author: Eouijstt, J.:

text:
    Simon Rothschild, Appellant, v. The Rio Grande Western Railway Company, Respondent.

      Ambiguous phrases in contracts construed against the covenantor — bonds issued by a corporation and the trust deed given to secure them — the provisions of the former control.

    In the construction oí contracts ambiguous phrases are to he taken most strongly against tlie covenantor whose words they are.
    The bonds issued by a corporation, and tbe trust deed or mortgage given by it to secure the same, are to he construed together; hut in case there is any ambiguity in any o£ the provisions of the mortgage, such ambiguity must be construed against the corporation.
    In case the bonds and trust deed contain wholly inconsistent provisions, those contained in the bonds must prevail over those contained in the deed. The provisions of the bonds meet the eye of the purchaser, and are designed by the-corporation to influence tlieir sale, and they cannot be nullified by an inconsistent provision contained in the trust deed.
    If the bonds contain an absolute promise to pay definite sums on specific dates, a right of action, in case of failure to pa}, is implied, and a provision of the trust deed given to secure such bonds restricting such right is utterly inconsistent with the provisions of the bonds, which in such case must prevail.
    Appeal by the plaintiff, Simon Rothschild, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th clay of May, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit.
    This action was brought February 14,1890, to recover a judgment, for money only, on 110 coupons, eacli for tbe payment of thirty dollars, tbe semi-annual interest due on tbe first day of Septemher and on the first day of March in each year, from-September 1, 3884, to September 1, 1889, inclusive, cut from ten bonds of $1,000 each, issued by the Denver, Rio Grande and Western Railway Company. This corporation was organized under the laws of the Territory of Utah, and authorized to construct and o¡ierate a railroad in that Territory.
    August 1, 1881, the corporation executed and recorded a mortgage to secure certain bonds to be thereafter issued at the rate of not exceeding $16,000 per mile. Among other provisions the mortgage contains the following:
    “Article YIII.
    “It is further distinctly stipulated, mutually covenanted and agreed (any law or usage to the contrary notwithstanding), that neither the trustee nor his successor, or successors in the trust, nor the holder or holders of any bond or bonds hereby secured, shall pursue any remedy at law or in equity for obtaining possession of.or procuring a sale of the trust property hereby transferred and conveyed, or intended so to be, or any part thereof, otherwise than in the manner herein provided for enforcing his or their rights and demands, or recovering the whole or any portion of the principal or interest of the said bonds, it being the intention, stipulation, covenant and agreement of the parties hereto, with each other, and the bondholders secured hereby, for the better protection of the holders of the bonds hereby secured, collectively, and for the securing of the largest possible benefits and proceeds from the trust property or any portion thereof, that the modes and remedies of entry, or of sale, or both, hereinbefore provided, shall be exclusive 'of all others.
    “ It shall, however, be the duty of the trustee to exercise the power of entry hereby granted and conferred, or the power of sale hereby granted and conferred, and delegated, or both, whenever, after default as aforesaid, the trustee might or could, at his discretion, exercise such powers, or either, respectively, and the holder or holders of bonds secured hereby, to the amounts as hereinafter specified, as applicable to the several cases of default with reference to such powers respectively, shall in writing require, and at the same time properly indemnify the trustee in such manner and form as he may reasonably require, against all costs, expenses and other liabilities which may or shall be by him incurred in the premises, subject, however, to the qualifications hereinafter contained:
    “ First. If the default be as to payment of the principal of any bonds secured hereby, or of any interest thereon, the trustee shall exercise the power of entry on such requisition therefor and indemnification by the holder or holders of not less than twenty-five per cent of the total amount of such bonds, in respect whereof such a default was or defaults were made.
    “ Second. If the default be as to any other act or thing, by these presents required to he done and performed by the company, the trustee shall exercise the power of entry on such requisition therefor, and indemnification by the holder or holders of at least twenty per cent of the amount of such bonds outstanding at the time; and

      “ Third. If the default be as to the payment of the principal of said bonds, or any of them, the trustee shall exercise the power of sale on such requisition therefor, and indemnification by the holder or holders of at least twenty per cent of the amount of such bonds due at the time thereof.
    “ No bondholder or bondholders, except the bondholder or the bondholders who shall have made such requisition and given such indemnification, shall be entitled to make any complaint or institute any proceedings against the trustee in or before any court, tribunal or authority whatsoever and wheresoever, in respect of any delay, neglect, omission or refusal of the trustee to exercise the powers of entry or of sale, or both, hereby conferred, or in relation to his acts and dealings in the premises.”
    Pursuant to this mortgage the corporation issued a large number of bonds, dated September 1, 1881, of which the following is a copy, except that each bond bears a different number.

    “$1,000.
    United States ok America,
    Utah Territory.
    THE DENVER AND RIO GRANDE WESTERN RAILWAY COMPANY,
    . First mortgage, six per cent.
    Gold .Bond.
    Thirty years after date The Denver and Rio Grande Western Railway Company will pay to the registered owner hereof, or, if not registered, to bearer, one thousand dollars. Interest on said sum at Q°/0 per annum will be paid half yearly, March first and September first, to the bearer of the annexed coupon therefor on surrender thereof. Principal and interest payable in United States gold coin at the company’s agency in New York city. This bond is entitled to the benefits and subject to tlie provisions of the trust deed, dated the first day of August, 1881, made by the company to Louis II. Meyer, trustee of tlie railroad and other property, rights and franchises therein described, to secure this and other bonds of the company to be issued thereunder as therein set forth, to an extent not exceeding $16,000 average per mile, which trust deed also provides in tlie several cases of default as therein sjiecifically stated, for the right in the trustee to exercise the power of entry thereby conferred, the right to declare tlie principal due, to sell in case of non-payment of such principal, subject to the qualifications therein contained, to which trust deed reference is hereby made. This bond shall not become obligatory until the certificate indorsed hereon, authenticating flic same as issued under said trust deed, is signed by the trustee.
    “In witness whereof, the said company has caused its corporate seal to be hereunto affixed, attested by tlie signatures of its [l. s.] president and secretary, and has likewise caused a fac simile of the signature of its treasurer to be attached to each of tlie coupons annexed, this first day of September, 1881.
    “THE DENVER AND RIO GRANDE WESTERN RAILWAY COMPANY,
    “By-,
    “ President.

    “ Attest:-,
    “ Secretary.
    The said bond is indorsed as follows:
    “ (Trustee’s Certificate.)
    “ I hereby certify that this is one of the bonds issued m conformity with and under the provisions of the trust deed mentioned within. L. H. MEYER,
    “ Trustee.

      “ (Registration.)
    “ Tliis bond may be registered in tbe owner’s name on tbe company’s books in New York city, such registry being noted on tbe bond by tbe company’s transfer agent, after which no transfer shall be valid unless made on tbe company’s books by tbe registered owner and similarly noted on the bond, but tbe same may be discharged from registry by being transferred to bearer, after wbicb it shall be transferable by delivery, but it may bo again registered as before. Tbe registry of tbe bond shall not restrain tbe negotiability of tbe coupons by delivery merely.”
    Annexed to each bond were sixty coupons for tbe payment of tbe half yearly interest, of wbicb tbe following is a copy, except number and date of payment:
    “ Will pay to bearer on tbe first day of-thirty dollars in
    IT. S. gold coin on surrender of this coupon at its agency in New York city, $30, being 6 months’ interest on its first mortgage, 6 %.

    “"Gold Bond No.-. ---,

      “ Treasurer.”
    Tbe State Line and Denver Railway Company was incorporated under tbe laws of tbe State of Colorado and authorized to construct and operate a railroad in that State.
    On June 24, 1889, tbe Denver and Rio Grande Western Railway Company and tbe State Line and Denver Railway Company were, pursuant to tbe statutes of said State and Territory, consolidated into one corporation under tbe name of tbe Rio Grande Western Railway Company, wbicb corporation assumed all tbe debts and liabilities of tbe constituent corporations to tbe same extent as though said debts and liabilities bad been incurred by it. This assumption was pursuant to tbe statutes of tbe State and Territory under wbicb tbe consolidation was affected. At the date of tbe consolidation tbe Denver, Rio Grande and Western Railway Company bad made default in the payment of tbe coupons Nos. 6 to 15 inclusive annexed to its bonds, wbicb fell due September 1, 1884, March 1, 1885, September 1, 1885, March 1, 1886, September 1, 1886, March 1, 1887, September 1, 1887, March 1, 1888, and September 1, 1888, and March 1,.1889. And said corporation and this defendant made default in tbe payment of coupon No. 16, which fell due September 1, 1889, after the consolidation. Payment of these coupons was duly demanded of the defendant, which it refused to malee, and thereafter this action was begun.

      George Jloadly and William Strauss, for the appellant.

      Theodore F. II. Meyer, for the respondent.
   Eouijstt, J.:

The sole defense interposed to this action is that, under article 8 of the deed of trust above quoted, the owner of coupons cannot maintain an action at law to recover the amount due on them.

The bond contains an unconditional covenant to pay $1,000 thirty years after its date, and the bond and coupons an unconditional promise to pay the interest on the bond semi-annually on the first day of March and the first day of September in each year, at the rate of six per cent per annum, and there is no hint in the bond or in the coupon that the owner may not, in case of default, maintain an action at law for the recovery of the principal or interest as it falls due. It is recited in the bond :

“This bond is entitled to the benefits, and subject to the provisions of the trust deed dated the 1st day of August, 1.881, made by the company to Louis H. Meyer, trustee of the railroad and other property, rights and franchises therein described, to secure this and other bonds of the company, to be issued thereunder as therein set forth, to an extent not exceeding $16,000 average per mile,’which trust deed also provides, in the several cases of default as therein specifically stated, for the right in the trustee to exercise the power of entry thereby conferred, the right to declare the principal due, to sell in case of non-payment of such principal, subject to the qualifications therein contained, to which trust deed reference is hereby made.”

