author: Parker, J.:

text:
    The Mayor, Aldermen and Commonalty of the City of New York, Respondent, v. John Brady and Another, Appellants.

      Action over by a city against its contractor — evidence of the contractor’s negligence — consent by a rmmicvpal corporation that a lawful act be done — ca/re required in its execution.

    Upon the trial of an action, brought by a city against the sureties upon a contractor’s bond to recover back the amount of damages recovered against the city by a person injured by the alleged negligence of such contractor, where the question is as to which of the parties was primarily liable, as between themselves, for the accident, it is competent to introduce evidence, aliunde the record of the suit brought against the city, showing what was litigated in chat action, such as the cause of such accident, and that a certain state of the sidewalk of the city constituted the subject-matter upon which the plaintiff in that action relied to sustain his claim therein.
    The consent by a municipal corporation that a person do a lawful act merely permits it to be done in a careful, prudent and lawful manner, and when it is performed in any other manner, and an injury to third persons ensues, the author of the injury is liable therefor.
    Appeal by tbe defendants, John Brady and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day ■of June, 1894, upon the verdict of a jury, rendered by direction of the court, after a trial at the New York Circuit.

      Joseph A. Flannery, for the appellants.

      Charles Blandy and Terrence Fcvrley, for- the respondent.
   Parker, J.:

When first before this court there was a reversal of the judgment in favor of the plaintiff on the ground that it had failed to show that, as between the city and the defendants, the latter were primarily liable for the wrongful act which occasioned Oruikshank’s injuries, and which supported his recovery. (70 Hun, 250.)

The record then before the court showed that the plaintiff, to make out its cause of action, had put. in evidence the contract between the city and Nutt & Kearns, contractors, the bond given for the faithful performance thereof on which these defendants were sureties, the commencement of an action against the city by 'Cruikshank claiming damages for injuries occasioned by his falling over a pipe which had been negligently placed across the sidewalk by Nutt & Kearns while at work under their contract with the ■city, a written notice from the corporation counsel to Nutt & Kearns and their sureties, these defendants, stating the pendency of the action, and the purpose of it, and asking that they defend the .action at their own expense, the judgment roll in the action, and proof of payment of the judgment by the city, together with the ■amount of the expense incurred by the city in defending the action.

The fourth subdivision of the complaint in the Cruikshank action, in its statement of facts set forth that Nutt & Kearns negligently left a pipe across the sidewalk over which plaintiff fell and was injured.

The fifth subdivision contained the allegation that the City of New York and its servants, well knowing the premises, negligently left the said sidewalk in the dangerous condition aforesaid.”

It was held that the result of these, allegations was that the.injury was occasioned by the concurring acts of the contractors and the city, and that the issue as to which of the parties was primarily liable as between themselves was not presented nor tried. It so happened that on the retrial the court refused to receive the evidence offered by the plaintiff for the purpose of establishing that, as between the. city and Nutt & Kearns, the latter were primarily liable for the injury sustained by Cruikshank, and the judgment rendered in favor of the defendants was reversed for that reason. (Y7 Hun,. 341.)

On the third trial the evidence presented on the first trial, and to which we have referred, was introduced. In addition it was. shown by proof aliunde the record that the presence of the pipe, unprotected, upon the sidewalk was litigated in the Cruikshank action, and constituted the subject-matter upon which Cruikshank relied to recover. This evidence was competent. (City of Cohoes v. Morrison, 42 Hun, 216; Hymes v. Estey, 116 N. Y. 501; Lorillard v. Clyde, 122 id. 41; Lewis v. O. N. & P. Co., 125 id. 341; Rose v. Hawley, 133 id. 315.)

The judgment roll, in connection with such proof, and the notice given to the contractor and sureties to come in and defend that-action, established:

1. That Cruikshank was injured by falling over the pipe;

2. That leaving the pipe in the .situation in which it was, and without guard or protection, constituted negligence;

3. That Cruikshank was free from contributory negligence, and.

4. That he was damaged in the amount for which he had recovery.

On the question of primary liability the plaintiff proved'that the* pipe was put in the position in which it was at the time of the accident by the contractors, Nutt & Kearns. As this evidence was-not disputed, there only.remained the question whether the presence of the- city’s inspector at the time the pipe was laid, by virtue-of his authority under the contract, made the act of laying the pipe in the manner in which it was done the city’s act.

The defendants’ counsel insisted otherwise and claimed the right to try anew the question whether the act of which Cruikshank had complained was wrongful.

The trial court .rightly ruled against him.. (Mayor v. Troy & L. R. Co., 49 N. Y. 657; City of Rochester v. Montgomery, 72 id. 67; Heiser v. Hatch, 86 id. 614; Village of Port Jervis v. Bank, 96 id. 550; City of Rochester v. Campbell, 123 id. 408.)

We shall now inquire what effect, if any, the presence of the inspector at the time the pipe was laid and his assent to its laying had upon the question of primary liability as between the city and Nutt & Kearns.

True, the evidence does not show that he was present and assented, hut evidence tending in that direction was offered and excluded, and for convenience we shall treat the question as if such facts had been proved.

The provision of the contract upon which defendants mainly found their contention is as follows : “ The said Commissioner of Public Works shall be and is hereby authorized to appoint such person or persons as he may deem proper to inspect the materials to be furnished and the work done under this agreement.”

There are other provisions affecting the duties of the inspector and engineer, but they do not confer upon such employees the right to authorize or sanction the doing of a negligent or improper act by the contractors while engaged in the performance of their contract.

As stated by Judge Folger in Brooklyn v. Brooklyn City R. R. Co. (47 N. Y. 480), “ The clause is, in effect, no more than a reservation to the plaintiff of a right of supervision of the work as it goes on, so that it shall have a concurrent check upon a faulty or deficient performance by the defendant.”

But assuming that the inspector or engineer could so far represent the city as to authorize the laying of the pipe across the walk, still the contractors were bound to guard it and do all things needful to save the public from injury.

If the right to lay the pipe was acquired by the action of the inspector and engineer it carried with it to the contractors the obligation to so protect and guard it as to warn passers-by, and thus save tbem from injury.

Consent by a municipal corporation -to a person to do a lawful act merely permits it to be done in a careful, prudent and lawful manner, and when it is performed in any other manner, and injury to third persons ensues, the author of the injury is liable therefor.” (Village of Port Jervis v. First Natl. Bank, 96 N. Y. 556, 557.)

Had the contractors performed their full duty by so guarding the pipe as to warn travelers of its presence on the walk, there could have been no recovery in the action of Cruikshank against the city.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., and O’Brien, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Parker, J. :

license: Public Domain

text:
    Harry Kemmerer, as Administrator, etc., of De Witt Kemmerer, Deceased, Appellant, v. The Manhattan Railway Company, Respondent.

      Master and servant — when an employer is not Haile for injuries sustained by his employee — system of fog signals used on an elevated railway.

      A master does not guarantee the safety of his servants. He is not bound to furnish them an absolutely safe place to work in, but is bound simply to use reasonable care and prudence in providing such a place. He is not bound to furnish the best known appliances, but only such as are reasonably fit and safe.
    He satisfies the requirements of the law if, in the selection of machinery and appliances, he uses that degree of care which a man of ordinary prudence would use, having regard to his own safety, if he were supplying them for his own personal use. It is culpable negligence which makes the master liable, not a mere error of judgment.
    "Where an elevated railway company has used a system of fog signals for over fourteen years without accident, it will be justified in continuing to use such system without negligence being imputed to it in that regard, and if it has in use a system which is reasonably safe, the fact that another system which could have been maintained by it was somewhat better than the one used, will not be sufficient to establish negligence.
    Appeal by the plaintiff, Harry Kemmerer, as administrator of De Witt Kemmerer, deceased, 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 1st day of June, 1893, upon the dismissal of tbe complaint directed by the court after a trial before the court and a jury at the New York Circuit.

      Henry G. Attwater, for the appellant.

      Joseph II. Adams, for the respondent.
   Parker, J. :

Plaintiff’s intestate, while engaged in the performance of his duties as a fireman on the Sixth avenue line of defendant’s railway, on the morning of January 2, 1891, was so severely injured that he died within a few hours thereafter.

