text:
    Charles R. Frace, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

      ■Pire caused by sparks from a locomotive — proximate cause — spa/rk a/rrester— expert testimony.

    In an action against a railroad company to recover the damages resulting from a fire caused by sparks emitted from a particular locomotive, the plaintiff has made out a prima facie case of negligence by showing that large and ■dangerous sparks have been emitted from the same locomotive frequently and shortly before the fire in question, and the charge of negligence is not overcome by the defendant’s showing that the locomotive was equipped with an improved spark arrester, the meshes of which were smaller than the cinders shown to have been emitted.
    When a cinder from a locomotive falls upon and sets fire to a building,, and the flames extend from that building to another thirty-nine feet distant and set fire to it, the burning of the first building may be considered the proximate and natural cause of the burning of the second building.
    A witness testified that he had worked upon locomotives twelve years, six as fireman and six as engineer.

      Sell, that he was competent to give an opinion, as an expert witness for the plaintiff, that if the locomotive in question had been equipped with a properly-constructed spark arrester, properly placed, it could not have emitted sparks of the size it did emit.
    Evidence on behalf of a defendant railroad company, consisting of the opinions of its own employees as expert witnesses, that a locomotive was properly con■structed, is not to be deemed conclusive.
    Appeal by the defendant, the New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court, entered in the office of the clerk of Allegany county on the 22d day of April, 1892, upon a verdict in favor of the plaintiff, rendered at the Allegany Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes, entered in said clerk’s office on the same day.

      James II. Stevens, for the appellant.

      Olaren.ce S. Fa/rnham, for the respondent.
   Lewis, J.:

This action was to recover damages for the alleged negligence of the defendant in burning plaintiff’s barn and hotel and their contents, situated at Scio Station, Allegany county. The barn was distant from the defendant’s railroad track at one end seventy-seven feet, and sixty-seven at the other. The hotel was sixty feet distant from the track and thirty-nine feet from the barn. On the afternoon of the 21st day of April, 1889, a spark from the smokestack of defendant’s engine, No. 579, fell upon the roof of the plaintiff’s barn, set it on fire, and the barn and its contents were destroyed. The flames from the burning barn extended over to and upon the hotel, and it was burned with its contents. There is an up grade to the defendant’s track, of eight feet to the mile as it extends easterly through Scio. The engine ivas at the time going in an easterly direction, drawing a freight, train, and, as it passed the hotel and barn, it discharged a large quantity of sparks. A very strong wind was blowing at the time from the railroad track towards the barn. There was evidence tending to show that on several occasions prior to the day of this fire, this same engine threw out of its smokestack, as it passed through the village, large quantities of live coals, and set fires along the sides of the railroad track, and that about three weeks before the day of the burning of the barn and hotel, as the engine passed easterly by plaintiff’s hotel, large live cinders were thrown out of the smokestack. Some of them fell upon the roof of plaintiff’s hotel and set it on fire.

The cinders thrown out from time to time were shown to have been from one-lialf to three-quarters of an inch in diameter, as large as the end of a man’s thumb or a hickory nut. The evidence tended to show that when an engine is drawing a train up grade, its labor is very materially increased, and that it emits cinders and sparks in larger quantities, and throws them a greater distance than when it is running on a level or down grade. An engineer can so manage his engine as to materially lessen the flow and velocity of the sparks from the smokestack by lessening the amount of steam used, and allowing the train to be 'partially propelled by its own momentum. It is the contention of the plaintiff that it was the duty of the engineer on this occasion, knowing that the wind was blowing with great velocity across the railroad track towards the plaintiff’s buildings, to shut off or lessen the quantity of steam while passing, and that his failure so to do was evidence of negligence.

The plaintiff further contends that the fact that the engine scattered such a quantity of large sparks was evidence that it was improperly constructed, or was out of condition, or that it was negligently and improperly managed.

Plaintiff’s evidence made, we think, a grima facie case of negligence against the defendant. (Case v. Northern Central R. R. Co., 59 Barb. 644; Field v. N. Y. C. R. R. Co., 32 N. Y. 339; Collins v. N. Y. C. & H. R. R. R. Co., 33 N. Y. St. Repr. 569.)

The defendant called a number of witnesses whose evidence tended to show that the engine was equipped with a well-known and improved appliance for regulating the flow and preventing the discharge of sparks of improper dimensions.

The meshes of the netting of the spark arrester were square and scant three-sixteenths of an inch in size. A number of defendant’s employees -whose duty it was to inspect the spark arrester of its engines, testified that this engine was examined just before and immediately after the fire and its netting was found to be in perfect condition. It was obviously impossible for cinders of the dimensions the plaintiff proved were thrown out of the smokestack of this engine from time to time, to pass through the meshes of its spark arrester. Being confronted by evidence that the size of the sparks thrown out were much larger then the meshes of the spark arrester, the defendant attempted to explain it, and called as a witness its mechanical engineer, A. E. Mitchell, who testified that he had made experiments with an engine with a view of ascertaining how it was possible for spai’ks of dimensions larger than the meshes of the spark arrester to be thrown out of the smokestack of an engine.

His conclusion from his experiments was, that the sparks pass through the netting in a molten state, and that before they pass out of the smokestack in some way they come in contact with each other and adhere together, and thus form large cinders. The theory was an ingenious one, but, in view of the terrific commotion to which, the sparks are subjected while in the stack, the conditions would not seem, to the ordinary lay mind, to be favorable to such a union of the sparks. Notwithstanding the defendant’s very vigorous and able defense, it was, we think, still a question for the jury whether the fire was caused by the negligence of the defendant. The barn and hotel were constructed of wood. The barn was a large one, and at the time of the fire full of combustible material.

The distance between the two buildings was only thirty-nine feet. The barn burned first, and the testimony tended to show that the flames from the burning barn extended over into the hotel and set it on fire. The jury was justified in finding that the burning of the barn was the proximate and natural cause of the burning of the hotel. Proximate cause is defined (Yol. 16, p. 436, of the American and English Encyclopaedia of Law) as “ that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produced the result complained of, and without which that result would not have occurred.”

Elmer A. Chase, a witness called by the plaintiff, was allowed, against the objection of the defendant, to give his opinion that if this engine had been equipped with a properly-constructed spark arrester, properly placed in the engine, it could not have emitted sparks of the size this engine did. He had testified that he had worked upon a locomotive engine for twelve years, six years as a fireman and six years as an engineer ; that he was familiar with all of the parts of a locomotive engine, including the spark arrester. His experience must have made him very familiar with all the parts and the operation of engines.

The jury presumably were not acquainted with the mechanism and operation of locomotive engines. It was, we think, proper to allow Chase to give his opinion as an expert. The question of the suitableness of the spark arrester under the evidence was properly left to the determination of the jury. The evidence showing that the engine was properly constructed, consisted of the opinions of ' expert witnesses. They were the employees of the defendant. Such evidence cannot be held tobe conclusive. (Cornish v. Farm Buildings Fire Ins. Co., 74 N. Y. 295.)

' "We have examined all of the exceptions of the defendant, and. find nothing in them justifying a reversal of the judgment. The case was properly submitted to tbe jury, and tbeir verdict must be held to be conclusive.

• Tbe judgment and order appealed from should be affirmed.

All concurred.

Judgment and order appealed from affirmed.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    Harriet M. Talman, Respondent, v. John F. Dorthy, Appellant, Impleaded with Susan Nevin.

      Bill of pm'tieulars'.

    A complaint alleged that the defendant, as the agent of the plaintiff, received from another party a certain sum for the purpose of paying the same over to the plaintiff; that the defendant neglected and refused to pay over the same, except a specified amount thereof, and that the balance, stating it, the defendant refused and still refuses to pay over, and has converted to his own use.
    The answer admitted the receipt of the money, and then alleged that before the commencement of the action the defendant had disposed of and paid to and for the benefit of the plaintiff the whole amount, pursuant to the plaintiff’s request.

      Held, that this answer was not in effect a general denial, and that the plaintiff was entitled to a bill of particulars of the namts of the parties to whom the money was paid by the defendant, and the amount and date of each payment.
    Appeal by tbe defendant, John F. Dortby, from an order of tbe Monroe County Court, entered in tbe office of tbe clerk of that county on tbe 2d day of December, 1891, directing tbe said defendant to furnish to tbe plaintiff a bill of particulars.

      John F. Dorthy, for tbe appellant, in person.

      Turk <& Barnum, for tbe respondent.
   Lewis, J.:

Tbe complaint alleged that tbe defendant Dortby, as tbe agent of tbe plaintiff, received of tbe defendant Nevin, $2,000 for tbe purpose of paying tbe same over to tbe plaintiff; that be neglected and refused to pay tbe same or any part thereof to her except tbe sum of $1,200, and that the balance of said money, viz., $800, the defendant Dorthy refused and still refuses to pay over, and has converted the same to his own use.

The defendant by his answer admitted receiving the money, but alleged that before the commencement of the action, he disposed of and paid to and for the benefit of the plaintiff the $2,000 pursuant to her request.

The plaintiff upon her affidavit, which stated that she did not know in what way the defendant disposed of and paid for her benefit the $2,000, moved the court for a bill of particulars, and the order appealed from was made directing the defendant to deliver to the plaintiff a bill of particulars -of the names of the parties to whom the money was paid, and the amount and date of each payment.