The language, “which trust deed also provides, in the several cases of default as therein specifically stated, for the right in the trustee to exercise the power of entry thereby conferred, the right to declare the principal due, to sell in case of non-payment of such principal, subject to the. qualifications therein contained, to which trust deed reference is hereby made,” is not calculated to inform the purchaser of a bond that he cannot sue at law for defaulted interest, but informs him that in case of default tlie trustee may enter into possession and sell the mortgaged property, as provided in the mortgage. This paragraph clearly indicates that the rights and powers of the trustee to enforce the trust deed are expressed therein and are to be pursued as therein provided, hut there is no intimation that the right of the bondholder to sue for the money which becomes due is denied or cut off by the trust deed.

Undoubtedly the bond and trust deed are to be construed together, but in case there is any ambiguity in any of the provisions of the 'mortgage, such ambiguity must be construed against the corporation. It is an elementary rule for the construction of contracts that ambiguous phrases are to he taken most strongly against the covenantor, whose words they are. This rule is universally applied to contracts of insurance, and to instruments which are wholly devised by or in behalf of the covenantor, and it should he rigorously applied to the construction of trust deeds or mortgages which purport to be designed for securing the payment of the bonds of the obligor. It is true that these deeds are matters of record, but the records are often in a State distant from the place at which the bonds are sold, and the purchaser seldom has an opportunity of examining the terms of the instrument. Article 8 was evidently designed to prescribe the conditions, authorizing the trustee or bondholder to enforce the trust deed and the manner in which it might be enforced for the purpose of collecting out of the mortgaged property the sum due and unpaid on the bonds, and, reading the whole article together, it is not fairly capable of any other construction.

As contended by the learned counsel for the appellant, the words “ any remedy at law or in equity for obtaining possession of, or procuring a sale of the trust property hereby transferred,” qualify and govern all the other words of the first paragraph of the eighth article.

The contention of the defendant would, in effect, exempt all of the property of the corporation not covered by the mortgage from liability to be taken in satisfaction of its bonded debt. It is not so stipulated in the trust deed, nor in the bonds, nor in the coupons.

Rut, on broader grounds, we think the contention of the defendant ought not to prevail. As before stated, we concede that the bonds and trust deed are to be construed together as forming the contract, in case they can be harmonized; but in case the bonds and deed contain wholly inconsistent provisions, those contained in the bonds must prevail over those contained in the deed. The provisions of the bonds meet the eye of the purchaser and are designed by the corporation to influence their sale, and they cannot be nullified by an inconsistent provision contained in the trust deed. As before stated, these bonds and coupons contain an absolute promise to pay definite sums on specific dates, which- implies a right of action in case of failure, and if the eighth article is capable of the construction contended for by the corporation it is utterly inconsistent with the bonds, which in that case must prevail.

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

Van Brunt, P. J., and Parker, J., concurred.

Judgment reversed, new trial ordered, with costs to appellant to abide event.


source: Caselaw Access Project

author: Foklett, J.:

license: Public Domain

text:
    John Dohn, Appellant, v. John Dawson and Another, Respondents.

      Injury, caused by material falling from a wall of a building — presumption of negligence.

    Where it appears that, a wall of masonry for a building was being constructed contiguous lo the sidewalk of a public street, proof that material fell therefrom or from a scaffold and injured a person lawfully on the sidewalk, coupled with proof that the sidewalk was not covered with platforms, barricaded or in anywise guarded, is sufficient to raise the presumption that the builder was negligent.
    Appear by the plaintiff, John Dohn, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of New York on the 21st day of June, 1894, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the New York Circuit.
    This action was brought to recover damages for a personal injury, caused, it is alleged, by the negligence of the defendants gnd of their employees. In May, 1892, the new Criminal Court building was being erected for the city of New York on the block hounded north by White street, east by Centre street, south by Franklin street and west by Elm street. The defendants, as partners under the firm name of Dawson & Archer, were, in that month, engaged in constructing the masonry of said building, under a contract with the city. The plaintiff was an employee of Ilealy & Earl, a firm which furnished the terra cotta for the building. Whether they furnished it under a contract with the city or under a contract with Dawson & Archer, does not appear. On May 3, 1892, the exterior walls of the building had been constructed to a point about ten feet above the second story, in which walls were open spaces for windows. Inside of the walls were scaffolds erected by the defendants for their workmen. On the date mentioned two of the defendants’ employees, John Connelly and Peter Judge, were engaged in removing bricks from a lower to an upper platform of the scaffold on the inside of the Franklin street wall. The upper platform was about four feet above the lower one, and crossed an opening for a window on Franklin street, which opening was ten or fifteen feet east of the corner formed by the intersection of Elm and Franklin streets. At this time there was no scaffold outside of the exterior wall on Franklin street. On May third the plaintiff was unloading terra cotta from a truck belonging to Ilealy & Earl, which stood in Franklin street near the corner of Elm and nearly under the window opening mentioned, and underneath the place where Connelly and Judge were moving bricks. The truck was backed up to the curb at Franklin street, and as the last piece of terra cotta was taken' from it the plaintiff stepped from the truck to the sidewalk, and was immediately struck on his head by a brick, and injured. The foregoing-facts were not disputed on the trial, and at the close of the plaintiff’s case he was nonsuited.

      Edward J. McGuire, for the appellant.

      Charles M. Earle-, for the respondents.
   Foklett, J.:

The evidence was quite sufficient to have authorized the jury to find that the plaintiff was injured by a brick which fell from defendants’ scaffold. Connelly, one of defendants’ servants, who was engaged at the time in removing bricks from the lower to the upper platform of the scaffold, testified : “ Q. .Do you remember how the accident happened to Mr. Dolm? A. I remember that there was a brick rolled off somewhere or another, but I can’t say whether it came off the scaffold, or where it came off, to be certain, but the brick rolled off, and we looked through the window, and I saw a man had his hand on his head ; at the time I did not know who it was. * * * Q. IIow did this brick escape ? A. I can’t tell you. Q. Did it escape from your hand? A. No, it did not escape from hand, as I remember of. I was up on the scaffold, and it was all right, that I could see, and it may have dropped from the pile of bricks up above; there was naturally a few bricks one side, and yon couldn’t very well see where you are putting them; and it may have rolled off that heap, and out of my hands; I can’t tell. Q. Did you hear a brick clattering down the side of the building? A. Yes; we heard it rattling somewhere ; I couldn’t see. Q. Was there any one else on the platform, and who was he ? A. Peter Judge. Q. Was there any one else but yon two there? A. No, not as I can recollect. Q. Was there nobody else handling brick except yourself? A. No; but myself and this other man. Q. When you heard the brick clattering down the side of the building, did you hear it strike the window sill ? A. I heard it strike against something, but I cannot tell what it was. Q. And did you then run to see whether you had caused any damage ? A. I had just about three feet to go to look outside, and I could not see whether the brick dropped or not, but I saw a man had his hand on his head and I thought from that there was somebody hurt. Q. [Indicating.] Do you identify this as the man who was struck ? A. Yes. Q. The plaintiff, Mr. Dolm ? A. Yes.

Garrity testified that he saw the brick fall from above and strike the plaintiff — he said he did not see the brick at the moment it hit the plaintiff, but saw it before it struck the sidewalk and picked it up. There is other evidence corroborating Connelly and G-arrity which renders it highly probable, if not certain, that the jfiaintiff was injured by a brick which fell from defendants’ scaffold and through the opening for a window. The next question presented is, was there sufficient evidence of want of care by defendants to sustain a finding that the brick fell by reason of their negligence ? The principal grounds for imputing negligence to them are: (1) Tlieir failure to maintain scaffolding or platforms outside of the ■ exterior wall of the building on Franklin street, or other guards, so as to protect persons lawfully on the sidewalk from being injured by falling material; (2) in removing bricks in the manner described from the lower to the upper platform without closing the opening for a window, so as to prevent the bricks from falling through the opening and into the street.

In case a wall of masonry for a building is being constructed contiguous to the sidewalk of a public street in a large city, and it is proved that material falls therefrom, or from a scaffold, and injures one lawfully on the sidewalk, coupled with proof that the sidewalk was not covered with platforms, barricaded, or in anywise guarded, it is sufficient to raise a presumption that the builder was negligent. (Jager v. Adams, 123 Mass. 26; Clare v. National City Bank, 1 Sweeny, 539; Eccles v. Darragh, 16 J. & S. 528; 2 Sherm. & R. Neg. [4th ed.] § 361; 1 Thomp. Neg. 347, § 10; Cooley Torts, 607; Bish. Non. Con. L. §440; Elliott R. & S. 546.) In. Pearson v. Cox (2 C. P. Div. 369) and Vanderpool v. Husson (28 Barb. 196) the defendants were held not liable for the falling of material, but it was upon the ground that the workmen who were negligent were the employees of a sub-contractor and not of the defendants. It was assumed in both cases that if the master of the workmen had been sued, he would have been liable. The rule above declared is necessary for the protection of those having occasion to use the sidewalks of public streets. The evidence as to how the accident occurred is most usually wholly within the knowledge of the builder, or of his employees, and the person injured has no means of proving precisely how or why the accident occurred. The first warning of danger that he has is his injury, and then he has no opportunity to investigate the cause. It is not asserted that the plaintiff, by his own negligence, contributed to the injury.

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

Yan Brunt, P. J., and Parker, J.,.concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.


author: O’Brien, J.: Parker, J.

text:
    W. H. Sawyer Lumber Company, Appellant, v. Edward Bussell and Another, Respondents.

