author: Enron, J.

text:
    Kings County Fire Insurance Company, Appellant, v. Hannah Stevens, Respondent.

      It seems, where no trust is imposed upon real estate which a municipal corporation holds in fee, it may sell and convey without legislative authority.
    When authorized by the legislature, the corporation may close a portion of a street, of which it owns the fee, without compensation to owners of lots on the street which do not front upon the portion closed, at least where there is other access to the lots of such owners.
    A turnpike road was laid out running east and west across the land of N. in the city of Brooklyn; subsequently the city purchased of the turnpike company a portion of said road, “ for a public street,” which was thereafter used as a street. The expense of the purchase was assessed upon the adjoining land. N. deeded to S. the land south of the street, bounding it on the north by the south line of the street. S. laid it out into city lots; one of these he deeded to defendant. Of those adjoiningon the east, plaintiff became the owner. The commissioners appointed under the act of 1835 (Chap. 183, Laws of 1835) to lay out the streets of the city, with authority to close any street or part thereof, “theretofore laid out and not approved by the mayor and common council of said city,” determined to close said street. The proceedings of the commissioners were validated and confirmed in 1839 (Chap. 41, Laws of 1839); subsequently buildings were erected east of defendant’s lot, which covered the land formerly occupied by the street, except a passage-way four feet wide, south of the center of the street. Plaintiff having obtained a conveyance of this strip from the executors of N., and from the city, built a fence across it, which defendant, claiming a right of way, tore down. Defendant had access to her lot by a passage-way twelve feet wide, to a street on the west. In an action to restrain defendant from interfering with plaintiffs occupation, held, that whether the turnpike company owned the fee or an easement, plaintiff acquired the fee either by the deed from the city or from N.’s executors ; that the city, with the authority of the legislature, could close the street, and so far as the locus in quo is concerned, could do so without compensation to defendant, and could sell and convey the same; that the street was legally closed; that the description in the deed from N. to S., bounding the land conveyed by the south line of the street, conveyed no private easement but merely recognized an existing public one; that conceding the city was bound to leave open a way by which access could be had to defendant’s lot, it was not required to leave more than one; it might choose which of the two to leave, and when it conveyed to plaintiff it made its choice, and plaintiff was entitled to close the one so conveyed.

      Story v. N. T. B. B. B. Go. (90 N. T. 122), distinguished,
    (Argued December 1, 1885;
    decided March 2, 1886.)
    Appeal from, judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made September 11, 1883, which affirmed a judgment in favor of defendant, entered upon a decision of the court on trial at Special Term.
    This action was brought to restrain defendant from entering upon a strip of land to which plaintiff claimed title, and from tearing down fences or other structures erected thereon, which the complaint alleged defendant had done, and threatened to continue to do, under a claim of a right of way over the loom in quo.

    Under acts of the legislature (Chap. 86, Laws of 1805, and chap. 20, Laws of 1806) the Wallabout and Brooklyn Toll Bridge Company established a turnpike road, known as the Wallabout bridge road, running from the East river, through the city of Brooklyn. It ran through the lands of one Nostrand. In January, 1835, Nostrand conveyed the land south of the road to one Sandford, bounding him on the north by the south line of said road. Sandford caused the land so conveyed to be laid out into city lots; one of these was conveyed in February, 1835, and is now owned by the defendant; five lots lying east and between defendant’s lot and Nostrand avenue were also on the same day conveyed by Sandford, and are now owned by plaintiff. In September, 1835, the city, under authority of an act of the legislature (Chap. 188, Laws of 1835), purchased the turnpike road; by the said act it was “ to remain free to the public as a street,” and by the deed it was conveyed “ as and for a street.” The expense of the purchase was assessed, as authorized by said act, upon the adjoining land. The commissioners appointed under the act, chapter 132, Laws of 1835, to lay out the streets and avenues of the city, determined to close the Wallabout road. Thereupon maps and survey were filed, and their action was “ confirmed and declared valid and effectual by chapter 41, Laws of 1839. The various streets and avenues were opened, graded and paved; buildings were erected on the portion of the old W allabout road lying west of Host rand avenue, leaving open a passage-way four feet south of the center of the old road, West of defendant’s lot is Sandford street: v, 7 from said lot to the street a passage-way twelve feet wide remains open. Plaintiff obtained from the executors of ISTostrand, and from the city quit-claim deeds of the south half of the Wallabout road opposite his lots, and built a fence across the open space; this defendant tore down, and continued to do so as it was rebuilt, claiming a right of way over it.
    Further facts appear in the opinion.

      William C. De Witt for appellant.
    The power to discontinue highways without compensation resides, and has always resided, in the legislature. (R. S. [5th ed.], part 1, art. 4, chap. 16, §§ 82, 93, 94, 108, 111, 114, 115, 120, 133; Thomp. on Highw. 183; Jackson v. Hathaway, 15 Johns. 447; Bisbee v. Mansfield, 6 id. 84; People v. Nichols, 51 N. Y. 470, 475; Carris v. Com. of Waterloo, 2 Hill, 443, 444-5.) The public may make such use of their easement as they choose, or abandon it altogether, and any consequential damages will be irrecoverable. (Gosler v. Georgetown, 6 Wheat. 593; Smith v. Washington, 20 How. [U. S.] 135; Wilson v. Mayor, etc., 1 Denio, 595; People v. Kerr, 27 N. Y. 211, 212, 213; Metropolitan Board v. Heister, 37 id. 672; Zimmerman v. Union Canal, 1 W. & S. 346; Sus. Canal Co. v. Wright, 9 id. 9; Tracy v. City of Indianapolis, 17 Ind. 267; Matter of Furman, St., 17 Wend. 649, 655, 656, 659; Brooklyn Park Com. v. Armstrong, 45 N. Y. 245; Kellinger v. Forty-second St. R. R. Co., 50 id. 209.) A way of ingress and egress being left open to the defendant’s property, the discontinuance of the old road at every other point is, so far as defendant is concerned, valid. (Fearing v. Irwin, 55 N. Y. 486; Coster v. Mayor of Albany, 43 id. 414, 415; Smith v. City of Boston, 7 Cush. 254; Wheeler v. Clark, 58 N. Y. 267, 268, 270; Jackson v. Hathaway, 15 Johns. 447.) The sovereign, ». 6., the people, having, as matter of fact, abandoned the Wallabout road, the land in suit reverted to the plaintiff as owner of the fee. (Dunham v. Williams, 36 Barb. 136, 162, 163; Hooper v. Utica, etc., Turnpike Co., 12 Wend. 371; Heards. Brooklyn, 60 N. Y. 242; Jackson v. Hathaway, 15 Johns. 447; St. Vincent Asylum v. Troy, 12 Hun, 317; Corning v. Gould, 15 Wend. 529, 539, 541, 543.) The learned judge at Special Term erred in holding that the defendant had some private right of way over the locus in quo, which survived the extinguishment of the public easement. (Heard v. Brooklyn, 60 N. Y. 248; Child v. Starry, 4 Hill, 374; Witter v. Harvey, 1 McC. 67; Tyler v. Hausnard, 11 Pick. 194; Wheeler v. Clark, 58 N. Y. 267.) Assuming that the lands in suit were taken by the company, either by purchase or condemnation, pursuant to the provisions of the act of 1805, only an easement therein was acquired. (Dunham v. Williams, 36 Barb. 136, 160, 161, 162, 163; Laws of 1847, chap. 210, § 30; Laws of 1806, chap. 86, § 1; People v. Lawrence, 54 Barb. 589, 618, 619; The Northern Turnp. Road Co. v. Smith, 15 id. 355; Hooker v. Utica, etc., Minden Turnp. Co., 12 Wend. 371; Heard v. Brooklyn, 60 N. Y. 242; Matter of John and Cherry Sts., 19 Wend. 659, 675; McMahon v. N. Y. C. R. R. Co., 24 N. Y. 658; Jackson v. Hathaway, 15 Johns. 447; Heath v. Barmore, 50 N. Y. 302; Laws of 1835, chap. 132; chap. 188; Laws of 1839, chap. 141.) The defendant has ample remedy for any damage she may suffer in the closing of the Wallabout road against the city of Brooklyn. (Sage v. Brooklyn, 60 N. Y. 180; Hardy v. Brooklyn, 90 id. 435; Fitzpatrick v. Brooklyn, 80 id. 358.)

