing both sides. The opportunity to be heard before condemnation is the right which every person has under the common law and under our Constitution. So firmly is this fundamental principle embedded in our judicature, that it is not necessary, even in acts in derogation of the common law, to prescribe in words that notice of the hearing to a party proceeded against shall be given. In the absence of any prescribed length of notice, a reasonable opportunity is implied and must be afforded him to defend his conducto Such notice will vary in length according to the circumstances and exigencies of each particular case.

While it is true that the board of health may, and in certain instances it should, in the discharge of its public duties, make ex fiarte examinations, yet before a final determination is made which will put the accused person to expense, or which will deprive him of his right to carry on his business, he should be apprised of the substance of the charge, and thus be enabled to defend himself before final judgment. If the material parts of the petition and affidavits upon which the writ of certiorari was granted are true (as-we must deem them to be for all purposes of this appeal), a wrong has been perpetrated upon the relator, by the proceeding complained of, under which it'could not safely rest; for, in the absence of a reversal of the board’s determination for its entire illegality, or the permanent restraint by the court against its being carried into effect, the property rights of the relator would be seriously imperiled.

Note.—The rest of the cases of this term, which are to be reported, with the list of decisions of those cases decided and not reported, will be found in the next volume (59) of Hun.— [Ref.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate the writ of certiorari denied, with ten dollars costs.

Dwight, P. J., and Oorlett, J., concurred.

Order appealed from reversed, with ten dollars costs and disbursements, and the motion to supersede the writ of certiorari denied^ with ten dollars costs.


author: Macomber, J.:

text:
    SETH H. TRACY, Respondent, v. SOLOMON H. TRACY, Appellant.

      Complaint — allegations of services rendered, lease of chattels and of making and delivery of notes, but none of non-payment — insufficient on demurrer.

    A complaint alleged, as a first cause of action, that between certain dates the plaintiff, at the request of the defendant, rendered services as a lawyer, giving the items thereof; as a sixth cause of action, that the plaintiff had rented a ceK tain harness to the defendant to be used for two years, during which time the same was materially injured and depreciated in value to an amount therein stated; as a ninth cause of action, that the defendant had made his promissory note, payable six months after date, for $100, with interest, for value received, and delivered the same to the plaintiff. There was no allegation that the professional services had not been paid for, or of a failure to pay for the use of the harness, or that the note had not been paid.
    On the hearing of a demurrer interposed to the complaint, on the ground that it did not state a cause of action, it was

      Reid, that there was no allegation of a breach of the contract set forth in either of • the causes of action above referred to, and that the demurrer thereto should be sustained.

      Salisbury v. Stinson (10 Hun, 343) overruled.
    Appeal by the defendant Solomon H. Tracy from an order and judgment overruling the defendant’s demurrer to the plaintiff’s complaint, which order and judgment were entered in the office of the clerk of the county of Allegany on June 2Y, 1890.

      The complaint demurred to was as follows:
    The plaintiff complains against the defendant and for a cause of action alleges, that prior to the year 1871, and ever since that time, this plaintiff was and has been an attorney and counselor-at-law in the several courts of record of the State of New York, duly admitted to practice in said courts, and that as such attorney and counselor-at-law, he was retained by the said defendant to bring and attend to, for him, several actions in the courts of this State, from some time in the year 1871 down to and including the year 1882; that among the suits so brought, and in which he was so retained, was an action in the Supreme Court, brought some time in the year 1871 by one Mary A. Mackin against said defendant for a breach of warranty on the sale of a horse sold by him to her; that on such retainer and at the defendant’s request he rendered services in such action as such attorney and expended divers sums of money in and about the same to amount in all to the sum of eighty-five dollars; also an action in Justice’s Court of this defendant against Joseph "Winship on account ■commenced some time in the year 1872, which services were of the value of five dollars; also a suit in Justice’s Court brought by this defendant against one George W. Hawley in or about the year 1876, which services were of the value of one dollar; also an action in the Allegany County Court brought by one Tarbell against this defendant for forcible entry and detainer in the year 1880, which services were of the value, including the moneys expended in and about the same, of sixteen dollars; also an action brought in the Supreme Court in or about the year 1882 by this defendant against Timothy Gregory, which services and moneys expended in and about the same were of the amount and value of thirty dollars; also an action brought in Justice’s Court in the year 1882 by this defendant ¡against the New York, Lake Erie and Western Railroad Company for the alleged killing by said company of a mare belonging to this defendant, which services were of the value of six dollars; also an action in Justice’s Court in the year 1882, brought by this defendant against Dwight Hammond on general account, which services were of the value of two dollars; which said services and all of them were so rendered by this plaintiff for said defendant, and at his request and under his retainer and employment.

      Second. For a second cause of action plaintiff alleges that the said defendant is indebted to this plaintiff in the sum of two dollars for the use of bull in serving two cows in or about the year 1882 at ■the request of said defendant.

      Third. For a third cause of action plaintiff alleges that this ■defendant is indebted to him for goods, wares and merchandise sold and delivered by this plaintiff to the defendant at his request, in the town of Amity, county of Allegany, N. Y., in the years 1883 .and 1884, to the amount and value of sixteen dollars and eighty-seven cents.

      Fourth. For a fourth cause of action plaintiff alleges that the said ■defendant is indebted to this plaintiff for mopey paid, laid out and expended in the years 1883 and 1884 for the benefit of the defendant, and at his request, in the sum of ten dollars and forty cents and interest thereon from the 1st day of January, 1885.

      Fifth. For a fifth cause of action plaintiff alleges that in or about the year 1883 this plaintiff pastured for the said defendant and fed, at his request, a certain horse for a considerable period of time to the amount and value of four dollars, in which sum the said defendant is now indebted to this plaintiff.

      Sixth. For a sixth cause of action plaintiff alleges that in the year 18S4 plaintiff was the owner of a set of double harness, and at the request of said defendant rented the same to said defendant, and the said defendant had and used the same for the period of about two years, and in using the same materially injured and depreciated the value thereof to the amount, including such use, of twenty-one dollars.

      Seventh. For a seventh cause of action plaintiff alleges that said defendant is indebted to him in the sum of $150.49, and the interest thereon from the 1st day of April, 1886, for so much money had and received by said defendant to and for the use of the said plaintiff, being moneys of the estate of his father, Ira Tracy, and his mother, Annie H. Tracy, and which said money belonged to this plaintiff, and was had and received by said defendant at or about said date, and which sum said defendant promised to pay to the said plaintiff when thereto requested, and has refused and still does refuse to pay to said plaintiff, although often requested.

      Eighth. For an eighth cause of action plaintiff alleges that on or .about the 1st day of May, 1884, at the request of said defendant, he lent and advanced to the said defendant the sum of twenty dollars to be paid on demand, and that the same has not been paid, although often requested.

      Ninth. For a ninth cause of action plaintiff alleges that on or about the 2d day of July, 1883, at Belmont, N. Y., said defendant made his certain promissory note, dated that day, whereby, six months from the date thereof, he promised to pay to this plaintiff or bearer $110, with interest, for value received, and then and there delivered the said note to this plaintiff.

      Tenth. For a tenth cause of action plaintiff alleges that on or about the 2d day of July, 1883, at Belmont, N. Y., said defendant made his certain promissory note, dated that day, whereby, sixty days from the date thereof, he promised to pay this plaintiff or bearer $110, with interest, for value received, and then and there delivered the said note to this plaintiff.