      Attachment — application therefor by a foreign corporation — jurisdictional facts must affirmatively appea/r — a failure to allege a compliance— section 15 of chapter 687 of 1892.
    Although the Code of Civil Procedure provides in what cases attachments may be issued, and what must be shown by the plaintiff to entitle him thereto, such provisions are not exclusive, and it is entirely within the province of the Legislature to affix other conditions to the right of persons in the State of New York to invoke such remedies.
    A remedy by attachment is a step in an action, and the provision of section 15 of chapter 687 of the Laws of 1892, that “no foreign stock corporation doing business in this State without such certificate [that it has complied with all the requirements of law to authorize it to do business in this State] shall maintain any action,” applies to the remedies to which, but for the prohibition of such statute, a party would be entitled.
    In order to sustain attachments ail facts, relating to the jurisdiction of the court or the right of the plaintiff to maintain the action, must be affirmatively set forth in the motion papers, and a defect in this respect is fatal to the attachment.
    If a statute as a preliminary to jurisdiction requires certain facts to exist, such facts cannot be presumed, and where the plaintiff in an action procures an attachment for a cause of action which arises in the State of New York, it is necessary, in order that the court shall acquire jurisdiction, that it shall appear that the plaintiff is a resident of such State.
    The papers upon which a foreign corporation doing business in the State of New York, in relation to a transaction arising in such State, procures an attachment, must show, for the purposes of the attachment, that the corporation has complied with the provisions of section 15 of chapter 687 of the Laws of 1892, and if such fact does not appear in the papers upon which the warrant of attachment was granted, the omission of such allegation therefrom is legal cause for vacating the warrant of attachment granted.
    Parker, J., dissenting.
    Appeal by tbe plaintiff, W. H. Sawyer Lumber Company, from an order of tbe Supreme Court, made at tbe New York Special Term, and entered in tbe office of tbe clerk of the county of New York on tbe 20th day of November, 1894, vacating a warrant of attachment heretofore granted in tbe action.

      Franhlin Pierce, for tbe appellant.

      George W. Stephens, for the respondents.
   O’Brien, J.:

It appeared in tbe affidavit on which the attachment was obtained that the plaintiff was a foreign corporation but was doing business in this State, and that the transaction out of which this action arose occurred in this State. The motion to vacate was upon the ground that there was no evidence that the plaintiff had obtained the certificate required by section 15 of chapter 681 of the Laws of 1892, and that, therefore, the warrant of attachment should not have been issued.

This section provides: “No foreign stock corporation other than a moneyed corporation shall do business in this State without having first procured from the Secretary of State a certificate that it has complied with all the requirements of law, to authorize it to do 'business in this State. * * * No foreign stock corporation doing business in this State without such certificate shall maintain any action in this State upon any contract made by it in this State, until it shall have procured such certificate.”

Upon this ground the Special Term granted the motion to vacate the attachment, and from the order granting such motion this appeal is taken.

The proposition of law thus presented for our consideration is: Must the papers upon which a foreign corporation, doing business in this State, in relation to a transaction arising in this State, procures an attachment, show for the purposes of the attachment that the corporation has complied with section 15 of said act? And in case such fact does not appear in the affidavit, is it legal cause for vacating the warrant of attachment?

While this provision does not affect the cause of action, it does affect the remedy, and while it- may be true that a good cause of action is set forth, and that for this reason a complaint would not be obnoxious to demurrer, but would require that the objection should be taken by answer, if the question were one as to the sufficiency of the pleading; still, when we remember that an attachment is a provisional remedy, and that the section itsdlf is aimed, not at the cause of action, but against its enforcement by a corporation unless it has procured the certificate, the question is not one of pleading nor as to the sufficiency of the complaint, but as to whether or not, upon the facts stated, the plaintiff is entitled to the remedy Sought. The Code provides, it is true, in. what cases attachments may be issued, and what is necessary to be shown by the plaintiff to entitle him to the attachment; but these provisions are not by any means exclusive, and it is entirely within the province of the Legislature to affix other conditions to the right of persons in this State to invoke such remedy. The provision is, that no foreign stock corporation doing business in this State without such certificate shall maintain any action; ” and as a remedy by attachment is a Step in an action, it is clear that it applies equally to the remedies to which, but for the prohibition of the statute, a party would be entitled.

Apart, therefore, from the question of whether or not the complaint would be bad on demurrer, if it failed to allege the procuring of a certificate, we have held in regard to attachments that all facts going to the jurisdiction of tl^e court, or to the right of the plaintiff to maintain the action, must be affirmatively set forth in the motion papers, and a defect in this respect is fatal to the attachment; the more numerous and recent instances of such rule in this court relating to cases where attachments have been issued against foreign corporations when the plaintiff has failed to state the facts necessary to give the court jurisdiction of the cause of action. In Oliver v. The Walter Heywood Mfg. Co. (10 N. Y. Supp. 771) it is said: “ The power of the court to reach by its process the property of a foreign corporation within the limits of this State, depends entirely upon statutory enactment, and does not proceed from any inherent or general jurisdiction which the court possesses. Therefore, where such right is created by statute, the conditions therein attached to its exercise must be fulfilled, and they must appear before the court obtains jurisdiction.”

In the case at bar the plaintiff is a foreign corporation, and an attachment was issued for a cause of action which arose in this State, and, therefore, it was necessary, in order that the court should acquire jurisdiction, for it to appear that the plaintiff was a resident of the State, The papers are silent upon this point. Where the statute, as a preliminary to - jurisdiction, requires facts to exist, they cannot be presumed. To the same effect is the case of Smith v. Union Milk Co. (70 Hun, 348).

These cases are authority for the proposition urged by the respondents, that for the purpose of obtaining a warrant of attachment* it is necessary that the papers of the attaching creditor should show all the facts which entitle him to maintain the action, and which give the court jurisdiction, and that if the papers fail to set forth the facts in either respect the attachment will be vacated. Applying this rule, it here appears that there is an express statute forbidding a foreign .corporation to maintain an action without procuring a certificate from the Secretai'y of State. While, therefore, it presupposes a good cause of action, there is an express prohibition against enforcing it or havipg any remedy thereon until such certificate is procured. The certificate, therefore, being a condition precedent to the right to maintain the' action, it was necessary to have it appear in the papers upon which the attachment was granted that the foreign corporation had complied with the condition, upon compliance with which alone its right to maintain the action would be justified.

We think, therefore, that the order is right and should' be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., concurred.

Parker, J.

(dissenting):

The prevailing opinion concedes that the omission by a foreign corporation to allege in its complaint that it has obtained from the Secretary of State the certificate required by section 15 of chapter 687, Laws of 1892, does not constitute a ground for demurrer, and, therefore, the papers on which plaintiff applied for the attachment stated a good cause of action.

. Having complied with the provisions of section 636 of the Code of Civil Procedure in that respect, it was entitled to^an attachment, unless the moving papers failed to meet the other requirements of that section, and it is not pretended that they did.

I advise a reversal of the order. ■

Order affirmed, with ten dollars costs and disbursements.


author: Putnam, J.:

text:
    David Link, Respondent, v. William Moore, Appellant.

      Allegations in pleadings, privileged if relevant and material — action of libel based thereon.

    The allegations contained in the pleadings in an action, if relevant and material, although false, are absolutely privileged, and an action brought to recover damages for libel cannot be predicated'thereon — if not material or pertinent the allegations are not privileged.
    Appeal by the defendant, William Moore, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 19th day of October, 1891, upon the decision of the court rendered at the Rensselaer Special Term overruling the defendant’s demurrer to the complaint, with notice of an intention to bring up for review upon such appeal the said interlocutory judgment and the order made at the Rensselaer Special Term and entered in said clerk’s office overruling the saitk demurrer.

      Cha/rles P. Doyle, for the appellant.

      P. D. Nvoer, for the respondent.
   Putnam, J.:

This action was brought to recover damages for an alleged libel. Defendant, on the 22d day of May, 1892, commenced an action against his wife for adultery, and in the complaint alleged adulterous intercourse between her and the plaintiff. In this action plaintiff seeks to recover damages for said allegations in the complaint in the divorce action, which he claims were false, malicious and libelous; and he alleges that the action brought by defendant against his wife was not commenced in good faith, and said libelous matter in the complaint therein was not made in good faith, but maliciously and with intent to injure plaintiff. The defendant demurred to the plaintiff’s complaint; the demurrer was overruled by the court below, and from the interlocutory judgment entered 021 such decision this appeal was taken.

It is not claimed that the allegations contained Í21 the complaint in the action of Moore v. Moore, alleging adultery of the defendant therein with the plaintiff in this action, were not pertinent and material. Such being the case, we are of the opinion that such allegations were absohotely privileged, and hence the court below erred in overruling the demurrer.