      Jesse Johnson for respondent.
    The conversion of a turnpike road into a public and open street or highway was valid and effectual. Such proceeding is a mere change of use within the scope of the original acquisition. (Heath v. Barmore, 49 Barb. 406, 409; 50 N. Y. 302.) Whenever a lot or plot of land is severed by a grant, which conveys a part, and described a remaining, contiguous and appropriate part as a street or highway, the grant carried with the fee conveyed, an appurtenant right over the appropriate and contiguous land retained. (Story v. N. Y. E. R. R. Co., 90 N. Y. 144, 145; Taylor v. Hoffer, 62 id. 649; Wiggins v. McCleary, 49 id. 346, 348.) The Wallabout bridge road became a street or highway by virtue of a special assessment laid upon and paid by the lands immediately adjoining. The lands thus charged and that contributed the fund that made the street or highway, thereby obtained a special property therein. (Story v. N. Y. E. R. R. Co., 90 N. Y. 122, 173, 174; Mahady v. Bushwick R. R. Co.,’ 91 id. 153; People v. Brooklyn F. & C. I. R. R. Co., 89 id. 92.) If the lot in question, by paying an assessment, obtained any rights in this road, it obtained just what it paid for; it obtained the right to have this road kept open so as to be a road or highway past this lot. (Hill. on Inj. 314; Higbee v. C. & A. R. R. Co., 19 N. J. 28; Hartshorn v. Inhabitants of So. Reading, 3 Allen [Mass.], 501; Girard on City Water Rights and Streets, 145; Fearing v. Irwin, 55 N. Y. 486, 490; Wash. on Ease. marg. p. 162-165; Parker v. Farmingham, 8 Metc. 200.) Apart from any constitutional question, that the act of 1835 (Chap. 132), did not authorize the closing of this road. (Matter of Sackett St., 74 N. Y. 102.) The land that the turnpike company held, is held in fee, and Hostrand retained no reversionary interest therein, (Armstrong v. Park Com., 45 N. Y. 234; Heath v. Barmore, 50 id. 302; McDonald v. Mayor,

      etc., 68 id. 23; Starin v. Town of Genoa, 23 id. 449; Donovan v. Mayor, etc., 33 id. 291.) The new deeds plaintiff relies on were given while there was a clear adverse possession, held and established under an express adjudication. Under such a possession they were clearly in violation of the statute. (2 Edm. Stat. 713, § 6; 4 R. S. 691, § 6.)
   Enron, J.

Whether the turnpike company took a fee or an easement, and so, whether the absolute ownership remained in Hostrand as reversioner, or. passed to the city of Brooklyn by the conveyance of the company, need not be considered; for the plaintiff holds a deed both from ISTostrand and the city, and took the fee by one route or the other. Of course this statement implies that the city could, with the aid of the legislature, close the street without specific compensation to the defendant, and did do so effectually, as against her, so far as the loans in quo is concerned; and also that the street being closed, and the laud freed from any special trust, the city, if it took the fee, became the owner as if a private person and discharged from any public use, and so could sell and convey it without-legislative aid. That the last proposition is correct seems to be clearly intimated in Brooklyn Park Com. v. Armstrong (45 N. Y. 234, 243), where it is said that, if the city took the fee of land free from a trust, it could convey when and as it chose, but could only be permitted so to do when a trust existed, by the sanction of the legislature. Except when restrained by their charters or the statute, all corporations have the absolute jus disponendi (2 Kent’s Comm. 281); and where no trust is imposed upon the property which a municipal corporation holds in fee, it has an inherent right to sell and convey, and needs no legislative aid. (Dill. on Mun. Corp., § 445; People v. City of Albany, 4 Hun, 675, 679; Aiken v. West. R. R. Co., 20 N. Y. 370.) The question of title in this case, therefore, ends in one inquiry whether the legislature could and did authorize the closing of the street effectually, as against the plaintiff, without making compensation. That question is settled by Wheeler v. Clark (58 N. Y. 267). The effort on the part of the respondent is to distiuguish that case by insisting upon certain limitations of the general power which were not then in question, but are made applicable by the facts before us. It is claimed that the doctrine of Story v. N. Y. Elevated R. R. Co. (90 N. Y. 122) preserved to this defendant as an abutting owner, a property in the street of which she could not be deprived without compensation, and although she held no covenant from the city, yet her land having been assessed for the cost of the street when purchased of the turnpike company, her property right is equally clear and certain. We need not consider or discuss that question, for the closing of the street here in controversy is in front of plaintiff's premises and not of hers, and does not take from her light or air or convenience of access. No right appurtenant to her lot as abutting on the street has been infringed. But it is further said that the conveyance and map of Sandford, from whom she derived title, dedicated the street to open and permanent public use. But he could not dedicate what he did not own. He bought of Nostrand who bounded him by the south line of the street, and neither by act, map or covenant became responsible for the continuance of the street, or forfeited his own right of possible reversion in fee. It is of no consequence what the defendant’s right might be as against Sandford or those claiming under him, for it is a right prior and superior to his which the plaintiff owns and is seeking to enforce. It is claimed, however, in avoidance of this difficulty that Nostrand himself, while owner of the fee in the road, conveyed the adjoining property to Sandford, bounding his grant by the south line of the road, and that such reference to it as an open highway estopped him from any act tending to close it and bound him as owner of the fee to keep it open. But that contention is also answered in Wheeler v. Clark (supra), where it was held that much stronger language merely recognized the public right and bound no one for its continuance. The same doctrine was affirmed in Jackson v. Hathaway (15 Johns. 447). The deed conveyed no private easement, but merely recognized an existing public one, which has been lost. It is claimed also that another limitation upon the right of the city, with the sanction of the legislature, to close the street, protects the defendant, and is a prohibition against such complete environment as prevents access to the premises without a trespass. But the proof shows no such state of facts. A means of access remains. The way is open from defendant’s premises to Sandford street; a way twelve feet wide; while the one here in question is but four feet in width. The rule preserves access, but does not give two modes of access and a double right of way. The city might choose which to leave, and when it conveyed to plaintiff the fee of the end toward Nostrand avenue, it made its choice to close that part of the street, leaving open the access from Sandford street. Until that is obstructed the defendant is not surrounded by private rights barring access to her property. It is again insisted that the act of the legislature was insufficient to warrant the closing of this street, because the act of 1835 only authorized the commissioners to close roads not approved by the city, and this road, bought of the turnpike company, was approved by the city. But the act of 1839, passed after the commissioners closed this road, validated and confirmed all their acts.

We discover no reason, therefore, for doubting the validity of the action which closed this road at the point in question and toward Nostrand avenue, or for denying plaintiff’s title to the land. An assertion of title in the defendant, by prescription, resulting from an adverse user for twenty years or more, appears in the opinion of the General Term. There was no finding of fact by the trial court establishing such adverse user, nor any finding of law that defendant had a right of way over the disputed premises by prescription; nor does the evidence warrant such conclusion. The defendant has been in the occupation of her lot, and her witness, Samuels, of his, only about eleven or twelve years. What their predecessors did or claimed does not appear. It is shown that the present owners filled in and improved the roadway, but before their purchase, the proof is, that it was a hollow occasioned by the higher grade and curbing of Nostrand avenue and filled with water. It is also apparent that structures were built upon the old roadway, without resistance from anybody, destroying it utterly, as a street, at its junction with that avenue, and narrowing the possible way to the four feet now in dispute. There is a casual statement of the witness Shiel, who had lived for thirty years on another block fronting the Wallaboutroad and between Sandford and Walworth streets, that the property-owners on the road had no other way to go in or out and have used it that way ever since.” His statement is not shown to refer to the Hostrand avenue end, and could not have referred to that, for he distinctly says, that after the avenues were built “ the surface water came down and filled that place up until these ladies and other folks built between Sandford and Hostrand.” We are of opinion that no sufficient .evidence was given to warrant a conclusion of title by prescription.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur.

Judgment reversed.


source: Caselaw Access Project

author: Danfobth, J.

license: Public Domain

text:
    Ellen Greany, Respondent, v. The Long Island Railroad Company, Appellant.
    In an action against a railroad company to recover for injuries sustained at a crossing, where the negligence alleged was the failure to ring a bell or blow a whistle as the train approached the crossing, testimony of passengers on the train, who were in a position to have heard, that they did not hear either of these signals, is competent, although it does not affirmatively appear that they were looking, watching or listening therefor.
    Where in such an action there is any evidence, direct or inferential, of care or caution-on the part of the person injured, the question as to contributory negligence is for the jury.
    While a person approaching a crossing is bound to make all reasonable efforts to see, that a careful, prudent man would make in like circumstances, his failure to see an approaching train does not of itself discharge the company from liability for negligence on its part in omitting the statutory signal.
    In such an action plaintiff’s testimony was to the effect that she lived north of defendant’s road ; she was going south from her home upon a highway which crossed the tracks of said road at a station located south of the tracks. As slie approached the crossing, a train going east on the south track stopped at the station; its cars reached across the highway, leaving no room to pass. She stopped for awhile, and then proceeded; she stopped again as she reached the north track; j ust then the train started up. She testified that as she came up to the track, she looked both ways “ along the track, and saw no engine,” except that of the train at the station. She took a step or two to cross, and as she did so, saw a train coming from the east on the north track, but so close that she could not escape, and she was struck by it and injured. This occurred in what seemed to the witness not more than a few seconds after she had looked up and down the track. The trains did not usually meet at the station, but the one going east was behind time. On cross-examination the plaintiff testified that if she had looked earlier, she might have seen the train, but did not think there was any need of looking more than once, and did not think there was any other train due at that time ; .that she had- looked a few. seconds before, and then went on. The engine at the station was blowing off steam, and she did not hear any bell or whistle from the approaching train. This there was testimony tending to show was running at a dangerous rate of speed. Held, that the question of contributory negligence was properly submitted to the jury.
    (Argued December 17, 1885;
    decided March 2, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made December 11, 1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict.
    • This action was brought to recover damages for injuries sustained by plaintiff, who was struck by an engine attached to a train on defendant’s road, as she was crossing its tracks at a highway crossing.
    The material facts are stated in the opinion.

