author: Sedgwick, Ch. J.

text:
    JAMES H. GOODSELL, Respondent, v. THE WESTERN UNION TELEGRAPH Co., Appellant.

      Future damages for breach of contract—Rebate of interest—Deduction for time and labor-—Allowance for uncertainty.—Two causes of action, affirmance as to one—reversal and new trial as to the other—Costs of appeal to abide event of new tn'ial.

    Where, in an action for damages for breach of a contract, there is a recovery for future profits anticipated to bo made, during a number of years succeeding the date of the recovery, based on the average yearly profits made under the contract for the period preceding its breach, there should be a rebate at six per cent, on each of such year’s profits included in the recovery from the date of the recovery, to the time to which the profits for each year are calculated.
    There should also, in cases where the plaintiff’s time and labor constitute an element in producing the profits, be a deduction for the value of such time and labor, from the time when he ceased to act under the contract up to the time to which the calculation of profits is carried, or by the amount which he could reasonably be expected to earn during that time.
    There should also be an allowance for uncertainty in future profits.
    In the case at bar, no such rebate of interest was allowed, no such deduction was made, either for the value of plaintiff’s time and labor, or for which he might be reasonably he expected to earn, and the allowance for uncertainty was estimated to be no more than would equal certain claims made by plaintiff, which claims were not sustained by the evidence, so that, in fact, there was no deduction for such uncertainty.

      Meld, that for this error, and because on all the evidence it was not shown with reasonable certainty that the loss of plaintiff for future profits amounted to the sum that he recovered, the judgment on the second cause of action should be reversed and a new trial ordered; and as there was no error with respect to the first cause of action, judgment as to that should be affirmed, and the costs of appeal should abide the event of the new trial ordered.

      Before Sedgwick, Oh. J., Van Vorst and Freedman, JJ.

      Decided January 27, 1886.
    Appeal by defendant from judgment entered upon report of referee in favor of plaintiff.
    The action was, among other things, for the recovery of damages from the breach of a contract, causing loss of future profits.
    The plaintiff, being engaged in the general busines of collecting telegraphic news and supplying the same to various companies in the United States and Canada on January 28, 1881, entered into a contract with the Atlantic & Pacific Telegraph' Company, whereby, after reciting the above facts, that company agreed during the term of ten years from February 1, 1881, to transmit over the lines formed, operated, leased, or controlled by it, upon the terms, conditions, within the territory and to the points specified in the contract, all news reports or portions thereof gathered by the plaintiff, as agreements then or thereafter to be made by him with newspapers and subscribers taking said news reports should require. The agreement contained the following clause :
    “ The collection of all moneys due or to accrue from papers or subscribers coming under the operation of this contract, for news reports transmitted by said telegraph company, shall be made by said telegraph company, for the account of said National Associated Press, and a full and detailed account of all such collections, shall be duly kept at all times by said telegraph company, which account shall always be open to the inspection of the said party of the second part, and the same shall be furnished and rendered in due form by said telegraph company to said National Associated Press monthly. And payments of balances, if any, due said National Associated Press, by the telegraph company shall be made on or before the fifteenth day of each and every month. It is understood, however, while the telegraph company is bound to make and use all reasonable efforts to promptly collect, as the same fall due and payable, the amounts due from said papers and subscribers respectively furnished with news reports under this agreement, that the telegraph company shall not be held or considered responsible in case the said telegraph company is unable by such efforts to collect the same.”
    The Atlantic & Pacific Telegraph Company, on February 3, 1881, sold, assigned and transferred to the Western Union Telegraph Company, the defendant in this action, all the telegraph lines and appurtenances, its business and property rights, privileges and franchises, excepting the right and franchise to be a corporation ; and the said defendant, under and by virtue of the terms of said assignment and transfer, agreed, and duly undertook and assumed the performance of all valid contracts of the said Atlantic & Pacific Telegraph Company, including the said contract between it and the plaintiff. Defendant broke the contract; and thereafter the plaintiff abandoned further work or service under the. said contract, or in the fulfillment of the terms and conditions thereof, and discontinued the business that he had been conducting and carrying on thereunder.
    This action was brought to recover' on two causes of action : 1st,, to recover the amount collected by defendant under the above contract; and 2nd, to recover damages for the breach of the contract.
    It was commenced in July, 1882, and the issues were tried before a referee, who, on July 20, 1885, reported in favor of plaintiff on the first cause of action for $16,777.42, and on the second cause of action for $220,306, as damages for the breach of the contract. 0

    From the judgment entered on the report, defendant appeals.

      Dillon & Swayne, attorneys, and Wager Swayne and Melville Egleston, of counsel for appellant.

      Miller & Savage,. attorneys, and George W. Miller, of counsel for respondent.

       The respective briefs are able and elaborate. They are too lengthy to be inserted in full, and cannot "with propriety be condensed. They can be found in the libraries of the superior court, and the Bar Association.

   By the Court.

Sedgwick, Ch. J.

I am of opinion that the determination below as to the existence and validity of the contract, and of the plaintiff’s interest in it, as to the breach by defendant, and as to the amount of damages assessed in the first cause of action, was correct. The assessment as to the second cause of action was incorrect, in my judgment. The plaintiff was entitled to recover the amount of profits that he sufficiently showed he would lose in the future from the breach. Like any other fact in a case to be established by testimony, this must be shown with reasonable certainty as distinguished from probability merely. In Curtis v. Rochester & Syracuse R. R. Co. (18 N. Y. 542), the question related to the mode of ascertaining a compensation for future pain and suffering. It was there said, “ damages are to be proved, and none can be allowed, except such as are shown by the proof to be, at least to a reasonable degree, certain.”

. An instruction that “future damages could only be awarded when it is rendered reasonably certain from the evidence that such damages will inevitably and necessarily result from the original injury ” was approved. If there was any distinction on this point between cases of tort and of contract, there would be a relaxation of stringency in the former class.

The charge of Judge Sandford to the jury in Bagley v. Smith was approved when the appeal in it was decided (16 N. Y. 490). To prove the loss of profits-in the future, proof of actual profits was allowed. The- charge was that the evidence was admitted, not as furnishing a rule of damages, but as furnishing to the jury- one means of arriving at the amount the plaintiff ought to receive for damages, and that profits are contingent and fluctuating, and past profits are no sure indication that there will be the same in the future. In making the estimate, the jury were to allow for the fluctuation of trade, the danger of Losses, and the effects of competition. It was further said, that the amount thus ascertained was subject to a further deduction in determining what were the plaintiff’s actual damages. He was not at liberty to fold his arms, and remain idle during the three months succeeding the dissolution, and whatever he actually made by reasonable diligence, or could have made, is to be deducted. The court of appeals, said as to this last, that the plaintiff might perhaps have disputed the competency of such testimony. This could not mean more than that if the objection was to be considered at all, it must come from the plaintiff. Certainly, when the profits are to be estimated for eight future years, there must be a deduction for the value of the time which before has been given, and in the future will not be given to the business.

The assessment of damages for loss in the future is $220,305. As this is in part for loss to occur yearly, and as late as 1891, interest on that part, say one half of it, for five years after the judgment, should be added, to state correctly the amount of the recovery. The whole would be over $250,000. The learned counsel for plaintiff to maintain the result, assumes, or rather argues from the figures in the case, that there were profits for thirteen months, from $31,000 a year, to $37,000 a year. And then, the profit for twelve months on this basis is multiplied 8-j-£ times, to ascertain the profits that would accrue in eight years and ten months in the future. Certainly this is erroneous in one respect. For each year after the referee’s report there should be a rebate at six per cent, for each year’s profit from the date of the report to the time the profit is calculated.

Moreover, justice requires that, from any calculation of profit for the future, should be deducted the value of the plaintiff’s time for.eight years and ten months, or the amount it could reasonably be expected he would earn in that time. This would certainly be at the lowest $10,000, but more probably would greatly exceed that sum.

The yearly sum referred to was not fixed by counsel for respondent, without having made an allowance for uncertainty in future profits, from fluctuations in business, &c. This allowance was made by estimating it to be no more than would equal certain claims made by plaintiff, for damages from the defendant’s refusing to transmit news to certain newspapers, as the plaintiff requested. I am of opinion that there is no sufficient evidence to sustain these claims for damages, and that in the calculation for plaintiff, there should be a deduction that has not been made for future losses.

On all the evidence, I am satisfied that it was not shown with reasonable certainty, that the loss of plaintiff of future profits amounted to the sum that he recovered. The enterprise was peculiar in its character. It was an exceptional, not an ordinary business. It was not of that kind that deals in staple articles demanded by the people in general. The plaintiff had no hold upon his customers, and the value given by them severally was the result of special bargaining. They could combine among themselves, and, through an agent, such as the plaintiff was, make a contract with the defendant. The testimony disclosed a tendency in the customers to complain, and desire new arrangements. It is not usual for a business to maintain through a long time the large profits, like the present, with which it may start. It would not be an unreasonable anticipation that other telegraph companies might compete with defendant, and make such low rates that they would draw customers from the plaintiff. There were chances connected with plaintiff’s expectation of life, and of continued skill in gathering news. There were considerations pertinent to a presumption that an organization dependent for its continuance upon whim and opinion of individuals acting independently, would in reality continue in fully profitable operation for eight years. It would be necessary to perceive if casual and transitory conditions had not favored the plaintiff in the past, with no certainty that they would be repeated in the future. The result reached below exempts the plaintiff from the consequence of mistake or misfortune or disability, which experience shows are more to be expected than perfect prosperity. Then, as has already been said, the important deduction should be made for the value of plaintiff’s time or work in the future.

The judgment, should be affirmed as to the first cause of action, and reversed as to the second cause of action, and the costs of the appeal should abide the event of the new trial which is hereby directed, and the order of reference to be vacated.