As we understand it, allegations in the pleadi2igs in an action, if relevant and material, although false, are absolutely privileged. If not material or pertinent they ai’e not privileged. The law on the subject is clearly stated by Andrews, J., in Moore v. The Mfrs. Nat. Bank (123 N. Y. 420-425). A quotation from his opinion seems all that is necessary to be written in this case. He says: “There is another class of privileged communicatio2is where the privilege is absolute. They are defined in Hastings v. Lusk (22 Wend. 410). In this class are included slanderous statements made by parties, counsel or witnesses in the course of judicial proceedings, and also libelous charges in pleadings, affidavits or other papers used in the course of the prosecution or defense of an action. In questions falling within the absolute privilege the question of malice has no place. However malicious the intent, or however, false the charge may have been, the law, from consideration of public policy and to secure the unembarrassed and efficient administration of justice, denies to the defamed party any remedy through an action for libel or slander. This privilege, however, is not a license which protects every slanderous publication or statement made in the course of judicial proceedings. It extends only to such matters as are relevant or material to the litigation, or at least it does not protect slanderous publications, plainly irrelevant and impertinent, voluntarily made, and which the party in making them could not reasonably Lave supposed to be relevant. (Rung v. Wheeler, 7 Cow. 725; Hastings v. Lusk, 22 Wend. 410; Gilbert v. People, 1 Den. 41; Grover, J., Marsh v. Ellsworth, 50 N. Y. 309 ; Rice v. Coolidge, 121 Mass. 393; McLaughlin v. Cowley, 127 id. 316.) ”

It will be found tliat the cases cited in the above-quoted extract fully sustain the views therein stated. Thus, in Marsh v. Ellsworth (50 N. Y. 309) Grover, J., says: “ The law is well settled that a counsel or party conducting judicial proceedings is privileged in respect to words or writings used in the course of such proceedings, reflecting injuriously upon others, when such words and writings are material and pertinent to the questions involved, and that withim sioch limit the protection is complete irrespective of the motive with which they arre used.”

Beardsley, J\, in Gilbert v. The People (1 Den. 43), says: “ If what is said or written is pertinent and material to the controversy, the protection to parties, and those who represent them (for all stand on the same ground), is absolute amd unqualified, and no one shall be permitted to allege that it was done with malice.” To the same effect, see Hastings v. Lusk (22 Wend. 417); Garr v. Selden (4 Comst. 91); Purzel v. Tousey (52 N. Y. Super. Ct. 88).

There is another class of cases where words which are not uttered by parties, counsel or witnesses in legal proceedings are held to be privileged, as words used in giving a character to a servant or answering an authorized inquiry as to the solvency of a tradesman, and many other instances. In the opinion in Moore v. M. N. Bank et al. (supra), at page 425, it is said in regard to such utterances : “ In these and like cases the privilege is not absolute but conditional; that is to say, the occasion being lawful, the communication is prima facie privileged, and rebuts the inference of malice which would otherwise arise, and imposes on the plaintiff, who prosecutes an action of slander or libel, the burden of proving that the defendant was moved by actual malicious intent in making the communication, and, failing in that, lie fails in the action.” The cases wdiere it has been assumed or held that an action of libel may be maintained where the matter alleged to be libelous was privileged are generally of this class, as Klinck v. Colby (46 N. Y. 427-431); Kine v. Sewell (3 M. & W. 297), and many other cases that might be cited.

In Dada v. Piper (41 Hun, 254), to which we are cited by the 'learned, counsel for respondent, the action was brought against the attorney for the plaintiff, in a previous action, to recover damages for an alleged libel contained in the complaint in such action, and on the trial the plaintiff, after introducing the complaint (alleged to be libelous) in evidence, rested without offering other testimony. The court dismissed the complaint on the ground that the statements therein claimed to be libelous were privileged, and the judgment was affirmed on appeal. The judge delivering the opinion of the General Term assumed that the action could have been maintained had the plaintiffs showed the falsity of the charges contained in the complaint alleged to be libelous, and that said charges were malicious and made in bad faith on the part of the pleader. But this assumption was obiter and cannot be .deemed an authority.

Under the authorities above set out we think the court below erred in overruling the demurrer interposed by the defendant, and hence that the judgment should be reversed and judgment on the demurrer rendered for the defendant, with costs in this court and the court below.

Mayham, P. J., and Herrick, J., concurred.

Judgment reversed and judgment rendered for the defendant on the demurrer, with costs, together with the costs of this appeal.


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    Edward D. Irish, Respondent, v. Elizabeth G. Horn, Appellant.

      Booh of account — proof required to render it admissible — pn-oof required in case of a memorandum.

    The necessary and preliminary proof, required in order to make a book account admissible in evidence upon the trial of an action, must establish that the party whose book of account is offered in evidence had no clerk, and that lie kept fair and honest books of account.
    To render a certain portion of an account book of the plaintiff in an action competent as a memorandum, such plaintiff must testify in substance that he made the charges therein of the materials sold to, and labor performed for, the defendant at-the time the several items were furnished; that the account was correctly kept, and that he was unable < o remember the items independently of the memorandum. In the absence of such testimony the overruling of the objection of the defendant to the admission of the book of account in evidence is erroneous.

      Appeal by the defendant, Elizabeth G-. Horn, from a judgment of the County Court of Warren county in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 20th day of April, 1894, upon the decision of the court affirming the judgment of a justice of the peace of the town of Caldwell, Warren county.

      A. Armstrong, Jr., for the appellant.

      Bobert Imrie, for the respondent.
   Putnam, J.:

Plaintiff on the trial before a justice of the peace, to prove the claim set out in his complaint, read in evidence pages 83 and 84 of his book of account. It is urged by appellant that although defendant’s objections to such book of account were overruled plaintiff neglected to actually read said pages 83 and 84, and hence there was no evidence, whatever, before the justice to establish plaintiff’s cause of action. The learned county judge, however, reached the conclusion that plaintiff’s book was, on the trial, treated and regarded as in evidence, and hence on this appeal it should be deemed that pages 83 and 84 of the book were read. We shall assume that the conclusion reached by the court below in that regard was correct.

We think, however, that the justice erred in overruling the objections of defendant to the reception of the book in evidence.

It was not properly admitted as a booh of account. The necessary and preliminary proof required to make it competent evidence as such was not given. It was not shown that plaintiff had no clerk; that he kept fair and honest books of account, etc. (See Dooley v. Moan, 33 N. Y. St. Repr. 118.)

Nor was it properly received as a memorandum for the same reason. To render a memorandum competent in connection with the testimony of a witness, such witness must testify that the memorandum was correctly made, and that he is unable to recollect the facts independently of the entries therein. (Nat. Ulster Co. Bank v. Madden, 114 N. Y. 280-284.)

Judge Selden, in Russell v. H. R. R. R. Co. (17 N. Y. 134-140), says: “ It is, however, an indisjsensable preliminary to the introduction of such a memorandum in evidence that it should appear * * * that the witness is unable with the aid of the memorandum to speak from memory as to the facts. It is only as auxiliary to, and not as a substitute for, the oral testimony of the witness, that the writing is admissible. It is the dpty of the court in all such cases to see, before receiving the memorandum in evidence, that it was made at or about the time of the transaction to which it relates, that its accuracy is duly certified by the oath of the witness, and that there is a necessity for its introduction on account of the inability of the witness to recollect the facts.”

Plaintiff neglected to testify that the account on pages 83 and 84 of his book contained a true and eorreot statement of materials and labor furnished defendant, entered on said book at or about the time of said transaction, and that he was • unable to remember the items independently of the entries in the book. On the contrary, plaintiff testified that he liad other means than the items set forth in the book of showing what goods were sold and labor performed for defendant, except what Mr. Black got. To render pages 83 and <84 of plaintiff’s book competent as a memorandum plaintiff should have sworn, in substance, that he made the charges therein of materials sold to and labor performed for defendant at the time the several items were furnished ; that the account was correctly kept, and that he was unable to remember such items independently of the memorandum. In the absence of such testimony we think the justice erred in overruling the objections of defendant to the book of account, and also that such book, read in evidence,- failed to establish plaintiff’s cause of action.

¥e think the justice also erred in excluding evidence offered by the defendant of conversations between plaintiff and Black as to clapboards; in overruling defendant’s objections to testimony offered by plaintiff as to conversations and transactions between him and Black, and fell into other errors which we deem unnecessary to discuss, as for the reason above stated the judgment must be reversed.

Judgment reversed, with costs in this court and the court below.

Mayham, P. J., and Herrick, J., concurred.

Judgment reversed, with costs in this court and in the court below. '


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    Mary Kendall and Another, Respondents, v. Margaret Case, Appellant, Impleaded with Others.

      Construction of clauses in a will.

    In construing clauses contained in a last will and testament, it is the duty of the court to ascertain the intent 'of the testator, as it may be gathered from the provisions of the instrument.
    Two clauses contained in the last will and testament of a testator were in the following words:
    “ Second. I give, devise and bequeath to my beloved wife, Polly, the control, use and incomes of all my property, both real and personal, of every nature, for her own benefit, so long as she lives, and after the death of my said wife, Polly,-and after the payment of funeral charges and erection of suitable tombstones, if any of said real or personal property is left, I order my executor to divide said remainder, share and share alike, and to pay my said children or heirs as follows: Betsey, my daughter, the wife of Ransom Thorne: Mary, my daughter, the wife of John Kendall; Naomi, the wife of my son, Clark Wilber; and Margaret Case, the wife of Joel Case, she being the daughter of my wife Polly; if either of said named should die without issue, then it is to be divided between the others living or having issue.
    “ Third. I hereby nominate and appoint Solomon D. Mackey, of said town, executor of this my last will and testament. I do hereby authorize my executor to sell, convey and deed my real estate, if any is left, if he deems best to do so, and the deed he shall give shall be sufficient deed of all interest owned by mo in my real estate.”

      Held, that the testator’s wife took a life estate under the provisions of her husband’s will, in the real and personal property left to her, with the right to dispose of such property for her support, during her lifetime;
    That a grantee named in a conveyance of real estate left by the testator, executed by his widow, would, under the terms of such will, obtain a valid title thereto.
    Appeal by the defendant, Margaret Case, from an interlocutory judgment in partition of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Schoharie on the 28th day of April, 1894, upon the decision of the court rendered at the Schoharie Special Term sustaining the plaintiffs’ demurrer to the appellant’s answer, and appointing a referee to take proofs, etc.

