source: Caselaw Access Project

author: By the Court, Jones, J.

license: Public Domain

text:
    Elizabeth Unger, plaintiff and appellant, vs. The Forty-Second Street and Grand Street Ferry Railroad Company, defendants and respondents.
    1. Although driving through the street a pair of horses, without their being attached to any vehicle, is not necessarily negligence, and they are usually attached to a vehicle for the purpose of drawing it, and not to prevent them from running away, yet this does not absolve one who attaches horses to a vehicle and drives them in the public street from all duty to the public, in respect of such attachment. On the contrary, he is bound to exercise all the care, caution and foresight, in making the attachment, which a careful and prudent man would exercise, in order to provide against the horses being alarmed by the breakage of any fastening.
    2. Under that rule, any one so attaching horses would be bound to see that they are so attached, as that the ordinary use of the vehicle, (considering the dispositions of the horses attached,) would not, through any patent defect or inadequacy of the attachment itself, irritate the horses and cause them to become unmanageable, run away and produce injury.
    3. In an action against a railroad company, to recover damages for injuries to the plaintiff, caused by a pair of horses belonging to the defendants, which had got detached from one of their cars, running away and knocking down and running over the plaintiff, through the alleged negligence of the defendants and their servants, the question is, not whether" a particular attachment, (if used,) would have prevented the accident, but whether the attachment actually used was without apparent defect, and adequate, in the ordinary employment of the vehicle, (considering the dispositions of the horses used,) to prevent it from pressing on their haunches, and the whiffletree by getting loose, from falling about their heels and legs, and thereby frightening and rendering them unmanageable.

      4. Hence it is erroneous, in such an action to permit the plaintiff to show a witness a plan of fastening horses to a railroad car with a pin, and ask him . whether if, in the particular case, the whiffletree or pole had been fastened in that manner, the horses could have broken loose from the car.
    5. Although after such testimony has been admitted, the judge charge the jury to consider all .the testimony as to the character of the attachment, and say if it was such as a careful and prudent person would employ; and that if, on all the testimony, they came to the conclusion that there was negligence on the part of the defendants, and the plaintiff was injured without any contributing negligence on her part, then to find a verdict for the plaintiff, and the jury found a verdict accordingly, a new trial will be granted.
    6. A city railroad company is not bound to' adopt a particular method of attaching horses to the cars, for the purpose of meeting an unforeseen, unanticipated, extraordinary occurrence.
    (Before Robertson, Ch. J., and McCunn and Jones, JJ.)
    Heard June 9, 1868;
    decided July 3, 1868.
    Appeal by the plaintiff from an order granting a new trial. The action was brought to recover damages for personal injuries sustained by the plaintiff on the evening of January 1, 1864, in consequence of having been run over by a pair of the defendants’ horses. At the time of the accident the defendants operated a horse railroad in the city of Eew York. The right of recovery was based on the defendants’ supposed negligence in the management of their railway, or of one of their railroad cars, and the horses and gear thereof, so that by want of proper- care and conduct on their part, said horses broke away from the ear to which they had been attached, and running furiously against the plaintiff, caused the injury complained of. There was no conflict of proof as to the nature or extent of the injury, or what occasioned it. The proof for the plaintiff showed that on Eew Year’s night, 1864, an extremely cold night, and very windy, as the horses in question were on their uptown trip, going north through Avenue A, attached to one of the defendants’ cars, and in charge of one of their drivers, at about Third street, they suddenly became detached from the car, and escaping, turned eastwardly, down Third street, and at the intersection of Avenue B and that street, ran over the plaintiff and her mother, who were then in the act of crossing the street, in their progress along Avenue B. The occurrence was at about six or seven o’clock, after dark. The gás was lighted in the street lamps, placed at regular and customary intervals; one lamp being on one corner of Third street and Avenue B, and one on the corner diagonally opposite. The plaintiff also proved by a witness that the horses were attached to the car by an upstanding straight hook, which “appeared to have been broken off sometime,” and that the horses afterwards attached to the same car, (to continue the upward trip,) got loose from it, as the car turned from Twenty-third street into Broadway. Between the horses were the ordinary pole, to the end of which were iron wiffletrees which rested on the hook. , This was all the evidence the plaintiff adduced of negligence. Upon her resting, the defendants moved for a dismissal of the complaint, on the ground that she had failed to show that the accident was occasioned by any negligence or fault of the defendants. The motion was denied, and the defendants excepted. The defendants then introduced the testimony of their driver, and of a policeman who was passing on his beat, at the time, that the former was in -charge of the horses, driving along on the usual route in the usual manner, when suddenly two drunken men attacked them; one seized the horses, by the head, struck them, backed them against the dashboard, and frightened them so that they kicked, and by some means disengaged the whiffletrees from the hook that attached them to the cai’s; at the same moment the other man seized the reins and pulled one of them from the driver’s hand, whereupon the horses, starting suddenly, were turned, by the remaining rein, down Third street; in their progress they drew that also out of his hands, and so escaped entirely free. The horses had bells on them ; the whiffletrees were very heavy, and of iron; in running down the street, the former could be seen for seventy to eighty yards ahead; there was no snow on the ground, and the clatter of the iron whiffletrees on the stone pavement made a great noise. The plaintiff proved, by her first witness, that the whiffletrees, as they were dragged along, struck fire. Mr. Stevenson, a car and omnibus builder of thirty-six years’ experience, who built the defendants’ cars, testified that he put on them the most perfect form of hook he was acquainted with, and the same style he put on for other roads. He also gave it as his and the general opinion that the hook was the safest attachment. He also testified that those hooks are bent or curved out, where the eye of the whiffietree rests, so that, even if broken off above the middle bend, its safety would not be affected. George Terry, (a witness for defendants,) substantially corroborated the testimony of Mr. Stevenson, in respect of the character of coupling used on the defendants’ cars. The defendants’ counsel asked one of his witnesses, if he knew how horses were attached to other railroad cars. This question was objected to by the plaintiff. The objection was sustained, and the defendants excepted. He also offered to show that the attachment in use on the- car in question at the time of the accident, was the same in construction, form and size, and every other respect, as had been used for a long time before on other city railroad cars, and was then in universal use. To the proof so offered the plaintiff objected. The objection was sustained,, and the defendants excepted. The plaintiff’s counsel showed to a witness, a drawing representing a méans of fastening by a pin, and asked whether, if the pole or whiffletree had been attached to the car as so represented, the horses could have got loose? To this question the defendants objected. The objection was overruled, and the defendants excepted. The witness answered, “they could not.” Subsequently, the counsel for the defendants asked another witness, what had been the experience in the use of pins, where the pole and pin had been used ? How it operated in reference to security ? This question was objected to by the plaintiff. The objection was sustained, and the defendants excepted. The counsel for the defendants asked, (the' superintendent of the Third Avenue Railroad Company,) another witness, whether he was acquainted with the style of coupling used on other railroads? To this question the plaintiff objected. The objection was sustained, and the defendants excepted.
    At the close of the proofs so given, the defendants repeated their motion for a dismissal of the complaint on the grounds :
    1st. That the evidence showed contributive negligence on the part of the plaintiff.
    2d. That so far as the defendants were concerned, the occurrence was shown to have been accidental, and not by reason of any negligence or fault of theirs.
    3d. That the wrong consisted in setting the horses free, which was the overpowering act of strangers, whose instruments alone the horses were in doing the damage
    The motion was denied, and the defendants excepted.
    At the request of the defendants’ counsel the court in charging the jury, charged the following propositions of law, to wit:
    1st. Whatever- may have been the negligence of the defendants, the plaintiff cannot recover if by the exercise of ordinary caution on her part the collision might have been avoided.
    2d. The burden of proving to the satisfaction of the jury, that she did exercise such caution is on the plaintiff, and unless they are satisfied from the proofs that she did so, the verdict must be for the defendants.
    3d. If the jury are satisfied from the circumstances of the case, that by looking in the direction from whence the horses came, before stepping from the sidewalk, the plaintiff could have seen the horses approaching, and so have avoided the collision by remaining on the sidewalk, the verdict must be for the defendants.
    4th. Railroad companies are not insurers, even of passengers on their cars, and are not liable for injuries to passengers, unless shown to have been guilty of, negligence; but while they owe passengers the utmost skill and vigilance in the equipment and management of their road, in order to avoid accidents, they owe others only the exercise of ordinary care, being that degree of vigilance which a prudent man exercises about his own affairs.
    5th. If the jury believe that the defendants’ horses being in actual charge of the driver of the car, were set loose by the ■ lines being drawn from the driver’s hand by the sudden and unexpected attack of a stranger, or that but for such attack the accident would not have happened, the verdict must be for the defendants.
    6th. The rules of lay governing this case' are the same precisely as are applicable to the case of a private individual in charge of his own horses; and no negligence is to be imputed to a person from the mere fact of his having his ' horses attached to a vehicle in such manner as that they may easily become or be detached.
    7th. To entitle the plaintiff to recover, she must show fault on the part of the defendants, and such fault will not .be inferred in this case merely from the injuiy.
    8th. The jury may take into consideration the fact that the horses were attached to the car in the same manner that other horses had been attached to the cars of the defendants, ever since they had been operating their road, and in the same manner, that for a long period before it had been and then was, the custom of other railroad companies to attach their horses to their cars, without giving rise to. accidents.
    9th. The jury are also_to consider the fact that the horses , are not attached to the car as a means of holding them, and preventing their escape, but as a means only of bringing their power to bear on the car for the purpose of its propulsion; and negligence could not be imputed to. a person from the mere fact of his sending his horses through the street, unattached to any vehicle whatever, so long as they were so sent in charge of a person of ordinary prudence, experience, and capacity, in control of the ordinary appliances,'by means of halter, bridle, harness, and lines, &c. to restrain them.