Van Vorst and Freedman, JJ., concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CAYETANO SORIA, Respondent, v. ALEXANDER V. DAVIDSON, as Sheriff, &c., Appellant.

      Glairn and delivery—General verdict—Verdict authorizing entry judgment pursuant to section 1730.
    In an action for claim and delivery, the jury found “ a verdict for plaintiff, and assess the value of the goods when taken at the sum of $3,090.90, and the depreciation of the goods since taken at the sum of $650.50.” Held, that, such a verdict was correct in form, and authorized the entry of a judgment that plaintiff recover possession of all the personal property described in the complaint and the sum of $650.50 damages for the detention thereof, or in case a return and delivery thereof cannot be had, then that plaintiff recover of the defendant the sum of $3,090.90, the value of said property at the time of the taking thereof.
    If there was any doubt as to whether the jury found or meant to find that ■ quantity of goods taken was as claimed by the plaintiff, the point should have been made when the verdict was received.
    Before Van Vorst and Freedman, JJ.

      Decided January 28, 1886.
    Appeal from an order denying defendant’s motion to set aside the judgment herein, or to direct the clerk of the court to correct the same and make it conform to the verdict of the jury.

      The action was brought to recover sixty-six thousand four hundred cigars, and $500 in money. On the trial, the claim for the $500 was abandoned.
    The facts appear in the opinion.

      W. Bourke Cockran, attorney, and of counsel for appellant,
    argued: I. Section 1189 of the Code of Civil Procedure provides that the clerk must make an entry in his minutes of the verdict, and must, on the application of the successful party, “ enter judgment in conformity to the verdict, unless a different direction is given by the court, or it is otherwise specially prescribed by law.” No directions were given in this case, by the court. The judgment was not entered in conformity to the verdict. 1st. The jury did not find that the plaintiff was entitled to the property “ described in the complaint;” 2d. There is no finding to sustain that portion of the judgment, which directs that the plaintiff recover possession of all the personal property described in the complaint, except said $500 in money ; 3d. There is no finding to sustain that portion of the judgment which directs that in case a return and delivery cannot be had, then that said plaintiff recover of said defendant the sum of $3,090.90, the value of said property at the time of the taking.
    II. The question of the quantity of goods taken was a question squarely presented to the jury. One set of witnesses testified to the taking of 66,400 cigars, and the other set to the taking of 44,000 cigars. The jury have failed entirely to pass upon this question, and it is left precisely in the position in which it was before its submission to them.
    III. Had the judgment been entered, as the verdict was received, in an absolute form, it would have been reversed on appeal (Dwight v. Enos, 9 N. Y. 470 ; McLean v. Cole, 13 Hun, 300). The contention of plaintiff’s counsel that this is a general verdict is manifestly without foundation. For instance, “we find a verdict for the plaintiff,” would be a general verdict (1186), but the verdiet here is substantially, “We find a verdict for the plaintiff, for the goods taken.” That this is a qualified and not a general verdict is too plain to require argument.

      Henry L. Vilas and Jacob Fromme, for respondent,
    argued I. The verdict was the ordinary one in an action to recover a chattel (§§ 1186, 1187 Code). It was a general verdict: The jury find “ a verdict for the plaintiff, and assess the válue of the goods, when taken, at the sum of $3,090.90, and the depreciation of the goods at the sum of $650.50.” This was in accordance with the settled law and practice (Young v. Willett, 8 Bosw. 486 ; Phillips v. Melville, 19 Hun, 211); and showed that the jury found in favor of the plaintiff for all the goods. A general verdict settles in favor of the prevailing party every litigated question of fact (Rhodes v. Bunts, 21 Wend. 19 ; Wolfe v. Godhue Fire Ins. Co., 43 Barb. 400 ; Murphy v. Lippe, 35 Super. Ct. 542).
    II. The Code prescribes that the judgment in this class of actions shall be in the alternative (§ 1730). The whole question has been settled by the general term of this court in Young v. Willet (8 Bosw. 486).
   Per Curiam.

The verdict was recovered in an action for the claim and delivery of personal property.

It was general, and in these words : the jury say they “find a verdict for the plaintiff, and assess the value of the goods when taken at the sum of $3,090.90 and the depreciation of the goods, since taken, at the sum of $650.50.”

No objection was made at the time by either party to the form of the verdict.

Complaint is now, however, made on the behalf of the defendant, as to the form of the judgment entered up. It recites that the jury found for the plaintiff, and assessed the value of the property “ described in the complaint,” &c., and it adjudges that the plaintiff recover possession of all the personal property “described in the complaint,” &c.

It is true that the verdict does not say that the jury find for the plaintiff, that he is entitled to the property described in the complaint.” The finding, as already stated, is general, and such finding is allowed in an action of this character (Code, § 1187). The verdict has none of the qualities of a special verdict. The verdict is, in form, correct (Young v. Willet, 8 Bosw. 486 ; Phillips v. Melville, 10 Hun, 211).

A general verdict settles in favor of the prevailing party every question of fact. The question as to the quantity of goods taken by the defendant was in dispute. The plaintiff offered evidence showing that the complaint truly stated the amount. The defendant offered evidence to the contrary. The finding of the jury in the plaintiff’s favor for the goods taken, must be construed to be the quantity claimed by the plaintiff, and the value assessed upon that basis. If there was any doubt upon the subject, a point should have been made, when the verdict was received, and when it was not too late to have had it corrected. Every presumption is in favor of the regularity of the verdict, and that it found in the plaintiff’s favor the amount of goods claimed by him, as well as its value.

It is no objection to the judgment that it is in the alternative,—that is, that in the event the goods cannot be recovered, and delivered, the plaintiff recover his damages (Code § 1730).

The order appealed from is affirmed, with costs and disbursements.


text:
    MARIE PRESCOTT, Appellant, v. SINCLAIR TOUSEY, E. H. SPOONER and SINCLAIR TOUSEY, as President of The American News Co., Respondents.

      Libel—Justification and mitigation, matters pleadable by way of— defense need not be pleaded specifically as a justification.—Privilege of parties and their attorneys.—Doubts as to pertinency and materiality, the benefit of to whom, to be given.

      A complaint in an action of libel brought by a woman, set forth, among other things, the following words, as having been written and published of and concerning her, which were alleged therein to be libelous : to wit, “ He was instructed chiefly to ascertain if your character was decent,” “ He had already been written to, to inquire if your children were illegitimate,” “ stigma of bastardy." The original answer to that action averred, among other things, that “shehad frequented and been an inmate of a house of prostitution in the city of New York the supplemental answer averred “ that in or about the summer of .1880, plaintiff became preg-
    . nant by a person not her husband, and had what is popularly called a miscarriage," the time and place being specified ; the bill of particulars, served pursuant to an order therefor obtained by plaintiff, set forth “ that the plaintiff was an inmate of a house of prostitution, known as No. 592 Seventh avenue, in the city of New York, in or about the months of January and February, 1881.” These matters were not specifically pleaded as a justification. No motion was made to strike them out as impertinent, immaterial or irrelevant. This action was brought against the defendant in that action and his attorney of record who signed the answer and hill of particulars, for a libel based on said allegations in said answer and bill of particulars. The defense was privilege.

      Held, 1st. That the said matters averred in the answer and bill of particulars were pertinent and relevant, and were proper to he pleaded and offered in evidence either by way of justification or in mitigation of damages.
    2nd. That although not formally pleaded as a justification, the matters in question may be regarded as alleged for that purpose as well as in mitigation.
    3d. Where there is any doubt as to whether matter pleaded by a defendant is pertinent and material, yet if the plaintiff allows it to remain in the pleading, the benefit of the doubt should be given to the defendant in determining his liability in an action of libel based on such matter.
    Before Sedgwick, Oh. J., and Van Vorst, J.

      Decided January 28, 1886.

      Appeal by plaintiff from a judgment entered against her upon a dismissal of her complaint upon the trial of the action before the court and a jury.
    The action was for a libel, and was founded on certain statements contained in an answer and supplemental answer interposed by defendant Tousey, to a complaint in an action for libel brought by the plaintiff herein against him as president of The American News Company, and on a bill of particulars served in that action pursuant to an order therefor-, obtained by the plaintiff therein. In that action, the defendant Spooner herein was the attorney of record for the defendant Tousey as president therein, and as such signed the said answer, supplemental answer and bill of particulars. The statements referred to are that “ she (plaintiff) had frequented and been an inmate of a house of prostitution in the city of New Yorki” contained in the original answer;—“that in or about the summer of 1880, plaintiff became pregnant by a person not her husband and had what is popularly called a miscarriage in the month of October, 1880, at a house known as number 287 Fifth avenue, in the city of New York,” contained in the supplemental answer;—that “ the plaintiff was an inmate of'a house of prostitution known as number 592 Seventh avenue, in the city of New York, in or about the months of January or February, 1881,” contained in the bill of particulars.
    Other facts appear in the opinion.