The defendant contends that his answer is in effect a general denial simply, and refers to authorities holding that when such an answer is interposed, a bill of particulars will not be ordered.

The difficulty with the appellant’s contention is, that he mistakes the character of his answer; his answer admits the receipt of the inoney under the circumstances as stated in the complaint, and it then alleges payment thereof as heretofore stated.

It is proper that the plaintiff should be advised of the particulars of the alleged payments.

The order appealed fróm should be affirmed, with ten dollars costs and disbursements of the appeal.

All concurred.

Order of the County Court of Monroe county appealed from affirmed, with ten dollars costs and disbursements.


author: Lewis, J. :

text:
    Margaret Eagan, Respondent, v. The City of Rochester, Appellant.

      Charter of the city of Rochester— notice precedent to right to tax costs in an action for negligence — repeal by implication — legislative intent.

    The provision in section 218 of the charter of the city of Rochester (Chap. 14 of the Laws of 1880), as amended hy chapter 343 of the Laws of 1881, is to the effect that no person who claims damages against the city for injuries caused by negligence, shall he allowed to tax costs against the city in any action brought therefor, unless, within fifteen days after the injury, he shall have notified the city authorities of the time and the place where the injury occurred.

      Held,, that this provision was repealed hy implication and superseded hy the later provisions of section 80 of the charter (being a substantial re-enactment of the general statute, chapter 572 of the Laws of 1886), as amended hy chapter 561 of the Laws of 1890, to the effect that all actions against the city for negligence shall he commenced within one year from the injury, and that no action shall he maintained against the city for personal injuries, unless the notice of the intention to commence such action and of the time and place at which the injuries were received, shall have been filed with the law officer of city, within six months after such cause of action shall have accrued.
    In ascertaining the intention of the Legislature, as between different enactments on the same general subject, the injustice or hardship of a particular enactment may he taken into consideration.
    The repeal of statutes hy implication is not favored, hut where two statutes are found relating to the same subject and enacted for the same purpose the former must he deemed to have been repealed.
    Appeal by the defendant, the city of Rochester, from an order of the Supreme Court, made at the Monroe Special Term, and entered in the office of the clerk of Monroe county on the 14th day of June, 1892, directing the county clerk of said county to allow the plaintiff’s bill of costs and disbursements.

      O. F. Kiehel, for the appellant.

      F. O. Feeley, for the respondent.
   Lewis, J. :

The plaintiff on the 6th day of February, 1888, sustained injuries by falling upon the sidewalk in the city of Rochester. She brought an action against the city to recover damages and obtained a verdict of $300.

Ey chapter 14 of the Laws of 1880, a charter was created for the city of Rochester, and by section 218 it was provided that the owners of lots in the city shall keep the sidewalks in front of their premises in repair and free from obstruction, and that the city shall not be liable for damages caused by defective sidewalks, unless actual notice of its unsafe and dangerous condition be given to the officers of the city having charge of the streets a reasonable time before the happening of any injury.

By chapter 343 of the Laws of 1881, this section was amended by adding thereto the following: “Any person or persons wh.o shall claim damages against said city for injury caused by any alleged negligence shall not be allowed to tax costs against said city in any action brought therefor, unless the parties so claiming damage shall have, within fifteen days after the happening of such injury notified the mayor or city attorney of the time and location of the place where such injury occurred.” Section 80 of the charter of 1880, provided for auditing accounts against the city. By chapter 561 of the Laws of 1890, this section was amended by providing for the form and manner of presenting unliquidated claims against the city for wrongs, injuries or negligence. And the following provisions were added thereto: “No action or proceeding to recover'or enforce any claim, debt or demand against the city shall be brought until the expiration of forty days after the claim, debt or demand shall have been'presented to the common council for audit in the manner and form aforesaid. * * * All actions brought against the city to recover damages or other relief for injuries to the person or property caused' by negligence, shall be commenced within one year from the time of receiving the injuries, or when the cause of action mentioned in the complaint shall have accrued. No action or proceeding shall be maintained against the city for personal injuries, unless the notice of the intention to commence .such action, and of the time and, place at which the injuries were received shall have been filed with the counsel to the corporation, or other proper law officer thereof, within six months after such ■cause of action shall have accrued.”

These provisions in reference to the time within which an action .shall be commenced and the filing with the law officer of the notice, were substantially a re-enactment and incorporation into the city’s charter of the provisions of chapter 572 of the Laws of 1886.

The plaintiff failed to give the fifteen days’ notice required by the act of 1886, and she commenced her action in the month of Tune, 1888. The action was tried in the year 1891, and resulted in a verdict against the city for $300.

The county clerk refused to tax plaintiff’s bill of costs for the reason that the fifteen days’ notice was not given.

The object of the re-enactment requiring the service of the fifteen days’ notice was, that the city should have early information of the-happening of the accident, so that its law officers could make an early investigation of the facts and determine whether the city was. liable, and learn who were witnesses of the occurrence, and for the further object of fixing the'ultimate responsibility for such negligence upon the proper person.

The original section did not provide for the giving of any notice-that the claimant intended to bring an action against the city. It. simply provided that if an action was brought without giving the notice, the plaintiff, if successful, should not be entitled to costs.. The provisions of this amended section were moré comprehensive; the service of the notice was made a condition of the right to maintain an action.

The amendment of 1890 did not in terms repeal section 218 of the act of 1881. The time within which the notice was required to be-served was extended to six months, and it thereby corrected the-somewhat harsh provision in the former law requiring the notice to-be served within so short a time after the accident. The provision requiring the fifteen days’ notice was an unreasonably short time, asís exemplified by the facts of this case.

It was made to appear upon the motion that the plaintiff’s injuries were of so serious a character as to make it practically impossible for her to attend personally to the preparation and service of the notice within fifteen days of the time of the accident.

~We would not be justified in declaring the law void for that reason ; the statute does not require that the plaintiff should personally serve the notice. It was held in Wheeler v. Conn. Mutual Life Ins. Co., 82 N. Y. 543, that the insanity of the insured was no,t an excuse for the nonpayment of the premiums, as the payment could have been made as well by any other person.

The injustice of the provision, however, may be considered in judging of the legislative intention in enacting the amendment of 1890.

As we have seen, the statute, as amended, covered the entire ground of the section amended, and it is hardly supposable that the Legislature intended to allow the former act to remain in foi'ce, thereby requiring the service of two notices of the circumstances of the injury upon the same official, one within fifteen days and the other within six months. If both sections are in force the anomalous condition exists that an action may be maintained if the notice contemplated by the act of 1886 is served within six months, and yet the plaintiff is not entitled to recover costs, which are simply an incident to the action, unless the fifteen days’ notice has also been served.

The repeal of statutes by implication is not favored, but where two statutes are found relating to the same subject and are enacted for the same purpose, the former must be deemed to have been repealed.

The later law prevails as the last expression of legislative will.

Section 154, Sutherland on Statutory Construction: “ A subsequent statute revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on principles of law, as well as in reason and in common sense, operate to repeal the former.”

“ Though a subsequent statute be not repugnant in all its provisions to a former, yet if it was clearly intended to prescribe the only rule which should govern, it repeals the former statute. * * * The reasonable inference from a revision is that the Legislature cannot be supposed to have intended that there should be two distinct enactments embracing the same subject-matter in force at the same time; and that the new statute, being the most recent expression of the legislative will, must be deemed a substitute for previous enactments, and the only one which is to be regarded as having the force of law.” (§ 154, Ibid.)

The foregoing are quotations from the text of Sutherland on Statutory Construction. The doctrine is sustained by a number of authorities referred to in the marginal notes.

We are of the opinion that the amendment of 1890 was intended to supersede and take the place of the section of the act of 1881 mentioned, and that the plaintiff was not required to serve the fifteen days’ notice in order to be entitled to costs.

This leads to an affirmance of the order appealed from, which should be affirmed, with ten dollars costs and disbursements of the appeal.

All concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Henry F. Dehn, Respondent, v. Marcus A. Mandeville, Appellant, Impleaded with Another.

      Unverified pleading — Code of Civil Procedure, §§ 523, 837 — allegations tending to accuse the pleader of a crime or misdemearu/r —false impn'isonment.

    To entitle a party to the benefit of the provision of section 523 of the Code of Civil Procedure, that the verification of a pleading may he omitted when the party pleading would he privileged from testifying as a witness concerning an allegation or denial contained in the pleading — read in connection with the provision of section 837 of the same Code, that a witness is not required to give testimony which will tend to accuse him of a crime or misdemeanor — it must in some way he made to appear that the testimony will have the effect of tending to accuse him of a crime or misdemeanor.
    If a complaint does not contain allegations showing that the acts complained of constitute a crime or jaisdemeanor, it is incumbent upon a defendant, in order to entitle him under the above sections of the Code, to serve an unverified answer, to make it apparent to the court in some way that there are allegations in the complaint in respect to the truth of which he could not he interrogated if under examination as a witness.
    It is not sufficient to entitle a defendant to serve an unverified answer that the facts stated in the complaint form a link in a chain of evidence tending to convict the defendant of a crime.
    A complaint in an action for false imprisonment, which alleges that the defendant imprisoned and kept the plaintiff detained in a jail for a certain time without any reasonable or probable cause, contrary to the laws of the State and against the will of the plaintiff, hut containing no allegation of the intent with which the acts were done, or that the defendant acted willfully, does not charge a crime, and hence does not of itself or in connection with an answer which contains only a general denial, show that the .defendant is entitled, under sections 523 and 837 of the Code, to serve an unverified answer.
    Appeal by the defendant, Marcus A. Mandeville, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of Niagara county on the 19th day of December, 1892, denying the said defendant’s motion for an order requiring the plaintiff’s attorney to receive an unverified answer to the plaintiff’s verified complaint.