      10th. No fault is to be imputed to the defendants in this case by reason of failure of the driver to fasten the lines to the car.
    The judge further charged the jury as follows: That the only question of fact for them to determine was, whether there was negligence on the part of the defendants, the Forty-second street and Grand Street Ferry Railroad Company, or their servants, in allowing the horses attached to their car to escape, and thereby cause the injury complained of by the plaintiff. They should consider all the testimony as to the character of the attachment used, and say if it was such as careful and prudent persons would employ. They had heard the evidence of the several witnesses on this subject. If, on all the testimony, they came to the conclusion that there was negligence on the part of the defendants, and the plaintiff was injured without any negligence on her part that contributed to the injury, they should give the plaintiff a verdict allowing her such damages as from the testimony they considered proper, for the pain and suffering she endured. Inasmuch as she was a minor, they could not allow for physician’s services in a suit brought by her.
    The jury found a verdict for the plaintiff for five thousand dollars. On motion of the defendants this verdict was subsequently set aside, and a new trial granted. From the order granting such new trial, &c. the plaintiff now appeals.

      D. C. Birdsall, for the plaintiff and appellant.
    I. All the rulings of the court upon the testimony introduced by the plaintiff were in favor of the defendants.
    • II. The defendants’ exceptions to the ruling of the court if erroneous, (which the appellant does not concede,) must fail for the reason that the plaintiff offered testimony touching the same identical subject, which was objected to by the defendants’ counsel, and ruled out by the court. The defendants must be bound by the action of their counsel in this respect.
    III. If this ruling was incorrect, the plaintiff was the only party damaged thereby, she having no testimony on that point, while the evidence of the defendants’ witness, (Stevenson,) is wholly upon this question, the defendants deriving all the benefits of it before the jury.
    IV. The only other objection taken by the defendants was to the testimony on the cross-examination of Bretz, (the driver of the horses that did the injury.) His testimony showed that the horses could not have become detached from the car if they had been fastened with a pin coupling. This was clearly proper, to show that the manner of fastening was not the safest.
    V. The judge, in his charge, ruled upon every question, as requested by the defendants’ counsel, and left the whole question of fact for the consideration of the jury.
    VI. The court was clearly right in denying the defendants’ motion for a nonsuit, as each of their four propositions was upon questions of fact alone, which the jury have the right to determine. (See Ernst v. The Hudson River R. R. Co., 32 How. Pr. 73, and cases there cited.)

    VII. All the questions of fact having been properly left by the court for the consideration of the jury, their findings (after mature deliberation) should be considered conclusive.
    1. They were the proper judges to determine whether or not the plaintiff used due diligence in crossing the street. They, by their verdict, have answered this question in the affirmative. They have also affirmed the plaintiff’s theory that the defendants and their agents did not use proper precautions in attaching their horses to the car to prevent an accident of this nature, both in the coupling and in fastening the reins to the car.
    2. They were also the judges of the probability of the statement of the defendants’ driver, and of the policeman, Smith, who swears that he saw two men pull the reins out of the driver’s hand, and was within two hundred feet of them, and yet made no effort to arrest them. And, by their verdict, it must be assumed that they did not believe the story told by Smith, the policeman, and Bretz, the driver of the car.
    3. If, however, the jury did give any credit to the story told by these two witnesses, they were justified in finding a verdict for the plaintiff, on the ground that if proper precaution had been observed in attaching the horses to the car, they could not have detached themselves therefrom, as they did.
    In the case of Wakeman v. Robinson, (1 Bing. 213,) it was decided that if any one drive a horse too spirited, or pull the wrong rein, or use imperfect harness, and, the horse taking fright, kills another horse, the defendant is liable, although he is innocent of any intention to injure. It is submitted that it makes no difference whether the accident arise from imperfect harness or imperfect, fastening, if it be insufficient for the purposes intended. •
    4. The jury having decided all these questions in the plaintiff’s favor, and also the question as to what was a reasonable compensation for the plaintiff’s injuries, their verdict should be sustained and affirmed by the court.
    The order granting'a new trial should be set aside, and the judgment of the court below, and the verdict of the jury, should be affirmed.