      Marshall P. Stafford, attorney, and of counsel for appellant,
    on the questions considered in the opinion, argued :—I. A libel is not privileged by the mere fact that a legal pleading is the medium of publication. Libelous words in a legal pleading are not privileged unless they are material and pertinent to questions involved in the suit (Gilbert v. People, 1 Den. 43 ; Ring v. Wheeler, 7 Cow. 730 ; Hastings v. Lusk, 22 Wend 410). The language complained of here was not material or pertinent as a plea in justification of the libel complained in the original suit. Six things are indispensably requisite to constitute a plea in justification of a libel. (1) Publication of the libel by the defendant must be admitted in direct and unqualified terms (Aníbal v. Hunter, 6 Cow. 255 ; Sayles v. Wooden, Ib. 84 ; Lewis v. Kendall, Ib. 59 ; Moak’s Van Santvoord’s Pl. [3d ed.] 572). (2) There must be a specific averment that the matters are alleged as justification. Every allegation must be taken as made in bar of the action unless it is expressly stated to be alleged as justification or in mitigation of damages .(Fink v. Justh, 14 Abb. N. S. 110 ; Fry v. Bennett, 5 Sandf. 75 ; Mathews v. Beach, Ib. 256; Hagar v. Tibbets, 2 Abb. N. S. 102 ; Ayres v. Covill, 18 Barb. 260 ; Newman v. Otto, 4 Sandf. 668 ; Meyer v. Shultz, Ib. 664; Odgers on Libel, 177; Townshend S. & L. § 354). (3) The justification must be as broad and as extensive as the libel. Anything short of this will not do. There are no degrees of justification. It must be the whole or nothing (Boot v. King, 7 Cow. 619 ; Fry v. Bennett, 5 Sandf. 69 ; Odgers on Libel, 177; Townshend S. & L. §§ 212, 355, 359). (4) It must cover and consist of the precise charge made in the libel. Something near it, or something of a similar nature, will not do (Barthelemy v. People, 2 Hill, 257; Andrews v. Vanduzer, 11 Johns. 42; Odgers on Libel, 177, 178 ; Townshend S. & L. §§ 212, 355). (5) The facts must be so stated as to show that the charge is true. An averment in general terms that it is true will not suffice. Conclusions, inferences, rumors or arguments will not do. There must be such a clear, direct, plain statement of facts as to make it manifest that if the statements are true the libel was justified (Fink v. Justh, 14 Abb. N. S. 110; Annibal v. Hunter, 6 How. 255; Sayles v. Wooden, Ib. 84 ; Wachter v. Quenzer, 29 N. Y. 547 ; Billings v. Walter, 28 How. 97 ; Tilson v. Clark, 45 Barb. 178 ; Maretzek v. Cauldwell, 2 Rob. 715 ; Townshend S. & L. § 357 ; Odgers on Libel, 177, 178). (6) It must appear that the justifying facts were known to the defendant at the time of publishing the libel (Bush v. Prosser, 11 N.

      Y. 360; Fry v. Bennett, 5 Sandf. 69 ; Root v. King, 7 Cow. 619).
    There is nothing in the original suit that meets a single one of these six indispensable requisites of a plea in justification of the libel complained of in that suit.
    II. The language complained of here was not material or pertinent in mitigation of damages in the action in which they were used, (a.) There me but two general ways in which a defendant in a libel suit can possibly mitigate damages. These two ways are due to and dependent upon the fact that the damages themselves in such an action are of two kinds—one punitive or exemplary, the other compensation for actual damages sustained. The first may be mitigated by showing that facts known at the time of publishing the libel induced a belief that the charge was probably true and therefore naturally made the defendant less cautious in publishing it. This affects the question of malice and tends to mitigate damages on that score. The second may be mitigated by showing that plaintiff’s general reputation on the subject to which the libel relates was bad. This affects the question of actual damages sustained by injury to the reputation. (5.) The words complained of here could not be material or pertinent on the question of malice to reduce punitive damages. There is no allegation that the facts which they charge were known at the time of publishing the original libel and so induced a belief that it was true. Hence, the words complained of manifestly were not material or pertinent to mitigate punitive damages by affecting the question of malice (Bush v. Prosser, 11 N. Y. 360). (c.) The words here complained of could not be material or pertinent in mitigation of damages to reputation. (1.) Damage to reputation can be mitigated only by proving that the plaintiff’s reputation was bad in the particular respect to which the libel pointed (Root v. King, 7 Cow. 629). There is nothing—no allegation—anywhere to show that when the original libel spoke of “ decent character,” it referred to “ chastity.” Drunkenness, lying, thieving, gambling, being a procuress, an abortionist, a thieves’ “fence,” and a hundred other moral traits and qualities have quite as much as “chastity” to do with making “decent character,” and are quite as frequently meant when that phrase is used. Hence, without an averment that “ chastity ” was what was meant when the original libel spoke of “decent character,” unchastity could not be shown as a fact tending to mitigate actual damages. There being no such averment as to the meaning of the original libel, the allegations here complained of were clearly immaterial and impertinent to prove that plaintiff’s reputation was bad in the particular trait to which the libel pointed. (2). But bad reputation in general or in any particular respect, can be proved only in general terms,—that is, by asking what is the general reputation as to any.trait or moral quality. Specific acts of misconduct can never be proved to establish bad reputation (1 Greenl. Ev. §§ 25, 27, 55, 424-426 ; Odgers on Libel, 305 ; Hatfield v. Lasher, 81 N. Y. 256). The reason of this rule is that the question or inquiry is, not as to the character in fact, but as to reputation. The two things are entirely distinct. A man’s actual character, in gen: eral or in any particular respect, may be much better or much worse than his reputation ; but it is to the reputation alone and not to actual character that the law allows inquiry to be directed on the question of mitigating damages for libel. Even if his reputation is much better than he deserves, the law protects him in that reputation and will allow him damages for its injury by a libel. Hence, even if the original answer had shown that “chastity” was what was referred to in the original libel, still, specific acts of unchastity could not be shown to establish bad reputation for chastity. The words here complained of, therefore, being charges of specific acts of unchastity, were totally irrelevant and immaterial. No evidence whatever could be given under them.
    III. The fact that the libelous allegation is found in a bill of particulars served under an order of court is immaterial, (a.) The order was an alternative one. It did not compel defendants to serve a bill of particulars. They were at liberty not to serve it, and a failure to do so would only have precluded them from giving proof in support of an allegation which was itself immaterial. The order of the court was, in effect, that if defendants desired to attempt to prove the immaterial allegation they must furnish a bill of particulars. Parties to an action must always take the responsibility of their own pleadings . They cannot shift that responsibility upon the court, which always presumes that the allegations to be made under its order will be pertinent and material, and not recklessly libelous. Ev’enif an order of court could shield a libelous allegation under any circumstances, an order which leaves a party the alternative of making the allegation or not, cannot have such effect. The responsibility of exercising the option rests upon the party who selects. (6.) The step was designed either to have the allegation abandoned as irrelevant, or else get facts which would enable plaintiff to know what it meant, and prepare to meet it. This is the practice allowed and commended by tins court (Dowdney v. Volkening, 37 Super. Ct. 313).

      F. H. Spooner, attorney, and William Fullerton, of counsel for respondents,
    on the questions considered in the opinion, argued :—I. It is so clear that the allegation, which is the subject of this action, was pertinent and material, as pleaded in the former action, in justification of the charge that Marie Prescott “ became a certain man’s mistress,” that it would hardly seem to admit of argument. What could be a more perfect justification of that charge than to name the man whose mistress Marie Prescott became, and state when she became, and how long she continued to be his mistress ? The objection did not in terms state that its allegations were in justification of the libels on which this action was brought, is not well founded. Attention is called to the said third defense. Its opening words are : “ For a further and third defense to said amended complaint, and in mitigation of damages, defendant alleges,” &c. It is not necessary to characterize the defense ; as to whether it contains a justification must be determined by its averments, and it cannot be aided, enlarged or improved by a clause characterizing it, or expressing its purpose (Kelly v. Waterbury, 87 N. Y. 179 ; Halsted v. Nelson, 24 Hun, 395). It is only when the defense is partial that the defendant must state it to be in mitigation of damages ; otherwise plaintiff might suppose it to be intended as a complete defense, and demur to it (Fry v. Bennett, 5 Sand. 54 ; Code, § 536).
    II. (a.) The allegation which is the subject of this action was also pertinent and material, and well pleaded in mitigation or reduction of damages as to every part of the original libel which related to plaintiff’s chastity (1 Wharton’s Law of Ev. § 51 ; Bush v. Prosser, 11 N. Y. 347 ; Kniffin v. McConnell, 30 N. Y. 285 ; Verny v. Watkins, 7 Cox & Payne, 308 ; Johnson v. Calkins, 1 John. Cas. 116; Willard v. Stone, 7 Cow. 22; Palmer v. Andrews, 7 Wend. 142 ; Boynton v. Kellogg, 3 Mass. 189 ; Wendell v. Edwards, 25 Hun, 498). (b.) The allegation sued on in this action was pleaded in mitigation, or reduction of damages, not only on the authority of the cases above cited, but by reason of the phrase ‘ ‘ or otherwise ” studiously introduced into section 536 of the Code of Civil Procedure. No argument is necessary to show that the legislature intended to enlarge the old rule by the introduction of this phrase. We now suggest the extent to which that object has been accomplished. It is certain that the words “ or otherwise ” were introduced for a purpose, and in seeking therefor, we find that a rational meaning and purpose can only be found on the theory that the legislature used the word “mitigate” in the phrase “tending to mitigate ” in a limited sense, and intended thereby to cover such defenses only as bear on the question of defendant’s malice ; and intended by the words “ or otherwise” to include and authorize all other partial defenses which will have the effect to reduce damages; and among which are included the partial defense that plaintiff’s general character is bad; the partial defenses in cases for breach of promise of marriage, and for a seduction, and such a partial defense as was made by the defendant in the original action of Prescott v. The American News Co., and on which this present action is brought.
    III. It is not necessary that the facts contained in all partial defenses should be known to defendant at the time of the publication of the libel. This is necessary only when the facts are pleaded in mitigation for the purpose of showing an absence of malice on the part of defendant. This was the case in Bush v. Prosser (11 N. Y. 347), and in the case of Hartfield v. Lasher (81 N. Y. 246). But the partial defenses in mitigation which a defendant may make, are not confined to such as have the effect to show an absence of malice on his part. There are several which have no such effect, among which may be mentioned the partial defense that plaintiff’s general character is bad; the partial defense in actions for breach of promise of marriage, and for seduction, that plaintiff has been guilty of specific acts of Unchastity ; and defendants claim that among them is also included the partial defense in mitigation of damages, that defendant, in the original action of Prescott v. Tousey, made, namely, that plaintiff was guilty of various acts of unchastity. These allegations were pleaded for the purpose of mitigating or reducing plaintiff’s damages by showing that she was an unchaste woman, and, therefore, not entitled to the same damages in an action brought by her on charges affecting her chastity, that she would be if she were virtuous ; the authority therefor being the words, “or otherwise ” in • section 536 of the Code, and the cases above cited. It is obvious that defendants’ right to plead such facts for the purpose of reducing damages, can no more depend on the facts having been known to them at the time of the publication of the libel, than would their right to plead plaintiff’s general bad character for the same purpose, depend on their having known the same to be bad at the time of the publication of the libel.
    IV. If the allegation in the third defense in the original action, that “she lived with various men in the city of New York and elsewhere as a mistress, ” was not material, yet plaintiff, by obtaining a bill of particulars of the same, made both it and the bill of particulars material. If plaintiff in the original action intended to take and maintain the ground that the allegation in the defendant’s third defense above quoted was irrelevant and immaterial, she should have moved the court, when the answer was served, to strike out the objectionable allegation, or else have refrained from any action concerning it. But plaintiff did neither. If the allegation was immaterial, she elected to treat it as material and properly made, and to litigate the issue which it presented ; and to that end she procured from the .court an order for a bill of particulars. The interpretation of the plaintiff’s act in moving for a bill of particulars was, that the original allegation in the third defense was good as far as it went, but that it did not go far enough. The result of this request or application to the court, was the order compelling the defendant to put into his bill of particulars the very allegation now sued on in this present action. And defendant had a right to put such allegation into his bill of particulars as being material and proper ; plaintiff having elected to treat as material the allegation in the third defense, of which the allegation in the bill of particulars was an amplification.
   Per Curiam.