      P. F. Kwig, for the appellant.

      Geo. W. Gothram,, for the respondent.
   Lewis, J.:

The complaint alleged that the defendant imprisoned and kept the plaintiff detained in the common jail of Niagara county for the space of about eighteen days without any reasonable or probable cause whatever, contrary to the laws of the State and against the will of the plaintiff. There is the further allegation that the plaintiff was arrested in the town of Newfane, and transported through the public streets and highways from his residence in said town to the common jail aforesaid. This latter clause does not seem to be important, as the complaint fails to state that the defendants had anything to do with the plaintiff’s arrest and transportation.

The defendants are charged with detaining the plaintiff in the jail without probable cause, etc. It is not alleged that the defendants acted willfully. The complaint was duly verified.

The defendant Mandeville served an unverified answer containing simply a general denial of the allegations of the complaint. It was returned because it was not verified, and the defendant thereupon moved for an order requiring the plaintiff’s attorney to receive the-answer unverified. The motion was denied.

If it was made to appear upon the hearing of the motion, that the appellant would be privileged from testifying as a witness concerning any of the allegations in the complaint, the motion should have been granted. The verification of a jfieading may be omitted when the party pleading would be privileged from testifying as a witness concerning an allegation or denial contained in the pleading. (Code Civ. Pro. § 523.)

A witness is not required to give testimony which will tend to-accuse him of a crime or misdemeanor. (Code Civ. Pro. § 837.)

To be entitled to the benefit of these provisions of the Code, it-must in some way be made to appear that the testimony will have-that effect. While the complaint does not contain some of the-allegations usually found in complaints in actions for false imprisonment, we assume that to be the cause of action stated, for such is the contention of the counsel for both parties.

The facts charged in the complaint fail to show that the defendants committed a crime or misdemeanor in what they did to the plaintiff.

It is suggested by the appellant’s counsel that the facts alleged might form a material link in the evidence, to establish the crime of kidnapping.

“A person who willfully seizes, confines, inveigles or kidnaps another with intent to cause him, without authority of law, to be secretly confined or imprisoned within this State or to be sent out of the State, or to be sold as a slave, or in any way held to service, or kept, or detained against his will,” is declared by subdivision 1 of section 211 of the Penal Code, to be guilty of kidnapping.

There is nothing charged in the' complaint bringing the defendants’ acts within this subdivision of the Code.

'There is no allegation of the intent with which the acts were dene, and it is not charged they were done willfully.

All the allegations of the complaint may be true and yet the defendants have been acting in what they did as keepers of the jail, believing they had the right and that it was their duty to detain the plaintiff in the jail.

Neither are the defendants charged with committing an assault upon the plaintiff, for there is no allegation that they acted with intent to injure the plaintiff.

The act and intent must concur to constitute the crime.

The complaint not containing allegations showing that the acts complained of constituted a crime, it was incumbent upon the defendant to make it appear in some way that there were allegations in the complaint in respect to the truth of which he could not be interrogated if under examination as a witness.

It is true that it is sufficient if they might have had that tendency, but to be entitled to the order asked for, that must have been made apparent to the court, either by a perusal of the complaint or in some other manner. Pacts stated in an ordinary complaint upon a promissory note, might form a link in a chain of evidence tending to convict a party of a crime, but it would not be claimed that he could, for that reason, avail himself of the provisions of the Code mentioned, without making the facts appear in some manner.

The rule is stated by O’Brien, J., in Goff v. Star Printing Co. (21 Abb. N. C. 214) as follows :

“An examination of the cases will, however, bear the construction That a distinction is made between cases where the complaint itself •does not show that the defendant would be privileged, and cases which from their very nature it is evident that the defendant could 'not be compelled to testify.” (Molony v. Dows, 2 Hilt. 247; Lynch v. Todd, 13 How. Pr. 546.)

The order appealed from should be affirmed, with ten dollars costs -.and disbursements of the appeal.

Dwight, P. J., and Macomber, J., concurred, Haight, J., not .sitting.

Order appealed from affirmed, with ten dollars costs and 'disbursements. ?


author: Haight, J.:

text:
    Carl Klaweiter, Respondent, v. John Hubner, Appellant.

      Contract for the sale of real estate — specific performance.

    'On appeal from a judgment in favor of the plaintiff in an action brought by the vendee for the specific.performance of a contract for the sale of real estate, the defendant, the vendor, claimed that the. judgment could not be sustained, for ;the reason that he had sold and conveyed the land to another person, and,
    ' therefore, performance of the contract was not in his power; no such fact had been found by the trial court, nor was there any request that it be found, and 'the answer contained no such allegation, but averred that the defendant was "ready and willing to perform his part of the agreement; the only evidence on 'the subject consisted of a statement by one of the plaintiff’s witnesses, called ■out by the defendant on cross-examination, that “I put this contract on record •after I had learned that Hubner (the defendant) had sold his property to another person.”

      Held, that the General Term would not, from this evidence, determine the fact for the purpose of overturning the judgment.
    JBy the contract in suit, it was agreed that a part of the price of the land should be paid by the vendee in money, and the balance by his assuming a mortgage which the vendor represented was for a certain amount; the vendee ascertained 'That the mortgage was for a larger amount than had been represented, and tendered the vendor in money the sum named in the contract less the difference between the actual amount due on the mortgage and the amount represented to be due thereon.

      Held, that under the circumstances this was a substantial compliance with the provisions of the contract, and entitled the vendee to a deed, as provided by the contract.
    Appeal by the defendant, John Hnbner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Erie county on the 22d day of June, 1892, upon a decision of the court at the Erie Special Term.

      George IF. Cothran, for the appellant.

      E. O. Farrar, for the respondent.
   Haight, J.:

This action was brought to compel the specific performance of a contract for the sale of real estate. The facts as found by the court are, in substance, that on the 3d day of March, 1891, the plaintiff and defendant entered into a written contract by which the latter agreed to sell to the former the premises in question for the sum of $1,700, which was to be paid as follows: Twenty-five dollars on executing the contract, $475 on or about the 1st day of April, 1891, and the balance by the purchaser assuming a mortgage upon the premises held by a loan association amounting to $1,200. On receiving the payment of $475 the defendant agreed, at his own proper cost and expenses, to execute and deliver to the plaintiff a warranty deed free and clear of all incumbrances, except the mortgage for the sum of $1,200. The twenty-five dollars was paid at the time the contract was executed, and on the 13th day of April, 1891, the plaintiff tendered to the defendant $341, lawful money of the United States, and demanded that the defendant should execute and deliver to him a deed of the premises. The plaintiff at the same time tendered to the defendant a deed containing full covenants of warranty, without any clause reserving the amount of the mortgage, or an assumption to pay it by the grantee. The defendant refused to receive the money, or to execute or deliver the deed. At'the time of making the contract the defendant had represented to the plaintiff that the mortgage upon the premises was but $1,200, but at the time of the making of the aforesaid tender, the plaintiff had ascertained that the mortgage upon the premises was for the snm of $1,500, and that $141 only had been paid thereon, leaving a balance unpaid of $1,359.

The trial court found that the plaintiff was entitled to a specific performance, and ordered judgment accordingly.

It is claimed that the judgment cannot be sustained for the reason that the defendant had sold and conveyed the lands in question to another person, and that, therefore, performance of the contract was not within his power. No such fact was found by the trial court, or requested to be found. The answer contains no such allegation, but instead thereof it alleges “ That said defendant has always been, and now is, ready and willing to perform his part of said agreement ” It is said, however, that the fact was made to appear upon the trial by the plaintiff’s own evidence. The only evidence bearing upon the subject appears in the testimony of the witness Frank, who was sworn as a witness on behalf of the plaintiff. On his cross-examination, he stated that “ I put this contract on record after I had learned that Hubner had sold his property to another person.” This expression was called out by the defendant, and not by the plaintiff. He does not state the source of his information, how he had learned, of the sale, or whether it was anything more' than a rumor or hearsay. Inasmuch as the trial court was not requested to find upon this question, we are inclined to the view that we cannot now, from this evidence, determine the fact for the purpose of overturning the judgment.

It is further contended that the plaintiff had not performed the contract on his part, and was, therefore, not entitled to a judgment for specific performance. It is true that he agreed to pay the sum of’ $4Y5 on or about the 1st day of April, 1891; and that instead of tendering that sum, he only tendered the snm of $341. But the defendant had represented to him that the mortgage upon the premises only amounted to $1,200, whereas, in fact, it was for che sum of $1,500, and the sum of $1,359 still remained unpaid thereon. The amount tendered was the sum named in the contract less the difference between the actual amount due on the mortgage and the amount represented to be due thereon. And, under the circumstances, we think it was a substantial compliance with the provisions of the contract.