      Moses Ely, for the defendants, respondents.
    I. The first motion for a nonsuit should have been granted. The plaintiff’s proofs did not justify the inference that her injuries were the result of the defendants’ negligence.* Conceding that the naked fact of one’s horses being ■ found unattended and unrestrained in the public streets would, justify the presumption that the owner had been negligent, that presumption would be defeated if it should be shown (as in this case) that immediately before they were so at large they were in charge of the owner, attached to his vehicle which he was driving through the streets, and more particularly (as also in this case) that they were so in charge and so attached up to the moment of their escape. The latter facts having been established by the party asserting negligence, she should have shown affirmatively that the horses got away through some fault of .the defendants. (Terry v. N. Y. Central Railroad Co., 22 Barb. 586. Deyo v. Same, 34 N. Y. Rep. 14, 15. Beers v. Woodruff, 30 Conn. Rep. 308. Compare Johnson v. Hudson River Railroad Co., 20 N. Y. Rep. 65.)
    H. Railroad companies are not insurers, even of passengers on their cars, and are not liable for injuries to them, unless shown to have been guilty of negligence. But while they owe passengers, the utmost skill and vigilance in the equipment and management of their road, in order to avoid accidents, they owe others only the exercise of ordinary care, being that degree of vigilance which a -prudent man exercises about his own affairs. (C. and Amboy Railroad v. Burke, 13 Wend. 611. Kelsey v. Barney, 2 Kern. 429. Hegeman v. Western Railroad Co., 3 id. 17, 19, 26.)
    HI. The evidence that the hook was defective, or in any way insufficient, was vague and unreliable. It was also immaterial. The hook was entirely for the accommodation of the defendants, and to enable them to apply the power of the .horses to the propulsion of the car. So long as the horses were in charge of the driver, the defendants owed the plaintiff no obligation to have them attached to ■ any vehicle, whether securely or otherwise.
    VT. The motion for dismissal of the complaint made at the close of all the proofs, should have been granted. The uncontradicted proofs of the defendants had established the fact that the setting the horses free was the overpowering act of strangers, who had forcibly taken them from the control of the defendants; and thenceforth, and until after the accident, the horses were the instruments of those strangers, who alone' were responsible for the consequences of their acts.
    V. In view of all the proofs as to the plaintiff’s position and surroundings immediately preceding the accident, ¿nd of the horse’s approach along the lighted street, with bells attached, dragging the heavy iron whifiietrees over the bare stone pavement, and marking their prpgress with fire from the contact, it is incredible, that had she taken the ordinary precaution of looking before she stepped from the curb, she would not have realized the impending danger which so invited her attention, in time to avert it. She was guilty of contributive negligence for failure to do so, and for that reason should have been nonsuited. (Button v. Hudson River Railroad Co., 18 N. Y. Rep. 248.)
    VI. Each of the several rulings upon the admissibility of evidence, to which exceptions were taken by the defendants, was erroneous. The defendants were prejudiced thereby, and neither error was or could have been cured by the judge’s charge. (Penfield v. Carpender, 13 John. 350. Erben v. Lorillard, 19 N. Y. Rep. 299.)
    Vil. Notwithstanding the said rulings, on the trial, and the refusals of nonsuit, the propositions charged by the court at the request of the defendants’ counsel were clearly directory of a verdict for the defendants. A contrary verdict plainly indicated either a misapprehension or disregard of the charge.
    V1LI. The finding of the jury upon the proofs was clearly erroneous. The verdict should have been for the defendants.
   By the Court, Jones, J.

The defendant’s negligence is claimed to consist of two things—not having the horses properly attached to the car, and not having the reins fastened together at the end.

It may be conceded that there is, ordinarily, no.negligence in driving a pair of horses through the street without being attached to a vehicle, and also that horses are attached to a vehicle for the purpose of drawing it, and not to prevent them from running away; but this does not absolve one who attaches horses to a vehicle and drives them in the public street from all duty to the public, in respect of sneh attachment. On the contrary he is bound to exercise that care, caution and foresight in making the attachment which a careful and prudent man would exercise with the view of providing against the horses being frightened by any breakage. Under this rule he would owe it to the public to see that the horses are so attached as that in the ordinary use of the vehicle, considering the dispositions of the horses attached, it would not, through any patent defect or inadequacy in the attachment itself, irritate the horses and cause them to become unmanageable, run away and produce injury.

To illustrate my meaning. Take a single horse and wagon. If the back straps, thills, or either have patent defects or are not adequate to the ordinary use of the wagon, and by means thereof either of them breaks and hits the wagon or the haunches of the horse; or if the bolt which attaches the whiffletrees to the wagon, for similar reasons breaks, letting the whiffletree fall on the heels of the horses ; or the whiffletree itself for similar reasons breaks, letting the pieces fall dangling about the horse; and the horse, in either of these cases becomes frightened and runs away, doing injury, the owner would be liable for that injury. The same result would follow if the horse, being frightened by a stranger, and whipped or frightened, yet not being unmanageable, breaks such defective back straps, thills, bolt or whiffltree and is thereby rendered unmanageble and causes an injury. For in that case his unmanageableness is attributed not t'o the original fright, but to a fright caused by such defect or inadequacy. If, however, the horse, on being frightened by a stranger, thereby becomes unmanageable and gets away and does injury, the owner is not liable, even though it may be afterwards discovered that there was some apparent defect or inadequacy in the attachment of the horse to the wagon; since in such case it is evident that the defect or inadequacy did not contribute to the unmanageableness.

It may often be a difficult matter to determine what has caused the unmanageableness of a horse, but if any part of the attachment should be thus defective or inadequate, and should have been broken, that defect or inadequacy will be deemed to have contributed to. the unmanageableness, unless it is clearly apparent that it could not.

I But, on the other hand, if the back straps, thills, bolt or whiffletree are, neither apparently defective nor inadequate to the ordinary use of a vehicle, then, although a horse may, in consequence of some fright, break them and get away, the owner cannot be made liable, even though such breakage contribute to render him unmanageable, on the ground that if they had been stronger, the horse would not have broken them. For the owner is only bound to have attachments without -patent defects, and adequate to the ordinary use of his vehicle and the disposition of-the horse he uses. He is not bound, as the carrier of passengers is, to use all the means which human skill, ságacity or foresight can suggest to guard against accidents.