      Edward E. Sprague for appellant.
    The court erred in allowing testimony, as to defendant’s omission to sound the whistle and bell, from witnesses who were not in a position to have observed the signals. (Culhane v. N. Y. C. & H. R. R. R. Co., 60 N.Y. 133; McKeever v. N. Y. C. & H. R. R. R. Co., 88 id. 667; Chapman v. N. Y. C., 14 Hun, 485; Tolman
      v. S. B. & N. Y., 27 id. 325, 327.) Plaintiff should have been nonsuited on the ground of contributory negligence. (Salter v. U. & B. R., 88 N. Y. 42; 75 id. 279; Adolph v. C. P. N. & E. R., 76 id. 535; Tolman v. S. B. & N. Y., 98 id. 198; Becht v. Corbin, 92 id. 658; Connelly v. N. Y. C., 88 id. 346; Byrne v. N. Y. C., 83 id. 620; 34 Iowa, 153; 5 Am. R. Rep., 469.)

      John Fleming for respondent.
    It was negligence in defendant not blowing whistle, or sounding bell at crossing. (3 Edm. Stat. [2d ed.] 643; Renwick v. N. Y. C. R. R. Co., 36 N. Y. 132, 133; Salter’s Case, 59 id. 631; 88 id. 50.) It was negligence of the grossest kind in defendant running a train at high speed over a public highway within a few feet of its depot, while another train having just passed over the highway in an opposite direction was standing at that depot, receiving and discharging passengers, and its engine letting off steam; and when that depot yas not the place for the trains of defendant to pass or meet each other, and when defendant omitted to give any signals or warning of the approaching fast train. (Salter’s Case, 88 N. Y. 50; Brassels v. N. Y. C. & H. R. R. R. Co., 84 id. 274; Terry v. Jewett, 78 id. 344; Smedis v. Rockaway Beach R. R. Co., 88 id. 20; John v. H. R. R. R. Co., 20 id. 65; Renwick v. C. R. R. Co., 36 id. 132.) Ror would the ringing of bell or blowing of whistle, or both, relieve defendant under the circumstances disclosed by this case. (Cordell v. N. Y. C. & H. R. R. R. Co., 70 N. Y. 124; Smedis Case, 88 id. 20.) Whether plaintiff was guilty of contributory negligence was a question of fact. (Massoth v. D. & H. C. Co., 64 N. Y. 529; Schwier v. N. Y. C. & H. R. R. R. Co., 79 id. 73; Terry v. Jewett, 78 id. 342; Salter v. U. & B. R. R. R. Co., 88 id. 50; Hart v. H. R. R. R. Co., 80 id. 622; Shaw v. Jewett, 86 id. 616; Cassidy v. Angeli, 12 R. I. 447; Louisville C. & L. R. R. Co. v. Goetz, 79 Ky. 442; Mahar v. Grand T. R. R. Co., 19 Hun, 32; Tolman, v. Syracuse, B. & N. Y. R. R., 98 N. Y. 198.) The plaintiff was not guilty of contributory negligence.
      (Johnson Case, 20 N. Y. 65; Brown Case, 32 id. 600; Beisigel Case. 34 id. 622; Mackay v. N. Y. C. R. R. Co., 35 id. 79; Ernst v. H. R. R. R. Co., id. 9; Eaton v. Erie R. Co., 51 id. 544; Roach v. Flushing R. R. Co., 58 id. 626; Carr Case, 60 id. 633; Mahar Case, 19 Hun, 32; Massoth v. D. & H. C. Co., 64 N. Y. 524; Stackus v. N. Y. C. & H. R. R. R. Co., 79 id. 464; Kellogg v. N. Y. C. & H. R. R. R. Co., 84 id. 244; Shaw v. Jewett, 86 id. 616; Barry v. N. Y. C. & H. R. R. R. Co., 92 id. 290; Terry v. Jewett, 86 id. 344; Louisville & Lexington R. R. Co. v. Goetz, 79 Ky. 442; Wanless Case, 9 Eng. Rep. [Moak’s] 1; Schwier v. N. Y. C. & H. R. R. R. Co., 90 N. Y. 560; French v. Taunton R. R., 116 Mass. 537; Detroit & M. R. R. Co. v. Steinberg, 17 Mich. 99.) There was no error in the court allowing question put to witness as to hearing bell or whistle. (Salter v. U. & B. R. R., 59 N. Y. 631; Renwick v. N. Y. C. R. R. Co., 36 id. 132.) The circumstances of the case were such as to make listening for bell or whistle unavailing and to excuse plaintiff’s witnesses from listening, or trying to listen. (Smedis Case, 88 N. Y. 19.)
   Danfobth, J.

The appellant concedes there was evidence upon which the jury might find negligence on its part, but contends:

First. That certain negative evidence from persons who did not affirmatively appear to have been “ looking, watching, or listening for the ringing of a bell or sounding of a whistle,” was improperly received to prove that those signals were not given; and Second. That the plaintiff should have been non-suited on the ground of her contributory negligence.

As to the first: It is apparent that the best evidence of the fact in dispute would be the testimony of those persons who on the particular occasion in question had the custody or management of the bell or whistle. They were, however, in the employ of the defendant; themselves interested in proving that the proper signals were given by those instruments, and the law does not require an adverse party to put his case in the hands of persons having such relations to the transaction. Besides those persons, all others must give evidence secondary in character. One person might be watching the bell — looking at it, or listening for its sound; the value of his testimony would depend upon his nearness to the machine, the accuracy of his sense of sight or hearing, the existence, or force, or direction of the wind, and other causes. Another person might be neither looking nor listening, and yet his position be such, and the circumstances about him so favorable that his testimony would be of equal or greater persuasive power than that of the other. A jury must ascertain. An appellate court cannot say that the testimony of either should be rejected. Nor should a trial judge be required to determine its weight, or the fact which it did, or did not ascertain, if it has any legal effect. No error, therefore, was committed in allowing the witnesses K., T. and R. to testify. They were passengers upon the train causing the injury, were in such position that it would not have been impossible for them to have heard the signal if it had been given. There was also abundant evidence from persons whose attention was directed to the train, to justify a finding that the statutory signals were not given, and the whole was submitted to the jury not only in a manner to which no exception was taken, but upon this point, in the very language suggested by the learned counsel for the defendant, adapted to the occasion from Culhane v. N. Y. C. & H. R. R. R. Co. (60 N. Y. 133), upon which without proper foundation he then relied and no cites. It cannot be so extended as to justify the exclusion of evidence.

As to the second point: It would be error for a trial court to grant a nonsuit if by any allowable deduction from the facts proved a cause of action might be sustained by the plaintiff, and when such ruling has been upheld'by reason of the contributory negligence of the person injured, it appeared that such negligence was conclusively established by evidence which left nothing either of inference or of fact in doubt or to be settled by a jury. (Massoth v. D. & H. C. Co., 64 N. Y. 524, 529.) In Kellogg v. N. Y. C. &. H. R. R. R. Co. (79 N. Y. 72) there was under review a nonsuit directed upon this ground by the General Term, and we readily granted a new trial upon the applications of principles then declared to have been frequently-laid down, and which must now govern. In that case the only negligence of the defendant was the omission to give a signal of the approaching train; the plaintiff came upon the crossing and was struck; a moment before he was seen looking to the north and it was claimed' that he onght to have looked also toward the south, and that if he had he would have escaped harm, and it was also claimed that if he had listened he would have heard the approaching train. Referring to the situation of the man and his surroundings, the court (Earl, J.) says : “ Whether, under such circumstances, by the exercise of ordinary prudence, he did or could have heard, was a question, upon all the facts proved, for the jury. It is unquestionably true that the deceased was bound to exercise his sight to avoid danger at. the crossing. He was not bound to the greatest diligence which he could have exercised in that way; but he was bound to exercise such care as a prudent man approaching such a place would ordinarily exercise for the protection of his life. Did he exercise such care ? Or, in other words, was there an entire absence of evidence that he did ? ” * * * * * “We cannot say that at that particular time he should have looked toward the south. It was for the jury to determine whether he exercised that care which the law required of him. He could probably have avoided the accident by stopping before he passed upon the track. But that is a degree of care not usual even with very prudent persons. It has not been decided by the courts of this State that a person approaching a railroad is bound as matter of law to stop, to avoid the imputation of negligence.” And referring to evidence as to the distance at which an approaching train could be seen from various points, the learned judge says : .“ Such evidence is frequently very reliable and satisfactory. But it is not necessarily conclusive. Such experiments are made when the witnesses are calm and their whole minds, free from any distractions, are intent upon the matter in hand. They cannot be made under the precise circumstances .which attended the transaction to be investigated.” And to the same effect among recent cases' is Shaw v. Jewett (86 N. Y. 616), where, in answer to the claim that the trial judge erred in refusing to charge the jury “ that if they believed that the plaintiff could have seen the train at distance enough from the track to have stopped his horse before reaching the track, his failure to see the train was negligence on his part and he was not entitled to recover,” this court held there was no error, saying : “ That is not the rule. The plaintiff is not bound to see; he is bound to make all reasonable efforts to see that a careful prudent man would make in like circumstances. He is not to provide against any certain result. He is to make an effort for a result that will give safety; such effort as caution, care and prudence will dictate.” I know of no exception to the doctrine that where there is any evidence, direct or inferential, of care or caution on the part of the person injured, the question whether it was in compliance with that rule, is for the jury.