His injuries were occasioned through a collision between the locomotive upon which he was riding and the rear car of the train going in the same direction. At the time of the accident there was a very heavy fog which prevented the engineer, as he testified, from seeing the car in front of him until he was within about twenty-five feet of it. When the engineer passed One Hundred and Forty-fourth street with his tráin, the fogman stationed beside the track signaled him that a-train was a minute or two ahead. From that time until he discovered the car in front of him, which was near One Hundred and Fiftieth street, he ran the train, according to his testimony, a little faster than a man would walk, or at the rate of between four and five miles an hour, keeping all the time a sharj) lookout for a train ahead. Owing to the density of the fog, however; he says lie was unable to discover it until so close to it that prompt action taken oil his part did not and could not avert the collision.

The learned judge at the Circuit decided that this unfortunate accident was not occasioned because of the omission of the defendant to discharge any duty which it owed to plaintiff’s ■ intestate. Our examination of the record leads us to the same conclusion.

The complaint alleges that defendant failed in the performance of the obligations which it was under to plaintiff’s intestate and others similarly situated, in two respects, viz.:

1. In not providing a proper signal system, or a proper set of signals, to warn those in charge of moving trains of dangers and obstacles ahead.

2. In not providing a proper and sufficient number of persons to use and operate the signals and signal system in use.

As to the last ground, there is no evidence whatever tending to show that there was a less number of men employed for signal purposes on the day of the accident than usual, or that those employed were incompetent, so we may confine discussion to the first ground of negligence assigned.

The Court of Appeals, in Harley v. Buffalo Car Manufacturing Company (142 N. Y. 31-34), in defining the measure of duty which a. master owes to his servant in providing appliances for his safety, used the following language : “ The master does not guarantee the safety of his servants. He is not bound to furnish them an absolutely safe place to work in, but is bound simply to use reasonable care and prudence in providing such a place. He is not bound to furnish the best known appliances, but only such as are reasonably fit and safe. He satisfies the requirements of the iaw if, in the selection of machinery and appliances, he uses that degree of care which a man of ordinary prudence would use, having regard to his own safety, if he were supplying them for his own personal use. It is culpable negligence which makes the-master liable, not a mere error of judgment.”

While this is but a new statement of an old proposition, it helps to keep in mind the principle of law which should guide the court in the consideration of the facts of this case.

While the accident would not have .occurred but for the presence of a dense fog, such fogs were not unusual, and the question, therefore, is whether defendant exercised that reasonable care and caution which a man of ordinary prudence would provide for his own safety were he supplying signals for his protection.

In the first place, it should be said that the evidence shows that the system employed had been in use for o'ver fourteen. years, and the evidence does not suggest a collision at this point during that time. This long use of the system without accident would seem to have justified its continuance without imputation of negligence. (Laffin v. Buffalo, & S. W. R. R. Co., 106 N. Y. 136; Brady v. Manhattan Railway Co., 127 id. 46; Harley v. Buffalo Car Manufacturing Co., supra, 37.)

The fog system used by defendant was described by defendant’s witness Germain, the engineer of Kemmerer’s train, as follows: This system on this railway at that time was this, that where a train stopped, the rear brakeman should immediately go back, give notice to the next train; when the train behind stopped, the flagman on that train should go back to the next train, and so that the men on each train were bound to guard their own train. Then, in addition to that, we had signal stations with the red ball, such a ball as we had at One Hundred and Fifty-third street, which, unless the weather was very foggy, we could see at a distance. In addition to that we had the fogman, who stood there to indicate how far the trains were ahead of us with their fingers. Then we had the fog-man at One Hundred and Fifty-third street, whose duty it was as soon as a train was stalled at One Hundred and Fifty-third street, to move right back and see that the man got out and gave the warning. That was our system, and that system had been in force on that road as long as I can remember. We were perfectly well acquainted with it. * * * R -was- the duty also in foggy weather to have lights out on the rear of the cars, and that has always been the practice on the road.”

The defendant, of course, had every incentive to provide for the safety of its trains. The large number of passengers carried every day of the year would necessarily stimulate endeavor to provide for their safety, and at the same time assure the defendant against loss and damage. The result of its efforts was the system testified to by Germain, which for a long period of years had proved adequate at this point. The working out of the system on this occasion failed to obtain the results for which it was designed, but it cannot be said from the testimony in this record that it was the fault of the system. Its apparent failure was probably not due to the system, but rather to the omission of some of the employees charged with its execution to perform their duty.

It is difficult to fix the responsibility of the failure. Whether it was owing to the negligence of the engineer of Kemmerer’s train; to the negligence of one of the two rear brakemen of the train stopping at One Hundred and Fiftieth street; to the negligence of the fogman at One Hundred and Fifty-third street, or to the failure of the employee charged with that duty to put lights on the end of the last car of the preceding train, rendered necessary because of the density of the fog, we cannot say. Nor is it important that we should be able to determine which one of these several persons proved unfaithful in the moment of peril, for each of them was the fellow-servant of the plaintiff, and for the neglectful acts of any or all of them resulting in the accident the defendant is not responsible.

The plaintiff proved that there was in use on elevated roads, including a portion of defendant’s lines, an automatic fog signal. As to this evidence, it should be observed in the first place that if it could be said to establish that system to be somewhat better than the one adopted by the defendant, still defendant’s liability would not be made out, because the evidence also established that the system employed by it was reasonably safe. But the evidence as to the use of an automatic system by the Kings County Elevated road, testified to by plaintiff’s witness Graham, hardly warrants the conclusion even that said system could be wisely and safely substituted for the one in use by the defendant. He testified, No one sets that signal; the engine sets it when it strikes the lever; it is automatic and works itself; besides, when, there is a fog we have men distributed all along the line of the road at the danger points to hold uj? thew fingers to the locomotive engineer to tell him how long the t/raim, has been gone ahead of him, but they ain’t there to govern this signal, because it works itself.” Thus, it appears "that, in its practical workings, the automatic signal was not regarded by that company as furnishing adequate protection. In addition men were distributed along the line to tell the engineer how many minutes ahead of him the other train was. This requirement was a part' of defendant’s system, but only a small part, as already sufficiently appears. ¥e think the plaintiff failed to furnish such evidence of defendant’s negligence as would have justified the court in submitting the case to the jury.

The exception does not call for a reversal, which was taken to the. refusal of the court to permit one of the plaintiff’s witnesses to answer the following question: “ Suppose such a system as you have there on the Kings County road were put in between 155th street and 145th street, on the Manhattan roads, describe how it would work ? ”

Whether there was legal objection to the inquiry we need not consider, because the refusal to receive the evidence was harmless in its effect.

The witness not only testified to the use of the system on the Kings County road, but, before leaving the witness stand, described how the system worked on that road.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Hugh J. Grant, as Receiver of the St. Nicholas Bank, Plaintiff, v. Patrick J. Walsh, Defendant.

      Deposit of a cheek in a hank — title thereto- — -fraudulent acceptance thereof by the hank — bona fide purchaser thereof for value — request for the direction of a verdict — effect thereof — when a request to go to the jury is too late.

    When a person indorses a check for deposit to his account and delivers it to a hank, with a view of drawing against it, according to his usual custom, the title to the check immediately vests in and the check becomes the property of the bank, which can confer title thereto upon its transferee.
    Where a bank is irretrievably insolvent, and it is manifest to its officers that a condition of open insolvency must immediately ensue, the acceptance by it of a deposit constitutes a fraud, as to the depositor, and entitles him to reclaim from the bank the check deposited by him, or the proceeds thereof, but when the check so deposited has been turned over by the bank to a bona fide purchaser thereof for value, without notice of the fraud, such purchaser is entitled to receive and hold the amount thereof notwithstanding the insolvency of such bank.
    The effect of a request by the respective counsel ’of both the parties to an action for the direction of a verdict is to confer upon the court the authority to pass upon any questions of fact involved.
    After the request by both parties for the direction of a verdict, and the direction of a verdict by the court in favor of one of the parties, it is too late for the party against whom the verdict is directed to ask the court to submit certain questions of fact to the jury.
    Motion by the defendant, Patrick J. Walsb, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the verdict of a jury in favor of the plaintiff, rendered by direction of the court after a trial at the New York Circuit on the 19th day of April, 1894.

      Albridge O. Smith, for the plaintiff.

      Thomas O. Minever, for the defendant.
   Parker, J.:

August 8, 1893, the defendant, who for many years had been a regular depositor in the Madison Square Bank, drew his check for $1,000 to his own order on the Farmers’ Loan and Trust Company, indorsed it “ for deposit,” and delivered it to the bank.