One of the theories on which this case was tried was, that there was another kind of attachment which, if it had been employed, the horses could not have kicked loose, and that there was negligence in not using it. Thus we have the question asked by the plaintiff’s counsel, “ Look at this plan of fastening horses to a railroad car with a pin, and say if the whiffletree or pole had been fastened in that manner could they have broken loose from the car?” The question was objected to as irrelevant, the objection was overruled, and an exception taken. The witness answered, They could not.” We cannot say but that it may have been on this testimony, alone, that the jury found the defendants to have been negligent. If then, it was improperly admitted, there should be a new trial.

Under the above principles, the evidence was improper. The defendants were not bound to adopt a particular attachment for the purpose of meeting an unforeseen, unanticipated, extraordinary occurrence. The question is not whether a particular attachment, if used, would have prevented the accident, but whether the attachment that was used was without apparent defect and adequate in the ordinary use of the vehicle, considering the dispositions of the horses used, to prevent it from pressing on their haunches, and the whiffletree from getting loose and falling about the horses’ heels and legs, and thereby frightening and rendering the horses unmanageable.

It is true the learned judge did not charge the jury, in terms, that if there was another attachment which would have prevented the horses from getting away, it was negligence on the part of the defendants not to have used it.. But he charged them to consider all the testimony as to the character of the attachment and say if it was such as a careful and prudent person would employ; and that if, on all the testimony, they came to the conclusion that there was negligence on the part of the defendants, and the plaintiff was injured without any contributing negligence on her part, then to find a verdict for the plaintiff.

A part of the evidence was this which was admitted under objection, viz: that there was another kind of attachment which would have prevented the horses from getting loose. What effect this may have had in leading the minds of the . jury to the conclusion that the attachment used was not such as the defendants should have used, it is impossible to say. This verdict may have been based wholly on this piece of testimony. However this may be, as we cannot say that the evidence could not possibly have affected the verdict, its admission makes a new trial necessary.

Order affirmed, with costs to the respondent.


text:
    Henry Tone, plaintiff and respondent, vs. Francis J. Doelger, defendant and appellant.
    Where two operations are necessary to fit stones to be placed in a wall, one of reducing them by blows of hammers to a suitable size and a degree of smoothness adapted to being dressed by masons with other proper tools, and the other of dressing them by masons with.such tools; and the parties to an agreement for blasting and excavating rocks, among other things, agreed that the rocks so blasted should be “ manufactured ”* ready for the masons ; Held, that the terms of such agreement were 'Sufficiently complied with by the stones being broken into proper sizes and shapes, and made sufficiently smooth to be submitted to masons for being dressed by them, so as to be fit to go into the wall. Per Jones, J.
    (Before Robertson, Ch. J., and Jones, J.)
    Heard June 8, 1868;
    decided July 3, 1868.
    Appeal from a judgment entered on the verdict of a jury. This action was brought to recover $2333.60, alleged to be due from the defendant on the contract set out in the complaint. The defendant was building a large beer vault on Ninety-sixth street, and employed the plaintiff to do the work. The plaintiff and defendant entered into a contract, in writing, by which the plaintiff agreed to do the excavating, and deposit the ground on both sides of the vault, and also agreed to fill in the earth again in regular courses, as the building progressed, and on the top of the arches, ’ according to directions to be given him as the work progressed. There was a well on the ground where the earth was excavated, which the plaintiff agreed, by his contract, to preserve. The plaintiff also agreed to blast the rocks, “ and manufacture them ready for the masons,” and to leave them at a suitable distance from the building.
    This action was brought to recover compensation, according to the terms of the contract, for work done under it by the plaintiff. In his complaint the plaintiff alleged performance of the contract on his part.
    The defendant denied his indebtedness, and' refused to pay the plaintiff, on the ground that he, the plaintiff, did
      not perform his contract. In his answer he alleged that the plaintiff did not fill up with earth as the building progressed ; that he did not fill in on the tops of the arches, as he had agreed to do; that the plaintiff did not preserve the well, but filled it up with rubbish, and left it in that condition ; that he did not manufacture (dress) the stones ready for the masons; that he did not leave the stones at a suitable distance from the building.
    The testimony of both the plaintiff and defendant’s witnesses showed that the plaintiff did not perform his contract.
    Louis Burger, a witness called by the plaintiff, testified that he was the architect under whose directions the vault building was constructed. He swore that Tone “ did not fill in as the plans required, and although he was requested repeatedly to do so, he did not do it.” This witness also testified that the plaintiff did unot dress the stones.” Tone blasted them, and the masons dressed them. This witness testified that the masons had to hammer the stones into shape, to lay them in the wall. On his re-direct examination this witness testified, that the plaintiff only blasted the stones, but he did not dress them for the walls; he merely broke them out, and laid them there; he did not dress them ready to lay them in the wall. Michael Dunn, another of the plaintiff’s witnesses, testified, on his direct examination, that he was the person who blasted out the rock for the •plaintiff"; that he did nothing more than blast out the rock; some were fit for building, and some were not. Those which were not fit, were manufactured by other men. On his cross-examination this witness testified, that he did nothing more with the stone than to take the rock out.
    When the plaintiff" rested, the defendant’s counsel moved to dismiss the complaint, on the ground that it appeared by the plaintiff’s own testimony, that he had not filled in the earth on the top of the vaults, as provided by the contract, and that he did not dress or manufacture the stones ready for the masons, in compliance with his contract. The motion was denied, and the defendant excepted.

      After the evidence was closed on both sides, the defendant again moved for a nonsuit, on four grounds. The first two being substantially the same as the two previously relied on, and the other two being, (3,) that the plaintiff had not brought back and filled in the earth, according to his contract; (4,) that he had not preserved the well. The motion was denied, and an exception taken.
    The case was submitted to the jury, who rendered a verdict for the plaintiff for $2005.29. Judgment was entered on the verdict, and the present appeal is from that judg-' ment, no motion for a new trial having been made.