Upon a full consideration of the pleadings in this action, we reach the conclusion that the supposed libelous matters contained in the answer of the defendant Tousey, 'and in the bill of particulars and supplemental answer, were absolutely privileged, and are, therefore, not actionable. The complaint in the original action, in setting up the libelous matter, for the publication. of which it was sought to make the defendant, The News Company, liable, contains the statement, “He was instructed chiefly to ascertain if your character was decent.” When such words are applied to a woman, they reasonably include the question of her chastity. If she was unchaste in action, she could not have a character for decency. The matter of which complaint is made in this action as contained in the defendant’s pleading and bill of particulars, related to that very subject, as it also did to the matter contained in the original libel, and these words, “he had been already written to, to inquire if your children were illegitimate,” andas to the “stigma of bastardy ” on her children.

If the plaintiff had been the inmate of a house of prostitution, if she had become pregnant by a man not her husband, such facts were proper to be pleaded and to be offered in evidence in the action by way of justification or in mitigation of damages.

Although not formally pleaded as a justification, the matter in question may, when contained in an answer, be regarded as alleged for that purpose, as well as in mitigation (Kelly v. Waterbury, 81 N. Y. 119).

While not accepting to its full extent the statement “ that for any defamatory matter contained in a pleading in a court of civil jurisdiction, no action for libel can be maintained ” (Townshend Libel & Slander, § 221), the authorities do clearly establish the proposition, that when the matter pleaded was material and pertinent, it is absolutely privileged (Odgers Libel & Slander, 190, 191, and cases cited). The learned author last cited, reaches the same conclusion as that announced by Mr. Townshend in his treatise, with respect to the rule upon this subject, that “pleadings” are absolutely privileged. ■

Be that, however, as it may, in cases of doubt as to whether matter pleaded, and which has been suffered to remain in a pleading, is material and pertinent, and properly pleaded, the party pleading should have the benefit of the doubt, in determining the question of liability in an action for libel (Warner v. Paine, 2 Sand. 195).

Irrelevant and impertinent matter in a pleading may be expunged on the application of a party aggrieved. Where a party does not seek an opportunity to get rid of objectionable matter in his adversary’s pleading, it maybe because he is not satisfied that it is either immaterial or impertinent; and we conclude, that the matter in question was neither the one, nor the other.

The judgment appealed from is affirmed, with costs.


author: Freedman, J.

text:
    THE PEOPLE ex rel. SCHAIER NEFTANIEL, as President of EDWARD LASKER LODGE No. 6, ORDER OF THE AMERICAN STAR v. THE ORDER OF THE AMERICAN STAR.

      Mandamus—proceedings in —pleadings— trial—verdict—judgment.

    In mandamus proceedings the alternative writ answers to the complaint in an ordinary action, and the facts constituting the grievances are to be stated in the manner in which a cause of action is to be stated in a complaint, and two or more of such grievances may be joined as so many causes of action. The return to the writ fulfills the functions of an answer.
    All issues of fact are raised by the return, to which the provisions of chapter sixth of the Code as to the form and contents of an answer containing denials and allegations of new matter, except those relating to verification and counter-claims, are made applicable, and which may contain two or more complete statements of facts, assigning cause why the mandate of the writ should not be obeyed ; these complete statements are regarded as separate defenses, and must be separately stated and numbered.
    No counter-claim can he set up in the return, and there can be no reply.
    Issues of law are to be raised by demurrer to the writ or to the return—or to any complete statement of facts contained in the writ as constituting a separate grievance, or to any complete statement of facts separately ■ assigned in the return as cause for disobeying the command of the writ.
    Where the demurrer is to one or more but not all of the complete statements of fact in the writ, a return may be made to those not demurred to ; and where the demurrer is to .one or more, but not all of the compíete statements of fact contained in the return, an issue of fact arises with respect to the remainder of the return.
    Issues of fact are triable by jury, unless a jury trial is waived, or a reference consented to. They are to be brought on for trial in the same manner in which issues of fact joined in any ordinary jury case are usually brought on. It is not necessary to have issues stated for trial on a special motion.
    The verdict is to be given as if the action were an action by the relator against the defendant for a false return, and the jury may render a general verdict, or may be directed to find specially upon any or all of the issues.
    The verdict must be returned to, and the final order (which is to be deemed a final judgment) must be made, by the special term; and the judgment is to be entered, docketed and enforced as prescribed by section 2082. MacKellar v. Rogers, 52 Super. Ot. 468, distinguished.
    Before Freedman, J., at Trial Term.

      February, 1886.

      Samuel D. Levy, attorney, and Benno Loewy, of counsel for relator.

      Solomon, Kantroiuitz & JUsberg, attorneys, Morris Goodheart, of counsel for defendant and respondent.
   Freedman, J.

The questions raised upon the call of this case in its order upon the calendar for trial called for a careful examination of the present provisions of law relative to the proper mode of proceeding upon a return to an alternative writ of mandamus.

I have made such an examination since the adjournment of the case last week, and the following is the result.

At the common law, the relator was not permitted to traverse the return, notwithstanding that it might be false in fact; but the remedy was either by an action on the case for a false return, or, if the matter concerned the public, by indictment against the person making the return (2 Johns. Cas. 2 ed. 217).

Subsequently it was provided by statute that whenever a return shall be made to any writ of mandamus, the party prosecuting such writ may demur or plead to all or any of, the material facts contained in the return, to which the person making such return shall reply, take issue or demur, and the like proceedings shall thereupon be had, as might have been had, if the person prosecuting such writ had brought his action on the case for a false return (2 B. S. 586, § 55 ; 10 Wend. 32 ; 3 How. 380). A similar statutory provision also existed previous to the Revised Statutes (1 R. L. 107, § 2). But although the statute permitted the relator to demur or to plead to the return, it was held that he could not do both (1 Wend. 38).

In case of a demurrer, the practice under the Revised Statutes was stated by Sutherland, J., as follows: “ Although these statutes contemplate formal written pleadings in the ordinary mode of conducting suits, the practice of the court is virtually to allow pleadings ore tenus ; that is, the relator is permitted to discuss the return, and to ask for a peremptory mandamus, and whilst he does not put in a formal demurrer, the case is considered as embraced in the description of non-enumerated business, and is heard as such ; but if a formal demurrer is-interposed, it becomes enumerated business, and can be heard only at the stated terms. It is optional with a relator whether it shall be considered enumerated or unenumerated business unless the court specially direct formal pleadings to be interposed ” (6 Wend. 559).

But if the relator took issue on the return by pleading thereto, he could not afterwards question its legal sufficiency (26 N. Y. 316), and the issue of fact had to go down to the circuit- for trial (7 Wend. 475). The case was then prepared and brought on for trial, the same as in personal actions. The relator held the affirmative of the issue, and the return was taken as true until it was falsified upon the trial (24 Barb. 341).

The foregoing constitutes an outline of the practice as it prevailed under the Revised Statutes, sufficient for present purposes.

In this practice the provisions of the Code of Civil Procedure, which are mostly new, have made sweeping changes. Section 2080 abolishes oral pleadings, and allows no pleadings except such as are prescribed in sections 2067-2079. The only pleadings expressly prescribed in these sections consist of the writ—which is to fulfill the function of a complaint, the return—which is to fulfill the function of an answer, and a demurrer—which may be either a demurrer by the defendant to the writ (§ 2076), or a demurrer by the relator to the return (§ 2078).

The facts constituting the grievance complained of in the writ are to be stated in the manner in which a cause of action is to be stated in a complaint, and two or more of such grievances may be joined as so many causes of action. The person upon whom the writ is served, may demur or make return to the writ; or he may file a demurrer to a complete statement of facts contained in the writ, as constituting a separate grievance, and make a return to the remainder of the writ (§ 2076).