Later in the day the Madison Square Bank sent the check to the St. Nicholas Bank, with which it had a clearance contract binding it to keep constantly on deposit with the latter $50,000, on which the St. Nicholas Bank should pay no interest as part of the consideration for the clearance contract. This contract could be terminated on twenty-four hours’ notice, but it obligated the St. Nicholas Bank to make clearance for the Madison Square Bank for the day succeeding that on which the notice was given. Such a notice was given on the eighth of August by the St. Nicholas Bank, but, as it was compelled to make clearance for the day following, the result .was that on that day it paid for the Madison Square Bank $3'T2,806.'T5, although it had received no deposit from the Madison Square Bank after the eighth of August. This amount largely exceeded the deposits of the Madison Square Bank with' it, but under its contract with the Madison Square Bank and the clearing house, it was obliged to clear for that bank for that day, whether'it held any of its funds or not.

The condition of the account between the Madison Square Bank and the St. Nicholas Bank on the eighth of August was as follows: After the clearances of the morning of August eighth were made, the Madison Square Bank owed the St. Nicholas Bank $50,006.62 over and above the $50,000 deposit, which, under its contract, the Madison Square Bank was bound to keep continually on deposit. Its actual indebtedness then was, on account of clearances made by the St. Nicholas Bank and its contract obligation to it, $100,006.62. After the clearances of the eighth of August, the Madison Square Bank made deposits with the St. Nicholas Bank aggregating $78,08'7.24. This included the check of $1,000, which is now the subject of controversy. These deposits repaid the overdraft, but left $21,919.38 still due to the St. Nicholas Bank on account of its clearance house contract, under which it was compelled, on the day following, to pay for the St. Nicholas Bank over $370,000.

At the close of business on August eighth the Madison Square Bank closed its doors, and shortly thereafter, in an action brought hy the Attorney-General, receivers were duly appointed. When defendant ascertained the fate of the bank he at once stopped payment of the check, whereupon the St. Nicholas Bank commenced this action to recover thereon. Subsequently this plaintiff was substituted in place of the St. Nicholas Bank. The answer set up that at the time when the deposit was made the Madison Square Bank was insolvent, of which fact its officers, agents and employees had full knowledge, and that its acceptance of the check without notifying him of such insolvency constituted a fraud upon the defendant, and further, that such insolvency and fraud were known to the St. Nicholas Bank at the time it received defendant’s check, and gave the Madison Square Bank credit for it.

As the case stood when plaintiff rested, his right to recover on the check had been made out. When defendant indorsed his check for deposit to his account, and delivered it to the Madison Square Bank, that he might draw against it, according to his usual custom, the title to the check immediately vested in, and became the property of the bank, which title it could and did confer upon its transferee, the St. Nicholas Bank. (Metropolitan Nat. Bank v. Lloyd, 90 N. Y. 530; Cragie v. Hadley, 99 id. 131, 133; People v. St. Nicholas Bank, 77 Hun, 159.)

The evidence, to which we have sufficiently referred, shows that the St. Nicholas Bank,' upon such transfer, became a bona fide holder of the'eliebk for value.

This brings us to the affirmative defense pleaded, and which the defendant sought to establish on the trial. If it were a fact that the Madison Square Bank was irretrievably insolvent, and it was manifest to its officers that a condition of open insolvency must immediately ensue, the acceptance of the deposit made by the defendant constituted such a fraud as entitled its owner to reclaim from such bank the cheek or its proceeds. (Cragie v. Hadley, supra.)

It may be doubted whether defendant met the burden of proof resting upon him, to establish the insolvency of the bank on August 8, 1893. (People v. St. Nicholas Bank, supra.)

And the evidence wholly fails to show that the officers, agents and employees of the bank knew that the bank was irretrievably insolvent, and that the struggle to maintain its credit must be given up.

But defendant’s evidence, offered for the purpose of showing such knowledge on the part of the officers of the bank, was excluded by the court, to which ruling an exception was taken, so we shall assume in the further discussion that the evidence established that fact, for, if proof of the facts would have made good defendant’s defense, it would follow that because of its exclusion a new trial should result. It was not shown that the St. Nicholas Bank, at the time of the transfer of defendant’s check to it, had any knowledge whatever of the insolvency of the Madison Square Bank and of the fraud which the bank perpetrated on the defendant.

Proof of the fraud of the Madison Square Bank, therefore, at most, burdened this plaintiff with the necessity of proving that the St. Nicholas Bank obtained the check in good faith and for value without notice of the fraud. (Vosburgh v. Diefendorf, 119 N. Y. 357.)

If the fact be that the evidence upon this subject presented a question for the jury, it is doubtful whether the appellant is in a position to urge that the court erred in directing a verdict. At the close of the testimony plaintiff’s counsel asked the court to direct a verdict in plaintiff’s favor. Defendant’s counsel thereupon requested the court to direct a verdict in favor of the defendant. The effect of the request by counsel for both parties was to confer upon the court the authority to pass upon any questions of fact which the record presented.

The court directed a verdict for the plaintiff, defendant excepting. After the court had rendered its decision, as the request made by counsel authorized it to do, the defendant asked the court to submit certain questions of fact to the jury.

This request came too late, but if it were in time, we do not think the court was in error in refusing it.

It does not appear from the evidence, affirmatively and conclusively, that the St. Nicholas Bank obtained the check in the regular course of business, and gave the Madison Square Bank credit for it, as by such course of business and its contract it was bound to do. That this was done in good faith and without notice on the part of the St. Nicholas Bant of the insolvency of the Madison Square Bant, is shown by the testimony of William J. Gardiner, the cashier of the St. Nicholas Bank. Inquiry was made of him as to the reason for the notice given by the St. Nicholas Bank on the eighth of August that it would no longer act as the clearing agent for the Madison Squai’e Bank. He said: “We gave notice that the St. Niciiolas Bank would not clear any longer for the Madison Square Bank, because they had drawn against the balance that they agreed to keep there of $50,000, and had failed to make it good. * * * We did not do that because we considered the Madison Square Bank insolvent. I hadn’t heard rumors to that effect that they were insolvent; never heard a-word about it. I am sure of it.” The exceptions should be overruled, and judgment directed in favor of the plaintiff, with costs.

Yak Brunt, P. J., and Follett, J., concurred.

. Exceptions overruled and judgment ordered for' plaintiff, with costs.


text:
    New York and New Jersey Telephone Company, Respondent, v. Metropolitan Telephone and Telegraph Company, Appellant.

      Bes adjudieata — a non-appealahle interlocutoi'y decree or order should not he given the force of a final adjudication.

    Where an issue is presented by the answer of >a corporation in an action to which it is a party, as between it and the other parties to the suit, the question considered and decided is res adjudieata, notwithstanding the fact that such determination was made in the court o'f a foreign State, and was in form an order made upon a motion for an injunction.
    An interlocutory decree or order, which .may not be appealed from until after final judgment, is a mere step in the proceedings ultimately to ripen into a judgment which may be reviewed, and the force and effect of a final adjudication should not be given to it, for the party defeated by such order or decree has yet the right to have it reviewed, and so long as that right remains nothing is finally or conclusively settled.
    Appeal by the defendant, the Metropolitan Telephone and Telegraph Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of August, 1893, upon the decision of the court rendered after a trial at the New York Special Term, and also from an order entered in said clerk’s office on the 2d day of April, 1894, denying the defendant’s motion to set aside the findings and decisions of the court, and for a new trial of the issues made on a case containing exceptions as settled.

      Wheeler H. Peokham, for the appellant.

      John E. Parsons, for the respondent.
   Parker, J.:

August 6, 18J9, the Bell Telephone Company of New York (hereinafter called the Bell Company) entered into a contract with the Domestic Telephone Company, a New Jersey corporation (hereinafter called the Domestic Company), by which the Domestic Company acquired exclusive right and license to use and rent to others to use, certain telephones under a patent owned by the National Telephone Company of Massachusetts, in the district composed of the city of Newark and the townships of Harrison and Kearney in New Jersey, for the period of five years, from September 1, 18J9. By the eleventh clause of such contract it was provided as follows: If, at the expiration of the above period of five years (meaning the period last aforesaid), the party of the first part (the Bell Company) shall not desire to conduct the business of telephonic district exchange directly within said district (the Newark district) of the party of the second part (the Domestic Co.), or of merging said district into some other district, but shall, on the contrary, desire to have such business conducted for it, then, and in such case, the party of the second part (the Domestic Co.) shall have the first right of acquiring the license or agency to conduct such business, at such rate of rental, and upon such terms, as may then be fixed and determined by said party of the first part (the Bell Co.).”

The Beil Company, July 1, 1880, assigned this contract to the Metropolitan Telephone and Telegraph Company, this defendant.