      C. A. Kimble, for the defendant, appellant.
    1. The contract between the parties, set out in extenso in the complaint, has never been abandoned or rescinded. It is in full force, and the plaintiff seeks to recover on it, and alleges that it has been performed. The defendant denies that the plaintiff' has performed it, and his defense is grounded on the fact of such non-performance.
    II. The court erred in not granting the motion of the defendant for the dismissal of the complaint, at the close of the plaintiff’s testimony. ■
    1. The plaintiff’s evidence distinctly proved that the plaintiff had not performed his contract.
    2. If the defendant, at the close of the plaintiff’s testimony, was entitled to a nonsuit, the error is not cured by the verdict, and the defendant is now entitled to a new trial. (Ryan v. Fowler, 24 N. Y. Rep. 412.)
    TTT. The court erred in not granting the defendant’s motion to dismiss the complaint made at the close of all the testimony. Certain facts showing a non-performance of his contract on the part of the plaintiff were undisputed.
    1. The testimony on both sides, and undisputed, showed that the plaintiff did not “ manufacture ” (dress) the stones ready for the masons. His contract required this to be done. The plaintiff' admits they were not fit to turn .the arch. Dunn, (who did the blasting of the rocks,) says, that he understood they had nothing to do but sledge the stones in a proper way for the masons to dress and put in the wall.
    2. The testimony showed that the plaintiff,1 instead of preserving the well, filled it up, and had not cleaned it out or offered to do so. The plaintiff admitted that he had not preserved it.
    TV". It is a well settled principle of law in this state, that 'if a party enters into a contract to do a certain thing, he cannot recover for his services unless he shows that he has performed his contract. (Cunningham v. Jones, 20 N. Y. Rep. 486. Smith v. Brady, 17 id. 173. Pike v. Butler, 4 id. 360. Pullman v. Corning, 5 Seld. 93. Paige v. Ott, 5 Denio, 406. Sickels v. Pattison, 14 Wend. 257. Mead v. Degolyer, 16 id. 632. Champlin v. Rowley, 13 id. 258. Lantry v. Parks, 8 Cowen, 63. Jennings v. Camp, 13 John. 94. McMillan v. Vanderlip, 12 id. 166.) The fact that the defendant is in the occupation of the premises and even receiving the benefit of the plaintiff’s labor makes no difference. (Smith v. Brady, 17 N. Y. Rep. 173.) The contractor can demand payment only upon and according to the terms of his contract, and if the conditions have not been performed, then the right. to demand it does not exist. {Id.)

      P. Byrne, for the plaintiff, respondent.
    I. The respondent proved his case as set forth in his complaint, and should have recovered the full amount due to him; he was not responsible to the appellant for the wrongful refusal of the adjoining owner to permit the taking of the 526 yards, &c. of earth. The same was placed there by the appellant’s direction; besides, the respondent offered to get the said quantity from another place.
    H. Even if the respondent was obliged to furnish said earth, the jury have allowed the appellant a liberal amount in their several deductions (in the aggregate $400;) the earth was worth sixty-five cents a cubic yard.
    III. It was a question of fact for the jury to determine, whether the respondent had fulfilled his contract; and the evidence was properly left to their determination; therefore, the grounds for the motion to dismiss the complaint, and the exceptions, &c. were untenable.
    IV. The evidence on the part of the appellant was very properly not credited to the extent of the swearing of himself and some of his witnesses; he claimed too much; he sought to subject the respondent to “ between $400 and $500 ” as the expenses of “ dressing the stones,” and to between $75 to $100, for filling up the well (which had to be dug down, and could have been cleaned out for about $5,) and to digging trenches for which he was not liable, and the exception to the ruling in excluding the testimony in relation thereto is also not tenable.
    V. The appellant paid to the respondent various sums of money after the alleged failures to perform the work.
    VI. No motion was made for a new trial on the merits, at a special term, and consequently the case is not to be “ reviewed ” on the testimony, and no grounds of exception are stated in the notice of appeal; the appellant is, therefore, confined to the exceptions in the case.
    VII. The case was fairly disposed of by the jury, and the judgment should be affirmed, with costs.
   By the Court, Jones, J.

The only point made by the appellant’s counsel, on this appeal, is that the court erred in not dismissing the complaint upon the grounds urged at the trial. These grounds, although apparently six in number, are in reality but three, and are, that the evidence shows:

1st. That the plaintiff did not bring back and fill in the earth, as required by the contract.
2d. That he did not preserve the well. 3d. That he did not manufacture the stone, ready for the masons.

With reference to the first ground, the evidence of the defendant’s architect is: “He (the plaintiff1) did fill it in on the top and side except with this ground which I thought necessary to cover the whole building in, but which was lying ahead and he could not get at it.” The ground here referred to is 525 yards of earth which the plaintiff had excavated and which, as he claims, he had placed on adjoining property at the direction of the defendant for his (the defendant’s) convenience, and which, when he went to remove this earth, the owner of those lots would not allow him to remove, when he endeavored to do so ; whereupon he offered the defendant to furnish 350 yards of other earth and allow seventy-five cents a yard for the balance, being the value thereof, which offer was rejected. Upon this claim there was contradictory proof.

If this claim furnishes an excuse for the non-performance of the contract in this particular, it called for a submission to the jury. I think it does furnish an excuse. The contract does not require the plaintiff to furnish earth of his own wherewith to fill in, but simply to replace and fill in with the earth which should be excavated from the defendant’s premises. If, then, the defendant by his own act prevented the plaintiff from using this earth for filling in, he, to that extent, absolved him from the performance of the contract, and the most he would be entitled to would be a reduction from the contract price, .of the value of the labor in replacing and filling in that amount of earth. The non-suit, so far as moved for on this ground, was properly refused.

The second ground is almost too trivial to notice. The well in question was situate within the .area to be excavated. In the course of the excavation some earth fell into it. This did not destroy the well. All that was necessary to do was to clean it out. The defendant swears it would cost $100 to clean it out; while the plaintiff swears the cost would be but $5. Thus stands the evidence. It was proper to submit the question to the jury, for if the expense would be but $5, the plaintiff is not to be deprived of all compensation for his labor by reason of a non-performance in this respect.

The third ground is one of more difficulty. If the word “manufactured,” as used in the contract, means “ dressed ” there has clearly not been a substantial performance of the contract, and the plaintiff cannot recover, unless the deviation from the contract was by consent of the defendant. If, on the other hand, the word “ manufactured ” means simply that the stones were to be broken into such sizes and shapes, and sledged to such a degree of smoothness as to be ready tó be dressed by the masons, then there is sufficient evidence to call for a submission to the jury of the question of fact as to the performance of the contract in this respect.

There is no proof as to the meaning of the word “ manufactured,” except such as can be gathered from the acts of the parties and the attendant circumstances. The phrase “ manufactured ready for the masons,” by itself, conveys no meaning to my mind. What is he to do ? Is he to cut them into squares, or oblongs, or hexagons ? Is he, with a stone chisel and mallet, to smooth the stones equal to the face of those composing the front of an elegant mansion; if so, how many sides is he to dress smooth ? It may have a technical meaning; but if so, it is to be regretted that none of the witnesses have informed us what it is.

It is suggested that the word is equivalent to “ dressed.” I see no reason for adopting the suggestion. On the contrary, there are some circumstances which indicate that it was used to designate something different from dressing. Dressing is a' term well understood by all masons and architects. The contract in question was prepared by an architect; if he had designed that the stones should be dressed by the .plaintiff he would surely have used the tech-meal word so well understood, and not have substituted for it some other expression.

The architect was a witness on the trial, and when asked “Did the plaintiff-manufacture the stones ready to put in the walls ?” he says, “ He blasted the stones, but he did not dress them for the walls; he merely broke them out and laid them there.” If he understood by the term “ manufacturing stones for a wall,” dressing them, why should he be so guarded and non-committal in his answer, leaving it in uncertainty whether what the plaintiff did do was manufacturing or not; especially when to a previous question if “ Mr. Tone did not dress them,” he answered promptly and directly, “Ho sir.”