So the provisions of chapter sixth of the Code, relating to the form and contents of an answer, containing denials and allegations of new matter, except those provisions which relate to the verification of an answer, and to a counter-claim contained therein, are made applicable to a return to an alternative writ of mandamus, showing cause against obeying the command of the writ, and, for the purpose of the application, each complete statement of facts, assigning a cause why the command of the writ ought not to be obeyed, is regarded as a separate defense, and must be separately stated and numbered (§ 2077).

Section 2079 then provides that an issue of fact arises upon a denial, contained in the return, of a material allegation of the writ, or upon a material allegation of new matter, contained in a return, unless a demurrer thereto is taken; and that, where the relator demurs to a complete statement of facts, separately assigned as cause for disobeying the command of the writ, an issue of fact arises, with respect to the remainder of the return.

And finally, section 2082 provides as follows : “ Except as otherwise expressly prescribed in the act, the proceedings, after issue is joined, upon the facts or upon the law, are, in all respects, the same as in an action, and each provision of this act, relating to the proceedings in an action, applies thereto. For the purpose of the application, the writ, the return, and the demurrer are deemed to be pleadings in an action. ...”

It thus clearly appears, that not only is there no provision made for a plea or reply to a return, but also that such plea or reply is no longer necessary under section 2079, and that by section 2080, it is even prohibited. Unless a demurrer is taken to the return, for insufficiency in law Upon the face thereof, as provided by section 2078, an issue of fact is created by the return itself under section 2079. In a note to the section last mentioned, Mr. Throop expressly says that the effect of the section is to dispense with a reply. The return is, therefore, to be treated in all respects like the answer to a complaint under section 964. But no answer requires a reply unless it contains a counter-claim (§ 514).

The consequence of all this is that the old rule that the relator, unless he demurred to the return, was bound to plead to it, and that, unless he so pleaded, the return was to be taken at the trial as true, has been completely abrogated.

In the case at bar the alternative writ shows that it was issued on the relation of Schaier Heftaniel, as President of the Edward Lasker Lodge No. 6, order of the American Star.

It recites, and the return does not deny, that said Edward Lasker Lodge Ho. 6, was duly created and instituted by the defendant as a subordinate lodge of the Order of the American Star, and that thereby it, and its members, became, pursuant to the charter granted to it and them by the defendant, entitled to certain rights, privileges and beriefits, and to an interest and share in the corporate property of the defendant.

The grievance complained of is then set forth by the following allegation, viz : “That they (meaning the relators) have in all respects complied with your laws and the laws of this state, but that nevertheless, you, disregarding your manifest duty in the premises, have unjustly and unlawfully, and without serving proper charges upon them, and without a trial of them or any of them, and without giving them or any of them an opportunity for a defense, and without receiving, taking, or acting upon lawful evidence or testimony, you have unjustly, unlawfully, and wrongfully expelled the said Edward Lasker Lodge No. 6, and its members, from your said Order of the American Star, and that you have thereby unlawfully, unjustly and wrongfully deprived the said Edward Lasker Lodge No. 6, Order of the American Star, and its members, and the heirs at law and next of kin of such members, of their vested rights and interests in your property and estates and franchises, to the injury of the said Edward Lasker Lodge No. 6, Order of the American Star, and its members.”

The relief sought is the re-instatement of the said Edward Lasker Lodge No. 6, and its members, to all former rights, privileges and benefits.

The return denies each and every allegation contained in the foregoing statement of the grievance complained of, and specifically denies that Schaier Neftaniel is the president of Edward Lasker Lodge No. 6.

A jury trial not having been waived, nor a reference consented to, the issues thus raised must, under section 2083, be tried by a jury, as if they were issues joined in an action specified in section 968. Upon such a trial, section 2083 further prescribes, the relator or the defendant is entitled to a verdict, where he would be entitled thereto, if the issue was joined in an action, brought by the relator against the defendant, to recover damages for making a false return.

The actions specified in section 968 are : (1.) An action in which the complaint demands judgment for a sum of money only. (2.) An action of ejectment; for dower; for' waste ; for a nuisance ; or to recover a chattel.

From the provisions of the two sections last mentioned it seems to follow that the issues of fact arising upon the return of a writ of alternative mandamus, may be brought on for trial in the same manner in which the issues of fact joined in any ordinary jury case are usually brought on, and that it is not necessary to have the issues distinctly and plainly stated for trial on a special motion made under section 970, or the General Rules of Practice.

True, it has recently been held by the general term of this court in Mackellar v. Rogers, that, although a defendant has, under section 974, a statutory right to have his counter-claim passed upon by a jury, where the issue presented by it is one which would have to be tried by a jury, if it had arisen in a separate action brought by the defendant against the plaintiff upon the same claim, he must, nevertheless, if the action brought against him is triable by the court without a jury, make his motion for the statement of the issues triable by jury. But that decision proceeded upon the ground that the main action was of an equitable character and triable by the court, and the counter-claim an incident, and that in such a case the rights of the plaintiff demanded that the defendant should claim his statutory right in advance of the trial of the main action. The principle of that decision is wholly inapplicable to the case at bar.

In the present case, there are no issues except such as arise upon the return, and they are triable by jury. The verdict is to be given under section 2083, in favor of the relator or the defendant, as if the action were an action by the relator against the defendant for a false return, and according to section 2082, each provision of the Code of Civil Procedure, relating to the proceedings in an action, applies to such a trial, except as otherwise expressly prescribed.

Under section 1187, the jury may, therefore, render a general verdict, or they may be directed to find specially upon any or all of the issues. This is also in conformity with the rulings made in 35 Barb. 644, and 35 Barb. 651, which rulings are still good law, though the cases themselves were reversed upon other points in 26 N. Y. 316.

The verdict must be returned to, and the final order thereupon must be made by the special term as provided by section 2084, and the final order is to be deemed a final judgment, and is to be entered and docketed, and enforced as prescribed by section 2082.

The trial of the case may, therefore, proceed in conformity with the views expressed by me.


text:
    MARY ANN DOHERTY, et al., as Grantors of Charles Jones, Respondents, v. GEORGE W. MATSELL, Jr., et al., Appellants.

      Ejectment by grantee in the names of grantors—Death of some of parties plaintiff—Defeat of parties—Amendment nunc pro tuna bringing in representatives not allowed.

    Where in an action of ejectment brought hy a grantee in the names of his grantors, some of the plaintiffs die after the commencement of the action, and before trial, there is a defect of parties, which defense maybe availed of on the trial by objecting to the cause proceeding without bringing in the representatives of the deceased parties.
    The remedy for the defect is not to he found in sections 755-761. It is to amend the complaint and proceed de novo. Such amendment should not be allowed nunc pro tuna as of the day preceding the trial.
    Before Sedgwick, Oh. J., and O’Gorman, J.

      Decided March 1, 1886.
    Appeal from order allowing the revival and continuance of an action and an amendment of the complaint nunc pro tunc.

    The action was in ejectment under section 1501 of the Code of Civil Procedure. The complaint alleged that the plaintiffs at the time of the conveyance thereinafter set forth, were the owners in fee simple absolute, and entitled to the possession of a certain piece of real estate particularly described; that at the time of said conveyance, the defendants were, and thence remained in possession of said real estate claiming and pretending to hold such possession adversely, and that they now withhold the possession from the plaintiffs and their grantee ; that on, &c., the plaintiff by deed granted and conveyed said real estate to Charles Jones,- and that this action was prosecuted by Charles Jones pursuant to the provisions of section 1501 of the Code of Civil Procedure. After-answer, the issues were tried before a jury. Upon the trial, a witness proved that two of the plaintiffs had died after service of answer and before the trial. The defendants’ counsel moved to dismiss the complaint on the ground that the two plaintiffs had died. The motion was denied, and an exception taken. Subsequently, and on the whole case, the court directed a verdict for defendants, and that the plaintiffs’ exceptions be heard in the first instance at the general term. Before the case was heard at general term, the grantee in the deed, Charles Jones, made a petition, setting up the death of two of the plaintiffs, and on the hearing of this petition, upon notice, an order was entered that the action be revived and continued in the names of the executors of the wills of the deceased plaintiffs respectively, “and that the plaintiffs have leave to amend the proceedings herein and amend and supplement their complaint, showing the death of said plaintiffs, and the qualifications of their respective legal representatives, so as to conform the same to the proof taken on the trial, nunc pro tunc, as of November 5, 1885, upon payment to the defendants of five dollars costs.” The trial was begun on November 6, 1885. From this order defendants appeal.