      Eleventh. For an eleventh cause of action plaintiff alleges that on the 2d day of July, 1883, at Belmont, N. Y., said defendant made his certain promissory note, dated that day, whereby, one year from the date thereof, he promised to pay to this plaintiff or bearer $110, with interest, for value received, and then and there delivered the said note to this plaintiff.
    "Wherefore plaintiff demands judgment against the said defendant for the sum of $679.76, and interest on $145 thereof from January 1, 1883; on $310 from July 2, 1883; on twenty dollars from May 1, 1884; on fifty-two dollars and twenty-seven cents from Januai’y 1, 1885; on $150.49 from April 1, 1886, besides costs.

      Rufus Scott, for the appellant.

      Loveridge c& Leggett, for the respondent.
   Macomber, J.:

The defendant demurred to the first, second, third, fourth, fifth, sixth, ninth, tenth and eleventh counts or causes of action stated in the plaintiff’s complaint, on the ground that they severally fail to state facts sufficient to constitute a cause of action.

The second, third, fourth and fifth causes of action are, ■undoubtedly, sufficiently stated. Each of them contains an allegation of an indebtedness owing by the defendant to the plaintiff upon ■contract. The language of each count is that the ■“ defendant is indebted to this plaintiff,” thence follow the particulars of such indebtedness in each instance. (Code Civil Procedure, § 531.) The decision in respect to the other causes of action, namely; first, sixth, ninth, tenth and eleventh, stated in the complaint, rests upon different considerations.

The first cause of action is for professional services as attorney and counselor-at-law. The allegation is that from the year 1871 to and including the year 1882, the plaintiff, at the request and under the retainer and employment of the defendant, rendered to the latter services as a lawyer, giving the items thereof. There is no allegations that the services were not paid for as they were rendered, nor any other allegation tending to show a breach of the contract made by the defendant.

The sixth cause of action is based upon an alleged renting, in the year 1884, by the plaintiff to the defendant of a harness used by the latter for two years in which the same was materially injured and depreciated in value to an amount therein stated. In this instance there is no allegation of a failure on the part of the defendant to pay for such use.

The ninth cause of action is upon a promissory note alleged to have been made by the defendant, whereby six months after the date (viz., 2d day of July, 1883) the defendant promised to pay to the plaintiff or bearer $100, with interest, for value received, and then and there delivered the said note to the plaintiff.

The tenth and eleventh causes of action are upon other notes under like allegations.

In neither instance is there an allegation that the note remains unpaid, or that the defendant failed to pay it, or that he is indebted to the plaintiff for any sum of money upon either of these instruments.

The Special Term in deciding against the sufficiency of the demurrer in respect to the causes of action demurred to, other than the second, third, fourth and fifth, deemed itself bound by the decision of the case of Salisbury v. Stinson (10 Ilun, 242). In that case the General Term of the first department held that a complaint alleging that the plaintiff “ sold and delivered to the defendant certain goods of the value and for which the defendant agreed to pay $164.68,” is sufficient, and that it is not necessary to allege that the demand has not been paid, or that it remains due and unpaid at the time of the beginning of the action.

In its opinion the court say: That proof of the facts and sale and of the delivery of the goods to the defendant, together with an agreement to pay a stipulated price therefor, are all the facts that need be alleged or proved upon the trial. The court there conceded that, under the former practice, the complaint would doubtless have been bad on special demurrer for not alleging a breach of contract, but held that, under the present system of pleading, a breach is presumed on proof of the facts alleged.

The reasoning of the learned justice writing that opinion, notwithstanding the high character of the court pronouncing it, is not altogether satisfactory to us. That judgment stands alone upon this subject. That it has not met the approval of the profession may be seen in 15 Albany Law Journal, page 479.

A plain and concise -statement of the facts constituting the cause of action is all that is required to be pleaded. But what is the cause of action ? It is certainly not the sale and delivery of the goods with a promise to pay. The only cause of action of the seller against the buyer arises when the buyer fails to perform, his contract according to the agreement and when there is an actual breach of the contract. That it is the breach of the contract, and not the contract itself, that gives the right of action is assumed throughout all systems of procedure. In the Code of Civil Procedure that assumption appears clearly in sections 420 and 1212. If there be a fallacy in the reasoning of the court in the case of Salisbury v. Stinson {supra), it consists in confounding pleading with proof. In an action upon a promissory note, for instance, on the trial, if the plaintiff appears with the note in his possession, a presumption arises that the note remains unpaid, but it is a presumption of evidence, and has no relation to the matter of pleading. The complaint should be such that if there is no answer or appearance by the adverse party a true judgment could be taken under sections 420, 1212 and 1213-of the Code. In weighing a pleading no presumption can be indulged that a person in the ordinary course of business does not. fulfill his contracts; and Ave do not see that a pleading which merely brings the allegation of fact up to the breach without alleging the breach can be made good by indulging in any such presumption.

It follows that tbe order and interlocutory judgment in respect to the first, sixth, ninth, tenth and eleventh counts of the complaint should be reversed, and that in respect to the second, third, fourth and fifth counts, such order and judgment should be affirmed, without cost of this appeal to either party, with leave, however, to the plaintiff to amend his complaint in respect to the counts above adjudged to be insufficient, and with leave to the defendant to withdraw his demurrer in respect to the other counts and to answer.

Dwight, P. J., and Oorlett, J., concurred.

So ordered.


author: Dwight, J.:

text:
    In the Matter of the NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant, to Acquire Lands of the CHARLOTTE IRON WORKS, Respondent.

      Eminent domain — when a railroad may acquire land Inj eminent domain, although it already owns land proper and mailable for the purpose.

    In proceedings taken for tlie purpose of condemning land for the purposes of a train-house and passenger station for the petitioner’s railroad, it appeared that while such a structure as was proposed was greatly needed for the safety and convenient accommodation of the public, it might be erected upon land in the vicinity already owned by the petitioner, and not used for the purpose of its incorporation, but leased by it to a company which had erected and maintained on the ground for several years various buildings, such as are usual at popular seaside resorts for the accommodation and entertainment of the public, and had laid out the ground in an ornamental manner; that, with these additions to the natural attractions of the place, the beach at Charlotte, where this land was proposed to be taken, had become a great lake-side resort, trains running to and fro between the beach and Rochester during the day and evening, in the season, carrying at times as many as 15,000 people daily.

      Held, that as the result of using for this purpose the land already owned by the railroad company would be to destroy, in a large measure, the usefulness and attractions of the place as a public resort, and to that extent to render unnecessary the terminal facilities sought to be provided for the accommodation of the public, that the railroad should be authorized to condemn the land sought to be taken in these proceedings.

      Appeal by the New York Central and Hudson River Railroad Company from an order of tbe Supreme Court, made at Special Term and entered in tbe office of the clerk of the county of Monroe on the 23d day of March, 1889, which order provided as follows:
    It is ordered and adjudged that the facts are as set forth in said decision; .that the preiiiises of the petitioner, mentioned in said findings of fact, are not used for the purposes of its incorporation, or for the construction and maintenance or operation of its railroad, or for any purposes which, are necessary or convenient for the operation of the railroad; that it does not appear that said premises could not be used for the location, in whole or the great part, of a station and train-house which should be adequate and convenient for its passenger business at Charlotte during the summer months; that said petitioner, being the owner of such premises, cannot in this proceeding acquire additional premises for the location of a station and train-house at Charlotte; that the petitioner has not shown the necessity for the taking of the premises described in the petition for the purposes therein mentioned, and that the defendants are entitled to an order denying the prayer of the petition, with costs of an action.