The masons who were sworn on behalf of the defendant, are equally ambiguous and non-committal, on this súbject. The witness Wiesnér, when asked “were they manufactured so that you could use them?” replied, “We were put in a great deal of bother with them ; ” and being further asked “ What did you have to do with them, before using them?” he said, “We had to make them smaller, and dress them.”

The witness Dresser (a mason) being asked whether the stones, when put in his hands, were in a suitable condition, and if not, why not ? answers, “ Some of them were too heavy, and he did not manufacture them the right way.” Being further asked “ In what respect were the stones not properly prepared?” he answers, “He must work them so that a man can handle them and put them in the wall.”

Michael Dunn, a witness for the plaintiff, gives some testimony which satisfactorily solves the problem. The question was put to him. “ They say here it was not properly dressed and they had to have it properly dressed?” He answers : “I understood we were to do nothing but sledge the stone in a proper way for the masons to dress and to put it in the wall.”

Taking the testimony of these' three witnesses together, it is apparent to me that there are two operations to be performed on a stone before it is ready to be placed in a wall. First, the stone is to be sledged into a proper size and to a suitable degree of smoothness to prepare it to be dressed by masons with the appropriate implements, and second, it has to be dressed by the masons, with their tools. The first of these operations may be termed “ manufacturing,” using that word simply in the sense of “preparing.” This, I have no doubt, is the meaning of the word, as used in the contract in question. The testimony of the plaintiff that for thirty years he had been engaged in blasting out and furnishing stone for building, and that he always pursued the same course as in this case, taken in connection with the absence of any reason for pursuing a different course in this case, tends strongly to confirm my view of the meaning of the word “manufacture” in this contract.

I am aware that the plaintiff swears I did not manufacture these stones; I blasted them.” This is clearly an error. The burthen of the testimony shows that he did more than simply blast, viz. that he had them sledged, so as to properly prepare them for the masons. The plaintiff then, being under no obligation to dress the stones, his failure to do so does not affect his right of recovery.

On the question whether he properly sledged the stones, so as to prepare them to be dressed by the masons, there was conflicting testimony, and therefore that question was properly left to the jury.

I have not overlooked the fact, that the plaintiff says that the stones were not fit to turn the arch with; but he also says that it was no fault of his ; that he prepared the stone as well as it could possibly be done ; and that the fault was in the material itself. As the defendant furnished the material, he alone- must bear the consequence of its being defective.

Judgment affirmed, with costs.


author: Monell, J.

text:
    Francis Huerstel plaintiff, vs. Blaise Lorillard et al. defendants.
    1. Rent reserved by a lease is a subject of assignment, and will pass under a transfer of the lease from a lessor to an assignee, with all the “ right, title and interest ” of the former therein, and to the “ rents, issues and profits ” thereof, and the “ covenants and agreements therein contained.”
    2. By such an assignment the lessor does not transfer to the assignee any interest whatever in the demised estate. He simply sets over to the assignee the covenant of his tenant to pay the rent, and with it the right to compel the performance of such covenant, reserving to and retaining in, himself the estate in the land, as well as his reversionary interest in it.
    8. An assignment of the rent, and of a covenant by a lessee to pay rent, is a mere chose in action, and conveys no interest in the land ; there is, therefore, no privity of estate created by the assignmént, between the assignee and lessee of the demised premises. •
    4. Such an assignee, as such, can only receive the rents, and compel their payment by action upon the covenant to pay. If the tenant refuses either to go into, or remain in possession, or pay the rent, the assignee cannot himself either go into possession or turn the tenant out.
    6. Although the assignee of a lease has obtained a judgment against the lessor and assignor of the lease, upon his guaranty of payment of certain sums of money, and an execution issued thereon has been returned unsatisfied, he is not entitled to have a receiver of the rents and profits of the premises appointed pending an action brought by him to set aside as fraudulent, conveyances from the lessor to his son, and from the latter to the lessor’s wife.
    6. A receiver cannot be put in possession of demised premises on the application of a party who, not only, is not himself entitled to the possession, but has no interest whatever in the subject sought to be, possessed.
    (Before Monell, J. at special term,
    January, 1867.)
    The complaint- alleged that in February, 1866, the defendant, Blaise Lorillard, being the then owner of premises No. 69 Bleecker street, in the city of New York, leased the same, in writing, to the defendant, Hurlburt, for a term of ten years from the 1st of May thereafter, at an annual rent of $2500; and therein covenanted to make certain specified alterations in the buildings, &c.; and that the lease was duly recorded; that subsequently, in the same month, for the consideration of $10,000, Lorillard assigned the lease to the plaintiff, with all his “ right, title and interest therein and thereto, and to the rents, issues and profits arising or thereafter to arise, during the whole term thereof, and to the covenants and agreements therein contained.” In such assignment Lorillard covenanted to make such alterations, and to* pay the interest on any mortgage on said premises, and all taxes and assessments thereon, and to insure the same against loss by fire; and he also guarantied the performance by the lessee of all his covenants. The assignment was duly recorded, and notice thereof given to the tenant. " That in August, 1866, a quarter’s rent became due, and being unpaid, the plaintiff recovered a judgment for the same against Lorillard upon his guaranty; upon which judgment an execution has been returned unsatisfied; that the tenant, Hurlburt, never took possession of said premises, assigning as a reason therefor that Lorillard had failed to make the alterations mentioned in the lease ; and that a suit against him to recover the rent was pending; that the premises are subject to a mortgage for $10,000; that six months’ interest became due in July, 1866, and remains unpaid; and that the taxes for the said year are also unpaid.
    The complaint alleges collusion between the lessor and lessee to injure and deceive the plaintiff. It alleges that the premises are unoccupied, and that in May, 1866, Lorillard made a pretended sale thereof to his son; who, on the following day conveyed the same, without consideration, to his mother, the wife of Lorillard; and that such conveyance by Lorillard to his son was made with intent to hinder, delay and defraud the creditors of Lorillard. It alleges knowledge in said grantees of said lease and assignment.
    The complaint demanded judgment that such conveyances be adjudged fraudulent and void as to the plaintiff; that a receiver be appointed of the demised premises, to take possession thereof, and to rent the same, and to apply the rent in payment of the interest and taxes due and to become due, and the balance to the plaintiff.

      The motion for a receiver was made upon the complaint alone.