      J. H. BarowsJcy, attorney, and John O. Shaw, of counsel for appellants,,
    on the questions considered in the opinion, argued :—The court had no power to grant the order and verdict in favor of the defendant. The affidavits show that the parties plaintiffs who had died, and whose representatives it was sought to bring in, died after the commencement of the action and before the action was tried. In such event, the court cannot grant an order for the revival of the action and enter nunc pro tunc as of a day before trial. Title 1, chapter 14 of the Code refers to acts relating to real property. Section 1521, which treats of abatement of such actions, reads as follows : “ The provisions of title 4 of chapter 8, as applied to an action specified in this article, are subject to the qualifications that the court may, in its discretion, proceed as prescribed either in that title or in the next two sections.” The next two sections, 1522 and 1528, do not relate to a case like this. Section 1522 provides that the “action is to be divided when different persons succeed to different parcels.” Section 1523 relates to actions “ where different persons succeed to real property and to rents and profits.” This case must therefore be governed by title 4 of chapter 8 of the Code, which embraces sections 755 to 766. Sections 755 to 761 relate to proceedings where the party dies before verdict. Section 762 is to the effect that the preceding provisions—that is, 755 to 761—do not apply to a case where special provision is otherwise made by law. Before the passage of part 2 of the Code, this section was always printed with a note, that these provisions did not relate to actions of ejectment. Down to 1880 the provisions of the Revised Statutes relating to suits in ejectment were in force, they were not affected by the repealing act of 1877. Section 455 of the old Code expressly provided that the provisions of the Revised Statutes applied to all such actions. Turning to the title Ejectment in the Revised Statutes, part 3, chap. 5, tit. 1, section 32 (2 Edm. R. S. [2 ed.] 317), we find that it reads as follows : “§32. The action of ejectment shall not be abated by the death of any plaintiff, or of one of several defendants after issue and before verdict or judgment ; but the same proceedings may be had, as in other actions, to substitute the names of those who may succeed to the title of the plaintiff so dying, in which case the issue shall be tried as between the original parties.”
    It is perfectly apparent from this that this substitution of parties must be made before verdict or judgment, and the practice is the sanie under sections 755 to 761. Sections 763 and 764 apply to the case of the death of a party after verdict. The practice under the old Code was the same. Section 121 provided for cases both before and after verdict. The reason for the rule thus contended for is beyond the mere question of practice. The original plaintiffs were all necessary pari ies to the action, and in case of the death of either of them after issue joined and before verdict, their representatives should have been brought in to take their place. If the plaintiffs proceeded without them they did so at their peril; if they obtained a judgment it could not stand ; so the overruling of the defendants’ objections was error, and any judgment obtained in spite of such an objection must be reversed. This precise point was raised and decided in the case of Hasbrouck v. Bunce (62 N. Y. 475). If the plaintiff had been non-suited, could he have claimed the absolute right, or would the court have the power to grant him leave to bring in the very parties because of whose absence the non-suit was granted ? If such practice prevails, the effect of the granting of such a motion would be to destroy the judgment entered on the non-suit.
    This statement illustrates in a concise manner the limitation of the power of the court to grant such an application, it must be made before trial, and the rights acquired on the trial cannot be destroyed by an order made after trial, to take effect nunc pro tunc as of a day before the trial. The defendant in this case had a verdict with a direction that the plaintiff’s exception should be heard in the first instance at the general term. This is simply a motion for a new trial on a case and exceptions made to be heard before the general term instead of the special term.
    The verdict should be reversed and the new trial granted, if it appears from what took place on the trial that the plaintiff should not have had a verdict. This we have shown he was not entitled to, in the absence of the representatives of the deceased plaintiffs ; that objection was fatal to the plaintiffs (Hasbrouck v. Bunce 62 N. Y. 476).

      Thain & Kearney, attorneys, and Alexander Thain, of counsel for respondents,
    argued :—I. It is not apparent to the plaintiffs in what manner the defendants are injured by the order appealed from. The legal representatives of the deceased plaintiffs, who are the only persons who can possibly be injuriously affected by this order, are not complaining ; the order in fact granting an application that these parties be brought in and be bound by a judgment which is against them. Had the verdict been in favor of plaintiffs, the defendants might be heard to complain.
    II. The plaintiffs so brought in were but nominal parties to the action. The real party in interest has always been their grantee, Charles Jones. So again, it is not apparent that any substantial change of parties has been made, or that any change has been made affecting the interests of the defendants.
    III. It may be urged that by reason of the adverse possession of the defendants, the deed by Mr. Jones’ grantors was void, but still his title will be complete, should he ultimately succeed in his action, by reason of the conveyance to him by the deceased plaintiffs prior to their death, the deed operating as an estoppel against the legal representatives of the deceased plaintiffs.
    IV. The order was in effect a conformation of the pleadings to the proof, which had been made upon the trial, principally by the cross-examination of the defendants {Code, § 723).
   By the Court.

Sedgwick, Ch. J.

On the first impression, it would seem that in such a case the successors or representatives in interest of the deceased plaintiffs, are not the executors of their wills, but their heirs or devisees. As no notice was taken of this on the argument, it may be presumed that in some way the executors are tenants in common with the surviving plaintiffs.

In Hasbrouck v. Bunce (62 N. Y. 475), the court of appeals said of a like case, that if the defect of parties had existed at the time of the commencement of the action, it would have been waived by the failure to take the objection in proper form. It does not proceed to say that when the death occurs after issue joined, the objection must be taken by an answer-in the nature of a plea in abatement, puis darrien continuance. It says, that the objection having arisen since the commencement of the action, the only mode in which the defense could set it up, was by objecting to the cause proceeding without bringing in the representatives of the deceased parties, and that such an objection should be sustained. It was also said that it was in the power of the court below, to allow the defect to be remedied by amendment or supplement.

In my opinion, the remedy for the defect is not to be found in sections 755 to 761. They do not provide for a case where in substance the non-presence of a party as plaintiff, is the ground of the remaining plaintiffs having no cause of action whatever, if the fact be pleaded or stated as an objection to proceeding. The remedy is analogous to that which may be applied after an answer of a defect of parties. It is to amend the complaint and proceed de novo. It would not be correct to allow such an amendment nunc pro tunc, for in substance the amendment makes a new action, and the defendant should not be deprived of his right to plead that the substituted parties are not the proper representatives of the deceased plaintiffs.

In the present state of the proceedings, it is inexpedient, if not inadmissible, to order an amendment which will have the effect of disregarding the proceedings upon the trial and the verdict there directed for the defendants. It is not now competent for this general term, on appeal from this order, to deal with the verdict as can be done when the exceptions are brought on for argument. It; cannot now be adjudicated that the defendants are not entitled to judgment upon the verdict. I therefore think that the order below should be reversed, and an order entered denying the motion, with $10 costs to defendants, but without prejudice to a motion for amendment to be made after a determination of the exceptions to be argued at general term. The defendants are to have $10 costs of the appeal in this action.

O’Gorman, J., concurred.


author: O’Gorman, J.

text:
    CHRISTIAN WEITKAMP, Respondent, v. FRANCIS LOEHR, Impleaded, &c., Appellant.

      Attachment—when granted—non-residence defined.

    Actual cessation to dwell within the state for an uncertain period, without definite intention as to any fixed time of returning, even though a general intention to return at some time in the future may exist, constitutes non-residence, and warrants an attachment under sections 635 and 636 of the Code.
    The above principle applied to the facts of the case at bar, and the attachment upheld.
    The distinction between the words “residence” and “ domicile,” as applied to the attachment laws, defined.
    Dupuy v. Wentz, 53 N. Y. 556, distinguished.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided March 1, 1886.
    Appeal from order denying motion to vacate attachment.
    The facts appear in the opinions.
    The following opinion was delivered at special term:

      “Ingraham, J.—From the facts as they appear in this application, it is clear that the defendant did not lose his domicile in this state. It is well settled, however, that a person may have a domicile within this state, and at the same time be a resident of another state.
    “In Matter of Thompson (1 Wend. 43), the supreme court stated the distinction, and held that the question is one of actual residence at the time the warrant is issued ; and this case has been approved in Haggart v. Morgan (1 Seld. 423).
    “In the case of Mayor v. Genet (4 Hun, 487), the supreme court held that where a person left the state with the design of remaining beyond the limits of the state, he became a non-resident, and liable to have his property seized by attachment; and in Wallace v. Castle (68 N. Y. 370), the court of appeals held, that the fact that a person had a place of business in the city of New York was not sufficient to constitute him a resident, so as to exempt him from attachment.
    “In Matter of Collins (64 How. 65), it was held that residence means the act or state of being seated or settled in a place. It imports not only personal presence in a place, but an attachment to it by those acts or habits which express the closest connection between the person and place, as by usually sitting or lying there.
    “It appears in this case, from the defendant’s own statement, that about June 25, 1884, the house at whicli he then resided with his family was given up, and his family removed to Milwaukee, with the intention of remaining there for an indefinite period (at any rate until the following October), and then returning to Brooklyn ; that for a considerable portion of the time between said removal and the issuing of the attachment, the defendant was absent in Milwaukee,, or traveling in relation to his business ; that while he was here he boarded at two places in Brooklyn, one of such places being a hotel; that on March 15, defendant left New York city, and was absent from the state until May 34, 1885. During the time he was absent it does not appear that the defendant had any place of abode or residence in Brooklyn, or in this state ; no house that he could at that time call his home or residence.
    “Nothing appears that would show that defendant intended to retain his residence in Brooklyn, and although the case is a close one, I think that under the rule as stated in the cases above cited, the defendant was not a resident of this state at the time the attachment was granted.
    “ The motion to vacate the attachment must therefore be denied, with $10 costs, to abide the event of the action.”

      John D. Ahrens and Wm. P. Chambers, for appellant.

      Frank J. Dupignac, for respondent.
   By the Court.

O’Gorman, J.

This is an appeal from an order of this court at special term, denying a motion made on behalf of defendant, Loehr, to vacate an attachment issued against his property, on the ground that he was a non-resident of the state of New York.

The material facts, as stated by the defendants, and uncontroverted, are these:

Defendant Loehr had been, before June, 1884, a commercial traveler for a New York establishment, spending much of his time on the road and outside of the state of New York. He had lived in Brooklyn with his wife and family, and, up to that time, was a resident of the stats of New York. Finding his wife and children ill, as he was advised by his physician, of disease contracted by bad sewerage of the house in which he dwelt, and finding change of air necessary for their recovery, he left the house in which he had dwelt. His wife’s father and mother resided in Milwaukee, and, his wife being then pregnant, he decided to remove her and his family to that city, so that they could have the care of their relatives. It was no part of his or his wife’s intention to reside permanently in Milwaukee, but it was his and her intention to return to Brooklyn. They did return to Brooklyn on June 11, 1885. Their absence from the state, in the meantime, is attributed to the illness of defendant’s wife, who was delivered of a child in October, 1884, and the subsequent illness of his and her children.