The deed tendered to the defendant by the plaintiff was not in accordance with the contract, and the defendant was under no obligation to execute the same. But he had agreed, at his own proper cost and expenses, to execute and deliver a proper deed. Upon the tender to Mm of the money, it became his duty to perform his agreement in this regard.

The judgment should be affirmed, with costs.

All concurred.

Judgment appealed from affirmed, with costs.


text:
    The People of the State of New York, Plaintiff, v. Edward Hodnett, Defendant.

      Adulterated milk— statutory standa/rd — analysis —fair sample of the milk.

    In an action brought for the recovery of a penalty, under chapter 183 of the Laws of 1885, for selling, or supplying to a butter or cheese factory, adulterated milk, the analysis showing whether the milk was above or below the statutory standard, which determines the question whether the milk was adulterated, must have been made from a fair sample of the milk, and a sample taken from, the milk after the cream had separated from it is not a fair sample.
    Hence, when, on the trial of an action for the recovery of a penalty under the said act, it has been shown that the analysis of a sample of the milk showed that it was below the statutory standard, the defendant is entitled to introduce evidence tending to show that the milk was pure and had not been tampered with, and that the analysis had been made from a sample taken from the milk after the cream had separated from it.
    Motion by the plaintiff, the People of the State of New York, for a new trial upon exceptions ordered to be heard at the General Term in the first instance, by an order made at the Allegany Circuit, on the rendition of a verdict for the defendant, entered in the office of the clerk of Allegany county on the 15th day of June, 1891, the entry of judgment being in the meantime suspended.

      O. A. Dolson, for the plaintiff.

      O. W. Harding, for the defendant.
   Haight, J.:

This action was brought by Patrick J. Sutley, as assistant to the New York State Dairy Commissioner, in the name of the People, to recover of tlie defendant a penalty of $100 for a violation of the provisions of the Laws of 1885, chapter 183, section 3. It is charged that the defendant, on the 21th day of June, 1890, supplied to a cheese factory in the town of Hume, Allegany county, milk which was adulterated with water, and from which the cream had been taken and the strippings withheld. The verdict was for the defendant.

Upon the trial the court permitted the defendant, his wife and son to testify, under the objection of the plaintiff, that they had not watered or skimmed the milk, or kept back the strippings therefrom. To this evidence an exception was taken, which presents the question we are called upon to determine in this review.

The analysis showed 'that the milk contained eighty-eight and twenty-four-one-hundredths per centum of water, and eleven and seventy-six-one-hundredths per centum of solids, of which two and twenty-six-one-hundredtlis per centum was fat. The correctness of the analysis was not attacked, but it was claimed by the defendant that it was made from an improper sample of the milk. The evidence submitted on behalf of the defendant quite satisfactorily shows that the sample was taken, on the morning of the twenty-fourth of June, of the night’s milk of the day previous. The milk had been put in a can; allowed, to stand over night; was taken to the factory the next morning ; put into a weigh can,'and, after standing for the space of not less than three minutes, was drawn therefrom through a faucet in the bottom of the can, and when from one-third to one-half of the milk had run out, the sample was taken.

It will not be questioned but that milk, after the cream is separated from it, will contain a greater percentage of water and less of solids than it would with the cream before separation. It is claimed that, during the night, the cream had separated from the milk and risen to the top of the can; that the cream, when once formed, would cling together in clots, and would not again become evenly and perfectly mixed with the milk; that after stirring it up, the cream would again rise quickly to the top, and that milk taken from the lower third or half of the can, under such, circumstances, would not present a fair sample for analysis. The trial court submitted this branch of the case to the jury for its determination, and charged in reference to whether the sample was a fair one, they might consider the evidence of the defendant, his wife and son, as bearing-upon the probability This charge was not excepted to. Had the: plaintiff regarded this evidence as having no bearing upon that question, he should have excepted to this portion of the charge. As it. is, he stands soleiy upon the exception taken by him to its reception.

The statute prohibits the sale of, or the supplying to a butter or-cheese manufactory, milk diluted with water, or from which the-cream has been taken, or the strippings withheld. It also provides, that in all prosecutions under it, if the milk be shown to contain more than eighty-eight per centum of water or fluids, or less than twelve per centum of milk solids, which will contain not less than three per centum of fat, it shall be declared adulterated. (Laws of 1885, chap 183, §§ 3, 16.)

It has been held under this statute that the question as to whether the milk was adulterated was to be determined from the chemical analysis alone, showing whether it was above or below the statutory standard (People v. Kibler, 106 N. Y. 323; People v. West, Id. 293; People v. Cipperly, 37 Hun, 324; 101 N. Y. 634; People v. Eddy, 12 N. Y. Supp. 628; State v. Campbell, 64 N. H. 402.)

But the question as to whether the analysis is correct, or is made from a fair sample of the milk, is still left open for the determination of the jury from the evidence in the case. Upon controverted questions of fact the courts have always been liberal in the reception of evidence that in any manner bears upon the probabilities, so as to enable the jury to arrive at a correct determination. If the. sample was taken from the milk after the cream had separated from it, it would not be a fair one nor fit for analysis. This is conceded by the plaintiff’s chemist. He testified that if the cream had. risen from the milk it “ would have been unfit for analysis because, the fat had partly wasted, and of course I could not have got that, back in the condition it should have been for a proper-analysis. Had there been any wasted the milk would not have: been m good condition and fit for analysis.” He found, the sample deficient in solids This would be expected if the cream had been separated from it He also found an excess of' water. This would also be expected in case of such separation. The defendant had the right to account for this condition of the, milk, and thus established his innocence. To do so he showed that the milk was pure and had not been tampered with-; that the milk had remained in the can over night; that the cream had separated irom the milk and had risen to the top of the can ; that it had not again been perfectly mixed with the milk, and that the sample from which the analysis was made was taken from the lower third or half of the can. It appears to us that the evidence objected to has a bearing upon the probabilities in aid of the defendant^ claim, and ^although slight, it is sufficient to justify its reception.

There may be some portions of the charge of the trial court subject to criticism, but the plaintiff has called our attention to no error therein, and none are presented by any of the exceptions taken "thereto. If counsel desires to except to a proposition charged, or to a remark of the judge, he should clearly and distinctly call the attention of the judge to the proposition or remark to. which an exception is taken. An exception to a charge relating to a subject containing two or more propositions is too general if any one of the propositions is correct. (Baylies’ Trial Practice, 239, and authorities there cited.)

The motion for a new trial should be denied, and judgment ordered for the defendant on the verdict.

All concurred.

Plaintiff’s motion for-a new trial denied, with costs, and judgment ordered for the defendant on the verdict.


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    The People of the State of New York ex rel. Lillie Stewart, Respondent, v. James A. Paschal and Josia M. Paschal, Appellants.

      Might of orphan asylums to bind out children — chapter 438 of the Laws of 1884— record of a conviction, as evidence —power of the Supreme Court over the custody of infants.

    "Wien the mother of a child, placed in an orphan asylum hut not committed to its care by anj instrument in writing, or by any mayor, county judge, or superintendent or overseer of the poor, has paid for its support while in the ■asylum, there has not been an absolute surrender of the child to the asylum in such a manner as to give the asylum jurisdiction, under chapter '438 of the Laws of 1884, to hind out the child.
    An error, if any, in reading in evidence, under the defendant’s objection, in a proceeding by habeas corpus to remove a child from the custody of the person to whom it has been bound out by an orphan asylum, a record of the defendant’s conviction of a crime, is cured by the defendant’s subsequently going upon the stand as a witness in his own behalf. (Code Civ. Pro. § 832.)
    The ancient power of the Supreme Court to control the custody of infants by the writ of habeas corpus has not been taken away by the enactment of section 12 of chapter 438 of the Laws of 1884, which provides for an application to the Surrogate’s Court of the county in which the foster parent resides, for a cancellation of agreements of adoption. If the statute of 1884 is broad enough to afford relief on the ground that the foster parents of an adopted child are immoral or improper persons to have the custody of a child, it but affords a concurrent remedy to that of an application to the Supreme Court by writ of 7iabeas corpus.

    Appeal by the defendants, James A. Pasclial and Josia M.- Paschal, from a final order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of Monroe county on the 4th day of June, 1892, in proceedings upon a writ of habeas corpus, awaiting to the relator the custody of her daughter, Mabel Stewart, otherwise known as Mabel Paschal.

      John F. JDorthy, for the appellants.

      George A. Garnahcm, for the respondent.
   Haight, J.:

Mabel was eight years of age on the thirty-first day of March last. On the loth day of June, 1885, she was placed in the Rochester Orphan Asylum, and there continued to reside until the 22d day of November, 1886, at which time she was taken from the asylum by the defendants, and on the 8th day of June, 1887, William N. Sage, as president of the asylum, executed and delivered to the defendants an instrument in writing purporting to apprentice her to them until she should become of the age of eighteen years. During the winter of 1885 and 1886, and up to about July, the relator was employed in the asylum, and during that time applied a portion of her wages equivalent to one dollar per week to the support of Mabel, and thereafter paid the asylum three dollars in July, four dollars in August, six dollars in October, five dollars in No vein-her, three dollars in December, to be applied in the support of Mabel and the relator’s other child, Grover.