      L. G. Van Tuyl and William 0. Lmnont, for the appellant.

      O. W. Himman, for the respondents.
   Putnam, J.:

This is an appeal by defendant, Margaret Case, from an interlocutory judgment sustaining plaintiffs’ demurrer to tbe answer. The action was brought for the partition of a lot of land in the county of Schoharie owned by one Vincent P. Wilber at the time of his death. Plaintiffs claimed to be each seized of an undivided one-fourth part thereof under the will of said deceased. The appellant averred that she owned the whole lot under a deed from Polly Wilber, widow of deceased; that under the will of said Vincent P. Wilber said Polly becamé seized of a life estate in said real estate with a power to dispose of the same during her life for her support and maintenance, and that under said power she duly conveyed the premises to the defendant, Margaret Case. To the answer, which alleged the facts above suggested, the plaintiffs interposed a demurrrer, which was sustained, and the judgment from which this appeal is taken was entered.

The clauses in the will of Vincent P. Wilber which defendant claims conferred upon his widow, Polly, power to dispose of the real estate in question are as follows :

Second. I give, devise and bequeath to my beloved wife, Polly, the control, use and incomes of all my property, both real and personal, of every nature, for her own benefit, so long as she lives, and after the death of my said wife, Polly, and after the payment of funeral charges and erection of suitable tombstones, if any of said real or personal property is left, I order my executor to divide said remainder, share and share alike, and to pay my said children or heirs as follows : Betsey, my daughter, the wife of Pansom Thorne; Mary, my daughter, the wife of John Kendall; Naomi, the wife of my son, Clark Wilber; and Margaret Case, the wife of Joel Case, she being the daughter of my wife, Polly; if either of said named should die without issue then it is to be divided between the others living or having issue.”
Third. I hereby nominate and appoint Solomon D. Mackey, of said town, executor of this my last will and testament. I do hereby authorize my excutor to sell, convey and deed my real estate, if cmy is left, if he deems best' to do so, and the deed he shall give shall be sufficient deed of all interest owned by me in my real estate.”

In construing tlie above-quoted clauses of the will in question, it is our duty to ascertain the intent of the testator as it may be ascertained from the provisions of the instrument. Did he intend to bequeath to her the mere interest and income to be derived from his real and personal property during her life % Or did he, in addition to the income, intend to give to her the power of using such part of said property as might be required for her support ? With some doubt and hesitation we have reached a different conclusion as to the construction to be given to the above-quoted provisions of said will than that arrived at by the learned trial court.

In each of the cases cited by him, Weed v. Aldrich (5 N. Y. Sup. Ct. [T. & C.] 105), and In re Blauvelt (20 N. Y. Supp. 119), there was a bequest for life, and after the death of the life devisee an absolute disposal of the remainder. The clause disposing of the remainder contained in the will under consideration, “ if any of said real or personal property is leftf was not, in either of the wills, considered in those cases, and the distinction between such wills and the one set out in the answer herein is adverted to by the surrogate in the case last cited. He says: “ The cases cited to sustain the construction that the widow might exhaust or appropriate the body of the estate in her use of the same are instances where words were used by the testator indicating that he contenrplated the exhaustion of or appropriation by the life tenant of the body of the estate. Such as in Thomas v. Wolford (49 Hun, 145; 21 Abb. N. C. 231), where we find used the words, £ should there be any left to be divided among the children or their heirs.’ In Flanagan v. Flanagan (8 Abb. N. C. 413), the portion left of said remainder.’ Simpson v. French (6 Dem. Sur. 108), to do with said property as he shall think best.’ ”

In Thomas v. Wolford (49 Hun, 145) the provision in the will construed was as follows : “ After all my lawful debts are paid and discharged I give and bequeath to my wife, Eliza J. Thomas, all of my real and personal estate that I may die possessed of, during her lifetime, and, at my wife’s death, the property, should there be any left, to be divided among the children or their heirs.” “ Held, that, under the provisions of the will, the wife had, during life, the power _ of disposition of the estate; the power to consume or dispose of it as might become expedient or necessary to secure for her this beneficial enjoyment, and tliat, upon her death, such estate as had not been consumed by her was devised to the children.” This case was cited and not disapproved in Leggett v. Firth (132 N. Y. 7-12). In Wells v. Seeley (47 Hun, 109) the will provides as follows: “ All the rest ,and residue of my estate, both real and personal, I give and bequeath to my beloved wife, Emily H. Beardsley, to be held and used by her as she shall see fit and proper during the full term of lier life ; and -at her death, if any part of my said estate shall remain unexpended, then, and in that case, I give and bequeath such remaining portion to my said son, Willis S., and my said daughter, Helen P., in equal parts each to each.” It was held (page 116) that the widow had a life estate in the property with power to use such portion thereof as she should deem proper for her support during life. In Flanagan v. Flanagan (8 Abb. N. C. 413) it was decided that a gift to the widow of the use of all the remainder during her life and the portion left of said remainder to be distributed to the poor of St. Peter’s Church, gave to the devisee for life a right to dispose of the fund during her lifetime. (See, also, Matter of Williamson, 1 Connoly, 139; Smith et al. v. Van Ostrand, 64 N. Y. 278; Campbell v. Beaumont, 91 id. 464; Leggett v. Firth, 132 id. 7; Colt v. Heard, 10 Hun, 189.)

Under the above authorities, I think it must be held that Polly Wilber, by the provisions of her husband’s will, took a life estate in the real and personal property left to her with the right to dispose of said property for her support during her lifetime, and, hence, that the defendant, under her conveyance, derived a valid title to the real estate in question.

Unless the testator intended to devise to his wife such an estate and power, why should he direct his executor to divide the remainder after her death, “ if cmy of said recti or personal property is left ? ” By these words he assumes that none of the real or personal property may be left to divide; that the property may be used up by the widow. These words indicate his intent that his widow might use and dispose of the body of the estate devised as well as the income thereof. Likewise, when he authorizes his executor to sell his real estate, why does he add “if any is left f” These words show that it was in the mind of the testator that the widow might dispose of the real estate during her lifetime.

We conclude that the interlocutory judgment should be reversed and the demurrer overruled, with costs in this court and the court below.

Herrick, J., concurred; Mayham, P. J., not acting.

Interlocutory judgment reversed, demurrer overruled, with costs in the court below and costs of this appeal.


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    John A. Schmitt, Respondent, v. The National Life Association, Appellant.

      Answer — new defense not admitted by amendment upon the trial — life insurance policy — mistake in the age of the assured — proofs of death, how far evidence.

      Semble, that an answer which does not conform to the proofs should not be amended upon the trial, where the amendment would set up a new defense first interposed after the evidence was all in. Such an amendment is not authorized by the provisions of section 723 of the Code of Civil Procedure.
    Upon the trial of an action brought upon two life insurance policies, it was shown that in the application the assured represented and warranted that he was born on January 81, 1842, while the proofs of death made and verified by the plaintiff, which he introduced in evidence on the trial, showed that the assured was in fact born on January 30, 1841.

      field, that such answers contained in the application were warranties and were material to the risk;
    That, under such circumstances, the defendant’s motion to dismiss the complaint should have been granted; ■
    That while the plaintiff was not estopped by the proofs from showing the true age of the deceased, and while he could have shown a mistake therein, yet in the absence of any explanation or other evidence, the statement in the proofs as to the age of deceased should be deemed to establish the fact so stated.
    Appeal by the defendant, The National Life Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 8th day of March, 1894, upon the verdict of a jury rendered after a trial at the Fulton Circuit, and also from an order of the Supreme Court, made at the Fulton Circuit on the 23d day of February, 1894, granting the plaintiff’s motion for an extra allowance, and also from an order entered in said clerk’s office on the 8th day of March, 1894, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought upon two policies of life insurance issued by the defendant upon the life of one Louis Schmitt.
    - IF. A. Sutherland, for the appellant.

      - G lark Z., Jordan, for the respondent.
   Putnam, J.:

On the trial of this case, after the evidence was closed, the defendant’s counsel moved that the answer of the defendant be amended to conform to the proofs in the case in regard to the age of the assured, the proofs of death showing without contradiction that the assured was born in 1841, while the application for insurance stated that he was born in 1842. No objection appears to have been made to this application and it was granted by the court, and the answer was amended by inserting at the end thereof the following clause: “ That in and by the terms of the said application to the said Mutual Relief Society, of Rochester, N. Y., and in and by the terms of the said application to this defendant, the said Louis Schmitt -stated, represented and warranted, that he was born on the 31st day of January, 1842,-whereas, in truth and in fact the said Louis Schmitt was born-on the 30th day of January, 1841.”

Had plaintiff objected to the amendment it probably would not have been allowed by the learned trial court. It sets up a new defense, first interposed after the evidence was all in, and was not authorized by the provisions of section 723 of the Code of Civil Procedure. That section authorizes the court to conform the pleadings to the facts proved where the amendment does not change substantially the-claim or defense. The amendment in question allowed the interposition of an entirely new defense.

If the court possessed the power to allow such an amendment after the evidence was in the impropriety of such an allowance is apparent. The proofs of death were not conclusive on plaintiff as to the Uge of assured. He could have shown the real age of deceased and that the statement in the proofs in that regard was erroneous. (Nat. Life Assn. v. Sturtevant, 78 Hun, 572 ; McMas ter v. Pres., etc., Ins. Co. of North America, 55 N. Y. 222; Cummins v. Agricultural Ins. Co., 67 id. 261.)

But ivhile the evidence was being taken on the trial plaintiff had not been called upon to offer any evidence on the question of the age of the insured. There was no issue in that regard.

Hence, had plaintiff interposed an objection the court below doubtless would not have sanctioned the amendment in question.

But, having allowed the amendment, we are of the opinion that the court should have also granted the defendant’s motion for judgment, on the ground that it appeared that there was a plain breach of warranty as to the age of the assured.