      E. Harris, for the appellant.

      Theodore Bacon, for the respondent.

       Decided December, 1889.

   Dwight, J.:

The issues joined in this proceeding by petition and answer, prescribed by the statute, were tried by the court at a Special Term for the trial of equity causes; proofs were taken orally, and findings of fact and conclusions of law were made by the court as the basis of the order from which this appeal is taken. We regard the appeal as bringing up the whole record and presenting the questions, first, whether the findings of fact are warranted by the evidence; and, second, whether the conclusions of law are warranted by the findings of fact.

The use for which the petitioner seeks to acquire the lands in question is for the purposes of a train-house and passenger station at the northern terminus of the Charlotte branch of its road. The final and controlling conclusion of the court at Special Term was that the land was not shown to be necessary for the purpose; and the conclusion is based upon previous findings to the effect that, while such a structure as that proposed is greatly needed for the. safe and convenient accommodation of the public, it does not appear, but that it might be erected upon land in the vicinity already owned by the petitioner, and which is not at present used for the purposes of its incorporation. Our inquiry, therefore, seems to be limited to the questions — what are the extent, the character, the .situation and the present uses of the land referred to as already belonging to the petitioner; and whether that land, even if adequate and suitable for the purpose, ought to be made use of for the purpose contemplated by the application. In making that inquiry we shall keep in mind that whatever land is selected for the purpose in question, is to be devoted to a public use, and that a primary consideration in the selection is the best accommodation of the public.

It appears from the findings and proofs, and is also a matter of public knowledge, that the beach of Lake Ontario, at Charlotte, is not only the terminus of the petitioner’s branch road, but the attraction which draws vast numbers of people thither in the summer and .autumn months, and itself creates the demand for passenger trans-. portation which the petitioner’s road supplies. Thus the beach, as .a summer resort, and the railroad as a means of reaching it, are largely dependent on each other; neither of them would be called upon to furnish large accommodation to the public but for the other; and the best accommodation of the public requires that neither of them shall be so used or managed as to interfere with the other in the attempt to serve a common end.

All that portion of the beach at Charlotte which is open to the public is included in the comparatively small tract of land which is owned by the petitioner and upon which the respondent contends its train-house and passenger station should be located. The portion of the beach spoken of terminates on the east, at the mouth of the ■Genesee river, and on the west at Broadway, the principal street -of the village, beyond which, to the west, the shore of the lake, whether beach or bluff, is in private hands. The. tract belonging to •the petitioner is bounded on the east by the Genesee river, on the north by the lake, on the west by Broadway, and on the south by lands of the respondent. It is a little less than 1,000 feet in width, from east to west (being the length of the beach), and about 860 feet in depth, from the lake to its southern boundary. It is-traversed at about the distance of 560 feet from the lake by another street of the village, called Beach street, leading from Broadway to a ferry across the Genesee river.

The portion of the petitioner’s land which lies north of Beach street was leased by the petitioner in 1883 to certain persons, who were afterward incorporated under the name of “ The Lake Ontario-Beach Improvement Company,” for the term of fifty years, at a. nominal rent, with the provision that the lease might be terminated by the petitioner on one year’s notice, and subject to the use of the petitioner for the operation of its railroad, and to the right of the petitioner to construct thereon such tracks and structures as-may be necessary or convenient for such operation. The lease is-now held by the corporation named. The lessees have erected on the grounds, and maintained for several years various buildings,, such as are usual at popular seaside resorts, for the accommodation and entertainment of the public, and have laid out the grounds in an ornamental manner. With these additions to the natural attractions of the place the beach at Charlotte has become a great lake-side resort. Trains run to and fro between Rochester and the beach, hourly during the day and evening, in the season, carrying backward and forward at times as many as 15,000 people daily. The petitioner has, at present, no terminal facilities at all adequate for the convenient or safe accommodation of this immense travel. It has no train-house and no passenger station which is of any use for the purpose, nor even platforms for passengers entering or leaving the cars. Its only means of accommodating its passengers in this respect is a “ balloon track,” so calléd, which enters and leaves its own land at the south bounds of the parcel south of Beach street, and spreading out encircles in its widest part nearly the whole of' the parcel leased to the Beach Improvement Company. Its trains stop at various points on this circular track to discharge and receive passengers in the open air. The inconvenience and dangers attendant upon this mode of dealing with great throngs of passengers, some alighting from and others attempting to enter the cars at the same time, are apparent, and the necessity of better accommodationfor the public in this respect is conceded by all. Its proposed train-house and passenger station are to be, together, 676 feet long, and the train-house of a width sufficient to accommodate six trains-of cars side by side, 576 feet in length. The court at Special Term finds that the structure so planned is ample for all business of the petitioner at Charlotte ; is adapted for the purpose, and none too large.

The court also finds, as the figures show, that the proposed structure cannot be located on the land owned by the petitioner north of Beach street, so as to stand parallel to Broadway (which would be in line with the direction of the track as it enters the premises), but that it does not appear that it cannot be put on said land diagonally with Broadway. And the court, from the facts in substance above stated, found, as a conclusion of law, that because the petitioner might, so far as appears, locate the necessary structure above described on its own land north of Beach street, it cannot condemn other land for that purpose.

We do not think that this conclusion of law was warranted by the facts. The beach at Charlotte, and the land adjacent thereto available for the accommodation and entertainment of the public visiting that resort, is already very limited in extent. A building of the dimensions required for the proposed train-house and station, together with the necessary tracks for the entrance and exit of trains, if they could be located thereon in any form, would cover the greater part of the entire parcel of land north of Beach street. And the unavoidable result would be to destroy, in large measure, the usefulness and attractions of the place as a public resort, and, to that extent, to render unnecessary the terminal facilities now sought to be provided for the accommodation of the public.

The question is not here whether the railroad company may acquire lands by condemnation for the purposes for which the land north of Beach street is now used; but Avhether, being the owners of that land and having leased it for such purposes, they are required to resume possession of it under the ■ power reserved by the lease, and employ it for their own necessary structures before they can condemn other land for the latter purpose.

In the case of Rensselaer and Saratoga Railroad Company v. Davis (43 N. Y., 137, 146), it was held that while the construction of dwellings for employees and officers, and the construction of slips-for the accommodation of vessels bringing freight to or taking it from the railroad, might not be necessary for the corporate purposes of a railroad company within the statute,.yet that the authority of the company to acquire, by voluntary purchase, lands for those purposes was within the powers granted by the act; and in the case of the New York Central and Hudson River Railroad Company v. Metropolitan Gas-Light Company (63 N. Y., 326), it was held no objection to an application to appropriate lands, required for the legitimate purposes of the petitioner’s incorporation, that portions of the petitioner’s premises were leased to others- and were to be used for business purposes which would be benefited by the appropriation, although those purposes of themselves would not authorize the condemnation of land under the statute.

Ye think the case in hand a very strong one for the application of the principle approved in the cases cited, viz , that a railroad company may take by voluntary purchase, or, being the owners of,' may lease to others, lands for uses not strictly-within the purposes of its incorporation, when such uses contribute materially to the business of the railroad company, and to its ability to serve the public uses for which it was incorporated.