      L. Birdseye, for the motion.

      G. Tillotson, opposed.
   Monell, J.

The rent reserved by the lease was the subject of assignment, and passed by the transfer from Lorillard to the plaintiff. Nothing more was intended to pass. Lorillard assigned all his right, title and interest in the lease, which was merely his right to receive the rent. He did not intend, nor did he in terms or in fact, transfer to the plaintiff any interest whatever in the demised estate. He simply set over to the assignee the covenant of his tenant to pay the rent, and with it the right to compel the performance of such covenant, reserving to and retaining in himself not only the estate, but his reversionary interest in it. The assignment of the rent and of the covenant to pay rent was a mere chose in action, and conveyed no interest in the land; and there was, therefore, no privity of estate created by the assignment, between the assignee and the demised premises. There was, however, such a privity of contract as would have enabled the plaintiff, even before the Code, to sue in his own nam'e for a breach of any of the covenants of the lessee. (Willard v. Tillman, 2 Hill, 274.)

Taking no interest in the land, the assignee acquired none of the rights of the landlord, except merely to enforce the performance of the lessee’s covenants by action to recover the rent. He could not enter for breach of such covenants, either by action of ejectment or by summary process'under the statute. He had not the reversion, and none but the reversioner, his heirs or assigns- can re-enter for covenant or condition broken. (2 R. S. 747, § 23. Taylor, L. & T. 138.) Upon a failure to pay rent, the assignee of the covenant to pay can compel its payment by action; but he cannot resort to any measures to regain possession of-the demised premises.

As assignee, therefore, the only rights and remedies of the plaintiff are to receive the rents, and to compel their payment by action upon the covenant to pay.

But it is claimed that, having obtained judgment against the lessor and assignor of the lease upon his guaranty of payment, and having an execution thereon returned unsatisfied, the plaintiff is entitled to have a receiver of the premises, pending the action to set aside the conveyance to Lorillard’s son, and that by him to Lorillard’s wife.

The question as to the validity of these deeds cannot be considered on this motion. The plaintiff, as a judgment creditor of the grantor, is in a condition to assail them; but until they are adjudged to be fraudulent, and therefore void, they must be presumed to be valid, and the possession of the grantee under them cannot be disturbed. If the plaintiff succeeds in invalidating the deeds, his judgment will thereupon attach, and become a lien upon the land. I have never known of extending a receivership to land, the title to which was in controversy. The grantee, failing to sustain his title, may be called to account for the rents and profits while in possession, as upon a recovery in ejectment, but she cannot be deprived of the possession pending the action.

The error of the plaintiff’s counsel consists, I think, in his supposing that the assignee of the lease took, by virtue of the assignment, an interest in the land. If that was so, then the record of the lease and assignment would have rendered the conveyance subject to such interest. But, as has been seen, the assignee took no such interest; and the record of the assignment was, therefore, unnecessary. The assignee can take the rent, but if the tenant refuses to go into or continue in possession, or to pay the rent, the former cannot himself go into possession, nor turn the latter out. Hence it follows, that a receiver cannot be put in possession on the application of a party who not only is not himself entitled to the possession, but who has no interest whatever in the subject sought to be possessed.

The motion must be denied, with $10 costs.


author: By the Court, Monell, J. Robertson, Ch. J.

text:
    A. Mendal Shafer, plaintiff and respondent, vs. James W. Guest, defendant and appellant.
    1. The statute providing for the protection of boarding-house keepers, {Laws of 1860, p. 771,) gives a lien upon the effects of boarders for the amount which may be dm for board, and it cannot be extended to any other indebtedness, nor to any demand not due at the time of the detention. It does not include board to become due under an agreement to board in future.
    2. Where no request is made, at the trial, to submit a particular question of fact to the jury, it is too late to raise the objection on appeal. The same rule extends to an omission to'object to the sufficiency of proof of a demand of personal property.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard November 18, 1867;
    decided April —, 1868.
    Appeal by the defendant from a judgment entered upon the verdict of a jury.
    The action was brought to recover the possession of certain articles of household furniture, alleged to be wrongfully detained by the defendant.
    The defendant, by .his answer, denied each and every allegation in the complaint; and for a second and further defense, alleged that at and before the commencement of this action, the property described in the complaint was the property of Henrietta F. Merry, otherwise called Henrietta F. Osborne. That at and before the time aforesaid the defendant was the keeper of a boarding house, at the city of Hew York. That said Henrietta F. Merry boarded with the defendant, and occupied rooms in his house, to wit, the second floor; which rooms were furnished with the articles of furniture described in the complaint; that at and before the time when this action was commenced, the said Henrietta F. Merry was indebted to the defendant for the board of herself and her sister, and for the use of said rooms; that at the time when the action was commenced the defendant had not parted with the possession of said furniture, nor had he relinquished his ' lien thereon for the amount due to .him as aforesaid, nor had said lien been extinguished by payment or otherwise; on the contrary, said sum or amount was and still is due and unpaid, and this defendant had, and still has a lien on said furniture for the amount so due and unpaid.
    i For a further and third defense, the defendant alleged that on and before the first day of May, 1866, the property described in the complaint was placed in the possession of the defendant by one George Wood, under an agreement between him and the defendant, by the terms of which, the defendant was to furnish board and rooms for one Henrietta F. Merry, otherwise called Henrietta F. Osborne, and her sister, by which they were to board with the defendant for one year from the first of May, 1866; and the defendant, by the terms of said agreement, was to have the entire and exclusive use, enjoyment, custody and control of said property until the first day of May, 1867, as part compensation for the board, &c. so to be furnished by him. That said Henrietta F. Merry and her sister commenced boarding with the defendant under said agreement which had been made for her benefit, and with her consent, and the defendant had fully kept and performed all the stipulations of said agreement on his part to be kept and performed, nor had-he ever consented to rescind said agreement, or done any act by which he had relinquished his right to use, occupy and enjoy said property until the first day of May, 1867.
    The plaintiff, Shafer, claimed title to the furniture, under purchase from Miss Henrietta F. Merry, or Henrietta F. Osborne. Miss Merry and her sister boarded with the defendant Guest from the middle of May, 1866, down to the 16th of August, 1866. On the 16th of August Miss Merry left the house of the defendant, (without notice to him that she intended to change her boarding place,) having locked the doors of the rooms she had occupied, and taking the keys of the rooms with her. On the 18th of August, two days after she left, she made a sale to the plaintiff of the furniture in question, and delivered to him the keys of the rooms where it then was. A day or two after the sale to the plaintiff, he went to the house and demanded the furniture of Mrs. Guest, the wife of the defendant. She-declined to deliver it; and when she was asked if she had any claim upon it, she said “ she did not know how that was, but it had to go through the law.” On the 21st or 22d of August this action was commenced. The sheriff then took and kept possession of the rooms for five or six days, and the defendant did not regain possession until the latter part- of August, 1867. The court instructed the jury to find a verdict in favor of the plaintiff for the possession and return of the property, assessing its value at $271, with six cents damages for detention. To all of which the defendant’s counsel excepted. The jury returned a verdict in accordance with -the instructions of the court, and the court directed judgment to be suspended, and exceptions to be heard in the first instance at general term.