October 2, 1882, defendant and the New Jersey Telephone Company, a New Jersey corporation, subsequently consolidated with plaintiff (which shall hereinafter be spoken of as the plaintiff), made a contract -which in part consisted of a license to plaintiff to use and license telephones in certain territory in New Jersey other than but surrounding the Newark district. This contract, after reciting the agreement between the Bell Company and the Domestic Company, contained the following provision:

“Now it is agreed that the second party (the New Jersey Co.) shall have, and the first party hereto (this defendant) hereby assigns and sets over to the second party, all the right, title and interest and benefit of the first party hereto, of, in, to and under the said license agreement with the Domestic Telegraph and Telephone Company, whether under or in pursuance of said agreement with said Bell Telephone Company of New York, or otherwise however — subject, however, to the burdens and obligations resting on the first party hereto under the same.

“ It being, however, expressly understood and agreed that at the expiration of the present term of said license agreement, to wit, on the 1st day of September, A. D. 1881, the territory covered thereby shall come under the license contract hereto annexed, and be merged with the territory covered thereby, unless by the terms thereof said Domestic Telegraph and Telephone Company shall have the right to compel and shall compel an extension or renewal thereof, in which event said territory shall, upon the expiration of such extension or renewal, come under the license contract hereto annexed and be merged with the territory covered thereby.”

Thereafter, by a decree of a New Jersey Court of Chancery, the defendant was required to give the Domestic Company an extension of its contract for a period of five years, and the defendant made performance in accordance with such adjudication. Plaintiff at once took the position that the extension of the contract witli the Domestic Company for a period of five years was in violation of defendant’s contract with it. That the agreement provided that the Newark territory should come under the license contract, unless ~by the terms thereof (agreement August 6, 1879) the Domestic Company should have the right to compel, and should compel, an extension or renewal thereof. The extension compelled, plaintiff urged, was not because of the terms of the contract of August 6, 1879, but because of a subsequent parol agreement entered into between the parties, by which it was understood and agreed that if the Domestic Company would furnish the money necessary to pay the Western Union Telegraph Company for a telephone plant owned by it in Newark, an extension of its contract for a period of five years would be granted.

It was further insisted on the tidal at Special Term that the New Jersey Court of Chancery had passed upon the issues presented by the pleadings in plaintiff’s favor in a suit to which both plaintiff and defendant were parties. By reason of such adjudication the plaintiff contended that the defendant was estopped from further questioning the matters decided.

The learned judge at Special Term conceded to plaintiff’s contention in such respect much force, but rested his decision in favor of plaintiff upon the ground that the contract between plaintiff and defendant gave to the former the right to the Newark territory, unless, by the terms of the contract made between defendant and the Domestic Company, the latter had a right to, and did compel a renewal of its license and contract, and that by the terms of the contract of 1879 the Domestic Company had no such right.

We are of the opinion that the question to which the learned counsel for the appellant invites our attention has already been passed upon by the New Jersey Court of Chancery, and is, therefore, just as effectual as an adjudication and an estoppel as if it had been the subject of like disposition in the courts of this State. The record of all the proceedings had in the Court of Chancery is before us, and counsel for both parties invite our consideration of the several opinions delivered.

At the expiration of the term provided by the contract of August 6, 1879, the plaintiff claimed the right to the possession and use of the telephone property in Newark. Thereupon the Domestic Company commenced a suit in equity, in which it made defendants both this plaintiff and this defendant. The bill, among other things, set up the contract of August 6, 1879, and a demand on its part for an extension of the contract for another term of five years, and it contained a prayer that the Metropolitan Company, be compelled to specifically perform such contract by granting to the complainant a new license, “ upon such terms as may be determined by the court.” As ancilliary to such relief, that, pending litigation, an injunction issue, restraining the defendants from removing the telephones in complainant’s possession and from interfering with-its business in such district.

The joint and several answers of the defendants, among other things, contain the following: “ These defendants, in further ans-

wering, say that paragraph 11 of the contract of August 6, 1879, under which the complainant claims a renewal of said contract or further license, is not binding as a contract or of any legal force, and is not enforcible in equity or in law, and this court can make no . decree to compel a specific performance of the same.

These defendants also say that the clause in the memorandum of agreement referred to in' regard to the preference in making any ■contract at the termination of the agreement is of like character and not enforcible in equity or in law.”

Upon the bill, answers and affidavits a motion for an injunction was heard. Defendants’ answer challenging the validity and enforcibility of the contract, which complainant wholly relied on to establish 'its cause of action, required and received careful consideration at the hands of the vice-chancellor.

The-court, in a somewhat lengthy opinion, discussed the question whether, under the contract, the complainant was entitled to a renewal •of the lease. The conclusion was reached that the provision wdiich was the subject of consideration could not be specifically enforced by a court of equity, and the opinion concluded as follows: “ It is true that in cases of this kind, where an injunction is sought in aid ■of an action for specific performance, that the court will, as a general rule, if the complainant’s case is strong enough to render-it at all probable that he may, on final hearing, be able to convince the court that he is entitled to relief, award an injunction; but in cases where there is no doubt — where it is clear that the contract sought to be ■enforced has not yet been made, or, if it has been made, that it is so incomplete or uncertain that it cannot be enforced — an injunction must be denied, for the very obvious reason that the complainant has no equity which entitles him to the writ.” (Domestic Telegraph & Telephone Co. v. Metropolitan Telephone Co., 89 N. J. Eq. 160.)

On appeal to the Court of Errors and Appeals the order was .affirmed by a divided court, the minority, in a dissenting opinion written by one of their number, insisting that the complainant was. entitled to some relief under the eleventh clause of the contract, and, therefore, an injunction ought to have been allowed.

From the pleading and orders and opinions it is clear that the only question either considered or decided was the enforcibilty of the eleventh clause of the contract, and that, issue was presented-by the answer of this defendant, in an action to which it was a party. As between it and the other parties to the suit, the question considered, and the only one, was, therefore, res acbjudicata. (Bangs v. Strong, 4 N. Y. 315; Ashton v. Rochester, 133 id. 187; Culross v. Gibbons, 130 id. 447-454; Smith v. Zalinski, 94 id. 519-521 Demarest v. Darg, 32 id. 281-290; Burhans v. Van Zandt, 7 id. 523.)

Our attention has not been called to any decision holding that such an order is not conclusive as to any fact as to which the party had a hearing and the court passed upon.

Riggs v. Pursell is the first case cited by the appellant contra. That case recognized a change in the rules relating to orders made on motion, as estoppels occasioned by the provisions of the Code of Civil Procedure giving the right of appeal from orders.

The first decision in the Court of Appeals on that subject was. White v. St. John (25 N. Y. 203). This case was referred to in the opinion in Riggs’ case, and of it in part it was said that the familiar right of a party to renew a motion upon a different state of facts, or by supplying defects in proof, is not in any manner questioned or impaired by the decision. In the Riggs case the court held that it was not precluded by its former decision from considering certain additional and material facts, which were not before the court or passed upon in the first motion. This case was brought to the attention of the court in Smith v. Zalinski (supra), in which it was held that where, after issue had been joined in an equity action, the plaintiff transfers his interest, the transferee may move to be substituted as plaintiff, and where such motion is made-upon notice to the defendant, and an order of substitution is granted without directing supplemental pleading, or an amendment of the complaint, the question as to title in the substituted plaintiff is determined by the order, and may not be raised upon the trial.

The court said : “ But .the learned counsel for the appellant, citing Riggs v. Pursell (74 N. Y. 370), insists that such an order is not final and conclusive in an after controversy. That is true in the sense explained by that decision. That the motion may be renewed with the consent of the court, and even without that consent, upon a new and different state of facts; that where the motion was litigated a matter not necessarily involved in it, and not in fact litigated, is not concluded by the order, this court certainly held * * * ownership was the one vital question involved in that motion and its decision. * * * ”

The order directing substitution “is not weakened by the fact that defendant made default. The court had a right to assume that the alleged ownership was conceded and that no issue was raised over it.”

In Webb v. Buckelew (82 N. Y. 555) the question presented was whether an interlocutory order or decree in an equity action, from which, by the provisions of the Code of Civil Procedure, appeal is postponed until final judgment, is conclusive between the parties and privies. It was held not, and the learned author of the opinion, when writing in Smith v. Zalinski, omitted to refer to it as bearing upon the question then being decided, probably for the reason that he did not consider it in point. Certainly, the distinction between the two cases is marked. When an order is made from which it is provided an appeal may be taken, there is every reason why the determination of the court, which results in the order, should be binding upon all the parties to the action or proceedings, and to such effect are the authorities. But an interlocutory decree or order, which may not be appealed from until after final judgment,, is a mere step in the proceedings, ultimately to ripen into a judgment which may be reviewed, and the force and effect of a final adjudication should not be given to it. Por the party defeated by the order or decree has yet the right to have it reviewed, and, so long as that right remains, nothing is finally or conclusively settled.