The referee found as facts that the custody, control and guardianship of the child were never surrendered to the asylum by the mother by any instrument in W2’iting, that the child was never committed thereto or placed therein by any magistrate or poor officer, or in any other legal manner, and that provisions had been made by the relator for the support of Mabel in the asylum within the period of one year next preceding the 8th day of Juné, 1887, the date at which the defendants claimed to have apprenticed her. The referee further found as facts that the defendant, James A. Paschal, with the knowledge and assistance of Josia M. Paschal, maintained and conducted a hotel known as the u Manning House,” No. 153 Andrew street, in the city of Rochester, from September, 1888, to April, 1891, for the purposes of prostitution; that James A. Paschal had been twice duly convicted in the Police Court of the city of Rochester of the offense of keeping a disorderly house, or house of prostitution. And that the defendants are improper persons to have the care and custody of the child.

We are satisfied from a careful reading of the evidence that these findings should be sustained.

The Laws of 1884, chapter 438, section 5, provides that any corporation specified in the first' section of the act may bind out an indigent or pauper child which shall have been absolutely surrendered to the care and custody of the corporation in pursuance of the provisions of the first section of the act, or which shall have been placed in the corporation as a pauper, in pursuance of the second provision of the act, or shall have been left to the care of the corporation with no provisions by the parent, relative or guardian for its support for a period of one year. The first section of the act provides that the guardianship of the person and the custody of an indigent child may be committed to any incorporated orphan asylum, or other institution incorporated for the care of orphan, friendless or destitute children, by air instrument, in writing, signed by the parents of such child, or if both parents be dead and there is no legal guardian of the child, by the mayor of the city or the county judge of the county in which such asylum shall be located, upon such terms, for such time, and subject to such conditions as may be agreed upon by the parties to such written instrument. The second section of the act makes provision for the commitment of such child or children to an asylum by the superintendent or overseer of the poor. Mabel was not committed to the asylum by any instrument in writing, nor by any mayor, county judge, superintendent or overseer of the poor.. Her mother had not abandoned her for the space of one year, but instead thereof had continued to pay for her support down to the time that she was taken from the asylum by the defendants in November, 1886. There had not, therefore, been an absolute surrender of the child to the asylum in such a manner as to give it jurisdiction to bind or apprentice her to the defendants. And the attempt of the president so to do is consequently void.

Upon the trial the record of conviction of the defendant, James A. Paschal, was read in evidence under his objection. It is now claimed that it was not proper evidence against him in this proceeding. He, however, subsequently went upon the stand as a witness in his own behalf and gave material testimony. The record of his conviction then became competent evidence as bearing upon his credibility. (Code Civ. Pro. § 832.)

The error, if any, was by that act cured.

It is also contended that the relator should have proceeded under the Laws of 1884, chapter 438, section 12, instead of’ by habeas corpus. That section provides for an application to the Surrogate’s Court of the county in which the foster parent resides for a cancellation of the agreement of adoption and for the termination of the relation of parent and child, on the ground of cruelty, misusage, refusal of necessary provisions or clothing or inability to support and maintain or educate the child, or of any violation of duty on the part of such foster parent towards such child. If the provisions of this statute are broad enough to afford relief on the ground that the foster parents are immoral and improper persons to have the custody of a child, it but affords a concurrent remedy, for the statute does not take from the Supreme Court any of its ancient powers or jurisdiction under a writ of habeas corpus.

The order should be affirmed, with costs.

All concurred.

Order appealed from affirmed, with costs.


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    John Charlton and Thomas Charlton, Appellants and Respondents, v. Cora I. Scoville and Charles H. Scoville, Respondents and Appellants.

      Amendment of answer — building contract — abandonment by both pa/rties before completion.

    An answer admitted certain allegations of the complaint, but on the trial before the court the plaintiff, instead'of relying upon such admissions, gave evidence in support of the allegations of the complaint, and the defendant thereupon gave evidence to the contrary, and in contradiction of the admissions in his answer, and the question was tried.

      Reid, that it was within the discretion of the trial court to permit the answer to be amended so as to conform to the evidence given.
    After part performance by a contractor, of a contract with the owner of premises to furnish the labor and materials required in erecting a building, the contractor ceased work and abandoned the contract, and thereby forfeited his right to any installments thereafter to become payable under the contract, and the owner of the premises also abandoned the contract, took down the work already done as being defective, and, without having paid the contractor anything, rebuilt the building, using, in so doing, the contractor’s materials.

      Reid, that the contractor might, on foreclosing a mechanic’s lien, recover the 1 value of his materials so used, less the expense to the owner of taking down the original defective work.
    A contract for furnishing the labor and material in erecting a building provided that, should the contractor fail to perform the contract in any particular and the architect so certify, the owner of the premises might give the contractor a certain number of dajrs’ notice to perform, and, in case of the contractor’s refusal, neglect or failure to perform within the time specified, that then the owner might terminate the employment of the contractor and enter upon the premises and take possession of the material thereon, employ other persons and complete the building himself.

      Reid, that the owner (after having himself terminated and abandoned the contract before the expiration of the time allowed by the contract for the contractor to perform after notice so to do) could not go on and complete the building himself and then recover from the contractor, under a counterclaim in an action brought by the contractor to foreclose a mechanic’s lien, the difference between the cost of the building and the contract price.
    Appeal by the plaintiffs, John Cbarlton and Thomas Charlton, from so much of a judgment of the Supreme Court, entered in the office of the clerk of Erie county on the 3d day of May, 1892, upon the decision of the court at Special Term, as adjudicates that the defendants are only indebted to the plaintiffs in the sum of $194.50, and interest upon the same from November 13, 1890, and from an order made by the trial judge, permitting the defendants to amend their answer.
    Appeal by the defendants, Cora I. Scoville and Charles H. Scoville, from the whole of the said judgment.

      George Wing, for the plaintiffs.

      Leroy Pcurher, for the defendants.
   Haight, J.:

This action was brought to foreclose a mechanic’s lien. On the-26th day of August, 1890, the plaintiffs entered into a contract in writing with the defendant, Charles H. Scoville, to furnish the material and construct a dwelling house upon the premises of the defendant, Cora I. Scoville, for the sum of $3,980. The work was to be done in a workmanlike manner, according to the plans and specifications attached to the contract and under the direction and to the satisfaction of F. 'William Fisher, an architect. Charles H. Scoville was the husband of Cora I. Scoville, and he entered into, the contract with her knowledge and consent and for her benefit. The plaintiffs sublet the carpenter work to another person, who commenced work upon the construction of the building on the twenty-second day of September and continued work thereon until the third day of October, at which time he ceased work upon the premises, leaving the building unfinished. Subsequently this action was brought.

The trial court found as facts, that the building, as far as it had progressed, had not been constructed in accordance with the provisions of the contract, that improper materials had been furnished, and that the work had not been performed in a workmanlike manner. That on the thirtieth day of September notice was given to the plaintiffs to remove all labor and materials condemned by the architect and to provide materials called for in the specifications on or before the fourth day of October at nine o’clock a. m. That the plaintiffs expressed a willingness to remedy the defects, and through their employees did remedy certain defects, but not all. That on the third day of October they abandoned the work. That thereUpon the defendants took possession of the building, hired the same torn down, at an expense of $40.50, and reconstructed the same to the point where the building was abandoned, at an expense of $123.50, using therefor the materials of the plaintiffs that were in the building and left upon the grounds, of the Aralue of $318, and ordered judgment for the sum of $194.50, being the value of the materials used in the construction, $318, less the cost of rebuilding the same, $123.50.

This judgment was ordered upon the theory that the defendants had abandoned the contract on their part, after the plaintiffs had committed a breach of the contract on their part. That the defendants, in using the plaintiffs’ material in the new structure, were obliged to pay therefor, less the sum of $123.50, which the defendants had suffered as damages in reconstructing the building to the point where it was abandoned by the plaintiffs.

The complaint alleged that on the 2d day of October, 1890, the defendants, without any just cause for so doing, notified the plaintiffs’ workmen to cease work upon the house and ordered them off the premises, forbidding them coming again upon the land, and that no work had been done or material furnished by the plaintiffs since.

The answer admitted that on or about the 2d day of October, 1890, the defendant, Charles H. Scoville, notified the plaintiffs and their workmen to cease work upon the said house, and that the plaintiffs have done no work and furnished no material since that time. But they deny that he so notified the plaintiffs and their workmen without just cause. It, therefore, stood admitted upon the pleadings that the plaintiffs and their workmen were ordered to cease work upon the house by the defendants, and the issue left to be tried in reference thereto was whether such order was justified.