In the case before us the accident happened on the 17th of August, 1882, at about five o’clock in the afternoon, at Richmond Hill, where the defendants had a station, and by which passed two of their tracks running east and west, intersecting a highway running north and south. The station was at this point and on the south side of the track. The plaintiff lived on the north side of the railroad, and at the time in question was going along the highway to a store situated on the south side of the tracks. As she came to the tracks to cross the railroad, she saw a train coming from the west on the southerly track; it stopped at the station to let off passengers, and its cars covered the highway. She stood still, waiting about five minutes for the train to move ahead, but when she reached the track the train was still standing there and she stopped just as it started. She “ went to walk across too.” She says: “As I came up to the track I stood and looked both ways, and along the track, and saw no engine ” other than that of the train from the west. She took a step or two, and just as she did so, saw a train coming from the east on the north track, but it was so close that she could not make her escape. This occurred in what seemed to her not more than a few seconds after she had looked up and down the track. On cross-examination by the defendant’s counsel, she says: “ When I stepped on the first track I looked both ways and could see nothing, and but a few seconds after that I was struck.” I could see no engine, looking either way. The train going west had not then left the station. She says : “ It was just in the motion of moving ahead at the time I took a step or two, then I stopped on the north track just by the side of the track.” She was not between the rails," but stood by the side of the rail, looking at the train, still at the crossing. Asked by the defendant’s counsel: “ Q. If you had stepped up by the side of that track and looked up the road, you would have seen the train, wouldn’t you? ” She says : I did look up, and saw it too. It was so close by me that I could not possibly make my escape. If I had looked earlier I would have seen it, but I did not think there was any need of my looking more than once, and I did not think there was any other train due at that time. I had looked a few seconds before and then went right on. When I looked 1 could see about a quarter of a mile. I did not see any train, and then I walked on toward the track, and the train was right upon me before I noticed it.” At this time the engine at the depot was blowing off steam, and she heard no bell or whistle from the train coming from the east. According to the defendant’s time table these trains should not have met or passed each other at this station, but the train going east was behind time. The engineer in charge of the train going west first saw the plaintiff when six hundred feet distant. Can it be said under these circumstances that she was bound as matter of law to see the incoming train ? Was it not rather for the jury to say whether or not she had made the effort which a prudent person would make in like circumstances ? ' I think it was for the jury, for it cannot be said to be impossible for a reasonable person to conclude that the accident was caused by the negligent running of the defendant’s train, and not by the. omission of a duty, or reasonable care on the part of the plaintiff to avoid the collision. The train was unexpected ; it was running, as the jury might find, at a dangerous rate of speed, giving no signals of its approach, while the escape of steam and the noise made by the other engine might distract and to some extent divert the attention of the plaintiff, who nevertheless was not heedless, but looked in both directions along the track. Whether she looked exactly at the right moment, or in each direction in proper succession, or from the place most likely to afford information, cannot be determined as matter of law, and whether upon the whole, and in view of all the surrounding circumstances, including the negligent conduct of defendant, she exercised due care, was a question which the trial court could not properly decide for itself, but was bound to submit to the jury as one which they alone could answer.

The judgment rendered upon their verdict should, therefore, be affirmed.

All concur, except Rhgeb, Oh. J., Earl and Finch, JJ., dissenting.

Judgment affirmed.


author: Rapallo, J.

text:
    Helen S. Simmons, Respondent, v. Joseph W. H. Havens, Appellant.
    When a deed has been duly acKnowledged, although there appears to have been a aubacribing witness, it ia not necessary to call him for the purpose of proving ita execution.
    In an action of ejectment, plaintiff claimed title under a deed which she alleged had been executed and delivered to her by her mother, who afterward obtained possession thereof and destroyed it, and then deeded the land to defendant, who had full knowledge of the previous conveyance. Plaintiff proved by several witnesses that she had in her possession a deed purporting to convey the premises, to be executed under seal by her mother, and to be acknowledged before L., a justice of the peace; alga that such a deed was delivered to her by her mother, and placed by her in her bureau drawer, from which it was subsequently taken by the mother and burned on account of her displeasure at her daughter’s marriage. Plaintiff also proved admissions on the part of defendant that the deed in question had been executed at his suggestion, as claimed by plaintiff; that it was acknowledged before L., and that defendant, with full knowledge thereof, subsequently purchased the property, believing the deed did not amount to any thing, as it was not recorded and had been destrayed. Held, the evidence was sufficient to justify a finding by the jury that the deed to plaintiff was duly executed, acknowledged and delivered.
    S., plaintiff’s husband, after having testified as a witness in her behalf, that defendant exhibited the deed to him, testified on cross-examination that he asked her to see the deed. He was then allowed to state on re-direct examination, under objection and exception, that before he asked to see the deed, plaintiff told him she had a deed of the premises. Held no error.
    Plaintiff’s mother died before the trial; plaintiff was allowed to testify that she had the deed in her possession, and that the signature thereto was in the handwriting of her mother. Held, that this was not a violation of section 829 of the Code of Civil Procedure; that it did not involve a personal transaction between her and her mother, and so, was competent.
    Plaintiff was also allowed to testify to conversations between her mother and defendant, in which it did not appear that she took any part. Held no error.
    (Argued December 15, 1885;
    decided March 2, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the fifth judicial department, entered upon an order made January 25,1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict. (Mem. of decision below, 29 Hun, 119.)
    The nature of the action and the material facts are stated in the opinion.

      D. Morris for appellant.
    The defendant having title duly authenticated by written evidence, and being in possession of the lands in suit thereunder, as matter of law, cannot be ejected unless the plaintiff makes a clear case showing the execution and delivery of a prior deed duly acknowledged. (Metcalf v. Van Benthuysen, 3 N. Y. 430; Edwards v. Noyes, 65 id. 127; McPherson v. Rathbone, 11 Wend. 96; Jackson v. Waldron, 13 id. 177; Moon v. Livingston, 28 Barb. 543.) Plaintiff failed to prove the execution, delivery, and contents of the alleged deed. (Phillips’ Ev. 468, 469; Gillis v. Smather, 2 Stark. 460; Moon v. Livingston, 28 Barb. 543, 560.) Concede the execution of the deed is proven by legitimate testimony, yet it is of no avail to the plaintiff, or effect against the defendant, a purchaser for value. (1 R. S. [2d ed.] 689, § 136; Chamberlain v. Spargur, 86 N. Y. 603.) The court erred in permitting plaintiff, under an objection and an exception, to testify to the genuineness of her alleged grantor’s signature. (Code of Civ. Pro., § 829; Holcomb v. Holcomb, 95 N. Y. 316; Sweet v. Gaw, 28 Hun, 432; Haskel v. Benson, 55 How. 360; Lewis v. Merritt, 98 N. Y. 206.) A party has a right to an adjudication upon legal evidence. (Williams v. Fitch, 18 N. Y. 551; Foote v. Beecher, 78 id. 157.)

      Charles S. Baker for respondent.
    A title to lands, duly authenticated by written evidence, will not be set aside on the assumption of a previously lost conveyance, except upon clear proof of existence and execution of the supposed deed; and so much of its contents as will enable the court to determine the character of the instrument. (Metcalf v. Van Benthuysen, 3 N. Y. 424; Edwards v. Noyes, 65 id. 125; Kent v. Harcourt, 33 Barb. 491.) When an instrument is prepared upon a printed form, ordinarily used for such a purpose, by a person accustomed to drafting such instruments, a strong presumption is created that the instrument contains all the requirements to embrace the objects intended. (McDonald v. Winter, 17 Weekly Dig. 378; Leland v. Cameron, 31 N. Y. 115; Manderville v. Reynolds, 68 id. 528.) It is not necessary to call the subscribing witness to a deed in case of its loss or destruction of the instrument. (Estton v. Mitchell, 26 Mich. 502.) The evidence being sufficient to establish that the deed was acknowledged before a proper officer, it was not necessary to call the subscribing witness. (Laws of 1883, chap. 195, p. 200; Wood v. Chapin, 13 N. Y. 509.) The general rule that a party cannot, by proof of contradictory statements made by a witness he has voluntarily called, attack his testimony, but is bound by it, does not govern or apply in those cases where, by statute or the rules of the common law, he is compelled to call him, as in the cases of wills, and in other cases where an attesting witness is required. (Peebles v. Case, 2 Bradf. 226, 242; Bullard v. Pearsall, 53 N. Y. 230; Hunter v. Wetsell, 84 id. 549, 556; Brown v. Bellows, 4 Pick. 187, 189, 194; Cowden v. Reynolds, 12 S. & R. 281; Sigfried v. Levan, 6 id. 308, 314; Conselyea v. Walker, 2 Denio, 117, 123; Peebles v. Case, 2 Bradf. 226; 2 Greenl. Ev., § 443.) Substantially everything having been proved that was necessary to show that the premises had been conveyed to the plaintiff by an instrument valid to convey the title to the premises, and good against everybody except a subsequent grantee with a properly executed conveyance, it was entirely proper to prove the declarations of the grantee and the defendants to corroborate the existence of the conveyance. (Kent v. Harcourt, 33 Barb. 491, 495.)
   Rapallo, J.

This is an action of ejectment for certain land claimed by the plaintiff to have been conveyed to her by her mother, Jane Haskell, now deceased, in March, 1865, by a deed which is alleged to have been delivered by Jane Haskell to the plaintiff before her marriage to Simmons, but to have been, after its delivery to the plaintiff, wrongfully taken by Jane Haskell from the possession of the plaintiff and destroyed.