In the application the assured represented that he was born on the 31st day of January, 1842, while the proofs of death show that he was born, in fact, on the 30th day of January, 1841. In other words, by the proofs made and verified by plaintiff, and which he introduced in evidence on the trial, it was shown that in the application for insurance the assured in answer to questions asked of him, had represented and warranted himself as one year younger than he really was. Such answers were warranties, and will be regarded as material to the risk. (Dwight et al. v. Germania Life Ins. Co., 103 N. Y. 341; Boland v. Industrial Benefit Assn., 74 Hun, 385.)

Such being the case, and as it -appeared by the proofs of death made by the plaintiff and, as above stated, by him introduced in evidence, that the assured in his application to the company had misstated his age one year, the court, we think, should have granted defendant’s motion.

While, as we have seen, the plaintiff was not estojiped by the proofs from showing the true age of the deceased, and while he could have shown a mistake therein, yet, in the absence of any explanation or other evidence, the statement in the proofs as to the age of deceased should be deemed to establish the fact so stated. Daniels, J., in Kabok v. Phœnix Mut. L. Ins. Co. (21 N. Y. St. Repr. at p. 205), says: But the fact did appear by the statement of the plaintiff herself, which was verified on the 24th of August, 1886, and made a part of the proof of death, that the person whose life was insured was born on the 10th of June, 1853. And no denial or explanation avoiding the effect of this admission was made upon the trial. And that did establish the fact to be that the statement contained in the application concerning the time of birth and the age of this person was untruthfully given.” We concur in the view so stated by the learned justice as to the effect of a proof of death made by a plaintiff in such a case. (See, also, Neill v. American Popular Life Ins. Co. (10 J. & S. 259); Nat. Life Assn. v. Sturtevant (78 Hun, 572); Parmelee v, Hoffman Fire Ins. Co. (54 N. Y. 193).

We, therefore, conclude that the judgment should be reversed, a new trial granted, costs to abide the event.

Matham, P. J\, and Herrick, L., concurred.

Judgment reversed, and a new trial ordered, costs to abide the event.


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    August Granz, Respondent, v. Louis Lichtenhein, Appellant.

      Master and servant — effect of the employee’s removal from the State — presumption as to wages.

    If a person, although employed by contract to work for another as foreman at his mill, is put at some other place and some other work, nothing being said as to wages, a presumption will arise that he is working at the wages fixed by the contract; but such presumption will not arise where the employee, at the request of the employer, removes to a foreign state and renders no service for the employer there, although the employer pays the amount of the employee’s board in such foreign state.
    Appeal by the defendant, Louis Lichtenhein, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 24th day of September, 1894, upon the verdict of a jury rendered after a trial at the Montgomery Circuit, and also from an order entered in said clerk’s office on the 12th day of October, 1894, denying the defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review upon such appeal said order.

      Oharles S. Wisbet and Matthew Hale, for the appellant.
    ' Hook <& Stewart and Edward P. White, for the respondent.
   Putnam, J.:

It was conceded, on the trial that in July, 1892, defendant entered into a contract with the plaintiff for the employment of the latter and his wife at defendant’s mill in Amsterdam, N. Y., at twenty dollars per week for plaintiff and fifteen dollars for his wife, plaintiff to first go to Europe and perform services for defendant there, while his wife should at once enter on her employment at the mill. Plaintiff claimed that under the contract the twenty dollars per week should be paid while he was abroad in addition to his expenses, while defendant insisted that the twenty dollars was only to commence when plaintiff began work at the mill, and, while in Europe, defendant was only to' pay his expenses. Plaintiff also insisted that from the date of the contract wages were to be paid himself and wife at the rate of thirty-five dollars per week whether defendant’s, mill was or was not running.

It is not clear from the testimony of plaintiff and his wife, and the conversation between the parties in July, 1892, as related by them, what the understanding was as to plaintiff receiving compensation besides his expenses while in Europe. But plaintiff, as a. witness, testified to a conversation between defendant and himself on the 19th day of November, 1892, after his return from Europe that defendant then said: “‘You will have to take the midnight train and go to New York and wait for the machinery, and look for a machine to make a point like that; ’ I didn’t like to go back to New York ; I says, ‘ Who will pay for this time; ’ he says, ‘ You will get. your money for this time, when you started for Germany; ’ I said, ‘ The 23d July, 1892; ’ he says, ‘ From this time you will get your wages, from the 23d July; I pay your wife $15 a week and you $20, and you get your wages from that time;’ he says, ‘You go to. my uncle, Boscoits, and tell him that is all right, and ask him every time for instructions.”

The above-quoted testimony made it appear that defendant then admitted that plaintiff and his wife were to receive thirty-five dollars per week frota the 23d day of July, 1892, to the date of the conversation. The jury saw plaintiff on the stand as a witness and heard him testify, and also saw and heard defendant, who contradicted him, and evidently believed the statement of the former. We could not properly in such a case set aside the verdict of the= jury — although defendant’s statement of the transaction seems to be corroborated by facts in the case which will be afterwards considered.

On this admission of the defendant the jury, crediting the statement made by the plaintiff, could find that the latter was entitled to twenty dollars per week when in Europe and also when he went to and remained in New York in pursuance of defendant’s instructions, and until November 25, 1892, when he went to Philadelphia.

If the jury had only found for the plaintiff weekly compensation, for services claimed between July 23 and November 25, 1892, the evidence would have sustained the verdict.

Plaintiff went to Philadelphia on November 25, 1892, and remained there until April 27, 1893, a period of about five months. He then came to New York and remained until June. In June he went to Amsterdam, but did not commence work until August fifteenth. He was thus unemployed for about nine months. He claims for this period twenty dollars per week.

It may be inferred from the evidence that defendant and plaintiff, the one as principal and the other as agent, had violated the statute of the United States in regard to importing foreign laborers, and hence, when the plaintiff went to Philadelphia, it was desirable to have him without the State. The jury could have found from the evidence that he went to Philadelphia at the request of the defendant, and that the latter paid his expenses while there. It is evident that plaintiff performed no actual services for defendant during the time he was in Philadelphia or before his employment in defendant’s mill in August, 1893.

Was plaintiff entitled to recover of defendant twenty dollars per week for the five months he was in Philadelphia, and for the time he was afterwards in New York and at Amsterdam before he commenced work in August, 1893 %

He was not under the provisions of the contract of employment of July, 1892. Assuming that the terms of that contract were as claimed by plaintiff, there was no provision in it under which the latter can recover for the nine months he was thus unemployed. Under the contract he was to go to Europe and on returning enter defendant’s mill as foreman. After he returned from Europe a state of facts evidently arose not contemplated by the parties when the contract was made whicli rendered it necessary or desirable for the plaintiff to leave the State, and he, at the request of the defendant, or by mutual agreement of the parties, left and remained without the State for five months, and, for several months in addition, performed no service for defendant.

The parties thus by consent abandoned or suspended the operation of the contract and entered into a new agreement. Under the old contract the plaintiff on his return from Európe was to perform services as foreman for defendant in his mill at twenty dollars per week and, I infer, board and maintain himself. Under the new agreement the defendant paid plaintiff’s expenses at a hotel in Philadelphia, the latter performing no services for the defendant. Under the original contract defendant had not agreed to pay plaintiff twenty dollars a week and his expenses while sojourning in Philadelphia on his return from Europe. The contract did not cover such a case.. Plaintiff was in Philadelphia under a new arrangement or agreement made on the 25th day of November, 1892.

Nor do we think that, under the circumstances of - this case, the law will presume a contract on the part of defendant to pay plaintiff for his time in Philadelphia and during the nine months in question- at the rate he had agreed to pay for his services as foreman. Doubtless if plaintiff, although under the contract employed to work for defendant as foreman at his mill, had been put at some other place and at some other work, nothing being said as to wages, a presumption would have arisen that he was working at the wages fixed by the contract. But in this case we think no such presumption could arise. Plaintiff during the time in question was not in defendant’s employment. It was not a case where he continued at work for defendant under the contract of July, 1892, the character of the work being changed by consent. The evidence shows that the performance of the contract of July, 1892, was entirely suspended or abandoned while plaintiff was in Philadelphia and during the period afterward until the commencement of work for defendant, and that he was then under a new arrangement which must determine whether he was entitled to compensation, and, if so, what.

As there was no presumption that plaintiff when absent from defendant’s service at the mill during the nine months in question was employed under the original contract or entitled to the compensation therein reserved, there was no satisfactory evidence showing that defendant agreed to pay plaintiff for his time during that period. It was not shown that Boscoits was authorized by defendant to make any contract as to plaintiff’s compensation. Boscoits was only authorized to direct his movements. The testimony of plaintiff’s wife to the effect that defendant said before plaintiff returned to the mill that he (plaintiff) “ would get paid for that time ” does not show that defendant had entered into any contract with plaintiff that could make the former legally liable to pay plaintiff for his time while thus unemployed,

If we assume, however, that defendant was to pay plaintiff a salary during the time in question, it does not follow that he was entitled to the same rate of compensation as fixed in the original contract. Because defendant agreed to pay him twenty dollars per week for services as foreman in his mill the law will not imply a contract to pay him the same price while he was boarding him at a hotel in Philadelphia, and while plaintiff was performing no service. The law, possibly under the circumstances, might imply a contract to pay him what his services were worth.