      Geo. W. Lord, for the appellant, defendant.
    I. The justice who tried this cause, erred in directing the jury to find a verdict for the plaintiff; and he should .have directed a verdict for the defendant. Boarding house keepers have now by law the same lien as innkeepers or hotel proprietors. (Jones v. Morrill, 42 Barb. 623.) So long as Miss -Merry permitted the furniture to' remain in the rooms of the defendant, and kept possession of the rooms by retaining the keys, so long the lien continued; and as the plaintiff did not ■ tender the amount necessary to discharge the lien, or any amount, at the time he demanded possession, the lien continued. (Id.)

      ■ II. The lien of a boarding house keeper is not confined to transient guests. (Stewart v. McCready, 24 How. 62.) Eor is he obliged to assert his lien when the property is demanded. (Everett v. Coffin, 6 Wend. 603.) In this case ■Mrs. Guest did, in substance, claim a lien when the demand was made.
    HI. As Mr. Guest came lawfully into the possession of the furniture, no action would lie without a demand; and a demand made upon the wife is not sufficient, without showing that the husband could not be found. As to the second defense set up in the answer, we "claim that the facts were as follows: The defendant received the possession of the furniture from Mr. George Wood, in April, 1867, two weeks before Miss Merry came to board with him. By the terms of the agreement (which were fully communicated to Miss Merry) he was to have the possession of. it for one year. Miss Merry knew that arrangements were being made by Mr. Wood for her board. She was present a portion of the time when it was being talked over. She gave Mr. Wood full power to act for her. And the arrangement, as finally made, was fully communicated to her. Besides all this, she found the furniture in Mr. Guest’s house when she went there; it had been repaired, cleaned, varnished and put in good order by the defendant, and she must have known that this was done under an agreement with Mr. Wood as her agent. There was also the additional fact, that Miss Merry only paid $16 a week for the hoard of herself and sister, they having the entire second floor of the house. We submit that on this evidence the jury might have found that the defendant was entitled to the possession of the furniture for one year; and if the jury might have found that fact, then the court erred in directing a verdict for the plaintiff. It is, therefore, submitted, that both of the defenses set up in the answer were fully established by the evidence, and, as there was no conflict of evidence, the court below should have directed a verdict for the defendant.

      A. H. Reavy, for the respondent, plaintiff1.
    I. The answer alleged ownership of the property in Miss Oshorne; and the appellant’s wife gave testimony that the property was not Miss Osborne’s, but was Mr. Wood’s. The defendant was bound by this answer, and could not adduce proof in contradiction without amendment of answer.
    II. The board was paid in full; there was nothing due; consequently, the defendant could acquire’ no lien. There cannot be a lien in presentí for board that might be owing in futuro. The answer does not allege there was the extent of one cent owing for board, nor is there any testimony in the case showing any thing due.
    IH. The defendant was not, and did not claim to be, a boarding house keeper, and was not entitled to a lien under the statute, even though there was an amount due for board. There can be no lien for use or occupation of the premises.
    IV. There being nothing due for board, and there not being any conflict of evidence, the plaintiff was entitled to a verdict.
    V. The property was demanded before the suit was brought.
   By the Court, Monell, J.

The defendant, upon his examination as a witness, testified that Miss Osborne was owing him some ” for washing, but not for board. Indeed the evidence is uncontradicted that, at the time Miss Osborne left the defendant’s house she paid all that was due for board and use of rooms. There was not, therefore, a present indebtedness; which was essential to give a boarding house keeper’s lien upon the property of his guest. Even if the arrangement made with Wood, that Miss Osborne should board with the defendant for a year, and that he, Wood, would pay the rent, could have been enforced after Miss Osborne left, it would not have created a lien upon the property. The act which provides for the protection of boarding house keepers, (Laws of 1860, p. 771,) gives the lien upon the effects of the boarders for the amount which may be due for board, and it cannot be extended to any other indebtedness, nor to any demand not due at the time of the detention. (Cross on Liens, 43.)

I do not deem it necessary to look into that part of the case which relates to the second defense, namely, that the defendant claimed to hold the furniture under the agreement made with Wood. The evidence on that branch of the case -was such as, in my judgment, should have gone to the jury; especially as the uncontradicted testimony of the defendant established that the agreement was communicated and assented to by Miss Osborne before she became a boarder in the defendant’s house. But as no request was made, at the trial, to submit that or any other question of fact to the jury, it is too late to raise the objection now. (Winchell v. Hicks, 18 N. Y. Rep. 558; Clark v. The Mayor, &c. 24 How. Pr. 333.)

The proof of a demand before suit was, it seems to me, clearly insufficient. But as the objection was not taken at the trial, it cannot be raised now. It was one of those objections which might have been obviated by-proof; and the attention of the plaintiff should have been called to the defect in his evidence, that he might, with the permission of the court, have supplied it. ( Wheeler v. Ryerss, 4 Sill, 466. New York and Erie Railroad Co. v. Cook, 2 Sandf. 732.)

I think the exception should be overruled, and judgment ordered for the plaintiff on the verdict.

Robertson, Ch. J.

I cannot find enough evidence in this case to have gone to the jury upon the question of any agreement by the former owner of the furniture in question (Miss Osborne) to allow the defendant the use of it for a year, which formed the last defense set up in the answer. It is very plain that such furniture was only to be employed in furnishing the rooms occupied by such owner; and therefore to remain constantly in her possession. The defendant expressly testified that he was to give such owner and her sister the second floor of his house, and that her agent (Wood) was to furnish it, which he did by means of such furniture. The submission of any such question to the jury would therefore have been improper.

The former owner of such furniture testified that when she left the defendant’s house, she owed him nothing for board of herself or sister, and his receipt was produced for board to the time of her leaving. There was, therefore, nothing due for which the defendant had any lien. Any liability under the agreement with the defendant for damages in not boarding, pursuant to it, would not be the subject of a lien, even if the special agreement did not altogether defeat, one. (Trust v. Pirsson, 1 Hilt. 292.) If the defendant had been an inkeeper, he clearly could not have detained the furniture in question for mere non-performance of an agreement to board in future with him, and the statute of April, 1860, (N. Y. Sess. Laws, 1860, ch. 446, p. 771,) only gives the keeper of a boarding house a lien upon and right to detain the baggage and effects of a boarder, for the amount which may be due iy him, to the same extent and in the same manner as innkeepers have them. Thus limiting the lien to that for board actually due, and not including board to become due under an agreement to board in future.

There was, therefore, no question left for the jury to pass upon, and the instruction to find a verdict for the plaintiff" was correct. I am not prepared to say what would have been the rule, if the evidence had clearly established an agreement or a lien. As the case stands, I concur in affirming the judgment and order appealed from.