TJpon the trial the defendants were permitted to give evidence that the plaintiffs and their workmen were not ordered to cease work upon the house and were not ordered off the premises, but, on the contrary, that they voluntarily abandoned the work. This evidence wras taken under the objection that it contradicts, the admissions in the answer. The court, however,, admitted the same, remarking, If it turns out they are precluded by the pleadings, that will end it.” No exception was taken to the ruling. After th,e evidence was closed an adjournment was taken for a number . of days, at which time the case was summed up by the counsel for the respective parties. After the arguments had closed the defendants’ counsel asked leave to amend his answer so as to' deny the allegations in the complaint that on the 2d day of October, 1890, when the defendants, without any just cause for so doing, notified the plaintiffs’ workmen to cease work upon said house and ordered them off the premises and forbid their coming again upon said land above described ” in the complaint. This was objected to by the plaintiffs’ counsel, upon the ground that the evidence had been closed for two weeks and that the plaintiffs had relied upon the admissions in the answer of the defendants, and if the answer was amended as requested, there was no opportunity to prove the facts as alleged in the complaint. The court reserved its decision, but in disposing of the case it allowed the amendment of the answer and found as a fact that the building was abandoned by the plaintiffs, and refused to find the plaintiffs’ request that the' defendants notified the plaintiffs’ workmen to cease work upon the house and ordered them off the premises.

There would be just cause for complaint on account of these rulings, were it not for the fact that the plaintiffs had first opened the door and given evidence in support of their allegation. Evidence upon this subject was given as a part of the plaintiffs’, affirmative case, and also upon the rebuttal. The question having thus been tried out, it was within the discretion of the trial court to permit the answer to be amended so as to conform to the evidence given.

As we have seen, the trial court found that the plaintiffs ceased work upon the house and contract, and by this act they forfeited their right to recover any of the installments under the contract thereafter to become payable. The building as far as it had progressed, became the defendants’. They had, however, paid nothing thereon, and had consequently suffered no damages, unless, as it is claimed, it was so defectively constructed as to make it necessary that it should be torn down. If so, it was but an obstruction upon their premises, which they had a right to tear down, move away, or dispose of as they saw fit. It was torn down at an expense of $40.50. The building was reconstructed according to the original plans and specifications. It cost $123.50 to reconstruct it to the point where it was abandoned by the plaintiffs. . This the trial court found was a proper item of damages to be deducted from the plaintiffs’ claim. We are at a loss to understand upon what theory this item can be allowed. For, as we have seen, the defendants had paid nothing upon the building, and had suffered no damages further than the expense of tearing down the defective structure. We are aware'of no rule that would require the plaintiffs to rebuild the building to that point. The value of the plaintiffs’ material upon the premises, that was used by the defendants in the new structure, was $318. From this sum there should be deducted the expense of tearing down the building, $10.50, and the plaintiffs should have recovered a judgment for the balance.

The plaintiffs were awarded judgment upon the theory that the defendants had abandoned the contract on their part. Their right to recover cannot be maintained unless thiá theory is supported by the evidence. And this brings us to a consideration of the defendants’ appeal.

Section 1 of the contract provides that “ the contractors shall within twenty-four hours after receiving written notice from the architect to that effect, proceed to remove from the grounds or building all materials condemned by him, whether worked or unworked, or to take down all portions of the work which the architect shall condemn as unsound or improper, or as in any way failing to conform to the drawing and specifications, and to the conditions of this contract. The contractors shall cover, protect and exercise due diligence to secure the work from injury, and all damage happening to the same by their neglect shall be made good by them.”

Section 12 provides, “ should the contractors at any time refuse or neglect to supply a sufficiency of properly-skilled workmen or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements on their part herein contained, such refusal, neglect or failure being certified by the architect, the owner shall be at liberty, after three days’ written notice to the contractors, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractors under this contract. And if the architect shall certify that such refusal, neglect or failure is sufficient ground for such action, the owner shall also be at liberty to terminate the employment of the contractors for tlie said work and to enter upon the premises and take possession of the materials thereon, and to employ any other person or persons to finish the work and to provide the materials therefor ; and in case of such discontinuance of the employment of the contractors they shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractors, but if such expense shall exceed such unpaid balance contractors shall pay the difference to the owner. The expense incurred by the owner, as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the architect, whose certificate thereof shall be conclusive upon the parties.”

On the thirtieth day of September the architect certified that the work, labor and material upon the house was not being done in accordance with the plans and specifications. Thereupon the defendant, Charles H. Scoville, served upon the plaintiffs the following notice:

“ I herewith give you three days’ written notice, to expire October 4th, at 9 a. m., to remove all labor and materials condemned by the architect, Mr. E. ¥m. Eisher, and to provide such materials as are called for in the specifications.

“ I also notify you that I shall make use of the power given me under part twelve in the contract to terminate the employment of the contractor who shall do said carpenter work.”

And at the same time took from the plaintiffs’ possession the' plans and specifications.

It will be observed that the notice requires the plaintiffs to remove the materials condemned, and to provide such material as is-called for by the specifications. And in the same connection, notice-is given that they terminate the employment of the contractors, under the power given them under part twelve. So by the notice the plaintiffs’ right to proceed in the construction of the building was terminated, and yet they were required to provide the materials called for in the specifications. There appears to have been some confusion in construing section 12 of tlie contract. Tlie language Used therein might have been made more clear and specific. But we think the meaning is apparent. It is, in substance, that should the contractors fail to perforin, in any particular, the provisions of the contract, and the architect should so certify, the , defendants might give them three days’ notice to perform, and in case of their refusal, neglect or failure to perfrom within the time specified, then the defendants would be at liberty to terminate tlie employment of the contractors and to enter upon the premises and take possession of the materials thereon, employ other persons and complete the building themselves, etc.

The defendants requested the trial court to find, that “ the defendant, Charles II. Scoville, took possession of the said building and material and employed other persons to take the building down, to the foundation, at an expíense of forty dollars and fifty cents, and to rebuild the same to the point where pilaintiffs had left it, and to compílete the same according to the original pilans and specifications at an expense of $4,480 for the carpenter work and materials, and of $150 for the sheet-metal, tin and galvanized iron work, making a total expense to defendant of $690.50 over and above the pírico agreed to be piaid to pilaintiffs.” This finding was refused. The request appears to be in accordance with the undispiuted evidence and might piropierly have been found. This would entitle the defendants to recover their counterclaim, were it not for the fact that they had terminated the contract by their notice of September thirtieth, and by their taking from the pilaintiffs the pilans and specifications.

True, the pilaintiffs abandoned the contract on the third day of October, as found by the trial court, but this was after the notice had been served upon them by the defendants to which we have referred. The defendants had no right to then terminate the employment of the pilaintiffs. This, as we have seen, could not be done until after October fourth, at nine a. m., and not then unless the architect should certify that the pilaintiffs had failed to correct the defects and pierfonn the contract. But the defendants having assumed to terminate the employment on the thirtieth, the pilaintiffs had the right to accepit the situation thus presented and themselves treat the contract as at an end.

In view of the situation thus presented we think that the defendants’ claim for damages of the difference between tbe contract price and tbe amount paid by tbem for tbe completion of the work should not be allowed.

- Tbe order appealed from should be affirmed, and tbe judgment should be modified by awarding to the plaintiffs the sum of $318, less $40.50, amounting to $277.50, with interest on that sum from the 13th day of November, 1891, and as so modified affirmed, with the costs of this appeal to the plaintiffs.

All concurred.

Order appealed from affirmed, and the judgment appealed from modified, as indicated in the opinion, with costs to the plaintiffs.


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    Joseph Hutchinson, Plaintiff, v. The Supreme Tent of the Knights of the Maccabees of the World, Defendant.

      Mutual benefit associations — contract of membership and endowment — total permanent disability — amendment to the constitution of the association.

    A reply, by tbe general active officer of a fraternal and mutual benefit association, to a request of a member for blanks on which to make proof of a disability, that it was useless for the member to submit proofs of disability, as bis claim would
    , be rejected, constitutes a waiver on tbe part of tbe association of tbe obligation to present proofs of disability, and of a compliance with tbe formal procedure required by tbe association to perfect tbe members claim.
    A certificate of membership in a fraternal and mutual benefit association provided that, in case of permanent or total disability, the member would be entitled to receive one-half of the endowment, as provided in the laws of the order ; the member, in his application for membership, agreed that the constitution of the order should, with his application, form the basis of his contract for endowment.
    The constitution provided that “a total and permanent disability to perform or direct any kind of labor or business, or upon reaching the age of seventy years, shall entitle a member holding a certificate ot endowment so disabled or aged to the payment of one-half of the endowment to which he would be entitled at death.”
    A member, who was a railroad switcnman, accidentally lost all the fingers ol one hand, in coupling cars, and brought an action against the association to recover one-half of the amount of the endowment.

      Held, that the constitutioa of the association was a part of the contract between, the parties;
    That, under the definition furnished by it, a disability that would entitle the plaintiff to recover, must be not only permanent, but total, so as to render him unable to perform or direct any kind of labor or business; and that ordinarily the loss of the fingers of a hand does not constitute total disability for the performance of any kind of labor or business;
    That a total disability is ordinarily a question of fact for the jury, and must be determined from the facts and'circumstances disclosed in each case ; and, hence, that it was error to direct a verdict for the plaintiff for the amount of one-half the endowment. >
    After the issuance of the membership certificate in suit and before the occurrence of the disability of the plaintiff, the constitution of the association was changed, in the method provided by the original constitution, by representatives of the members, in the election of whom the plaintiff, as a certificate holder, was entitled to vote; this amended constitution provided that ‘ ‘ a member who, by reason of a disability incurred after admission to endowment membership, becomes unable to direct or perform the kind of business or labor which, he has always followed, and by which alone he can thereafter earn a livelihood, shall be deemed entitled to disability benefits,” which are stated to be “ annually one-tenth part of the sum for which his endowment certificate is issued.”