~We conclude, therefore, that the contract of employment between the parties made in July, 1892, did not authorize a recovery for plaintiff’s time while unemployed in Philadelphia and New York. That no presumption arose that plaintiff, while so unemployed, was to receive the compensation fixed by that contract. That plaintiff’s sojourn in Philadelphia.and New York after his return from Europe must be deemed a suspension or abandonment of the contract under a new arrangement which must determine whether or not plaintiff was entitled to wages, and, if so, what. "W"e also think that there was no satisfactory evidence to show that defendant agreed to pay plaintiff for his time while unemployed in Philadelphia and New York. If the testimony of plaintiff’s wife as to the admission of defénda’nt that plaintiff “ would get paid for his time ” should be deemed some evidence of such agreement, there is other testimony in the case so strongly corroborating the testimony of defendant in this regard that we think a finding that there was such an agreement would be against the weight of the evidence. It was shown that the plaintiff, after he returned from Europe, during the five months he was in Philadelphia and the four months after he returned from the latter place and before lie commenced work at defendant’s mill, never asserted a claim to be paid for services. In August, 1893, he borrowed forty dollars of defendant, which was afterwards repaid. It is highly improbable that if plaintiff was entitled to wages for twelve months before he commenced labor as foreman in defendant’s mill he would have allowed the whole time to pass over without making a demand for compensation, and after the lapse of a' year borrow forty dollars-of a party who owed him over $1,000. "We think this most significant fact so corroborates the testimony of defendant as to render it a proper case to set aside the verdict of the jury as against the preponderance of the evidence under the doctrine laid down in Bagley v. Bowe (105 N. Y. 171-179) and kindred cases.

Had the jury only found in favor of the plaintiff for the recovery of the twenty dollars per week up to November twenty-fifth, the verdict would not be disturbed, because plaintiff testified to a clear admission of defendant of an agreement to compensate plaintiff at the rate of twenty dollars per week up to that time, and the jury were authorized to believe his statement. But as to plaintiff’s time after November 25, 1892, there was no admission of defendant. Plaintiff was not then employed under the contract of July, 1892. Nor was there any promise of,defendant to pay for such time satisfactorily shown. And the testimony of defendant, corroborated as above suggested, rendered it highly probable that the parties did not understand, under the new agreement, that plaintiff was to be paid for his time while in Philadelphia, and afterwards while he remained unemployed. The acts of plaintiff indicate that there was no such agreement.

The plaintiff also recovered for the services of his wife during the time defendant’s mill was not in operation. Her testimony, on which the verdict was obtained, was contradicted by that of defendant. "We think the action of the plaintiff’s wife in receiving for over a year without objection payments for her services, without making any claim for compensation for time while the mill was not running, also in receiving pay for overtime and consenting to a reduction for working short hours — sometimes receiving less than fifteen dollars per week, and sometimes more for overwork — so corroborates the- evidence of defendant that the verdict must be deemed against the weight of the evidence in this regard.

It follows that the judgment and order should be reversed and a new trial granted, costs to abide the event.

Mayiiam, P. J., and Herrick, J., concurred.

Judgment and order reversed and a new trial ordered, costs to abide the event.


author: Herrick, J.:

text:
    Bernard J. Cuniff, Appellant, v. Harrison Beecher, Respondent.

      False imprisonment — suspension of a criminal sentence — minutes of a justice — admissible to show a conviction — judgment of conviction conclusive — it cannot be attached, collaterally.

    Under chapter 651 of the Laws of 1893 a magistrate possesses the power to suspend sentence upon a person convicted before him of the charge of intoxication in a public place, and the conviction of such person may be given in evidence the same as though sentence had been imposed.
    The minutes of a justice, before whom a person was tried and convicted of being drunk in a public place, which recite the various proceedings taken and contain the statement: “After due deliberation I did, this 4th day of July, 1893, adjudge the defendant guilty of the charge of intoxication in a public place; and I did suspend the sentence of the court during the good behavior of the defendant,” if relevant, are admissible in evidence upon the trial of an action, and are sufficient to prove the fact that such person was convicted of the charge made against him.
    A mistake concerning the just weight and importance of evidence only makes erroneous a conviction thereunder. The conviction will stand good until reversed. If, upon the trial of an action brougnt to recover damages for false imprisonment, the fact is established of the plaintiff’s conviction upon the charge, made against him by the .defendant, upon which the defendant arrested the plaintiff, the further prosecution of the civil action to recover damages because of such arrest is barred, unless it be shown that the conviction was obtained by fraud or conspiracy, in which the court and the person against whom damages are claimed participated.
    Judgments of' conviction in criminal cases cannot be attacked collaterally by the persons convicted.
    Appeal by the plaintiff, Bernard J. Cuniff, from a judgment of the County Court of Sullivan county in favor of the defendant, entered in the office iof the clerk of the county of Sullivan on the 12th day of February, 1894, upon the decision of the court dismissing the plaintiff’s complaint.

      Charles II. Stage and T. F. Bush, for the appellant.

      George II. Carpenter, for the respondent.
   Herrick, J.:

This is an appeal from a judgment of nonsuit rendered in the Sullivan County Court. The action is one for false imprisonment. The defendant is the sheriff of Sullivan county. The defendant arrested the plaintiff in a saloon within the corporate limits of the village of Monticello, in said county, claiming that he was drunk and disorderly, and forthwith took him before a magistrate and preferred a charge against him of being drunk and disorderly in a public place.

The magistrate, before whom the plaintiff was taken, directed that he be committed to the county jail until next morning. The next morning the plaintiff was brought before the magistrate and his trial proceeded with ;■ he was found guilty by the magistrate, but sentence was suspended during his good behavior.

Thereafter the plaintiff brought this action against the defendant, claiming that his arrest was illegal and his imprisonment false, and claimed damages to the amount of $1,000.

Upon the trial jfiaintiff adduced testimony to show that he was not intoxicated at the time of his arrest, and that such arrest was a mere exhibition of arbitrary authority on the part of the defendant.

The defendant gave evidence, by himself and by other witnesses, tending to show that the plaintiff was intoxicated at 'the time of his arrest.

The justice, before whom the plaintiff was tried, was absent from the State at the time of the trial now under review, but the record kept by him of the proceedings before him was offered in evidence upon the trial for the purpose of showing the trial and conviction of the plaintiff, also the minutes of the testimony taken before such justice upon such trial.

The plaintiff was arrested without a warrant, and the defendant justified his arrest of the plaintiff under section 35 of chapter 401 of the Laws of 1892, which reads as follows: “ Any person who shall be intoxicated in a public place shall be guilty of disorderly conduct, may be arrested without warrant while so intoxicated, and shall be punished by a fine of not less than three nor more than ten dollars, or by imprisonment not- exceeding six months.”

No formal record of conviction appears 'to have been made out aird filed, as required by sections 902 and 903 of the Code of' Criminal Procedure, but the minutes of the proceedings kept by the justice, offered and received in evidence, after reciting the various proceedings taken before him, contains the following: “After due deliberation I did, this 4th day of July, 1893, adjudge the defendant guilty of the charge of intoxication in a public place ; and I did suspend the sentence of the court during the good behavior of' the defendant.”

Under chapter 651 of the Laws of 1893 the magistrate possessed power to suspend sentence, and the conviction of such person may be given in evidence, the same as though the sentence had been imposed.

While the justice’s record of conviction, put in evidence in this case, would undoubtedly be insufficient for the purpose of authorizing the confinement of the then defendant, yet I think it sufficient to prove the fact that the plaintiff was convicted of the charge made against him.

Under chapter 651 of the Laws of 1893 the record of conviction required to be filed by section 903 of the Code of Criminal Procedure would not naturally be filed until sentence should be imposed, and the amount of such sentence set forth in such record of conviction.

The fact then being established of the plaintiff’s conviction upon the charge made against him by the defendant, and upon which charge the defendant arrested him, the prosecution of the defendant, in a civil action for damages because of such arrest is barred.

The plaintiff offered no evidence of any fraud or conspiracy between the magistrate and the defendant to procure his conviction; the evidence offered in his behalf was simply upon the question as to whether at the time of his arrest he was in fact intoxicated, and evidence of what took place between the ¡fiaintiff and defendant at the time tending to show that the act of the defendant was a mere arbitrary and arrogant exhibition of oficial power; and while I will say in passing that there is much ,in the evidence to warrant the conclusion that it was an arbitrary and uncalled for act on the part of the defendant, yet that inquiry has been foreclosed to us by the judgment rendered by the magistrate before whom the charge of intoxication was tried, and the judgment and decision at which he arrived cannot be attacked in a collateral proceeding.

“ A mistake concerning the just weight and importance of evidence only makes the act erroneous, and it will stand good until reversed.” (Miller v. Brinkerhoff, 4 Den. 118 ; Roderigas v. East River Savings Institution, 63 N. Y. 460-464.)

And the decision of the county judge refusing to submit to the jury whether as a matter of fact the plaintiff was intoxicated in a public place at the time of his arrest by the defendant was correct.

I think that it is the law of the State that a party cannot maintain a civil action for damages for malicious prosecution or false imprisonment, where his arrest has been followed by conviction in •a criminal court, and that conviction remains unreversed, unless he establishes the fact that his conviction was obtained by fraud or conspiracy, and that fraud or conspiracy must be one in which the court and the person whom he proceeds against participates.

Judgments of conviction in criminal cases cannot be attacked collaterally by the persons convicted. The spectacle of a convicted defendant in a criminal case securing damages in a civil action, because of his arrest upon the charge for which he had been criminally convicted, ■wotild destroy all respect for the law, and would paralyze those provisions of our statutes authorizing private persons to arrest for crime and authorizing peace officers to arrest without a warrant.

The person who is, or who believes himself to have been, unjustly arrested and convicted, must procure a reversal of such judgment of conviction before he can maintain a civil action for damages. (See Robbins v. Robbins, 133 N. Y. 597; Oppenheimer v. Manhattan Railway Co., 18 N. Y. Supp. 411.)

Judgment should be affirmed, with costs.