The alleged deed was never recorded, and after its alleged destruction Jane Haskell conveyed the same land to Havens, the defendant, who is in possession thereof, but it is claimed that before his purchase he had full notice of the execution of the deed to the plaintiff and of her rights thereunder.

The plaintiff, to maintain the issue on her part, called as a witness her husband, John Simmons, to whom she was married in July, 1865, after the date of the alleged execution of the deed. He testified that before his marriage to the plaintiff, she exhibited to him a deed which purported to have been executed to her by her mother, Jane Haskell; that he read it and it purported to convey the premises in question; that it was dated in March, 1865, and purported to be executed under seal, and to be acknowledged before Edwin Lamport, a justice of the peace, and that there was a subscribing witness to it named Israel H. Arnold. There was evidence of several other witnesses on the part of the plaintiff, to the effect that she had such a deed in her possession and had exhibited it to them. Her sister gave testimony tending to show that this deed was delivered in her presence by Jane Haskell to the plaintiff; that the plaintiff put it in her bureau drawer and kept it there until, immediately after plaintiff’s marriage, it was taken therefrom by Jane Haskell and put in the stove and burned, on account of Jane Haskell’s displeasure at the marriage of the plaintiff with Simmons. There was also evidence of admissions of Jane Haskell made before her conveyance to Havens, and while she was still in possession, that she had executed the deed to the plaintiff and had destroyed it for the reason above stated. There was also evidence of a meeting at about the time when the deed in question is said to have been dated, at a place called the Norcott House, at which meeting Jane Haskell, Arnold and Lamport and a Mrs. Van Huysen were present, and that a deed was there made out which Jane Haskell afterward stated to Mrs. Van Huysen was a deed of a farm to the plaintiff, which she had executed because the property came from plaintiff’s father; that she was his only child, and he intended she should have it, she, Mrs. Haskell, having other children by a former husband, but that if plaintiff should marry Simmons she should never have any of the property, and she, Jane Haskell, would destroy the deed.

Numerous other witnesses testified to admissions of Havens that the deed in question had been executed by Jane Haskell at his suggestion; that it had been drawn by Arnold (who was accustomed to conveyancing), and that it had been acknowledged by Jane Haskell before Lamport, a justice of the peace, and that he, the defendant, purchased the same property from Jane Haskell with full knowledge of the execution of the deed in question to the plaintiff, but in disregard of it because it did not amount to any thing, having never been recorded and having been destroyed. The plaintiff and her sister, to whom she had exhibited it, testified to the signature of their mother, being in her handwriting, but there was no proof of the handwriting of either Arnold or Lamport, other than the admissions of the defendant. Neither Arnold nor Lamport were called to testify on the part of the plaintiff, and the main points argued on this appeal on the part of the appellant are, that the evidence of the execution of the deed was inadmissible until Arnold, the subscribing witness,had been first called, and that the complaint should have been dismissed on that ground, and on the ground that the proof of the execution of the deed was insufficient for the reason that there was no proof that it had been attested by a subscribing witness, or acknowledged.

This motion having been denied, the defendant called Lamport and Arnold who both denied, the one that he had taken the acknowledgment, and the other that he had attested the execution of the deed, or of any deed, from Jane Haskell to the plaintiff. They testified that on the occasion of the meeting at the Horcott House, spoken of in the testimony on the part of the plaintiff, a deed was executed by Jane Haskell and was acknowledged before Lamport, but they denied that it was the" deed now in question, and stated that it was a deed of different property, and was a deed from Jane Haskell to the defendant, and that that was the only occasion on which the parties ever met_ at the Norcott House. Arnold testified that he had, at about the same date, at the request of Jane Haskell, drawn a deed to the plaintiff of the property in controversy, but that he had afterward destroyed it before its execution. The defendant also denied having made the admissions attributed to him.

The plaintiff, in rebuttal, called witnesses to contradict Arnold and Lamport, and such witnesses testified to admissions of Lamport, that he had taken the acknowledgement of the deed from Jane Haskell to the plaintiff, and like admissions of Arnold that he had drawn the deed and attested its execution, Arnold and Lamport having been first examined in respect to such admissions and having denied them. The testimony on these points was very conflicting, but the disputed questions of fact were fairly submitted to the jury and must be regarded as settled by their verdict.

We are of opinion that the admissions of Havens, and the other evidence tending to show that the deed had been executed and had been acknowledged before Lamport, who was conceded to have been a justice of the peace, dispensed with the necessity of proof that it had been attested by a subscribing witness, and were sufficient, if credited by the jury, to entitle them to find that it had been duly executed and acknowledged, and that where a deed of land has been duly acknowledged, it is not necessary, for the purpose of proving its execution, to call the subscribing witness, though there appear to have been one.

Some exceptions were taken to rulings on the trial on questions of evidence, which require notice. Simmons, the plaintifi’s husband, after having testified, on his direct examination, to the fact that the plaintiff exhibited the deed to him, testified, on his cross-examination, that he asked her to see the deed. On being recalled by the plaintiff he was allowed to state, under objection and exception, that before he asked to see the deed, and in the same conversation, plaintiff told him that she had a deed of the place. This was merely explanatory of his statement on cross-examination that he asked to see the deed, and added nothing to the force of the testimony he had already given that plaintiff had exhibited the deed to him, and that he had. read it, and that it described the land in controversy.

Exception was also taken to the plaintiff being allowed to-testify that she had the deed in her possession and that the signature was in the handwriting of her mother. She was not asked, and did not state, from whom she received the deed, and her testimony as to the handwriting or the contents of the deed, did not involve a personal transaction between her and her mother. The plaintiff might have received the deed from some third person. She was also allowed to testify to conversations between her mother and- the defendant, at which the witness was present, but it does not appear that she took any part in the conversations, and the objection is answered by the case of Cary v. White (59 N. Y. 336).

All the other exceptions are covered by the views we have already expressed.

The judgment should be affirmed.

All concur, except Hiller, J., not voting.

Judgment affirmed.


author: Raparlo, J.

text:
    Orson C. Linderman, Respondent, v. Marion J. Farquharson, Appellant.
    Prior to the passage of the Enabling Act of 1884 (Chap. 381, Laws of 1884), a married woman, who had no separate estate and was not engaged in any separate business, was incapable, by reason of her coverture, of making a contract.
    Even where she had a separate estate, a promissory note made by her was open to the defense of want of consideration, although in the hands of a Iona fide holder for value.
    Where, therefore, a married woman, in 1879, voluntarily gave her promissory note for the amount of a claim against her husband, without any request on his part that she should become security for him, and without any consideration, either by way of a transfer of the claim to her or otherwise, and, in an action upon the note, there was no allegation or finding that she had any separate estate ; held, that want of consideration was a good defense, although plaintiff was a honafide purchaser for value, and although by the terms of the note the same was made a charge on defendant’s separate estate.
    (Argued December 18, 1885;
    decided March 2, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the fifth judicial department, made April 20, 1883) which reversed a judgment in favor of defendant, entered upon the report of a referee, and granted a new trial.
    The nature of the action and the material facts are stated in the opinion.

      George M. Phelps for appellant.
    The defendant was an entire stranger to the transaction between her husband and his creditor, and her promise embodied in the note was an entirely distinct and independent transaction and was entirely without consideration. (Cary v. White, 52 N. Y. 138; Farnsworth v. Clark, 44 Barb. 601; Chitty on Cont. 52; 1 Pars, on Cont. 391-2, 496-7; Ward v. Adams, 24 Me. 177.) This obligation is not governed by the law-merchant, and therefore the plaintiff, notwithstanding his alleged bona Repurchase, stands in the position of the creditor, Lovell, with no superior equities, and the defense of want of consideration, if established, must prevail, as though no transfer had been attempted. (Loomis v. Rusk, 56 N. Y. 462.)

      Frank Rumsey for respondent.
    The affirmative allegations in the answer that there was no consideration for the note will not put in issue the contrary allegation in the complaint. (Fleishman v. Stern, 15 Weekly Dig. 274.) There was an actual and sufficient consideration of the execution of the note by the defendant. (Hienman v. Moulton, 14 Johns. 468.) Looking at the obligation in suit as a collateral security for the payment of the principal debt there is sufficient consideration to support it. (Grocers' Bk. v. Penfield, 7 Hun, 281; Place v. McIlwain, 38 N. Y. 96; Thompson v. Grey, 63 Me. 228; Mut. L. Ins. Co. v. Smith, 23 Hun, 535; Stewart v. McGann, 1 Cow. 99; Eling v. Vanderlyn, 4 Johns. 237; Todd v. Ames, 60 Barb. 454; Manhattan B. & M. Co. v. Thompson, 58 N. Y. 82; Penn. Coal Co. v. Blake, 85 id. 226; Thompson v. Gray, 63 Me. 228; Wheeler v. Slocumb, 16 Pick. 52; Boyd v. Freize, 5 Gray, 554.) The conclusion of the referee that the note in suit was non-negotiable and not governed by the rules of the law-merchant was erroneous. (Third Nat. Bk. v. Blake, 73 N. Y. 260; Woolsey v. Brown, 11 Hun, 55; Manhattan B. & M. Co. v. Thompson, 58 N. Y. 82.) A married woman is liable upon- her accommodation indorsement in which her separate estate is charged. (Corn Exch. Ins. Co. v. Babcock, 42 N. Y. 613; Third Nat. Bk. v. Blake, 73 id. 260; Bodine v. Killeen, 53 id. 96; Ackley v. Westervelt, 86 id. 448; Tiemyer v. Turnquist, 85 id. 516; Hall v. Wilson, 16 Barb. 549.) If it should be held that a note in suit is not governed by the law-merchant, the principle of estoppel should apply to it in the hands of the plaintiff. (Bodine v. Killeen, 53 N. Y. 96; Smyth v. Munroe, 84 id. 354; Anderson v. Mather, 44 id. 249.)
   Raparlo, J.