      Held, that the amendment, when made, became operative pnd binding upon the plaintiff, and became a part of his contract, and that his right to recover should be determined thereby. That as the evidence showed that the plaintiff was totally disabled from performing the duties of a railroad switchman, and that, for many years he had been engaged in that kind of labor, the verdict in his. favor should be modified by reducing it to the amount of the first installment of one-tenth his endowment falling due, with interest thereon from the commencement of the action.
    Motion by the defendant, the Supreme Tent of the Knights of fhe Maccabees of the World, for a new trial, on exceptions taken at a trial at the Erie Circuit, which resulted in a verdict for the plaintiff, by direction of the court, ordered to be heard in the first instance at the General Term, by an order made on the 19th day of February, 1892.

      Frank JR. Perkins, for the defendant.

      JBJarlow C. Curtiss, for the plaintiff.
   Haight, J.:

This action was brought by the plaintiff for the purpose of recovering $1,000 on account of a disability occasionéd by the loss of the fingers upon one of his hands. The defendant is incorporated under the laws of the State of Michigan as a fraternal and mutual "benefit association. Its chief purpose is that of insuring its members against death or accident. Its principal organization and its branches are called tents, and known respectively as the supreme tent and subordinate tents. On the 3d day of February, 1886, the plaintiff applied to be admitted as a member of the association at Beaver Tent No. 4, at the city of Toronto, where he was then living. His application was approved, and on the tenth day of March thereafter, a certificate was issued to him by the defendant providing as follows: This certifies that Sir Knight Joseph Hutchinson is a member of Beaver Tent No. 4, located at Toronto, Ont., and that he is a beneficiary in good standing; that in accordance with and under the provisions of the laws governing the order, he is entitled to receive one assessment on the membership, but not exceeding in amount the sum of two thousand dollars, as a benefit to Susan Hutchinson, his wife, upon satisfactory proof of his death •and the surrender of this certificate, provided he shall have in every particular complied with all the rules and regulations of this order. In case of permanent or total disability, or upon attaining the age of seventy years, he will be entitled to receive one-half of said endowment as provided in the laws of the order.”

Subsequently he removed to the city of Buffalo, and was thereupon transferred to Macedonian Tent No. 85, one of the defendant’s subordinate tents at Buffalo. And continued to be a member of the order in that tent in good standing until the 1st day of November, 1889, when he received an injury to his hand in coupling cars, which necessitated the amputation of the fingers of the right hand. He then called upon one C. W. Hinson, an attorney, and an officer of the Macedonian Tent, to procure for him the money that he was entitled to under the certificate of membership. Thereupon Hinson wrote a letter to M. S. Boynton, the supreme record keeper of the defendant’s order, at Port Huron, Mich., asking for the necessary blanks upon which to make proof of the plaintiff’s disability. Boynton, in reply thereto, said that “ As the loss of a leg, or hand, or eye, does not constitute a total and permanent disability under our laws, it would be useless sending blank to fill out for a disability claim. It would only be rejected.” Thereupon this action was brought.

It is claimed that this action, was prematurely brought for the reason that the plaintiff had not submitted proper proofs of his disability, or waited until the expiration of the time given to the defendant to make payments of claims of this character under its constitution and by-laws. The supreme record keeper is made the financial secretary of the order, keeps all of the books and proceedings, signs the orders for the payment of money, and appears to be the general active officer of the order subject to the board of trustees. His letter to the plaintiff’s attorney is in effect that it was useless for him to submit proofs of disability as his claim would be rejected. "We think that this was a waiver on the part of the defendant of the necessity of presenting proofs of disability, and with complying with the formal procedure required by the defendant’s order to perfect the plaintiff’s claim. (Payn v. Mutual Relief Society, 17 Abb. N. C. 53, 51; Grattan v. The Metropolitan Life Insurance Company, 80 N. Y. 281.)

The trial court directed a verdict in favor of the plaintiff for $1,000, and the interest thereon from the commencement of the action. This was done upon the theory that the certificate issued to the plaintiff became the contract between the parties, and that under it the plaintiff was entitled to recover if his injury was permanent, even though it was not total. There is no, question but that his injury was permanent. It would have been permanent had he but lost the end of one finger at the first joint. But would such, an injury entitle him to the endowment under the contemplation of the pai’ties ? The plaintiff in his application for membership in the defendant’s order states, “ I hereby agree that these statements, with this application and the constitution of £ the Supreme Tent of the Knights of the Maccabees of the ’World,’ shall form the basis of the contract for endowment.” The certificate issiied to him, and which it is claimed constitutes the contract, provides, as we have seen, that in case of permanent or total disability, or upon attaining the age of seventy years, he will be entitled to receive one-half of the endowment “ as provided in the laws of the order.” AYe thus have the certificate referring to the laws of the order as fixing his rights to recover for his disability, and his express agreement in his application making his statements therein and the constitution of the order • the basis of the contract between them for his endowment. It consequently appears to us that the constitution becomes a part of the contract. It was so treated in the case of Demings v. The Supreme Lodge Knights of Pythias of the World (131 N. Y. 522).

The constitution in force at the time the plaintiff became a member of the defendant’s order provides (article 4, section 13): “A total and permanent disability to perform or direct any kind of labor or business, or upon reaching the age of seventy years, shall entitle a member holding a certificate of endowment, so disabled or aged, to the payment of one-half of the endowment to which he would be entitled at death.” Here we have a definition or a description of the disability that would entitle the plaintiff to recover. It is not only permanent, but total, so as to be unable to perform or direct any kind of labor or business. It is not limited to the business in which the plaintiff was engaged at the time of his injury, but it is in the broadest language possible to use, “ a total and permanent disability to perform or direct any kind of labor or business.” A total disability is ordinarily one of fact, and is for the jury. It must be determined from the facts and circumstances disclosed in each case. That which would be total disability in one case might not be in another. The loss of a hand by a lawyer might interfere but slightly in the transaction of his business, or in the performance of his work. Whilst to a man who had learned a particular trade, by which he had always earned his living, and was entirely ignorant of all other trades or business, it might prove to be a much more serious disability. Ordinarily, the loss of the fingers of the hand does not constitute total disability from the performance of any kind of labor or business. (Knapp v. The Preferred Mutual Accident Association of New York, 53 Hun, 84; Saveland v. Fidelity & Casualty Company, 67 Wis. 174; Lyon v. The Railway Passenger Assurance Company, 46 Iowa, 631; Young v. Travelers’ Insurance Company, 80 Me. 244; Sawyer v. United States Casualty Company, 1 Bigelow Life & Accident Insurance Reports, 289; Hooper v. The Accidental Death Insurance Company, 2 id. 573; Bacon’s Benefit Societies & Life Insurance, § 295; Cook on Life Insurance, § 108; 4 Harvard Law Review, 176.)

We are, therefore, unable to see how the judgment can be sustained under the old constitution.

On the 8th day of February, 1887, the constitution was amended. The amended constitution provides that “ a member who, by reason of a disability incurred after admission to endowment membership, becomes unable to direct or perform the hind of business or labor which he has always followed, and by which alone he can thereafter earn a livelihood, shall be deemed entitled to disability benefits.” The amended constitution further provides that in case of such disability the benefits that he shall be entitled to receive are “ annually one-tenth part of the sum for which his endowment certificate is issued.” So that under the amended constitution the plaintiff would be entitled to receive, if disabled, one-tenth of $2,000 annually instead of $1,000 in a gross sum, as provided under the former constitution. And the disability which shall entitle him to the receipt of this annual provision is where he is unable to direct or perform the kind of business or labor which he has always followed, and by which alone he can thereafter earn a livelihood.

The trial court was of the opinion that the amended constitution had'no application to the case; that the order could not, by an amendment of its constitution, change the rights of the plaintiff under his contract. We are not able to concur in this view. As we have seen, the plaintiff, in his application, agreed that the constitution of the order should be the contract. The constitution then provided that it might be altered or amended as to the laws governing the endowment funds by a two-thirds vote of the members present at a regular meeting of the supreme tent, or at a special meeting called for that purpose. The supreme tent was composed of delegates elected by the certificate holders of the subordinate tents in the different States and Canada. The plaintiff, as a certificate holder, was entitled to vote for the person who should represent him as the delegate from the Macedonian Tent, the tent of which he was a member. He thus had a voice in determining whether or not there should be an amendment of the constitution. And the amendment, when made, must be deemed to become a part of the provisions of Iris contract. The amended constitution, therefore, became operative and binding upon him as well as the other certificate holders of the order. (May v. New York Safety Reserve Fund Association, 13 N. Y. St. Repr. 66.)

His right to recover should, therefore, he determined by the provisions of the new or amended constitution. The evidence in the case clearly shows that the plaintiff is totally disabled from performing the duties of a switchman upon the railroads, and that for many years he has been engaged in that kind of labor. Whether he can now earn a livelihood by some other business was a question of fact which, had it not been waived, should have been submitted to the jury. The defendant’s counsel asked the court to direct a verdict in the case, and did not thereafter request to have this matter submitted to the jury. He thereby left it for the determination of the trial court, and that court having directed a verdict in favor of the plaintiff, must be deemed to have determined the fact against him.