The final determination of the New Jersey Court of Chancery was just as effectual as an adjudication and estoppel as if it had been rendered by the courts of this State. (Dobson v. Pearce, 12 N. Y. 156; Revere Copper Co. v. Dimock, 90 id. 33.)

April 6, 1885, the bill of complaint was amended, pursuant to an order of the chancellor, by the insertion of an averment, in effect, that after the execution of the contract of August 6, 1879, the Bell Company, with the knowledge and assent of the defendant, independently contracted with the Domestic Company to renew its license in the Newark district for a further term of five years, upon certain conditions, which were duly provided by the Domestic Company. Upon this amendment issue was joined, and subsequently such proceedings were had as resulted in a decree, wherein it was adjudged, among other things, that subsequent to the making of the contract of August 6, 1879, and on or about the 16th day of April, 1880, the Bell Company and the Domestic Company entered into a supplemental verbal agreement, that in consideration of the purchase by the Domestic Company of the. telephonic plant and business operated in Newark by the Western Union Telegraph Company, if the Bell Company, at tjie expiration of the original contract, should exercise the option of purchasing the plant and business established by the Domestic Company, in accordance with the terms of the contract, it would also purchase of such company the Western Union plant in said city upon the same terms; if it determined not to conduct'directly such telephone business in the Domestic Company’s district, it would renew the Domestic Company’s contract of August, 1879, for the additional period of five years, upon the same terms as provided in said contract. It was further adjudged that the complainants were entitled to a specific performance of said contract, and it was decreed that the defendant execute and deliver to the Domestic Company a new license or contract, to run for five years from the 1st day of September, 1884, with terms the same as provided in the contract of August 6, 1879.

The opinion of the court is reported in 41 N. J. Eq. 241. An appeal was taken to the Court of Errors and Appeals, where the decree was affirmed. (Metropolitan Telephone & Telegraph Co. and Another v. Domestic Telegraph & Telephone Co., 44 N. J. Eq. 568.) That court reached the conclusion that the committee which purported to represent the Bell Company were without authority to bind the Bell Company, but that the Domestic Company accepted the proposal then made, and thereafter, and in accordance therewith, furnished the sum of $11,500 necessary to purchase the plant of the Western Union Company. That the act of the Domestic Company in performing that condition was accepted as ratifying and validating the unauthorized acts of the executive committee in proposing the contract upon that condition, and also as estopping the Metropolitan Company from denying the existence of the contract, and its binding force on that company.

The opinion concludes, “for these reasons I think a contract came into existence between the parties which ought in equity to be performed according to its terms.”

Thus it was established by the decisions of the court having jurisdiction of the parties:

1. That by the terms of the'contract of 18Y9 the Domestic Company had not the right to compel the JBell Company (or its assignee, this defendant) to renew its contract.

2. That the contract of renewal made with the Domestic Company was in pursuance of the subsequent verbal arrangement which persuaded the Domestic Company to-so act as to’estop the Bell Company and its assignee from refusing to carry out the agreement.

The appellant contends that notwithstanding the agreement between it and the plaintiff provided that the Newark territory should come under the license contract, “ unless by the terms thereof (referring to the contract of August, 18Y9) the Domestic Company shall have the right to compel and shall compel an extension or renewal thereof,” should he more broadly construed, and that such a construction as the appellant contends for is in fact required by the-surrounding facts and circumstances which should be considered by the court. And further, that it was error to hold that the supplemental verbal agreement found by the final decree in the New Jersey suit constituted a breach of the agreement of October, 1882. But if we are right in the view we have expressed, that it- has been determined in an action in the New Jersey Chancery Court, to-which the plaintiff and defendant were parties, that the Domestic Company had no right to compel an extension of the agreement of August, 18Y9, the defendant is now estopped from questioning it.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Christopher Gullman, Respondent, v. John M. Sharp, Appellant, Impleaded with Others.

      Appurtenance defined — joint owners — the act of one, in selling property not owned by them, not imputed to the other.

    An appurtenance is a thing used with and related to or dependent upon another thing more worthy, and agreeing in its nature and quality with the thing whereunto it iá appendant or appurtenant; a thing belonging to another thing as principal, and which passes as incident to the principal thing.
    An appurtenance to a dredge must be something needful in the work of dredging, and where a suction pump is temporarily placed upon a dredge, the conveyance of the dredge and appurtenances will not include the suction pump upon the same, in the absence of evidence showing an intention of the parties to convey the suction pump as well as the dredge.
    The act of one of two joint owners of a dredge, on which a suction pump leased by them has been temporarily placed, in selling and delivering the suction pump to a third person, cannot, by reason of such relation, and in the absence of other authority to do so, be imputed to the other joint owner.
    Appeal by tbe defendant, John M. Sharp, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of May, 1894, upon the verdict of a jury rendered after a trial at the New York ■Circuit, and also from an order entered in said clerk’s office on the 2oth day of May, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Roehfort c& Stayton, for the appellant.

      Robert W. Todd, for the respondent.
   Parker, J.:

The judgment under review á wards damages to the plaintiff for the alleged conversion of a suction pump, built for the purpose of throwing mud over a sea wall. The defendants were sued as joint tort feasors, but only the defendant Sharp was served, and the judgment is against him alone. The act of. conversion alleged against the defendant is that he sold and delivered the pump to one Stevens. He testified that he had no intention of selling the pump, and no word of his was proved in contradiction of his statement, unless it may be found in the written contract of sale executed by Sharp and the other defendants.

Before referring to the contract of sale, some of the facts which led np to it should be stated.

In the year 1891 the firm'of J. A. Mundy & Co. were engaged in dredging the harbor of Philadelphia, under a contract with the United States government. Sharp was not a member of the firm, but the contract required that a bond, in the penal sum of $500,000, should be given for the faithful performance of its provisions by Mundy & Co., and upon this bond defendant Sharp was a surety. The bond provided, among other things, that the sureties should be liable in case of the failure of complete performance within the time stipulated in the contract.

The work progressed so slowly that the sureties became concerned lest they should be compelled to respond in damages, by reason of a failure to perform within the stipulated time, and were accordingly induced to unite with Mr. Mundy, one of the firm of contractors, in the purchase of a plant to be used in pushing the work to completion. The plant purchased included a dredge known as the Big Jim,” for which they paid about $14,000. About the time of such purchase Mundy & Co. entered into a contract with the plaintiff Gullman to make a pump at League Island to be used in pumping over a sea wall to the lowlands mud to be dredged from the river and to be deposited near the pump. Upon the arrival of the dredge “ Big Jim,” Mundy & Co. gave Gullman the privilege of using it as a platform on which to place his pump.

It was put on the Big Jim ” by Gullman, where it remained until after the making of the contract, by which it was contended Sharp sold the pump to Stevens. It is nowhere intimated that it was the intention of any of the pai’ties that the connection thus temporarily formed between the pump and the .dredge was to continue beyond the period 'of plaintiff’s pumping operations. Later in the season of 1891 Mundy & Co. built another pump known as the big pump, the completion of which was substantially like that of the Gullman puinp. The big pump was not put on a dredge, but placed on a caisson built for the purpose.

In the winter of 1891 and 1892 Mr. Stevens sub-contracted with Mundy & Co. to do all the work yet to be done under the contract of that company with the government.

Simultaneously, another agreement was entered into between Ste•vens on the one hand, and Mundy, Sharp and Busch on the other (Sharp and Busch being sureties on the contract for Mundy & Co.), by. which was sold to Stevens the plant that they had bought for use in connection with the work. It reads as follows :

“Agreement made this 2d day of February, 1892, between James A. Mundy, John M. Sharp and Clarence M. Busch (sole stockholders of the Philadelphia Dredging Co.), parties of the first part, and C. Amory Stevens, party of the second part.
“ The parties of the first part hereby sell and transfer to the parties of the second part all their interest in the following described plant, now employed on the work of improving the Philadelphia harbor: The plant known as the Thompson plant, and consisting of the dredge ‘ Columbus,’ the dredge Norwalk,’ the dredge American,’ the tugboat James Bowen,’ and thirteen scows.
“ The plant known as the Philadelphia plant, and consisting of the dredge Starbuck,’ the launch ‘ Governor Beaver,’ the ‘ Big Jim ’ and appurtenances, the new pump, known as the big pump,’ with its boilers, caisson and appurtenances, together with three scows, and all fittings, appurtenances, plant and apparatus owned by the parties of the first part, or the Philadelphia Dredging Company, and purchased or acquired for us in performing the work of improving the harbor of Philadelphia under the contract between the War Department and James A. Mundy & Co.”