No objection is made or suggested here that the petitioner is .acting oppressively or in bad faith in seeking to condemn the lands of the respondent for the use in question; nor that the appropriation of those lands cannot be fully compensated for in proceedings under the statute.

Ye think the order appealed from should be reversed and the motion for appointment of commissioners granted.

Barker, P. J., and Macomber, J., concurred.

Order reversed, motion for -the appointment of commissioners granted, and proceedings remitted to Monroe Special Term to name such commissioners on the customary notice.


text:
    DESDA REYNOLDS, Respondent,
      v. THE EQUITABLE ACCIDENT ASSOCIATION OF BINGHAMTON, N. Y., Appellant.

      Insurance policy — death through ‘ ‘ lifting or over-exertion ” — waiver by the company of a provision as to notice of the accident.

    In an action upon a policy of accident life insurance, which provided that “ no claim shall be made under this certificate when the death or injury shall have been caused in dueling, fighting, wrestling, lifting or by over-exertion,” it appeared that the insured was a bridge-builder, and that while engaged in raising, with the men in his employ, the bent of a bridge “ without any distress to himself and as if he was able to do it,” a post slipped from its position, the top of the bent settled back, an unexpected weight was thrown upon the pike-poles in the hands of the men and the insured was either struck in the side by the end of his pole or subjected to a strain of great severity, was disabled from the moment of the accident and died about ten days thereafter.
    The only question submitted to the jury was whether the injury and death came within the exception of the policy, as being caused by “ lifting or over-exertion,” in respect to which the court charged the jury, in substance, that the lifting or over-exertion, to take the case out of the contract, must be a voluntary and unnecessaiy act of the insured, one from which injury might reasonably be anticipated, and which might, in the exercise of reasonable care, have been avoided, and that an effort to lift or over-exertion, put forth in an emergency of danger, as, for instance, in the effort to save one’s self from being crushed by a descending weight, was not within the exception of the policy.

      Held, that the charge was correct.
    Where a defense was interposed, in an action brought to recover upon a policy of insurance, that the assured had not complied with a provision of the policy, to the effect that “ failure to give such immediate notice, mailed within five days from the happening of such accident, shall invalidate all claims under this certificate,” it appeared that, within a month after the accident, and about two weeks after the death; the defendant having been informed of the case, sent an agent to the widow “to see her about the insurance,” and that he told her that her failure to give the notice “ did not make any difference because he (the insured) was dead, if he had been hurt and was going to doctor up it would have made a difference,” and subsequently the president and secretary of the insurance company addressed letters to the person representing the plaintiff, requesting him to advise the plaintiff not to make any claim, and announcing their decision, evidently intended to be final, that she had no claim by reason - of the manner in which the injury was received and of the cause of death.

      Held, that, under these circumstances, a question was presented for the jury whether the acts and declarations of the defendant did not indicate an intention to waive the objection of a failure to serve a notice of the accident within the time mentioned in the policy.
    Objection was raised by the defendant that the evidence on the subject of the cause of death was not, in the language of the policy, “ direct and affirmative.”

      Held, that the language of the policy should not be construed to take the case out of the ordinary rules of evidence, and it was sufficient that the evidence under such rules established the fact.
    Appeal by the defendant, the Equitable Association of Binghamton, N. Y., from a judgment of the Supreme Court, entered in .the office of the clerk of the county of Cayuga on the'18th day of October, 1887; also an appeal from an order denying defendant’s motion for a new trial, entered in the office of the clerk of the county of Cayuga on the 5th day of January, 1888.

      Cha/pman & lyon, for the appellant.

      II. Greenfield, for the respondent.

      Decided June, 1888.

   Dwight, J.:

The action was on a policy of life insurance, issued in the form of a certificate of membership in the defendant association, on the life of George A. Reynolds, payable to the plaintiff, his wife. .

The assurance was in case of death resulting only from “ bodily injuries effected through external, violent and accidental means.” Condition No. 2 of the certificate contained the following proviso : “And no claim shall be made under this certificate when the death or injury shall have been caused by dueling, fighting, wrestling, lifting or by over-exertion.” Condition No. 5 provided for immediate notice in writing of the accident to be given to the secretary of the association, and that “ failure to give such immediate notice, mailed within five days from the happening of such accident, .shall invalidate all claims under this certificate.”

The undertaking of the defendant was to pay the principal sum, not exceeding $3,000, realized upon an assessment ” in accordance with its by-laws.

The insured was a bridge-builder: and on the 16th of December, 1886, was engaged with the men in his employ in raising the bents of a bridge. Several of the bents had already been raised without difficulty or accident; the plaintiff, as one of the witnesses .testified, working “ without 'any distress to himself, as if he was able to do it.” At last, as the evidence tended to show, the foot of one ■of the posts, when the bent was raised about half way to the perpendicular, slipped from its position, the top of the bent settled back, .an unexpected weight was thrown upon the pike-poles in the hands •of the men, and the insured was either struck in the side by the end of his pole, or subjected to a strain of great severity. He was disabled from the moment of the accident and died on the twenty-seventh •day of the same month.

On the trial the charge of the court referred to this injury as the •cause of death; and no exception was taken to such reference, nor was any request made to submit that question to the jury. The only question submitted was, whether the injury and death was excepted by the policy as being caused by “lifting or over-exertion.” ' The instruction in that respect was, in substance, that the lifting or overexertion, to take the case out of the contract, must be a voluntary and unnecessary act of the'insured; one from which injury might reasonably be anticipated, and which might, in the exercise of reasonable care, have been avoided; and that an effort to lift, or over-exertion, put forth in an emergency of danger, as, for instance, in the effort to save one’s self from being crushed by a descending weight, was not within the exception of the policy. The instruction was correct and the exceptions to the charge do not avail the •defendant.

A motion for a nonsuit was made on many grounds, some of which relate to the insufficiency of the evidence as to the cause of death. In regard to those objections but little need be added to what has already been said. There was ample evidence to go to the jury in support of the plaintiff’s allegation that the death resulted solely from the accident described, and that the accident was within the meaning and intent of the contract of insurance.

The objection that the evidence on the subject was not, in the language of the policy, “ direct and affirmative,” was untenable. The evidence was sufficient within the rules of law, and the language of the policy cannot be construed to take the case out of the ordinary rules of evidence. The objection that an action at law will not lie to recover a sum insured, to be realized by an assessment, was properly overruled under the decisions of the General Terms in the third and fourth departments, which we are content to follow. (Freeman v. National Benefit Soc., 5 N. Y. St. Rep., 82; O’Brien v. Home Benefit Soc., 11 id., 810 ; Fulmer v. Union Mutual Assn., 12 id., 347.)

The remaining question in the case was raised hy the defendant’s motion for a nonsuit, on the ground of the failure to give the notice of the accident required by condition No. 5. The fact of such failure was admitted hy the complaint, and the only question was whether, as alleged in the complaint, the condition was waived by the defendant after default. That question was raised on the trial only by the motion for a nonsuit; the defendant did not ask to-have it submitted to the jury as a question of fact. Unless, therefore, the court would have been justified in holding, as matter of law, that there was no waiver, the defendant is concluded by the refusal of the court to nonsuit on that ground.