The amount of the verdict, however, should have been limited to the first installment of $200 falling due under the constitution, with the interest thereon from the date of the commencement of this action.

The verdict should, therefore, be modified by reducing the amount thereof to the sum of $200, with interest thereon from the date of the commencement of this action, being the amount of the first installment due under the amended constitution, and the verdict so modified affirmed and judgment ordered thereon for the plaintiff, with costs in the trial court, but without costs of this motion to •either party.

All concurred.

Defendant’s motion for a new trial denied and judgment ordered for the plaintiff on the verdict modified, as indicated in the opinion, with costs in the trial court, but without costs of this motion to either party.


author: Haight, J. :

text:
    Carrie A. Thomas, as Executrix, etc., of Calvin Baker, Deceased, Appellant, v. Alice Peck Fuller and Marvin Fuller, Respondents.

      Facts stated in conclusions of law — satisfaction of mortgage Try a gift of the mortgage debt.

    Facts stated in a referee’s conclusions of law, although not in his findings of fact, should, in support of a judgment on appeal, be treated as having been found as facts.

      In 1880, Horace Peck, having borrowed $500 from Calvin Baker, made and delivered to Baker a promissory note for that amount, payable in 1891; in ; 1886, Peck conveyed to his daughter-Alice certain land, by a deed which contained a covenant that she should pay this note, as part of the consideration; soon thereafter, Alice executed and delivered to Baker a mortgage upon the land so conveyed to her, expressed to he intended as security for the payment of the $500 for which Baker held Peck’s note ; Alice, as second wife, married one Fuller, whose first wife was a daughter of Baker’s, and a child by the first marriage lived with them; Baker died in 1889, without having ever executed a discharge of the mortgage, and his executrix brought an action to foreclose the mortgage.
    It appeared in evidence, on the trial before a referee, in addition to the above facts, that in 1888 Baker called on Alice, the mortgagee, and taking the Peck note from his pocket-hook, handed it to her, saying, “There is the note;” she asked, “What shall I do with it ?” and he answered, “Do what you are a mind to with it; it is yours,” and thereupon left the note with her.
    Held, that the evidence established an' intentional and valid gift of the note by Baker to Alice, and that such gift of the note operated to satisfy and extinguish the mortgage.
    Appeal by tbe plaintiff, Carrie A. Thomas, as executrix of Calvin Baker, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of Orleans county on the FTth day of August, 1891, upon the report of a referee, dismissing the complaint upon the merits, and directing the plaintiff, as executrix, to execute and deliver to the defendant, Alice Peck Fuller, a satisfaction of the mortgage in suit.

      Irving M. Thompson, for the appellant.

      John Gunneen, for the respondents.
   Haight, J. :

This action was brought to fcreclose a mortgage given by the defendant, Alice Peck Fuller, to Calvin Baker in his lifetime. The defense interposed is that the mortgage has been canceled by a gift of Baker to the defendant Alice of the indebtedness which the mortgage was given to secure.

Baker died on the 20th day of March, 1889, leaving a last will and testament, which has been duly proved and admitted to probate. On the 15th day of August, 1880, Horace Peck borrowed of Baker the sum of $500, for which he gave his promissory note payable on the 1st day of November, 1891. On January 15, 1886, Horace Peck conveyed to the defendant, Alice Peck Fuller, his daughter, about 100 acres of land in the town of Clarendon, in the county of Orleans, containing a covenant that she, as part of the consideration for the premises, should pay the amount of the promissory note given by him to Baker. The deed was delivered to and accepted by her. And on the seventh day of October thereafter she executed and delivered to Baker the mortgage in suit upon the real estate so conveyed to her, conditioned as follows : This grant is intended as a security for the payment of the sum of five hundred dollars, which Horace Peck of Clarendon, New York, owes the party of the second part, and for which he holds the note of said Horace Peck, dated August 15, 1880, or so much of said amount as now remains unpaid, to be paid in annual installments of fifty dollars with interest on all principal unpaid.”

The defendant, Marvin Fuller, married for his first wife the daughter of the said Calvin Baker, who died nineteen years ago, leaving one daughter her surviving. That subsequently the defendant Marvin married the defendant Alice. And his daughter by his first wife has ever since continued to live in his family, and to be cared for by the defendant Alice.

The referee has found as facts: “ That in the fall of 1888 the said Baker called upon the said Alice Peek Fuller at her house in said town of Clarendon, and taking out his pocket-book and taking therefrom the promissory note given by said Horace Peck as aforesaid he handed the same to her, saying, £ There is the note.’ That she then inquired, What shall I do with it? ’ That said Baker replied, £ Do what you are a mind to with it. It is yours.’ That he thereupon left the house, leaving the note with her.”

And as a conclusion of law the referee found : That in and by what occurred between said Baker and the said Alice Peck Fuller, as hereinabove set forth, the said Baker intended and designed to, and at the same time did, constitute a valid gift and delivery of said note to the said Alice. That she thereupon became the owner thereof, and that such gift and delivery extinguished and satisfied said mortgage to foreclose which this action was commenced.” And concluded by ordering the complaint dismissed.

A criticism has been made upon the report of the referee to the effect that he has not found as a fact that there was an intentional gift of the note by Baker to Alice. True, no such finding appears among the facts, but it does appear in his conclusions of law. And on review in support of the judgment it is our duty to treat these conclusions as facts found. (In the Matter of the Judicial Settlement of Mary J. Clark, as Executrix, etc., 119 N. Y. 427.)

Does the evidence support the findings ? This question is important and calls for a careful examination of the evidence. The fact that Baker handed the note to the defendant Alice and told her that it was hers is not disputed. The note was in her possession and was by her produced upon the trial, with the word paid ” written .across its face. Her own version of the transaction, as testified to hy the witnesses Thompson and Thomas, is that Baker handed her the note, and she said to him, What shall I do with it ? ” And he replied, What you are a mind to. It, is yours.” Adda A. Fuller, her daughter, testified that Baker came to their house the fall before he died; that he sat down a few minutes and then moved his chair over near her mother, and took out his pocket-book which had several papers in it, and looked them over and then handed the note to her mother. She said, “ What shall I do with that ? ” He said, “ Do what you are a mind to with it. It is yours, and I have no doubt you will do what is right.”

Other evidence was given tending to show that Baker usually visited the Fullers three or four times a week; that his visits were quite regular; that he was on friendly terms with them, and often spoke to others of the kindness of the defendant Alice to his granddaughter. It further appears that he made presents to his other children.

We are aware that there is force in the suggestion'that had he intended to give her the note he would have executed a discharge ■of the mortgage, the same as he had done when he made a present to his daughter, Mrs. Thomas. But the fact exists that he handed Alice the note under the circumstances related. It was not hers. She was not entitleddo the custody of it. And nothing was said indicating that he left it with her in trust, or for safe-keeping. But instead he told her it was hers, to do with it as she had a mind to. And as one witness states, he further remarked that he had no ■doubt but that she would do what was right. This expression strongly sustains the conclusion of the referee. It not only indicates confidence in her, but it also shows that she was expected to-make a right use of that which he had just bestowed upon her.

We are aware that gifts are not usual among the ordinary business transactions where valuable considerations move the parties, and that they are not frequently induced by sentiment or affection. A gift must be proved like any other fact, and the evidence must be clear and convincing. Rut as we have stated, there is no conflict-in the evidence as to what took place on the delivery of the note to-Alice. The contention only arises as to the inferences to be drawn therefrom. The conclusion reached by the referee appears to us to-be natural and logical, such as the ordinary mind would reach upon the facts. If Baker did not intend the note as a gift what did he intend % Upon this question the evidence is silent, and we are left, to guess and conjecture as to the motives that actuated him without, the aid of an explanation or a reason given. Under these circumstances we are inclined to the opinion that the inference is permissible that Baker intended to give the defendant Alice the note.

It is. claimed that even though there was a gift of the note that it did not operate to satisfy or extinguish the mortgage, to foreclose which this action was brought. Horace Beck was the maker of the note, and was the principal debtor. When he conveyed his farm to Alice containing the covenant alluded to, and she accepted the same, she became obligated to pay it. Peck still remained liable to Baker' for the indebtedness which was evidenced by the note. She also, became liable, which was evidenced by the note and the covenant, in her deed. The mortgage in suit was given by her to secure her' own indebtedness. Whether the acceptance of the mortgage by Baker operated to discharge Peck from liability on the note it is not. necessary now to determine. The mortgage created no indebtedness on the part of Alice, other than her undertaking to pay the-note. The note only was to be paid. If it was given up, or ceased to exist, then there was nothing to be paid. The note and mortgage must be read and considered together in order to fix her liability. And without the note no liability on her part could be established. We think it, therefore, apparent that a discharge of the note would also operate to satisfy and extinguish the mortgage.

It is said that the defendant Alice did not understand that the gift of the note to her operated to extinguish the mortgage. It appears that this was so until she obtained legal advice. But it is not apparent how her understanding, or want of knowledge as to the effect of the transaction, varies or changes the intent of Baker. The judgment should be affirmed, with costs.

All concurred.

Judgment appealed from affirmed, with costs.