Mayham, P. J., concurred.

Judgment affirmed, with costs.

       So in original.


author: Herrick, J::

text:
    James H. Hendrie, Respondent, v. Peter Kinnear, Appellant.

      Indorsement of a note before the payee- — prima facie liability open to explanation.

    In the State of New York a person wlio indorses a promissory note before the payee J's, prima facie, liable only as the second indorser, and is not liable upon it to tlie payee, but such, prima facie liability is open to explanation by evidence showing that such indorsement was to give the maker credit with the payee, and that in truth the intention was that he should be the first indorser.
    If the payee of a note cash the same with another’s indorsement upon it, a cause of action will arise in his favor upon its non-payment against such indorser, and where the note so indorsed is afterwards indorsed by the payee and is subsequently discounted by a bank and thereafter paid by such first indorser, no right of action exists in favor of such indorser against the payee.
    Appeal by the defendant, Peter Kinnear, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 5th day of March, 1894, upon the verdict of a jury rendered by direction of the court, and also from an order made on the 23d day of February, 1894, denying the defendant’s motion for a newtrial made upon the minutes, and also from the verdict of the jury directed hy the court upon the trial of the action.

      Frederick F. Wadhams and Eugene Burlingame, for the appellant.
    ' Edwa/rd J. Meegan, for the respondent.
   Herrick, J::

George Hendrie and George Hendrie, Jr., are co-partners in business, under the firm name of George Hendrie & Son. The plaintiff,. James II. Hendrie, is the son of George Hendrie. George Hendrie- & Son executed a note which was indorsed, or was to be indorsed, by the plaintiff, James II. Hendrie. George Hendrie and the plaintiff went to a bank in the city of Albany with said note and endeavored to have it discounted; the bank refused to discount the same unless they secured another indorser, and suggested the name of the defendant, who it appears had previously indorsed notes for the accommodation of said firm.

The plaintiff and his father, George Hendrie, then called upon the defendant and stated to him what had taken place and requested him to indorse the note, which he consented to do. The plaintiff and his father returned to the bank, and shortly thereafter they were joined by the defendant.

' It appears that the first note was made payable to the bank; the form of this note was objected to by the president of the bank, who drew up, or directed the plaintiff or his father to draw up, it is not clear which, a new note. This was drawn up payable to the order of the defendant, and it was first indorsed by the plaintiff in the presence of the defendant, and then indoi’sed by the defendant, who testifies that he did not see the face of the note, and did not know that it was made payable to his order until after it was protested.

Some stress was laid upon the argument on the fact that the defendant testified that he received the money for the note ; this seems to me of little consequence in the case, for it is apparent all through that the plaintiff, or the firm of George Hendrie & Son, received the proceeds of such note, either directly from the bank, or from the defendant after he had received it from the bank.

When the note became due it was protested for non-payment; after some little delay, the plaintiff agreed to pay off such note by installments, paying a portion thereof down, and giving a note for the balance, and when such note became due, to pay a portion thereof, and give his note for the remainder, and so on, until the full amount of the original note was paid. This was done, the plaintiff giving his notes from time to time, each one of which was indorsed by the defendant; after the last one was paid, the plaintiff then having the note in question in his possession, commenced suit thereon against the defendant.

In this State a person who indorses a promissory note before the payee is prima faoie liable only as second indorser, and not liable upon it to the payee. (Coulter v. Richmond, 59 N. Y. 478.)

But such prima faoie liability is open to explanation by evidence showing that such indorsement was to give the maker credit with the payee, and that in truth the intention was that he should be the first indorser. (Labron v. Woram, 1 Hill, 91; Moore v. Cross, 19 N. Y. 227.)

The facts in this case, as I have detailed them, are undisputed; the plaintiff offered no evidence in relation to them, his only evidence being tbe production of tbe note and protest, and tbe computation of ’the interest tliereon. It is undisputed that the plaintiff, together with his father, asked the defendant to indorse a note, made and indorsed by them, which they could not get discounted unless the defendant indorsed it for them. That as a matter of fact the plaintiff indorsed the note in question prior to the defendant, and in his presence, and that defendant did not know that the note was drawn payable to his order at the time he indorsed it.

That the plaintiff subsequently recognized his liability as first indorser by making arrangements with the bank to pay said note, and solicited and obtained the defendant’s assistance therein, by indorsing his, the plaintiff’s, notes from time to time.

All these things indicate in the strongest possible way that the plaintiff solicited defendant’s indorsement to give his father’s firm and himself credit, and that he and the defendant both understood at the time that such indorsement of the defendant was subsequent to that of the plaintiff, and that he was an accommodation indorser for their benefit, and the note subsequently coming into the hands of the plaintiff under such circumstances, he is not entitled to recover of the defendant.

The plaintiff, it seems to me, is in the same position as if the note had been taken to the defendant and he had advanced the money thereon to them, instead of taking it to the bank and having the bank discount it.

If the defendant had cashed the note with the plaintiffs indorsement upon it, he would have had a cause of action, upon its non-' payment, against the plaintiff as indorser. Such being the case, the fact that it was deposited in the bank, discounted and subsequently paid by the plaintiff, gives him no right of action against the defendant, who indorsed it subsequent to the plaintiff, and at his solicitation, for the purpose of giving himself and his father’s firm credit at the bank.

It follows that the direction of the jury, by the court, to find a verdict for the plaintiff, was erroneous, and the judgment and order should be reversed and a new trial ordered, costs to abide the event.

Mayham, P. «T., and Putnam, J., concurred.

. Judgment and order reversed and a new trial granted, costs to abide the event.


text:
    Conrad Hoffman. Respondent, v. The Fitchburg Railroad Company, Appellant.

      Damages for personal injuries — what evidence presents a contested question of fact as to the ringing of a hell.

    Upon the trial of an action, brought to recover damages arising from personal inj uries resulting from the defendant’s alleged negligence, testimony was given upon the issue as to the negligent running of the defendant’s train in approaching the railroad crossing, where the accident happened, without ringing the bell of the locomotive, by three witnesses, who swore positively that the bell was rung ; other persons testified merely that they did not hear the bell ring.

      Held, that, in the absence of evidence that the attention of the witnesses who did not hear the bell had been called to the matter, or that they listened to hear whether it was or was not rung, no conflict was presented in the testimony as to the ringing of the bell.
    If, however, in addition, a witness testifies positively that the bell was not rung, that she noticed it at the time, and was listening and watching for it, there is a conflict of testimony, and a contested question of fact is presented for the determination of the jury as to whether or not such bell was rung.
    Appeal by tbe defendant, Tbe Fitchburg Railroad Company, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in tbe office of the clerk of tbe county of Rensselaer on tbe 2d day of March, 1894, upon tbe verdict of a jury rendered after a trial at the Rensselaer Circuit, and also from an order entered in said clerk’s office on tbe 27th day of February, 1894, denying tbe defendant’s motion for a new trial made upon tbe minutes, with notice of an intention to bring up for review upon such appeal said judgment.
    This action was brought to recover damages for a personal injury received at a railroad crossing in a street in tbe city of Troy.

      T. F. Hamilton, for the appellant.

      P. A. Parmenter, for tbe respondent.
   Herrick, J.:

This is an appeal from a judgment obtained upon a retrial of tbe case, pursuant to a decision of this court reversing a former judgment, and ordering a new trial.

Our former decision will be found reported in 67 Hun, 581.

Tbe general facts in tbe case are tbe same as when it was formerly before this court, and are sufficiently set forth in our former opinion, and a restatement of them is unnecessary.

Upon the former appeal the question before us was as to the negligence of the defendant in approaching the crossing, where the accident happened, without ringing the bell, and we then held that the evidence upon that point was practically uncontradicted, “three witnesses swearing positively to the ringing of the bell,” and the evidence adduced upon the part of the plaintiff in respect thereto being of persons who simply testified that they did not hear it ring, and there was no evidence that their attention had been called to it, or that they listened to hear whether it was or was not rung.

¥e, therefore, held that there was really no conflict in the testimony as to the ringing of the bell.

Upon the second trial, which we are now reviewing, the plaintiff, in addition to the testimony adduced by him on the former trial by witnesses who did not hear the bell ring, but whose attention was not called to it, and who were not listening for it, produced a new witness who testifies positively that the bell was not rung; that she noticed it at the time, and was listening and watching, for it.

The testimony of this witness, coupled with that of the others, produced a conflict of testimony upon that mooted question, and presented a contested question of fact for the jury to pass upon.

We must assume that the jury found that the bell was not rung as the engine approached the crossing in question. This new fact in the case causes it to present an entirely different aspect from what it did when before this court upon the former review, a fact not only bearing upon the question of the defendant’s negligence, but perhaps also bearing upon the question of the lack of contributory negligence upon the part of the plaintiff.

Upon the former hearing,' upon the assumption that at the time the plaintiff approached the crossing in question the bell upon the engine which was approaching the same crossing was ringing, we expressed some doubt as to whether, under such circumstances, the plaintiff exhibited such care and prudence in approaching the crossing as showed a lack of negligence on his part.

The plaintiff claiming that he was driving slowly towards the crossing and listening to see if there'was any danger ahead, it might be said that if lie was so listening lie would have beard the approach of the engine and the ringing of the bell before his horses reached the railway tracks and he was placed in a position of danger.

Perhaps the finding that no bell was rung changes the view that is to be taken of his conduct.

I am not entirely clear, however, upon that question, and it may be that the plaintiffs case presents some evidence of the lack of contributory negligence, on the part of the plaintiff, sufficient to present that question to the jury to determine. Not feeling entirely clear that it does not, I do not feel justified in holding that there was error in submitting it to the jury for it to pass upon.

The judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.