The facts in evidence on this branch of the case were, that within-a month after the accident, and about two weeks after the death, the-defendant having become informed of the case, sent an agent to the widow “ to see her about the insurance; ” that he told her that her failure to give the notice “ did not make any difference, because he (the insured) was dead; if he had been hurt and was going to doctor up, it would have made a difference,” and he promised the plaintiff that he would see that she was notified what the company would do. Subsequently the president and secretary of the defendant both addressed letters to a gentleman who was acting for the plaintiff, and who had written for blank proofs of loss, requesting him to advise the plaintiff not to make any claim, and announcing their decision, evidently intended to be final, that she had no claim by reason of the manner in which the injury was received and of the cause of death.

Upon these facts, and under the rule established by several recent and controlling decisions, we think there was, at least, a question for the jury whether the acts and declarations of the defendant did not indicate an intention to waive the objection of failure to serve in time the notice of the accident. (Prentice v. Knickerbocker Life Ins. Co., 77 N. Y., 483 ; Brink v. Hanover Fire Ins. Co., 80 id., 108 ; Baker v. N. Y. State Mut. Ben. Assn., 9 N. Y. St. Rep., 653.) In the first of these cases the rule is stated by Andrews, J., and in the second, quoted by Church, Oh. J., that the waiver by an insurance company of the condition in respect to the time of serving-proofs of loss may be made by acts or conduct occurring subsequent to the breach of the condition, indicating an intention to waive such condition, although there is no new consideration and although there may be no technical estoppel.”

Manifestly, if there was any conflict of evidence on the question of the intention to waive, or if the case was one in which different inferences might be drawn by different minds from the same facts, it was a question for the jury, It was not error, therefore, for the court to deny the motion for a nonsuit on the ground last considered. There are no other exceptions in the case which seem to require discussion.

The judgment and order appealed from should be affirmed.

All concur.

Judgment and order affirmed.


author: Macomber, J.: Corlett, J.

text:
    FRANCIS B. BREWER, Respondent, v. JAMES E. FORD, Appellant.

      Gontract of sale — provision that it should be conditional and that the title to a certain pa/rt of the property should not pass until paid for, when applied to all the property — election of remedies.

    In an action of trover to recover from an assignee for tbe benefit of creditors of a firm, known as Tbe Clark Manufacturing Company, tbe value of certain property wbicb bad come into bis bands, it appeared that one, Brewer, tbe plaintiff in tbe action and Tbe Clark Manufacturing Company had entered into an agreement prior to tbe assignment, by wbicb certain machinery, patterns and merchandise were transferred from the plaintiff to tbe company to be paid for in installments, represented by certain promissory notes of the latter. Tbe agreement provided that “ said machinery shall be tbe property of said Brewer, in care and custody of said Mix Brothers until paid for.”
    When this action was begun three of tbe promissory notes, of $1,000 each, remained unpaid, of which only one was due at that time.

      It was claimed that the word “machinery” did not include the patterns, which wore valued at $8,400 of the original purchase-price. The contract provided that the plaintiff agreed to sell to the defendant’s assignor “ a certain amount of machinery and all patterns pertaining to lock business; * * * said machinery shall be the property of said Brewer, in care and custody of said Mix Brothers until paid for, * * * and The said Clark Manufacturing Company agree to make the above-described purchase upon the conditions therein set forth and recited.”

      Meld, that the obvious intention of the contract was that -the sale should be conditional, and that the tide should be retained by the seller to the whole of the property transferred, and that this would bring the patterns within the scope of the word “machinery,” even though they might not be properly machinery(Corlett, J., dissenting.)
    The right of the plaintiff to bring an action for the conversion of the articles sold, and to sue on the notes given on the making of such contract and the question of election of remedies, considered.
    Appeal by tbe defendant James E. Ford from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of Erie on tbe 17th day of April, 1890, in favor of tbe plaintiff, and from an order denying tbe defendant’s motion for a new trial, made on the minutes of tbe court and entered in tbe office of tbe clerk of tbe county of Erie on tbe 25th day of February, 1890, after a trial before tbe court and a jury at tbe Erie Circuit, at which a verdict was rendered in favor of the plaintiff for $3,515.

      Frank O. Ferguson, for tbe appellant.

      William G. Fitch, for tbe respondent.
   Macomber, J.:

This action is. trover to recover of tbe defendant, who is tbe assignee for tbe benefit of creditors of a firm known as Tbe Clark Manufacturing Company, tbe value of certain property which came into bis hands as such assignee. The plaintiff and tbe defendant’s assignors entered into an agreement January 29, 1880, by which a given quantity of personal property, consisting of machinery, patterns and merchandise, was transferred from tbe former to tbe latter, to be paid for in installments represented in amount by promissory notes ranging in times of payment between April 1, 1881, and April 1, 1889. When this action was begun (April 17,1887) three of such notes of $1,000 each remained unpaid, but only one of them was due at that time. By the terms of the contract between the original parties it was agreed that “ said machinery shall be the property of the said Brewer, in care and custody of said Mix Brothers until paid for.”

Upon the first trial objection was made by the defendant that no recovery could be had except upon a surrender of such outstanding notes. The justice presiding made a ruling to that effect and .afforded the plaintiff an opportunity to surrender the notes, which was declined by counsel who had the notes in court, and who claimed the right to collect upon the notes any sum over and above the amount ■of the verdict which the jury might render in this action. A verdict for the defendant was accordingly directed. On appeal to this court the judgment entered thereon and an order denying a motion for a new trial were reversed and a new trial granted. (Brewer v. Ford, 26 N. Y. St. Rep., 888; 7 N. Y. Supp., 244.) The prevailing opinion placed the decision upon the ground that the action might be maintained without tendering the unpaid notes, because, as was there decided, the seller was confined in his remedy neither to a repossession of the property nor to the notes, but could avail him.self of both. The dissenting opinion was, in substance that, by holding on to the commercial paper, the plaintiff assumed an attitude in this forum so inconsistent with the claim made in the complaint that the court could not properly permit him to proceed, for otherwise the rescission of the original contract, which the beginning of this action necessarily made, would not be a real but a sham rescission, and an action might still be maintained upon each of the ■outstanding notes; and that the active duty rested upon the plaintiff .to restore, before recovering a verdict in this action, the unpaid paper still held by him. But, as stated above, a majority of the court decided otherwise, and held that the plaintiff had his cumulative remedy of recovering the property or its value on the ground that no sale of it had been made, and prosecuting the outstanding notes to judgment, or proving them for payment or dividends .against the defendant as assignee of the estate of The Clark Manufacturing Company, upon the ground that the property had been sold to the defendant’s assignors and that a debt existed therefor. The case was treated as though the plaintiff held a chattel mortgage as collateral security for the unpaid purchase-money.

The new trial has been conducted in accordance with the prevailing opinion of this court on the former appeal. The same persistent purpose to affirm and disaffirm the original contract prevails throughout the case. The counsel for the plaintiff, in the course of the trial, said: “Now, if the court please, I have here the three notes in question; I offer to place them in the possession of the court, or with such person or persons as the court may direct for the purpose, and with authority to indorse upon these notes whatever recovery may be obtained in this action; and if the recovery is equal to the amount of the notes, then that the notes may be surrendered to such person or persons as the court may direct; if the recovery is less than the amount of the notes, then the amount of such recovery to be indorsed upon the notes as so much payment.”