This action was brought upon a promissory note dated April 3, 1879, made by the defendant and Frank H. Farquarson, whereby, for value received, they promised to pay to James Lovell or order, $800, with use, nine months after date, and made the same a charge on their separate estate; which note was before maturity transferred for value by Lovell to the plaintiff in this action.

The answer admitted the making of the note described in the complaint, but set up, among other defenses, that it was given without consideration.

The referee before whom the issues were tried, found as facts that on the 3d of April, 1879, James H. Farquarson was indebted to James Lovell for corn sold; that James H. Farquarson was the husband of the defendant, and on the day named, being sick, in extremis, and unable to converse or transact any business, Lovell came to him with a view of settling up the business between them, and was informed by his wife, the defendant, that his physicians had forbidden any interview, and declined permitting Lovell to see him; that Lovell and Frank H. Farquarson, the son of James H., then looked over the accounts between Lovell and James H. Farquarson and found due to Lovell the sum of $1,084, for which Lovell requested Frank H. and the defendant to give him their notes, with which request they complied and gave two notes, one of which is the note described in the complaint; that as between Lovell and the defendant, the note described in the complaint was wholly without consideration; that James H. Farquarson died within a few days after the making of the note; that after the making of the note and before it became due, Lovell the payee, sold and transferred it, for value, to the plaintiff without notice bf the want of consideration; that at the time the note was-made and at the time of his death James H. Farquarson was insolvent.

The referee found as conclusions of law that the instrument described in the complaint was made without consideration and, in the hands of the plaintiff, was not entitled to the benefit of strictly commercial paper, and that the plaintiff was not entitled to recover.

No further findings were requested, and there was no finding and no allegation in the complaint, either that the defendant had any separate estate or that she was engaged in any separate business. In the absence of either-of these facts, she was incapable, by reason of her coverture, of making a contract, prior to the passage of the Enabling Act of 1884. (Laws of 1884, chap. 381; Yale v. Dederer, 18 N. Y. 265; S. C., 22 id. 450; Corn Exch. Bank v. Babcock, 42 id. 613; Loomis v. Ruck, 56 id. 462.)

It was only in the cases specified in the statutes of 1848, 1849, 1860, 1862, that married women were, prior to 1884, capable of making contracts or of being sued thereon. But even if the appellant had a separate estate, and that fact had been alleged in complaint, the referee was correct in holding that the instrument described in the complaint was not entitled in the hands of the plaintiff to be treated as strictly commercial paper, and that the defense of want of consideration was open to the defendant as against the plaintiff. (Loomis v. Ruck, 56 N. Y. 462.)

It is only where a married woman is carrying on a separate business, that notes given by her could, before the act of 1884, be treated as commercial paper..

The referee’s finding that the note was without consideration is not inconsistent with the other facts found by him. The defendant appears to have given the note voluntarily, at the request of Lovell, and merely for the purpose of preventing her husband being harassed, when on his death-bed, by the importunities of a creditor. She simply gave a written obligation to pay a debt of her husband, which she did not owe, receiving nothing in return. The evidence may be resorted to for the purpose of sustaining a judgment, although it cannot be resorted to for the purpose of reversing it, except under special circumstances, which do not exist here, and it appears from the testimony of the defendant that she received nothing,and no promise of any thing, for signing the note; that Lovell did not assign or release any claim he had against her husband. Even if the testimony of Lovell conflicted with this statement, the referee had the right to give credit to the defendant, and his finding of fact that she received no consideration cannot be disturbed, the reversal at General Term not having been made on any question of fact. Even an extension of time is not necessarily to be inferred from merely taking a collateral security payable at a future date. (Cary v. White, 52 N. Y. 138.) But here the debtor was not even a party to the transaction, and was, so far as appears, ignorant of it.

The case is not simiiar'to that of Grocers’ Bank v. Penfield (79 N. Y. 502), where it was held that an accommodation note loaned to the payee for the purpose of enabling him to obtain credit, and without any restriction as to its use, is valid in the hands of an indorsee who received it as security for an antecedent debt. In such a case the existence of the antecedent debt is a sufficient consideration for the transfer, to give vitality to the note. But here there was no indebtedness on the part of the defendant to Lovell, and Farquarson never requested the defendant to become surety for him, and he was not a party to the transaction. She was a mere volunteer, and the case is a simple one of one person volunteering to promise to pay the debt of another, without any consideration and without any relation of principal and surety being established between them. If she had voluntarily paid and extinguished the debt without any request on the part of the debtor, or any circumstance obliging her to pay it, it is difficult to see what recourse she could legally have against him. She might have taken an assignment of the claim, but in that case.she could claim only as transferee of the right of the creditor, and not for money paid as his surety.

The order of the General Term should be reversed, and the judgment on the report of the referee affirmed.

All concur.

Order reversed, and judgment'affirmed.


text:
    Daniel A. Moran, Appellant, v. Long Island City, Respondent.
    The provision of the Code of Civil Procedure (§ 1778), providing that in an action against a foreign or domestic corporation upon “a promissory note or other evidence of debt, for the absolute payment of money,” the plaintiff may take judgment as in case of default, unless defendant serves with its answer or demurrer a copy of an order directing the issue to be tried, etc., applies to a municipal corporation; and this, although by its charter it is authorized to sue and be sued, to complain and defend. Such a provision in its charter confers no special right not common to corporations in general.
    Said provision is constitutional.

      It seems that the decision of a judge, refusing to the corporation an order for the trial of the issues presented by the answer in such an action, is reviewable on appeal.

      Moran v. Long Island City (38 Hun, 122), reversed.
    (Argued December 22, 1885;
    decided March 2, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the first judicial department, made October 30, 1885, which reversed an order of Special Term, denying a motion to vacate a judgment entered herein, and which granted said motion. (Deported below, 38 Hun, 122.)
    This action was brought to recover the amount of certain interest coupons attached to bonds alleged in the complaint to have been issued by defendant, a municipal corporation.
    The answer denied the issuing of the bonds by defendant; a copy was served upon plaintiff’s attorney, but was returned with a notice indorsed thereon, to the effect that it was returned because no order of a judge was served therewith, as required by the Code of Civil Procedure (§ 1778), and thereupon judgment was entered against defendant as by default.

      Wm. F. Abbett for appellant.
    Section 1778 of the Code of Civil Procedure applies to municipal corporations. (Code of Civ. Pro., §§ 431, 525, 1804; Erkenbrach v. Erkenbrach, 96 N. Y. 466.) An application to the court to enter judgment was not necessary. (Hutson v. Morrisania S. Co., 12 Abb. N. C. 278.)

      A. T. Payne for respondent.
    Section 1778 of the Code of Civil Procedure does not apply to a municipal corporation. (Tyler v. Ætna Fire Ins. Co., 2 Wend. 280; Anonymous, 6 Cow. 41.) The right of defendant to defend an action is the same right accorded a natural person. (Const., art. 8, § 3; N. Y. Life Ins. Co. v. Un. Life Ins. Co., 88 N. Y. 424; Wayland v. Tyson, 45 id. 281; Thomson v. Erie R. Co., id. 468.)
   Rapallo, J.

We think that section 1778 of the Code is applicable to municipal, as well as to other domestic corporations. They come within the definition of domestic corporatians contained in section 3343; they are treated as included in that term in section 431, which prescribes the manner of serving a summons on a domestic corporation, and the Code expressly specifies which of the provisions relating to actions against corporations shall not be applicable to domestic municipal or political corporations. By section 1804, the provisions of articles second, third and fourth of title II are declared not to apply to such corporations, leaving it plainly to be inferred that the provisions of article first of that title are intended to be applied. Section 1778 is one of the provisions of article first, and the conclusion is irresistible that it was intended to leave it applicable, as its terms import, to all classes of domestic corporations.

The sole ground upon which the order of the Special Term was reversed is stated in the opinion at General Term to have been that section 1778 was not applicable to municipal corporations ; but on the present appeal the respondent takes the further ground that section 1778 is unconstitutional, in that it impairs the right of the defendant to defend the action.

The same section was considered by this court in N. Y. L. Ins. Co. v. Universal L. Ins. Co. (88 N. Y. 424), and the point was there made by counsel that the section was unconstitutional, but it was not passed upon directly, the case having been decided on another ground. Section 1778 was, however, treated in that case as substantially similar to section 4 of the act of 1825, chapter 325, re-enacted with modifications in 2 R. S. 458, §§ 8 and 9, which authorized judgment to be entered summarily on application to the court, against a corporation, after the return of service of process upon it, in an action upon an obligation for the absolute payment of money, etc., unless it should satisfactorily appear to the court by affidavit that the corporation had a substantial defense upon the merits. This provision has stood for over sixty years without question, and it differs from section 1778 only in the mode of procedure, the result of both provisions being that the court must be satisfied that a good defense exists, before a corporation is allowed to defend an action on an obligation of this description.