It is claimed that under this contract two pumps similar in construction and situated near to each other were sold to Stevens.

As we read the contract it is difficult to discover any basis for this claim. The contract in terms only purports to transfer one pump, which it describes as the “ big pump, with its boilers, caisson and appurtenances.” It is conceded that this description does not include plaintiff’s pump. The claim is that this pump, which the jury valued at $3,200, was transferred by the words “ and appurtenances ” contained in this phrase: “ Consisting of the dredge ‘ Star-buck,’ launch ‘ Governor Beaver,’ the ‘ Big Jim ’ and appurtenances.” In the first place, the difference in the language employed in describing the dredge “ Big Jim,” and that which refers to the big pump, strongly indicates that the parties to the contract did not intend to "include plaintiff’s pump in the following words: “ Big Jim and appurtenances.”

In describing the big pump, which the parties of the first part unquestionably owned, it is called “the new pump, known as the big pump, with its boilers, caisson and appurtenances.” But the caisson for the big pump sustained the identical relation to it which the dredge “ Big Jim ” did to the Gullman (plaintiff’s pump); and if the words “ Big Jim and appurtenances ” included the Gullman pump, it would follow that the words “ caisson and appurtenances ” would have included the big pump. The full and specific description of the big pump and its “ appurtenances ” strongly indicates that it was not intended by the contract to transfer the Gullman pump as an appurtenant of the “ Big Jim.” But aside from the fact that the language of the contract indicates that- it was intended to pass the title to but one of the two pumps then located near together, the words “and appurtenances” cannot he held to include this valuable pump, which constituted no part whatever of the outfit of the dredge “ Big Jim,” to which it was temporarily attached. The words are not ambiguous in the sense in which they were here employed, hut instead have a definite and well-defined meaning.

An appurtenance is “ a thing used with and related to or dependent upon another thing more worthy, and agreeing in its nature and quality with the thing whereunto it is appendant or appurtenant. A thing belonging to another thing as principal, and which passes as incident to the principal thing.” (Am. & Eng. Ency. of Law, 641.)

An appurtenant to a dredge must be something incidental to and needful in the work of dredging. With such work plaintiff’s suction pump had nothing whatever to do, and the actual effect of putting it on the dredge “ Big Jim ” was to prevent its use for dredging purposes during the time they were connected.

Mr. Parsons in his work on Maritime Laws, after considering a number of cases in which had been discussed what constituted an appurtenance to a ship, said: “ It would seem to be deducible from these cases that nothing is to be considered an appurtenance of a ship unless requisite to its proper use, although connected with it at the time.” (Parsons’ Mar. Laws, 72, note).

While we are convinced that the written contract does not include the Gullman pump, and the record persuades us that it was never Sharp’s intention to sell it to Stevens, we are nevertheless of the opinion that there was evidence to support the verdict.

The testimony of Stevens and Capt. Collins was to the effect that at the time of the oral negotiations which were had with Mundy and Stayton, who represented the owners of the property, it was stated by them that Mundy, Busch and Sharp had furnished a large part of the money which had been expended in constructing the Gullrnan pump, and that out of the moneys to be paid by Stevens for the plant Gullrnan should be paid for his interest and the pump should go to Stevens as part of the plant. This statement suggests that possibly the evidence should not have been received on the ground that the oral negotiations became merged in the subsequently executed written agreement, but our attention is not called to any exception taken to its admission. It was contradicted by Mundy and Stayton, but we must assume that the jury found in plaintiff’s favor.

This evidence is followed by the testimony of Stevens and Capt. Collins, to the effect that in pursuance thereof, all of the property, including the Gullrnan pump, was delivered to Stevens by Mundy, one of the owners.

On cross-examination Mundy testified as follows: I turned over the material and plant which was sold on the contract of February 2nd, to Mr. Stevens. I turned them over to Capt. Collins and Mr. Stevens. I know Mr. Stevens was present. I turned over to him the £Big Jim.’ Q. Didn’t you turn over what was on her to them? A. Do you mean the Gullrnan pump4 Q. Everything that was on her? A. Tes; we turned over everything that was on the £ Big Jim ’ to Capt. Collins and Mr. Stevens. We turned the Big Jim ’ over just as she stood.”

The jury was, therefore, permitted to find a delivery of the property to Stevens by Mundy. It is true, as appellant suggests, that as Mundy was not a partner of Sharp, but simply a joint owner of the property with him, his relation to the property did not authorize him to deliver something which Sharp did not own and had no right to sell, and if he had no other authority, his act in turning over the property could not have been imputed to Sharp.

But Sharp testified that Mundy acted for him in turning over the property. He said: I was not present when the money was paid, and as far as turning over the plant I had nothing to do with that. Q. "Who was that left to ? A. Mr. Mundy took charge of that. He was to turn the plant over to Mr. Stevens under that contract, and acted for me in that capacity.”’

The evidence, therefore, presented questions for the jury, which, being found in plaintiff’s favor, authorized the judgment.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concurred.

Judgment affirmed, with costs.


author: Parker, J.: Yan Brunt, P. J.

text:
    Nathaniel S. Simpkins, Respondent, v. William H. Taylor, Appellant, Impleaded with Others.

      Reformation of a written instrument — burden and amount of proof— a guaranty of collection may be changed to one of payment.

    To justify the reformation of a written instrument the plaintiff, in an action brought for that purpose, is bound to establish the mutual agreement of all parties to the instrument to the precise contract alleged to have been, in fact, the original agreement, and that the written instrument failed to express the common agreement, because of accident or of mutual mistake of all the parties, or by mistake on one side, induced by fraud on the other; the burden rests upon him to establish both of such propositions, not merely by preponderance of evidence, but by proof so clear and convincing as to thoroughly satisfy the mind of the court.
    An instrument in writing which on its face is a guaranty of the collection of a certain bond and mortgage.may, in a proper case, be reformed by a court of equity so as to become a guaranty of the payment of the bond and mortgage.
    Van Brunt, P. J., dissenting.
    Appeal by the defendant, William H. Taylor, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of June, 1894, upon the decision of the court rendered after a trial at the New York Special Term.

      Thomas G. Shearman, for the appellant.

      George II. Pettit, for the respondent.
   Parker, J.:

To justify the reformation of a written instrument it is well settled that the plaintiff is bound to establish:

1. The mutual agreement of all parties to the instrument, to the precise contract alleged to have been, in fact, the original agreement.

2. That the written instrument fails to express the common agreement, because of accident or of mutual mistake of all the parties, or by mistake on one side, induced by the fraud of the other.

And the burden rests upon the plaintiff to establish both of these propositions, not simply by a preponderance of evidence, but by proof so clear and convincing as to thoroughly satisfy the mind of the court. (Southard v. Curley, 134 N. Y. 148, and cases cited.)

The judgment under review decrees that an instrument in writing which on its face is a guaranty of collection of a certain bond and mortgage, should be so reformed as to guarantee its payment.

That such an instrument may be reformed by a court of equity, as well as deeds, mortgages and contracts generally, which have been repeatedly the subject of reformation, is supported by Prior v. Williams (3 Abb. Ct. App. Dec. 624).

The question then is, whether, applying the principles which should govern courts in decreeing that a contract be reformed to conform to the evidence adduced on the trial, the findings of the court at Special Term should be sustained ?

The direct testimony upon the question in issue was given by three witnesses, and how much their bearing, while on the witness stand, may have contributed towards satisfying the conscience of the court that the guaranty was not such as was agreed to, and that the change in the agreement was brought about through mutual mistake, or the mistake of one party and the fraud of the other, we cannot know. Our examination must be confined to the record.

The first inquiry should be, what was the agreement ? for it is not enough to prove that the plaintiff so understood the contract, and that the defendant knew he so understood. It must further appear that the defendant so agreed.

The plaintiff and the defendant Taylor had been personal friends for years prior to this transaction. Some measure of plaintiff’s confidence in Taylor can be taken from the fact that after plaintiff had agreed to take the bond and mortgage and defendant’s guaranty and pay $10,000 therefor, the plaintiff gave him the amount in advance of the papers being ready for delivery. Indeed, they were not prepared and sent to him for nearly three months thereafter.