It was this attitude of counsel which induced the direction of the verdict at the first trial, which decision, on appeal, a minority of the court held to be correct. But the court held otherwise. Except for the authority of that decision, adherence to precedent, as well as legal principle, would, in my judgment, lead to a different result. But that judgment was given in this case on facts in no wise materially different from those now before us. It stands, therefore, res adjudieata. It is binding and conclusive on this and all courts of concurrent power. The present case is identical with the former appeal in the parties, in the cause of action, and in the thing sued for. It was manifestly tried in accordance with the decision of this court ■previously rendered. We are not, consequently, at liberty to revise the former adjudication, though the present majority of the court are committed against it.

There remain, therefore, to be considered by us only such subsidiary questions, if any, arising on the second trial, as were not in the former case.

It is contended by the appellant that even though there may be a recovery for certain articles, there can be none for the patterns, for the reason, as is stated, that they are not “ machinery,” and, consequently, the clause of the agreement ^retaining title in the vendor does not apply to them. By the terms of the contract the plaintiff agreed to sell to the defendant’s assignors “ a certain amount of machinery and all patterns pertaining to lock business. * * * Said machinery shall be the property of said Brewer in care and custody of said Mix Brothers until paid for. * * * And the said Clark Manufacturing Company agree to make the above described purchase upon the conditions therein set forth and recited.”

It is now argued that the word “ machinery ” does not include the patterns which were valued at $3,400 of the original purchase. An attentive perusal, however, of the contract leads quite irresistibly to the conclusion that if the sale was conditioned in any part and the title retained by the seller to any of the property until paid for, such condition and retention of title related to the whole of the property transferred. This obvious intention of the parties would overcome the restricted meaning given by the appellant to the word “ machinery,” and bring the patterns within its scope even though, except in a metaphorical sense, the patterns may not be machinery. But they clearly are a part of the machinery. The word was here used in its most comprehensive sense, and included all the devices, tools and implements used in the manufacturing business for which they were bought. (Buchanan v. Exchange Fire Ins. Co., 61 N. Y., 33.)

It is also claimed by the appellant that a written certificate, signed by the plaintiff on the 21st day of October, 1887, six months after this action was begun, to the effect that the payments which had been made by the purchasers had been applied, first, on the merchandise ; and, secondly, on the patterns, the surplus to apply on the residue of the indebtedness, shows that the patterns have been paid for, and that, consequently, title to them passed absolutely to The Clark Manufacturing Company. But such certificate, in the absence of some agreement that title to certain classes of the property should become absolute when a given amount of the purchase-money had been paid, which is nowhere shown, is meaningless and has no bearing upon the question.

The case is not materially different from the record of the former appeal. It follows, therefore, in pursuance of such previous decision, that the judgment and order appealed from should be affirmed.

Dwight, P. J., concurred in the result.

Corlett, J.

(dissenting):

In 1880, The Clark Manufacturing Company was doing business in making builders’ hardware in the city of Buffalo. On the twenty-ninth day of January of that year the following agreement was made between the plaintiff and the company:

“ Office of Westfield Look Works, \
Westfield, N. Y., January 29,1880, j
“ Memorandum of agreement made the day above written between F. B. Brewer, of Westfield, N. Y., and The Clark Manufacturing Company, of Buffalo, N. Y. F. B. Brewer agrees to sell to the Clark Manufacturing Company a certain amount of machinery and all patterns pertaining to lock business now owned by him in the lock factory in Westfield. A list of said machinery has been made and the prices fixed, and the amount will be about seven thousand dollars, more or less, the transfer to be made on or about the first day of April, -when any changes which Mix Brothers may deem necessary or expedient in choice or character of the machinery, or the price of machinery or merchandise, shall be finally established. Said machinery shall be the property of said Brewer, in care and custody of said Mix Brothers until paid for. The said Brewer agrees to accept in payment for said purchase, as conditioned above, five hundred dollars on the first day of April, prox., five hundred dollars, with interest on whole amount unpaid on the first day of April, 1881, and $1,000.00 and interest on whole amount unpaid on the first day of April thereafter until all is paid. Notes to be given for the several amounts. And the said Clark Manufacturing Company agree to make the above-described purchase upon the conditions therein set forth and recited. For the faithful performance of the above-written agreement the parties bind themselves, each to the other, in the sum of five thousand dollars, as witness their hands and seals, day and date above written.
„ FRAN0Ig B. BREWER. [l. s.]
“THE CLARK MANFG. CO.” [l. s.]

On the 21st day of October, 1887, the plaintiff made the following memorandum: "October 21, 1887.

“I hereby certify the payments which have been made to me by The Clark Manufacturing Company, in pursuance of contract and notes given to me, have been applied, first, on merchandise, second, on patterns, and third, all surplus to apply on balance of their indebtednéss.
“ F. B. BREWER.”

Negotiable notes were executed and delivered in pursuance of tbe contract. All the notes were paid, including interest on the three last of a thousand dollars each, to April 1,1887. On the seventeenth day of that month the firm made a general assignment for the benefit of creditors to the defendant. The plaintiff, on the fifth day of May of that year, made the following demand in writing :

“ To Jambs E. Eord, Esq.:
“ Dear Sir.— You will please take notice that I, the undersigned, am the owner and entitled to the immediate possession of the machinery and personal property hereinafter described, now in your possession and under your control, and of the value set opposite each item respectively, to. wit.: ”
Then comes a statement of the property, consisting mostly of machinery, and also the following:
“ Patterns...................................... $3,400 00.”
The whole value of the items stated in the demand is $3,539. The demand closes with the following:
“And you will further take notice that I do hereby require and demand the possession or delivery of said machinery and personal property to me from you.
“ Dated this 5th day of May, 1887.
“ FRANCIS B. BREWER,
Olcmnamt.”

The defendant did not deliver the property, and on the 12th day of May, 1887, the plaintiff brought trover, alleging the conversion of the above articles of property and demanding judgment for $5,000. Issue was joined, the cause was first tried at the Erie Circuit in October, 1887, when the court directed a verdict for the defendant. On appeal a new trial was granted. (Brewer v. Ford, 26 N. Y. St. Rep., 888.) The cause was again tried in February, 1890, and resulted in a verdict of $3,515 for the plaintiff. A motion for a new trial was made and denied, judgment was entered on the verdict and the defendant appealed to this court from the judgment and order.

It appeared on the trial that the prices finally fixed amounted in the aggregate to nine thousand dollars instead of seven, as first estimated; that $6,000 of principal, also interest on the whole amount secured, were tlie sums paid in all by the firm. The agreed price of the machinery and tools when purchased was $3,585, and the patterns $3,400, and of the merchandise $2,015. All the payments had been made before the making of the certificate, a copy of which appears above. The evidence also tended to show that the three unpaid notes, before they fell due, were sold by the plaintiff to the Westfield Bank, indorsed by him; that he after-wards paid them and had them in his possession at the last trial when they were all due. There was considerable evidence given on the subject of the value of the property on the trial. Some of the plaintiff’s evidence tended to show that the property alleged to be converted was equal, if not greater, in value than the verdict. While the evidence on the part of the defendant tended to show that the property Avas very nrach less in value, and there was some evidence on the part of the plaintiff to the same effect.