The defendant would have the same right to a review of the decision of a judge refusing an order for the trial of the issues, which it would have to review an order striking out the answer as sham, or giving judgment on it as frivolous. We should hesitate to pronounce the provision unconstitutional, after a similar provision has stood, and been acted upon by our courts, for so long a period, as a valid regulation of the right of corporations to defend actions brought against them upon written evidences of debt; and of their right to issue such obligations.

The provision of the charter of the defendant authorizing it to sue and be sued, complain and defend in any court, confers upon it'no special right not common to corporations in general. The law in respect to defending actions of this description was substantially the same when the defendant was incorporated, and it cannot set up any right, conferred by its charter, which is not subject to the control of the legislature.

Bo other point has been raised on the part of the respondent.

The order of the G-eneral Term should be reversed and that of the Special Term affirmed, with costs.

All concur.

Ordered accordingly.


author: Andrews, J.

text:
    The Germania National Bank of New Orleans, Respondent, v. William G. Taaks et al., Appellants.
    Where to a promise to accept a bill of exchange is attached a condition precedent, which is a substantive part of the promise, and is so coupled with it as to show that the promisor did not intend to bind himself, except on compliance with the condition, this is not an unconditional promise to accept within the statute (1 R. S. 768, §§ 6, 8) such as will support an action against the promisor as acceptor.
    Defendants’ firm, doing business in the city of New York, wrote a letter to B. & Co., a firm doing business in New Orleans,which contained this clause: “We are ready to pay your sight drafts on us which you advise ns as having been drawn against particularly described shipments to the extent of $50,000 on account of subsequent remittances." Plaintiff, in reliance upon this letter, purchased of B. & Co. two sight drafts, drawn by that firm upon defendants. They were not accompanied by bills of lading or any advices of shipments, and no such advices were sent to defendants. ' Defendants refused to pay the drafts. In an action thereon, held, that' it could not be sustained either as an action upon an acceptance, because the promise was conditional, nor as an action upon the letter, treating it as a general letter of credit, because the condition upon which the liability depended was not performed; that while" the letter did not contemplate that drafts were to be accompanied by bills of lading, or were only to be drawn after shipment had been fully completed, the promise was limited to the acceptance of such uncovered drafts as should be drawn on the credit of specific shipments in progress but not completed, of which defendants should be particularly advised before the drafts were presented for payment. °
    (?. IT. Bank v. Taaks (31 Hun, 260), reversed.
    (Argued January 20, 1886;
    decided March 2, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made October 18, 1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 31 Hun, 260.)
    The nature of the action and the material facts are stated in the opinion.

      Edward Salomon for appellants.
    The defendants’ letter of March 7, 1878, was not an unconditional promise to accept a bill before it is drawn, and the trial court erred in holding it to be such. (2 E. S. 768, § 8.) No precise or particular words are requisite to create a condition, it depends upon the intention of the parties, to be collected in each particular case from the terms of the agreement itself, and from the subject-matter to which it relates. (2 Pars. on Cont. 525; 1 Pars. on Notes and Bills, 301; N. Y. & Vir. State Stock Bk. v. Gibson, 5 Duer, 574; Harrison v. Smith, 2 Sweeny, 669; Lowery v. Steward, 3 Bosw. 505; Lockwood v. Brownson, 53 Tex. 523; Anderson v. Hick, 3 Camp. 179; Grant v. Shaw, 16 Mass. 341.) The promise to pay the future drafts being conditional, the defendants are not liable as acceptors, whether the condition has been fulfilled or not. (1 R. S. 768, § 8; N. Y. & Vir. State Stock Bk. v. Gibson, 5 Duer, 574; Harrison v. Smith, 2 Sweeny, 669; Ætna Nat. Bk. v. Fourth Nat. Bk., 46 N. Y. 82, 88; Shaver v. W. U. Tel. Co., 57 id. 459, 463.) No action can be maintained by the plaintiff upon the defendants’ letter of March 7, 1878, as a letter of credit. (Robbins v. Bingham, 4 Johns. 476; Walsh v. Bailie, 10 id. 180; Birkhead v. Brown, 5 Hill, 634, 642, 643; S. C. affirmed, 2 Denio, 375; Union Bk. v. Coster's Ex'rs, 3 N. Y. 203, 214; Evansville Nat. Bk. v. Kaufmann, 93 id. 273, 276; Whitford v. Laidler, 94 id. 145, 148.) A failure to remit ended or exhausted the credit just as well as the drawing up to the amount of $50,000, and the promise to pay, even if unconditional, could have no application to drafts drawn after the credit was endedLor exhausted. ( Ulster Co. Bk. v. McFarlan, 5 Hill, 432; S. C. affirmed, 3 Denio, 553; Merch. Bk. v. Griswold, 72 N. Y. 472, 479.)

      Samuel Hand for respondent.
    Commercial letters of credit should be construed as the parties who act upon them may be reasonably expected to understand them. (Lawrence v. McCalmont, 2 How. [U. S.] 450; Mason v. Pritchard, 12 East, 227; Gelpcke v. Quentel, 59 Barb. 250; 74 N. Y. 599; Hoffman v. Ætna Ins. Co., 32 id. 413; Barney v. Worthington, 37 id. 112.) A second letter of credit, addressed to the one for whose benefit it is written, is equivalent to a letter addressed to any one to whom it was shown and who acted upon it. (Birkhead v. Brown, 5 Hill, 643; Union Bk. v. Coster, 3 N. Y. 203, 214; Barney v. Worthington, 37 id. 112; Shaver v. W. U. Tel. Co., 57 id. 468, 469; Gelpcke v. Quentel, 74 id. 599; Parker v. Greeb, 2 Wend. 545.) Under the letter of credit, the shipment of cotton was not a condition precedent to the defendants’ liability, nor was it necessary that drafts should be accompanied when discounted with shipping documents ; but the sending of shipping documents within a week was simply a duty of A. Eimer Bader toward the defendants, subsequent to their drawing upon the defendants, and the failure to do so in nowise affected the liability of the defendants to the iona fide purchasers. (Gelpcke v. Quentel, 59 Barb. 250; 74 N. Y. 599; Mereh. Bk. v. Griswold, 72 id. 472, 480; Lawrence v. McCalmont, 2 How. [U. S.] 445; Tounsley v. Samral, 2 Pet. 183.) The letter of the defendants was an unconditional promise to pay, and they are liable thereon as the drafts in suit were actually accepted. (Merch. Bk. v. Griswold, 72 N. Y. 476; Barney v. Worthington, 37 id. 112; Bk. of Mich. v. Ely, 17 Wend. 508; Ulster Co. Bk. v. McFarlan, 5 Hill, 432; Johnson v. Clark, 39 N. Y. 216; Gelpcke v. Quentel, 74 id. 599.)
   Andrews, J.

This action is brought to recover the amount of two sight drafts for $10,000 and $15,000, respectively, dated at New Orleans, December 26,1878, drawn by A. Eimer Bader. & Co., a firm engaged in the business of buying and exporting cotton, upon Taaks & Lichtenstein, bankers,in the city of New York. The plaintiff, a banking corporation at New Orleans, purchased the drafts from A. Eimer Bader & Co., on the day of their date, in reliance upon a letter dated March 7, 1878, addressed by Taaks & Lichtenstein to Bader & Co., which had been exhibited to the plaintiff. The drafts were forwarded by the plaintiff to the city of New York, and there presented to Taaks & Lichtenstein for payment, which was refused. The firm of A. Eimer Bader & Co., although in good credit when the drafts were drawn, were in fact insolvent. On the next day, December 27,1878, the principal partner in the firm committed suicide, and the insolvency of the firm immediately became known. The plaintiff claims to recover on two grounds, first, that the letter of March 2, 1878, was an unóonditional promise by Taaks & Lichtenstein t°. pay the drafts, whereby, under the statute, they became hable as acceptors, and second, that if the letter is not an unconditional promise within the statute, it was a general letter of credit, upon faith of which the plaintiff purchased the drafts, whereby an obligation was created on the part of the defendants to repay the sums advanced by the bank.