The plaintiff’s testimony as to the agreement was as follows: “ Mr. Taylor came to me and wanted me to invest in this Peyton Montgomery mortgage, which was $10,000 and bearing seven per cent interest, and I told him it was too large a risk for me to take; 1 did not care to invest so much money in one thing. He said it was perfectly good, and he considered it as good as a government bond, in his judgment. I said, if that was so, if he would guarantee the payment of it, I would give him one per cent, and I said I would be satisfied with six, and he said he would. He promised to do so.”

John Simpkins, a brother of the plaintiff, testified that he had a conversation with Taylor after his brother had agreed to take the loan. They were playing billiards at the club when Taylor told me what I already knew to be the fact, that my brother had agreed to take a $10,000 loan with a guaranty of the firm, and he stated that the firm had to charge the one per cent as a guaranty as a matter of business; that they could not make a guaranty, or it would not be business for them to make a guaranty, of any loan — payment of it — without taking one per cent for so doing.

I replied to his statement that I thought my brother had been very foolish to have made a loan of $10,000 'unless the payment of the principal and interest was guaranteed, because, having a family, I did not think he could afford to take the risk.”

The other witness on this point was the defendant Taylor. He said: “ I said nothing to Mr. Simpkins at the conversation which took place in May, 1886, or about that time, in regard to guaranteeing the payment of this bond and mortgage. I said that I would sell him' the loan with a guaranty, and that, upon my return to Kansas, I would have the form of guaranty made up and sent on to him.”

He does not say that he proposed to Simpkins that he would sell him the loan with only a guaranty of collection. According to his own version of it, there was no such limitation suggested. Nor does he say it was his intention to so restrict the guaranty. He contents himself with a denial that at the time there was anything said in regard to guaranteeing the payment of the bond and mortgage.

Now the court before whom the witness appeared, finds the fact to be that he did so agree, and, in view of the testimony to which we have referred, this court should sustain the finding.

Immediately after the making of the agreement the plaintiff gave Taylor the $10,000, who, nearly three months later, sent to him the bond and mortgage, and with it a guaranty of collection signed by the defendants.

It was received by plaintiff’s agent and retained by him with other papers of the plaintiff. The agent had authority to open plaintiff’s letters, and did so in this instance, simply reporting the fact of their receipt by him to the plaintiff. Thus it happened that plaintiff’s attention was not called to the form of the guaranty. Certainly discussion is not needful to make it appear that, so far as he was concerned, the fact that the written agreement was different from the real agreement of the parties was due to mistake.

That the execution of a different contract of guaranty than that agreed upon was due to fraud on Taylor’s part seems equally apparent. He agreedvto give a guaranty of payment if Simpkins would loan the money. He did not do it. An opportunity to perpetrate the fraud was presented, and he took advantage of it. He had Simpkins’ money, who also had confidence in him, and was, at the time of its execution and delivery, at a seaside resort. So he prepared a guaranty, but one quite different from that which he had agreed to have executed by the firm and delivered. He must be presumed to have intended the necessary consequences of his act, which was to perpetrate a fraud on the plaintiff.

We do not concur in the view expressed by appellant’s counsel, that, by reason of the long delay, the plaintiff should be held to have acquiesced in the guaranty delivered. The paper came into the hands of his agent, who did not call his attention to the peculiar form of the guaranty, and the circumstances were such that he never read the paper until he regarded it necessary to call in the loan. With reasonable promptitude thereafter he commenced this suit.

Albany City Savings Institution v. Burdick (87 N. Y. 40-46) justifies the refusal of the trial court to dismiss the plaintiff’s complaint on that ground.

An examination of the authorities cited by the appellant on this question will disclose that there were present in each case facts so entirely different from the controlling facts in this one as to justify the assertion that they are not in point.

Calhoun v. Millard (121 N. Y. 69) was a suit in equity to compel the surrender and cancellation of certain town bonds. For many years, without protest or objection, taxes had been levied upon the property of the town to pay the interest annually accruing on the bonds, and it was applied to that purpose.

The court held the party guilty of unreasonable laches.

Avery v. Equitable L. A. Society (117 N. Y. 451) was a suit to reform a policy of life insurance after the tontine period of fifteen years had expired and the beneficiary had been tendered the cash value of the policy. The complaint offered no excuse whatever for the delay, and judgment was rendered on a demurrer to the complaint.

Syms v. The Mayor (105 N. Y. 153) had for its purpose the reformation of two leases, one executed in 1840 and the other in 1861. The court disposed of the case in this sentence: “ But there was no proof of any mistake or fraud in their execution or in the terms inserted in them, and, therefore, even if the Statute of Limitations did not furnish a bar to the action to reform the leases there was no basis or ground for their reformation.”

The law of the case was not further discussed.

The judgment should be affirmed, with costs.

Follett, J., concurred.

Yan Brunt, P. J.

(dissenting):

I cannot concur in the conclusion arrived at by Mr. Justice Parker in this case.

I do not think that the proof offered in this case was of bo clear and convincing a character as to justify the reformation of the instrument in question.

It is attempted to establish the mutual mistake of the parties by the testimony of the plaintiff and his brother, the plaintiff testifying to the arrangement and his brother to an admission alleged to have been made subsequent to the date of the transaction in question. The defendant contradicts the testimony of the plaintiff pointedly, and refers to certain circumstances which tend to impair the credit to be given to that testimony. He shows that the guaranty was sent to the plaintiff, and he testifies without contradiction that he asked the plaintiff some time thereafter whether he had received the papers and the plaintiff answered “Yes.” The defendant then asked him: “ Is the guaranty — is that form of guaranty all satisfactory?” and the plaintiff said “Yes.”

The plaintiff’s brother testifies to a conversation had between himself and the defendant some time after the transaction in question, while they were playing billiards at the Union League Hotel, in which he says that the defendant told him what he already knew to be the fact, that his brother had agreed to take a $10,000 loan with a guaranty of the firm, and he stated that the firm had to charge the one p,er cent as a matter of business; that they could not make a guaranty, or it would not be business for them to make a guaranty of any loan — payment of it — without taking one per cent for so doing. It appears certain from the evidence in this case that the words “ payment of it ” were an interpolation by the witness in the conversation and were not words used by the defendant. They do not fit anywhere into the conversation. The conversation was complete without them. But the witness had in mind the necessity, for his brother’s success, that the words “payment of it” should be injected, and he was equal to the occasion. He says that the language used was that they would not make a guaranty ; that it would not be business for them to make a guaranty of any loan — and then he injects the words “ payment of it ” without taking one per cent for so doing. The very method in which the witness testified to this conversation shows that these words were not used, certainly that the defendant did not use them on any such occasion. This view is confirmed by the answer of the witness to the next question. He says: “ I replied to his statement that I thought my brother had been very foolish to have made a loan of $10,000 unless the payment of the principal and interest was guaranteed, because having a family I did not think he could afford to take the risk.” The language of the witness here seems to imply that he understood that his brother had made the loan without the guaranty of payment, because he speaks of his brother as having been very foolish in acting in the way in which he did, whereas if he had acted in the way the witness says he did he would not have been at all foolish in making the loan.

It seems to me that under these circumstances, the plaintiff having these papers under his control for a long period of time — it is true there is no evidence that he had looked at them — having acknowledged the correctness of the guaranty, his attention being called to it by correspondence, there is no such clear and distinct evidence'of mutual mistake, or of mistake on one side and fraud on the other, as would justify the reformation of this contract.

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

Judgment affirmed, with costs.


author: Parker, J.: Van Brunt, P. J. :

text:
    Anna Mortland, Appellant, v. Philadelphia and Reading Railroad Company, Respondent.

      Xoss of a checked trunk— liability of a railroad company as a common carrier and as a warehouseman.

    "Where a trunk is checked by a railroad company from one city to another, the liability to the owner of the trunk by the company as a common carrier continues from the time the trunk is checked until its arrival at its destination, and for such time thereafter as will afford the owner thereof a reasonable opportunity to remove the same.
    What constitutes a reasonable time cannot be measured by any arbitrary and inflexible rule, but depends upon the circumstances of each case, and if the facts are undisputed it is a question of law for the court to determine.
    After the liability of a railroad company as a common carrier ceases towards the owner of a trunk checked by it, it still owes a duty to him, although its strict responsibility as a carrier has been changed to a modified liability, such as that of warehouseman, and it can be charged with responsibility for the loss of the trunk only on the ground that it was negligent and failed as such warehouseman to discharge in full the duty it owed to the owner of the trunk.
    Appeal by the plaintiff, Anna Mortland, 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 8th day of May, 1893, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the New York Circuit, with notice of an intention to bring up for review on such appeal an order entered in said clerk’s office on the 12th day of May, 1893, denying the plaintiff’s motion for a new trial made upon the minutes.