The trial justice charged the jury, in substance, that, if they found for the plaintiff, their verdict would be the value of the property, with interest from the time of the conversion, but that it could not be more than the amount unpaid on the notes, including interest. The verdict was for the exact amount unpaid upon the notes. The evidence on both sides tended to show that the property referred to in the agreement was delivered to the defendant’s assignors ; that the patterns were frequently changed or replaced, and that the other property, except the machinery, had been to a considerable extent disposed of. All the evidence shoAved that the value of the machinery, outside the patterns, was very much less than the verdict.

The first question Avhicli naturally presents itself is whether the plaintiff could so far disaffirm the conditional sale as to maintain trover for the property, and' then recover the amount unpaid on the notes. The rule in reference to the election of remedies is very familiar. In the case at bar the plaintiff could have enforced j>ayment of the notes by action, and if he failed to collect, he could take the machinery the title to which, by the terms of the contract, was to remain in him until payment; or on default he could bring replevin or trover. Either action necessarily proceeds on the assumption that all the rights of the defendant under the contract are ended, and that by reason of default in payment the plaintiff could retake his property, having never parted with the title. Trover involves a wrongful conversion. In other words, the action could not be maintained unless retention of the property by the defendant was wrongful. It needs no argument to prove that the retention of the property would not be wrongful so long as the plaintiff looked upon the executory contract as continuing and the right to recover the unpaid purchase-money unimpaired.

The theory of a conversion and the continuance of the contract so that the unpaid purchase-money could be collected is entirely inconsistent. The plaintiff had his election to pursue any of his remedies, but having elected one remedy all others are irrevocably gone. (Fowler v. Bowery Savings Bank, 113 N. Y., 450 ; Rodermund v. Clark, 16 id., 354; Steinbach v. Relief Fire Ins. Co., 77 id., 498; Andrews v. Ætna Life Ins. Co., 92 id., 596; The Second Nat. Bank of Oswego v. Burt, 93 id., 233; Bowen v. Mandeville, 95 id., 237; Moller et al. v. Tuska, 87 id., 166; Sweetser v. Smith, 20 N. Y. St. Rep., 62; S. C., 22 Abb. N. C., 319.)

In the case last cited, Bowers v. Benedict (88 N. Y., 610), is .shown to decide no different doctrine, it being there merely held that a replevin suit where all the property was not taken would not prevent a pursuit of other property.

The learned counsel for the respondent in his brief correctly ■states his position in saying: This action is brought upon the conditional contract of sale, and it is by virtue of the contract itself ■and m pursuance of its terms, and, therefore, am, enforcement ■of said contract, a/nd not a rescission thereof. The parts italicized .are so in the brief.

The trial justice adopted this view, and all his rulings were based ■on the assumption that the plaintiff could maintain trover, and also recover in an action on contract the balance unpaid upon the notes. The amount paid by the defendant’s assignors on the conditional •contract was in pursuance of its provisions, and no reason is seen why the defendant should be entitled to recover back the sums paid; but a different question arises as to the unperformed part of the contract. When the action was brought, there were outstanding negotiable notes not then due. The plaintiff elected to treat the conditional sale as ended, and the continued possession of the property in the assignors or their assignee as wrongful, which entitled the defendant to the return of the unpaid notes. The moment he took this position it logically and necessarily followed that from the time of this election he treated the executory contract as at an end. lie could not on the one hand enforce payment under the provisions of the contract and on the other repudiate it, and recover the property or its value in an action of tort.

On the former appeal the learned justice, delivering the prevailing opinion, states, among other things : “ The plaintiff had the right to take possession of the property as against his vendee for the purpose of preserving Ms seev/rity and enforcing his right to have the property devoted to the payment of his debt.

It is obvious that the learned justice fell into the error of assuming that title had vested in the defendant’s assignors,, and that the plaintiff held the property simply as security. The distinction between a conditional sale and a chattel mortgage does not seem to-have been noticed. In the present case the defendant’s assignors obtained no title, but were merely bailees for the plaintiff. (Comer v. Cunningham, 77 N. Y., 391-398; Austin v. Dye, 46 id., 500 ; Herring v. Hoppock, 15 id., 409 ; Ballard v. Burgett, 40 id., 314.)

A demand of the property and the bringing of trover was decisive-of the election of the plaintiff to treat the conditional contract as-ended. (Kinney v. Kiernan, 49 N. Y., 164.) All the cases agree that inconsistent remedies cannot be pursued. (Dodge v. Fearey, 19 Hun, 277; Cobb v. Hatfield, 46 N. Y., 533; Gould v. Cayuga Co. Nat. Bank, 21 Hun, 293; affirmed, 86 N. Y., 76 ; Riley v. Albany Savings Bank, 36 Hun, 513-522; Iselin v. Henlein, 16 Abb. N. C., 73-80; Bowker Fertilizer Co. v. Cox, 106 N. Y., 555; Avila v. Manhattan Chem. Co., 32 111, 1; Wile v. Brownstein, 35 id., 68.) The same doctrine applies to conditional sales. (Heinbockle v. Zugbaum, 5 Mont., 344; S. C., 51 Am. Rep., 59; Campbell Printing Press Co. v. Walker, 43 Hun, 449-451, 452; S. C., 6 N. Y. St. Rep., 731.)

The trial in this case proceeded on the assumption that this action was entirely consistent with a recovery upon the notes for any deficiency. The learned counsel for the respondent argues that,, inasmuch as the court charged that there .could be no recovery beyond the amount unpaid on the notes, with interest, and as the verdict was exactly that sum, that, even if the trial proceeded on a wrong theory, the defendant was not injured. The difficulty with this reasoning is that it assumed the plaintiff’s right to recover the value of the property in trover, and also the balance unpaid upon the notes on contract; also, that ib is impossible to know to what extent the wrong theory adopted on the trial affected the amount of the verdict. The jury had a right, and assumed that, in one sense, they were finding a verdict for the amount due the plaintiff. It is true that the value of the property would determine the amount of the verdict, but it is clear that the theory of the trial induced the jury to take into consideration the amount due upon the notes in estimating this value. There was no evidence showing that the-value of the property was the precise amount due upon the notes. If the jury had been instructed that the plaintiff’s election to bring trover would prevent an action on the notes, other considerations-might have influenced them in determining the question of value.

Machinery is defined by Webster as : “ The working parts of a machine, engine or instrument, arranged and constructed so as to apply and regulate force, as the machinery of a watch ; hence the means and appliances by which anything is kept in action.” Worcester’s-definition is: An .artificial work which serves to apply or regulate moving power, or to produce motion; an engine; a piece of mechanism.”

The contract is: Said machinery shall be the property of said Brewer.” More than seven years later the plaintiff construed this clause by stating that the amounts paid had been' applied, first, on merchandise; second, on patents; and, third, all surplus to apply on balance of their indebtedness. No indebtedness appears, except for merchandise, patterns and machinery. The payments made were, therefore, naturally applied in the extinguishment of those portions of the debt arising from the sale of property, the title to which passed; but as to the machinery, the title to which was retained in the plaintiff, no applications were made until the rest of the indebtedness was paid.

A pattern is a mere model which may be used to construct machinery and create working implements, and such are the above definitions. But it cannot be said with any force or plausibility that a model or pattern is a machine within any known definition •of that term. The contract itself makes a distinction between patterns and machinery.

Where property is delivered under a contract of sale, no construction should be adopted retaining title in the vendor without clear and unambiguous language. It is generally true that delivery in pursuance of a contract of sale is presumed to vest title in the vendee, and if for any reason it is retained in the vendor, this is so by virtue of the terms of the contract. In addition to this, the demand itself speaks of machinery and other personal property, and in the bill of items the machinery is given in detail, while the patterns are lumped up by the use of that word, and valued at $3,400. Besides, models or patterns are frequently changed or modified, as was the •case in this manufacturing establishment.