The first ground upon which the plaintiff relies depends upon the true construction of the letter of March 7, 1878. Prior to that date there had been some dealings between the firm of A. Eimer Bader & Co., and the defendants, in the purchase by the defendants of the drafts of Bader & Co., drawn against shipments of cotton, and in some cases the defendants had accepted drafts drawn by Bader & Co., for their accommodation. On the 2d of March, 1878, Bader & Co., in a letter of that date, wrote the defendants as follows : Although the greater portion of our business for this season is finished, and although for this reason the balance of our business will not be so very great, the thought nevertheless occurs to us whether it were not possible to open between ourselves a mutually advantageous arrangement, by which we should forward to you our drafts on Europe, for you to dispose of to the best advantage, and in return reimburse ourselves by drafts on you. One point, however, and that a material one, must not be overlooked, namely, that we are allowed by the buyers of our drafts to draw on account of such sold drafts in order to make advances to factors for cotton bought, but not yet received, or to pay invoices to the factors before the shipment is completed or bills of lading therefor signed. In the majority of cases bills of lading accompany our drafts, to be delivered on acceptance, and we should be pleased to hear what your views are as to such an arrangement.” In reply to this letter, the defendants wrote the letter of March 7,1878. In that letter the defendants say: “ In answer to your favor, we reply that we should be pleased to undertake the negotiation in our market, of your drafts, accompanied with shipping documents for shipments of cotton, drawn on leading houses in London, Paris, Switzerland and Germany. We will credit you with the rate of exchange, which we can procure by our indorsement, and with gold as sold, charging yon one-fourth per cent commission. To facilitate our intercourse, we are ready to pay your sight drafts on us, which you advise us as having been drawn against, particularly to be described shipments, to the extent of $50,000 currency, on account of subsequent remittances, which you would then have to send us within a week, whereupon the credit will be renewed of itself. We charge you seven per cent interest per annum.” On the 12tli of March, 1878, Bader & Co. acknowledged the receipt of the letter of March 7, 1878, and expressed themselves satisfied with the conditions. The drafts of December 26, 1878, in question, had no bills of lading attached, nor were they accompanied with any advice of shipments, but in a letter from Bader & Co., to Taaks & Lichtenstein, written on the same day, after referring to some prior shipments promised, which had been delayed, they said: “We beg you to take note of five hundred bales more for reimbursement at sixty days on London bankers, with the shipment of which we are at present engaged. We have telegraphed for names of bankers, but expect they will mostly be Huth. We allow ourselves to draw upon you to-day: No. 22,-313, $15,000, in favor of ourselves; No. 22,321, $10,000, do.” The drafts in question are those referred to in this letter, and the paragraph quoted is the only advice of shipments which is claimed to have been made in connection with the drafts. Upon these facts the question arises whether the lettef of March 7, 1878, was an unconditional promise to pay drafts drawn by Bader & Co. Unless this question can be affirmatively answered, there can be no recovery in this case, as upon an acceptance of the drafts by Taaks & Lichtenstein, whatever other ground of liability there may be.

Under the statute, there must be either an actual acceptance of a bill, or an unconditional promise in writing to accept, to support an action against a party as acceptor. (1 B. S. 768, §§ 6, 8.) Section 8, by which the transaction in this case is governed, declares that an unconditional promise in writing to accept a bill before it is drawn, shall be deemed an acceptance in favor of every person who, upon the faith thereof, shall have received the bill for a valuable consideration.” It is plain, we think, that the letter of March 7,1878, was not an unconditional promise within this section. The promise of Taaks & Lichtenstein to pay the drafts of Bader & Co., to the amount stated, was coupled with the condition that Taaks & Lichtenstein should be advised by the drawers that the drafts were' drawn against “ particularly . to be described shipments.” It cannot be claimed that the drafts contemplated by these letters, were to be accompanied by bills of lading, or were only to be drawn after shipments had been fully completed. Such a construction of the defendants’ engagement would be inconsistent with the purpose of the arrangement entered into between the parties. The proposition of Bader & Co., in their letter of March 2, 1878, was modified before acceptance by Taaks & Lichtenstein in their letter of March 7th. They required that the foreign drafts to be negotiated by them should be accompanied with shipping documents, and the request of Bader & Co. to be allowed to draw for advances to factors for cotton bought, but “not yet received,” and to pay invoices to factors “ before the shipment is completed, or bills of lading therefor signed,” was only assented to in part by Taaks & Lichtenstein. They did not consent to make advances to pay for cotton bought by Bader & Co., but not delivered, but only to accept drafts against particularly to be described shipments, of which they should be advised by Bader & Co. It was the evident purpose of the arrangement finally consummated between Bader & Co", and the defendants, that Taaks & Lichtenstein should accept drafts not accompanied by bills of lading; but it is equally clear upon the face of the correspondence that their undertaking was limited to the acceptance of such uncovered drafts as should be drawn on the credit of specific shipments in progress, but not completed, of which they should be particularly advised before the drafts were presented for payment, and for which Bader & Co. were to send remittances within a week. By this course of business Bader & Co. were put in funds to complete the shipments in progress, and Taaics & Lichtenstein, while not having at the time bills of - lading to secure their advances, had the assurance of Bader & Co., that they had cotton on hand, or immediately available, in progress of shipment, out of which reimbursement would be made. It is apparent that this was an important and substantial condition, coupled with the defendants’ promise. It was, as claimed by the learned counsel for the defendants, to some extent, a guaranty of the good faith of Bader & Co., and though when performed it would not operate as a legal pledge of the cotton for the security of the drafts, it placed Bader & Co. in a situation where they could not in honor divert the cotton from that purpose, and where if the advice was fraudulently given, they would be exposed to serious consequences. What constitutes an absolute, unconditional promise to accept a bill, within the statute, has been considered in several cases. It is well settled that it is not necessary that there should be a promise to accept in express terms. An authority to draw, or a promise to pay, a bill to be drawn, is regarded as equivalent to a promise to accept. (Ulster Co. Bk. v. McFarlan, 5 Hill, 432; Barney v. Worthington, 37 N. Y. 112.) So, also, restrictions as to the time or amount, do not prevent the promise from being treated as unconditional and absolute as to drafts within the limitation. (Bank of Michigan v. Ely, 17 Wend. 508; Ulster Co. Bk. v. McFarlan, supra.) It is also held that an authority given to an agent to draw from time to time, as may be necessary in the purchase of lumber,” or as you want more funds,” operates simply as an instruction to the agent, and does not, as to persons dealing with him in good faith, constitute a condition. (Merchants’ Bank v. Griswold, 72 N. Y. 472; Bank of Michigan v. Ely, supra.) The party dealing with the agent, may rest upon his representation, express or implied, that the draft is in the business of the principal, or that the funds are needed, and he is protected although it turns out that the representation is false. (N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y. 30; Merchants' Bank v. Griswold, supra.) But where the condition is a substantive part of the promise, and is a precedent one, and is so coupled with the promise as to show that the promisor did not intend to bind himself, except on compliance with the condition, it is impossible in that case to regard a promise to accept; as an unconditional promise within the statute. This was, we think, the character of the promise in this case. The bank, when "it took the drafts in question, was informed by the letter of March 7th, that the acceptances to be made by Taaks & Lichtenstein thereunder, were for the accommodation of Bader & Co. The condition of their promise to pay, was plainly written on the face of the letter. It was material, and could not be waived by Bader & Co. The condition not having been complied with, no obligation rested upon the defendants to accept or pay the drafts.

Having reached the conclusion that the defendants are not liable as acceptors, the question remains whether they are liable to refund the money advanced on the drafts, treating the letter of March seventh, as a general letter of credit. It is denied by the defendants that it possesses the characteristics of that species of commercial instruments. We think it unnecessary to enter into this controversy, for assuming that it was a general letter of credit, open for acceptance by any person to whom it might be presented by Bader & Co., as a ground of credit, it nevertheless amounted simply to a contract on the part of Taaks & Lichtenstein, to pay advances made in conformity therewith. They had a right to stand upon the very terms of their contract, and they were not bound, unless the condition upon which their obligation depended, was fulfilled. The language of Lord Mansfield in Mason v. Hunt (1 Doug. 297) is equally applicable to this case. Speaking of an agreement to accept, he said: But an agreement to accept is still but an agreement; and if it is conditional, and a third party takes the bill, knowing of the condition annexed to the agreement, he takes it subject to such condition. (See, also, Church, Ch. J., in Merchants' Bk. v. Griswold, 72 N. Y. 479.) It is scarcely-claimed, that the general notice in the letter of Bader & Co., of December 26,1878, that they were engaged in the shipment of five hundred bales of cotton, was a notice of “ particularly to be described shipments,” required by the letter of March seventh. There was no name of any ship, or of any consignee, and it gave no such information as was contemplated by the parties, and, as the sequel showed, no shipment was in fact in progress. The bank omitted to procure a letter of advice to accompany the drafts,-which, if it had done, would have protected it, although the advice was false in fact.

In neither aspect, therefore, can the action be maintained. Not as an action upon an acceptance, because there was no acceptance in fact, and the promise was conditional, nor as an action upon the letter, treating it as a general letter of credit, because the condition upon which the liability depended was not performed.

It is claimed that the defendants by their letter of December 25, 1878, in answer to the letter of- Bader & Co., of October 22, 1878, waived the condition as to advice, contained, in the letter of March seventh. We think this claim is untenable. Bader & Co. in their letter of October twenty-second, expressed the hope that in exceptional cases, the defendants would not insist upon a strict fulfilment of the condition that their drafts should be covered by remittances within a week, assigning the reason that “ owing to unfavorable weather, or other unforeseen circumstances,” it might be impossible to obtain the shipping documents in the required time. The defendants in their answer said “ that in exceptional cases we should meet your wishes in so far that we shall not hold ourselves strictly to the letter.” There was no hint in the letter of Bader & Co. of á wish to change the condition that the drafts should be drawn against described shipments, of which the defendants should be advised, and the reason assigned by Bader & Co. for the desired change in the other condition, was entirely consistent with the continuance of the condition as to advice. The weather, or other contingencies, might delay shipments in progress when the drafts were drawn, so as to prevent remittances within a week, and the letters related to this contingency only.

We think* the judgment should he reversed and a new trial ordered.

All concur.

Judgment reversed.