The defendant Loehr, before he left Brooklyn, put his furniture into a storage house there, for safe keeping until his return. During the absence of his wife and family in Milwaukee, the defendant, on his occasional returns to New York from his journeys, had no permanent dwelling in this state, but stayed temporarily in boarding-houses in Brooklyn.

The attachment was issued in April, 1885, during the absence of the defendant from New York.

There is sufficient evidence, in my opinion, to warrant the conclusion, that in leaving Brooklyn, the defendant had not the intention to seek a domicile outside the state of New York, and that the stay of his wife and family in Milwaukee was not intended by him or her to be permanent, but was transitory, and that, during all their absence from New York, they always had the intention of returning to Brooklyn, at some time in the future not fixed.

The question is not wholly free from doubt, and that doubt has been, to some extent, caused by the failure to distinguish accurately between domicile and residence. These words are often used indifferently. Generally speaking, domicile and residence mean the same thing (Kennedy v. Ryal, 67 N. Y. 379). They have, however, at least when used in reference to attachment under the Code, different and distinct meanings.

Residence, combined with intention to remain, constitutes domicile (2 Kent’s Com. 577).

Inhabitancy and residence mean a fixed and permanent abode, a dwelling-house for the time being, as contradistinguished from a mere temporary locality of existence (20 Johns. 208).

Residence, in attachment laws, generally implies an established abode, fixed permanently for a time, for business or other purposes, although there may be an intent existing all the while, to return to the true domicile (Kone v. Cooper, 43 Ark.).

The meaning of the word resident, as used in section 1763 of the Code, was discussed in De Meli v. De Meli, and it was held that a natural born citizen of the United States, who had been for some years dwelling in Dresden, but always stated his residence to be in Hew York, and never had the intention of obtaining a residence anywhere else than in Hew York, had never acquired a foreign residence ; that the residence of a man is changed only by an abandonment of the first place of domicile, with the intention not to return, but to permanently settle in another place (De Meli v. De Meli, 5 Civ. Proc. R. 308).

In Dupuy v. Wurtz (53 N. Y. 556), the contention was as to the proper execution of a will by a citizen of the state of Hew York, who bad dwelt continuously in Europe for many years. The will was executed in Hice, and according to the laws of Hew York. It was held that the testatrix had not abandoned her original domicile, which continued to be in Hew York.

The question in the case at bar, however, is not as to domicile, with reference to proper execution of a will, but as to residence or non-residence, as the test of the right to attach property of the defendant.

In my opinion, actual cessation to dwell within the state for an uncertain period, without definite intention as to any fixed time of returning, even although a general intention to return at some time in the future may exist, constitutes non-residence, and warrants an issue of an. attachment under sections 635 and 636 of the Code. •

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

Sedgwick, Oh, J., concurred.


author: O’G-orman, J.

text:
    THE PRESIDENT, &c. of the MANHATTAN CO. v. WILLIAM I. PHILLIPS and RICHARD H. LAIMBEER.

      Special partnership—compliance with statutory requirements—Evidence— testimony of interested witness.

    On October 1, 1883, defendant Laimbeer was one of the three members of, and thé special partner in, the firm of “ Phillips & Co.,” to which firm he had theretofore actually paid in as special capital the sum of $20,000. On that day said firm was dissolved by consent, and it was agreed that a new firm under the name of “ William I. Phillips,” should be formed by said Phillips, one of the members of the old firm, as general partner, and defendant Laimbeer as special partner, the latter to contribute as his capital $20,000. Thereupon, Phillips drew a check in behalf of the old firm for $20,000, and delivered the same to defendant Laimbeer in repayment of the special capital contributed by him to said old firm, which check defendant Laimbeer deposited in his bank,, making his balance there about $35,000. On the day previous, he had arranged with said bank to obtain $20,000 in bills, which, on October 1, he drew out on his check, and paid in cash to said Phillips as his special capital in the new firm, which money was deposited in bank to said new firm’s credit. Thereupon and upon the same day Phillips drew a check in the name of the new firm to the order of the old firm for $20,000, which was deposited in bank to the old firm’s credit. This check was given without any valid consideration to the new firm, and, from all that appears, exhausted its money on that day. There was no evidence that defendant Laimbeer was aware of the drawing of said last named check by Phillips, or that he in any way assented to or connived at it. Held,, in an action by a firm creditor, in which it was sought to. charge Laimbeer as a general partner, that a verdict in Laimbeer’s favor was properly directed.
    It'was conceded by plaintiffs that, on the whole of Laimbeer’s testimony, • the jury had the right to find in his favor on the issue as to the good faith of his payment to, the new firm, but they contended that as he was an interested person, the jury were- not bound to accept his memory, and the case should have been submitted to them. Held, that this contention was without weight, since Laimheer’s testimony was not opposed by that of others not liable to be impugned on the same or any other account:
    The special partnership herein was formed October 1, 1883; the statutory publication was begun in One paper October 6, 1883, and in the other October 10, 1883. Held, that the publication was made with sufficient diligence.
    The articles of copartnership described the business of the special partnership to be “ a general produce and commission businessthe publication stated it to be “ a general commission business.” Held, that a certificate stating it to be “ a general commission business, buying and selling grain, flour and produce on commission,” described with reasonable certainty the business to be carried on by the firm.
    Before Sedgwick, Ch. J., Trtjax and O’Gorman, JJ.

      Decided March 1, 1886.
    Exceptions ordered to be heard at general term.
    Action on promissory note made by defendants’ firm. Laimbeer defended on the ground that he was a special partner. The limited partnership was formed October 1, 1883, apd its certificate was filed and recorded on that day. Laimbeer contributed $20,000 in cash on the same day as special capital. The certificate stated the object of the business to be “a general commission business, buying and selling grain, flour and produce on commission.” The articles of partnership stated it to be “a general produce and commission business.” The publication in the ‘ ‘ Register ” commenced on October 6, 1883, and that in the “ Real Estate Chronicle” October 10, 1883. Both these publications stated the nature of'the business to be “a general commission business.”
    Plaintiff asked a direction to the jury to find a verdict for plaintiff on the grounds : 1st. There was no immediate publication ; 2d. That there was a material variance between the statement of the nature of the business to be transacted, as embodied in the certificate and in the advertisements. This was denied, and an exception taken.
    The plaintiff asked to go to the jury upon the bona fides of the original contribution by Laimbeer of the $20,000 paid in by him as special capital, which was also denied, and an exception taken.
    On motion of defendant’s counsel, the court directed a verdict in defendant’s favor, and .plaintiff excepted.

      The exceptions were ordered to be heard in the first instance at the general term.

      Stem & Myers, for plaintiffs
    I. By section 9 of the limited partnership act, the partners are required to publish the terms of the partnership for at least six weeks, &c., in two newspapers “ immediately after such registry,” &c. ; and it is provided by the same section that if “ such” publication be not made, “the partnership shall be deemed general.” By the original act of 1822, the publication was not required to be made “immediately.” In the present case, the publication in the “ Chronicle ” did not commence until on the tenth day after the filing of the certificate. That was not an immediate publication; it was not “such” a publication as the statute requires, and therefore the parties did not secure the privilege conferred by the statute. The legislature intended to put a reasonable period to the labor of a party searching through the files of newspapers so as not to require a search for an indefinite period to see whether a publication had not been made at some time or other before giving the requested credit. That reasonable period was secured by the phrase “for at least six weeks immediately after such registry.” That phrase has been construed to mean six publications, once a week, the first publication to be made in the first week (Bowen v. Argall, 24 Wend. 496). In the case of Smith v. Argall (6 Hill, 479), the court said, “ The statute is rigorous in its terms, and those who claim its benefits must show a substantial conformity to its requirements.” See also 3 Den. 435.
    II. Neither did the certificate truly set forth the general nature of the business intended by the articles to be transacted, nor did the publication truly set forth the nature of the business specified in the certificate. In the present case, the articles of partnership show that the business intended to be transacted was “a general produce and commission business.” That meant a general produce business on their own account, and not merely on commission, and also a general commission business unrestricted to any particular sort of merchandise. In their certificate they suppressed the fact that the firm was formed to carry on a general produce business on their own account; and they also suppressed .the fact that the firm was formed to carry on a general commission business in all sorts of commodities. In the present case there was a substantial variance between the certificate and the publication in this regard. Both publications described the business as “a general commission business.” This description did not conform to the original articles, since it omitted the fact that by the original articles the firm was formed to carry on, on its own account, “a general produce business.” It did not conform to the certificate, because it stated the business to be “a general commission business whereas, by the certificate, no general commission business was formed, but simply a business to deal on commission in “grain, flour and produce.” The broad scope of the general words in the certificate—“a general commission business ”—is narrowed and restricted by the special recital of the particular classes of goods, “ grain, flour and produce ” (Jackson v. Stackhouse, 1 Cow. 122 ; McIntyre v. Williamson, 1 Edw. Ch. 38 ; Payler v. Homersham, 4 Maul & Selw. 425 ; Van Hagen v. Van Renssellaer, 18 Johns. 420; Elmendorf v. Lansing, 5 Cow. 470 ; 8 Wend. 494; 1 Barb. Ch. 398). In Durant v. Abendroth (69 N. Y. 148), the court said, “The parties have made a careless, though no doubt innocent mistake, but they have failed to comply with the statute, and the special partner is therefore deprived of its protection.”
    III. Plaintiff was entitled to go to the jury on the question of the bona fides of the contribution. The testimony showed that the $20,000 was paid in October 1, 1883. On the same day it was all loaned to a, previous firm called “Phillips & Co.,” of which the defendant Laimbeer was a member, and in which firm he was said to have invested $20,000 as capital. On the same day Laimbeer received the check of the old firm for $20,000 as a return of his special capital. The old firm at that time could not have paid that $20,000 to Laimbeer without first obtaining it from the new firm. The investment of the $20,000 in the new firm in cash and the receipt by Laimbeer of the $20,000 check of the first firm were simultaneous acts. The old firm had no assets. It paid Laimbeer $20,000 on October 1, 1883, out of the money of the new firm. An hour or two after the new firm started (it was the firm that made the note here sued on) it had not a cent of capital. It had all been paid out and had all gone back to Laimbeer. We claim the jury had the right to find that when the $20,000 was paid into the new firm, it was paid in on the understanding that it should be used to enable the old firm to return the same amount to Laimbeer. If the jury had such right and had so found, then the $20,000 was not paid in “ in good faith ” within the meaning of the statute (Metropolitan Bank v. Sirret, 91 N. Y. 320).
    We concede that upon the whole of Laimbeer’s testimony the jury had the right to find in his favor on that issue. But he was an interested party ; and though he was not directly contradicted, yet the jury had the right from the proven circumstances to draw an inference adverse to Laimbeer, and were not bound to accept his memory in his own favor (McNulty v. Hurd, 86 N. Y. 541).