To retain title m the vendor of those originally delivered would breed uncertainty and confusion. The contract limited the retention of title in the vendor to machinery, which, in its nature, is more permanent and traceable.

Buchanan v. Exchange Fire Insurance Company (61 N. Y., 26) is entirely consistent with the above views. In that case a policy •of fire insurance was issued upon a stock of materials for manufacturing paper, and on paper manufactured and in process of manufacture, and on machinery contained in a paper mill at West Milton, Saratoga county. In the syllabus it is stated that the word machinery,” as used in the policy, included not only the machines, but the tools and implements used therewith for the manufacture of paper.

The case does not show what these tools or implements were, and the only reference made to the subject is at the close of the opinion, and is in the following language:

The loss upon machinery, as claimed by the plaintiff in his inventory, was $1,913.66. This was covered by insurance in this company for $500.00, and in two other companies, each for $500.00, making in all $1,500.00, which was upward of $400.00 less than the loss. Even if a few of the items contained in the inventory were not actually machinery, the value of such items was not $400.00 ; and hence the plaintiff was clearly entitled to recover the full amount of his insurance.”

It is obvious that the property was fairly included in the description, besides tbe question was not passed upon as the above quotation sufficiently shows.

The verdict in the present case was not only for the value of the machinery, but also of the patterns, and to that extent was excessive.

Without considering the other questions in the case, it follows that the judgment and order should be reversed and a new trial granted.

Judgment and order appealed from affirmed.


author: Corlett, J.:

text:
    THE TOWN OF ONTARIO, Appellant, v. THE FIRST NATIONAL BANK OF ANDES, Respondent, Impleaded, etc.

      Action against a former holder of town bonds, illegal under the New York decisions, who has transferred, them to a nonresident to be enforced in the United States Court — the judgment of the United States Court cannot be atiacJced collaterally.

    An action was brought by the town of Ontario, the complaint in which alleged that certain bonds, theretofore issued by said town in furtherance of the construction of the Lake Ontario Shore Railroad, had been adjudged by the Court of Appeals of the State of New York to be void; that the defendant, being the owner of certain of such bonds, in order to escape from the force of such adjudication, transferred them to a resident of Connecticut, who brought an action against the town in the United States Circuit Court, and obtained judgment therein for the amount of the bonds. The complaint asked judgment that the bonds be adjudged to be illegal and void, and that the judgment of the Circuit Court of the United States be decreed to be a nullity.

      Held, that if, for any reason, a fraud had been practiced upon the United States Circuit Court, or the proceedings were colorable or collusive, and the action in that court had been brought to defeat instead of to further the ends of justice, that the remedy lay in an application to that court to grant the proper relief, which it had ample power to do.
    That the proceedings in the United States Circuit Court could not be attacked collaterally in this action brought in a court of the State of New York.
    Appeal by the plaintiff, the Town of Ontario, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Wayne on the 22d day of October, 1887, in favor of the defendant, the First National Bank of Andes.
    The action was tried at a Special and Equity Term of the Supreme . Court, held in the county of Wayne on September 22,1881, by which court a decision was rendered dismissing the plaintiffs complaint.

      J. Welling, for the appellant.

      W. II. Johnson, for the respondent.
   Corlett, J.:

In December, 1883, an action was commenced in the United States Circuit Court for the northern district of New York by Dudley P. Ely against the plaintiff in this action. On the 14th day of July, 1885, the plaintiff in that action recovered a judgment against the plaintiff in this action for $2,512.68. The said Ely at the time of the commencement and trial of that action was a citizen and resident of the State of Connecticut, and the action was brought to recover the amount apparently due upon certain bonds of the town of Ontario, issued under an act passed April 11, 1868 (chap. 811), entitled “An act to authorize certain towns in the counties of Oswego, Cayuga and Wayne to issue bonds, and take stock in and for the construction of the Lake Ontario Shore Railroad,” as amended in April, 1869. (Chap. 241)

The plaintiff in this action alleges, among other things, the bringing of the action in the United States Circuit Court; the recovery of the judgment, that it remained unsatisfied and had not been vacated or reversed; that the defendant, the First National Bank of Andes, was the owner of some of those bonds. That the Court of Appeals of this State had adjudged them void, and that the bank, to obviate the force of such adjudication, fraudulently asssigned, without consideration, those bonds to Ely, who obtained a judgment upon them as above stated, and then ‘assigned it to the bank, and that the bank was taking proceedings to enforce the judgment.

The complaint alleges, in substance, that the arrangement between the bank and Ely was colorable and fraudulent, and entered into for the purpose of transferring the question of the validity of the bonds from the courts of this State, which had adjudged them void, to the Circuit Court of the United States. The prayer of the complaint is that the bonds may be adjudged illegal and void, and that the judgment of the Circuit Court of the United States may be decreed to be a nullity.

At tlie close of the trial of this action, the court dismissed the •complaint upon the ground that the plaintiff’s remedy, if any, was an application to the Circuit Court of the United States to vacate and set aside the judgment and proceedings in the Circuit Court. Judgment was entered upon the decision of the trial court, and the plaintiff appealed to this court.

The allegations in the complaint in this action are to the effect that the judgment of the Circuit Court of the United States was absolutely void.

The act of March 3, 1875 (§ 5, 18 U. S. Stat., 470; 1 Supp. R. S., 175), is as follows: “ That if, in any suit commenced in a Circuit Court, or removed from a State court to a Circuit Court of the United States, it shall appear to the satisfaction of said Girouit Court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said Circuit Court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just, but the order of said Circuit Court dismissing or remanding said •cause to the State court shall be reviewable by the Supreme Court on writ of error or appeal, as the case may be.”

The act of congress of September 24, 1789 (chap. 20, § 11; 1 U. S. Stat. at Large, 78), confers jurisdiction upon United States Circuit Courts as follows: “ That the Circuit Courts shall have original jurisdiction, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, $500, * * * and the suit is between a citizen of the State where the suit is brought and a citizen of another State.”

It is a familiar rule that a decree of a competent tribunal cannot be questioned collaterally. (Kinnier v. Kinnier, 45 N. Y., 535; Hunt v. Hunt, 72 id., 217.) The plaintiff in the action in the Circuit Court of the United States lived in Connecticut; that court had jurisdiction of the parties and subject-matter; the action proceeded to judgment. If for any reason a fraud was practiced upon that court, or the proceedings were colorable or collusive, and the action was brought to defeat instead of to further the ends of justice, that court had ample power, on proper application, to grant full relief. The remedy is not by an action in this court to correct the proceedings of the United States Circuit Court collaterally.

The allegations in the complaint in the present action, to the effect that the judgment of the Circuit Court was absolutely void, are mere legal conclusions, adding nothing to the inferences deducible from the facts alleged. (Sprague v. Parsons, 14 Abb. N. C., 320; Supervisors of Saratoga v. Seabury, 11 id., 468; Price v. Brown et al., 98 N. Y., 388.)

The conclusions reached by the trial court were correct, and the judgment must be affirmed.

Dwight, P. J., concurred ; Macomber, J., not sitting.

Judgment appealed from affirmed, with costs.