      Winchester Britton, for defendant Laimbeer.
   By the Court.

O’G-orman, J.

The learned trial judge directed that the jury find for the defendant Laimbeer, and that the exceptions be heard first at general term.

The chief contention is, whether defendant Laimbeer was a special or a general partner in the firm, carrying on business in New York under the name of William I. Phillips,” and the decision will depend on the question, whether he did ‘ ‘ actually and in good faith ” pay into the common stock of that firm $20,000.

The defendant Laimbeer had been, before October 1, 1883, a partner in the firm of “Phillips & Go.,” the members of which were, William I. Phillips—its financial and managing partner, Frederick Phillips—who did the outside business, and Laimbeer—who claimed to have been a special partner, and who had actually put $20,000 into the firm. That firm came to an end by mutual consent on October 1, 1883, and it was agreed between said William I. Phillips and Laimbeer, that a new firm should be composed of William I. Phillips, the general partner, and Laimbeer, the special partner, the latter putting into that firm also, the sum of $20,000. The name of the new firm was to be “William I. Phillips.”

About noon on October 1, 1883, William I. Phillips and Laimbeer met at Laimbeer’s office in New York, for the purpose of closing the connection of Laimbeer with the old firm, and starting the new firm. The first thing to be done, was to pay back to Laimbeer the $20,000 he had contributed as special partner to the old firm of “Phillips & Go and to that end, William I. Phillips, as representing the old firm, drew a check of that firm on the Manhattan Bank for $20,000, dated October 1, 1883, payable to Laimbeer, or his order. This check Laimbeer deposited on that day in the Produce Exchange Bank, in which he had been for a long time a depositor and director. On the morning of that day, he had in that bank to his credit, and subject to his draft, $13,670.42, and this check raised his balance to about $35,000. On the preceding day, he had arranged with the cashier of that bank, to have for him twenty bank bills of one thousand dollars each, and on October 1, he got these bank bills, giving his check for the amount to the Produce Exchange Bank. The money so contributed by Laimbeer to the old firm having been thus repaid him by William I. Phillips, as representing the old firm, Laimbeer handed to him, as general partner of the new firm of “Wilham I. Phillips,” the twenty one-thousand-dollar .bank notes, and these bank notes were, on that day, deposited in the Manhattan Bank to the credit of the new firm.

So far, all seems to have been done correctly, and according to the proper intention of the parties. On the same day, however, William I. Phillips drew a check of the new firm for $20,000, payable to the order of “ Phillips & Co.,” the old firm. This was the first check drawn in the name of the new firm, and it was indorsed in the handwriting of William I. Phillips, thus—“deposited by Phillips & Co.” This check was deposited on that day to the credit of “Phillips & Co.,” the old firm, in the Manhattan Bank, and was given without any valid consideration moving to the new firm, and, from all that appears, exhausted all the money of the new firm on that day.

There is no evidence that defendant Laimbeer was aware of the drawing of that check by William I. Phillips, or that he in any way assented to or connived at it. There is no apparent motive for his doing so.

It is conceded by the plaintiffs, that on the whole of Laimbeer’s testimony, the jury had the right to find in his favor on that issue ; but they claim that he was an interested person, and that the jury were not bound to accept his memory in his own favor, and that the. case should have been sent to the jury.

That argument would have weight, if his testimony had been opposed by that of others, not hable to be impugned on the same or any other account. But in this case, I can find no testimony from which an inference can be fairly derived, that Laimbeer had knowledge of, or was a party to, or was in any way responsible for the drawing of that check.

Proof of fraud, although it may seldom be sustainable by direct evidence, but must be gathered from circumstances, must yet not be left to mere conjecture and surmise. The inferences must be founded on facts, and be their legitimate consequence. There is nothing in the facts of the case, which would sustain a verdict adverse to him on that question, and in so holding, no error was committed by the trial judge.

As to the other objections to the existence of a special partnership, they are, in my opinion, not well taken. The publication of the terms of the limited partnership was made with reasonable diligence, and without any unreasonable delay. The certificate filed described, with reasonable certainty, the nature of the business to be carried on by the firm.

The judgment should be for defendant Laimbeer, with costs.

Sedgwick, Oh. J., concurred.


text:
    FRANK McQUADE, Respondent, v. THE MANHATTAN RAILWAY CO., Appellant.

      Railroads—Rapid transit—Negligence—duty to give signal of starting, <&c.

    It is the duty of a railway company professing to provide rapid transit, and making short stops at its stations, to give to intending passengers, for their safety, clear and intelligible signals indicating when it ceases to be safe or prudent to board the train.
    Accordingly, where it appeared that plaintiff, desiring to enter one of defendant’s cars which had stopped at a station to receive passengers, followed close upon others who were hurrying thereon, and while in the act of putting his foot on the platform to enter, and holding the railing with his hand, was prevented from making his footing good, by the conductor, who endeavored to close, and did partly close the gate upon his foot, catching it thereunder, and dragging him with the train which then started to move; whereupon plaintiff was pulled on to the platform by the conductor and passengers thereon, and fell, sustaining severe injuries ; it further appearing that at the time plaintiff’s foot was so caught, the train was not moving, and though the conductor’s arm was raised in view of plaintiff, as if to take hold of, or as if holding the bell rope, no bell had been rung, or was ringing, nor was any other signal given that the train was about to move, or that the proper and safe time for boarding it had passed. In an action for damages for defendant’s negligence,

      Held, a proper case to go to the jury.

      Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.

      Decided March 1, 1886.
    Appeal from judgment in favor of the plaintiff, and from order denying the motion for a new trial on the minutes.
    Action for damages for injuries alleged to have been caused by the negligent acts of defendant’s servants.
    The facts appear in the opinion.

      Davies & Bapallo, for appellant.

      Morris & Donnelly, for respondent.
   By the Court.

O’Gorman, J.

The defendant contends in this case that the learned trial judge erred in denying the motion to dismiss the complaint, and also in denying certain requests to charge made by the defendant’s counsel, and denying also a motion for a new trial.

When the plaintiff rested his case, the trial judge would not have been justified in holding, as matter of law, that the plaintiff had not shown that he was free from negligence, and that-the defendant had been guilty of negligence which caused the disaster, and in refusing to submit the case to the jury on the evidence.

The facts, as they then appeared, were, that the plaintiff, desiring to get on board a car of the defendant going north, at the Forty-first street station, and at that moment following at the heels of others who were hurrying on the car, which had then stopped at the station to admit passengers, while in the act of putting his foot on the front platform of the third car in the train, and holding the railing by his hand, was prevented from making his footing good by the act of the conductor on the platform, who, at the same moment, endeavored to close, and i partly closed the gate, catching plaintiff’s right foot under it. The car had not, at that time, begun to move. The conductor’s arm was raised as if to take hold of, or as if actually holding the bell rope, but no bell had been rung, nor was any ringing, and no signal was given that the train was immediately to move, or that the proper and safe time to get on board of it, had passed. The train did move, while the plaintiff’s foot was thus caught by the gate, which even then was not wholly closed, and the plaintiff was pulled on to the platform by the conductor and the passengers standing on the platform, where he fell down receiving severe injuries.

It is hard to see what had happened to give the plaintiff any warning that the proper time to get on the car had passed. The gate to the platform was open. Other persons immediately preceding the plaintiff, were in the act of getting on the platform. The fact that the conductor had his hand raised on the bell rope, in view of the plaintiff was not an intelligible signal that it was too late for plaintiff to get on board, or that the conductor would not wait until the few seconds would have elapsed, during which the plaintiff’s entry on the platform could have been safely completed; or that the conductor, regardless of plaintiff’s effort to get onboard, would have endeavored to shut the gate against him. No negligence of the plaintiff appears in this evidence, which contributed to the accident. He seems to have taken all the ordinary measures to put to its proper use, the right to ride on the defendant’s car, for which he had just paid, and certainly the defendant was bound to give him reasonable opportunity and facilities to get on the car.

■ The duty of a railway company, professing to provide rapid transit, of making short stops at their stations, would naturally impose on them the duty of giving to passengers, for their safety, clear and intelligible signals indicating when it had ceased to be safe or prudent to board the train.

The defendant’s exceptions were not well taken, either to the rulings or charge of the trial judge.

The case was submitted to the jury, as it ought to have been, on all the evidence, and their evidence should not be disturbed.

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

Sedgwick, Ch.-J., concurred.