      Jonathcm O. Ross, for the appellant.

      Pierre M. Brown, for the respondent.
   Parker, J.:

The baggage manager of a theatrical company of which the-plaintiff' was a member caused the baggage of the company, as well as that of the individual members of it, to be checked from Wilmington, Del., to IVIahoney City.

After the car in which the baggage checked was carried had arrived at IVIahoney City, the manager of the theatrical company went to-the car in company with the baggageman in the employ of the defendant, who unlocked the car and opened it. All the checks, were at that time delivered to him by the manager of the theatrical company, who informed him that he only desired to- take out the baggage of the company which would be required for use at the performance in the evening, leaving the other trunks in the custody of the defendant. He was informed by defendant’s baggageman that he might as well deliver up all the checks, that every thing would be safe, because the car would be only 200 feet from the depot, and the defendant had a night watchman. This suggestion was acted upon, the property necessary for the evening’s performance being taken from the car, after which the door of the car, which had a snap-lock on it, was closed.

Among the trunks left in the car was one belonging to this plaintiff, the contents of which were of the value of $500. After the evening’s performance was at an end the trunk was missing. Subsequently the trunk was found, but- the lock was broken and its contents had been taken away.

The trial court, rightly, as we think, dismissed the complaint after the plaintiff had rested her case. Defendant’s, liability to the plaintiff as common carrier was in force from the time' the trunk was checked at Wilmington until its arrival at IVIahoney City, and for such a time thereafter as should afford plaintiff reasonable opportunity to remove it. (Roth v. Buffalo & S. L. R. R. Co., 34 N. Y. 548; Fenner v. Buffalo & S. L. R. R. Co., 44 id. 505; Burnell v. N. Y. C. R. R. Co., 45 id. 184; Mattison v. N. Y. C. R. R. Co., 57 id. 552.)

As to what constitutes a reasonable time cannot be measured by any arbitrary and inflexible rule, but depends upon the circumstances of each case. "When, however, the facts are undisputed, what is a reasonable time is a question of law. for the court. (Hedges v. H. R. R. R. Co., 49 N. Y. 223.)

In this case the facts were not in dispute. Only one witness was sworn, and he was the baggage manager of the theatrical company. His testimony required the court to hold that before the trunk was taken from the possession of the defendant the plaintiff had had a reasonable time within which to remove it, because the person who was authorized to act for her, and for that purpose had possession of the check, removed from the same car other baggage, and could have removed this had he desired to do so. Eor his own convenience, or for that of his principal, or both, he elected not to take it away, but to leave it in the custody of the defendant.

The baggagemaster of the defendant suggested that he leave it in the car, and told him where the car would be located, and that the defendant had a night watchman.

Plaintiff’s representative acquiesced in the suggestion, delivered the check, with others, to the baggagemaster, and the car was closed. Thus was terminated defendant’s relation to the plaintiff as common carrier of her trunk.

Deninny v. N. Y. & N. R. R. Co. (49 N. Y. 546) is not an authority for the plaintiff. The decision in that case was predicated on a finding of fact that The plaintiff caused the demand to be made for said trunk and contents within a reasonable time, and made reasonable efforts, and within a reasonable time, to demand and procure the trunk and contents; and that the defendant refused and neglected to deliver the contents of said trunk.”

¥e have not overlooked the case of Burgevin v. N. Y. C. & H. R. R. R. Co. (69 Hun, 479). The proposition of law which the court asserts to be controlling in such a case as this accords with the views we have expressed, but under the peculiar circumstances of that case it was held that plaintiff called for his trunk within a reasonable time af ten its arrival at the station.

It does not follow of course that because defendant’s responsibility as a carrier ceased, the company could thereafter leave it uncared for. It still owed a duty to the plaintiff in respect to the trunk. The strict responsibility of a carrier had been changed to a modified liability sucb as tkat of a warehouseman. As a warekouseman the defendant could be charged with responsibility for the loss of the trunk only on the ground that it was negligent and failed to discharge in full the duty it owed to the plaintiff as such. But upon the question of negligence the record is silent. Hence no question was presented for the consideration of the jury.

The judgment should be affirmed.

Eollett, J., concurred.

Van Brunt, P. J. :

I concur. The only witness examined for the plaintiff shows that the baggage was delivered. He says that he gave the checks to the baggageman who delivered the baggage to him; that then the witness asked to leave some of the baggage there.

This testimony is reiterated. The witness says: “After I got this baggage I asked the baggageman to leave some of the stuff in the car and he said it would be all right.” This evidence shows clearly that the obligations of the defendant as carrier had ceased.

Judgment affirmed.


author: O’Brien, J. :

text:
    George Ropes, Respondent, v. William H. Arnold, Appellant, Impleaded, etc.

      Appeal from a judgment only — what questions a/re presented thereby — effect .of ashing the direction of a verdict — principal and agent — parties on whose behalf a written contract is made,. though not named therein, cha/rgeable thereunder — terms of a written agreement — contract made by correspondence, explained by o’i'al evidence.

    Where an appeal is taken from a judgment rendered upon a verdict directed by the court, if no motion is made for a new trial, there is presented for review on such appeal simply the exceptions taken upon the trial of the action.
    Where one of the parties to an action, having made no request to submit any question of fact to the jury, moves for the direction of a verdict in his favor (the adverse party having moved for a direction of a verdict in his favor), he consents that the court shall pass upon whatever disputable inferences of fact may be deducible from the testimony. The party against whom a verdict is so directed cannot be heard to complain if the court, as will be presumed on appeal, resolved such inferences so as most strongly to support the verdict directed; and if there be evidence tending to support the version of the party in whose favor the verdict was directed, even, though susceptible of different inferences, the verdict directed and the judgment rendered therein will be sustained on appeal.
    In an action upon a written contract not under seal, extrinsic evidence may be given to show that it was made on behalf of parties other than those whose names appear in or are signed to the instrument, and such other parties may be charged with the provisions thereof in such action. An action can be maintained against a principal upon a contract for the sale of goods made by an agent in his own name.
    When oral evidence is necessary to disclose fully the terms of an alleged agreement contained in correspondence, such evidence is admissible to show the terms of the contract.
    The rule forbidding oral evidence of an agreement in writing applies only to the parties thereto or their privies.
    Appeal by tlie defendant, William H. Arnold, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th clay of March, 1894, upon the verdict of a jury rendered-by direction of the court after a trial at the New York Circuit.

      George A. Black, for the appellant.

      George 8. Hamlin, for the respondent.
   O’Brien, J. :

The action was brought against the members of the firm of Arnold, Hines & Co. and the members of the firm of Herron & Spencer, to recover damages for refusal to perform a written contract to receive and pay for a quantity of dates alleged to have been sold to the two firms jointly. The defense was that the dates were purchased, not by Arnold, Hines & Co., but by Herron & Spencer. Evidence to sustain the complaint was offered, and, after the plaintiff rested, the defendant, without offering any testimony, moved to dismiss the complaint on its face, and also upon the evidence, which motions were denied and exceptions taken. Prior to these motions the plaintiff had asked for a direction in his favor, and, after the denials of the motions to dismiss the complaint, the defendant asked for a direction in his favor, which latter motion was denied and an exception taken ; the plaintiff’s motion was granted, and a verdict was directed in favor of the plaintiff. No motion for a new trial was made and no order denying such motion entered, the appeal being from the judgment, which, under the authorities, presents for review simply the excej)tions taken upon the trial.

The exceptions that are urged with most force are those taken to the refusal to dismiss, both upon the complaint and subsequently upon the evidence, the claims advanced being that there was a variance between the pleading and the proof, and that there was a total failure upon the evidence to prove the cause of action.

In support of the plaintiff’s allegation that the defendants, including the firm of Arnold, Hines & Co., entered into an agreement in writing, a contract was produced, signed by Herron & Sjiencer. This, however, was supplemented by the testimony of plaintiff’s witness Herron, that after an arrangement made between the firms for a joint transaction in dates, he purchased for account of both, signing such contract, however, by his own firm name. It being conceded that there was a contract in writing, the question is, under the pleadings, whether it could be shown that persons other than those appearing to sign the contract were parties thereto. This question we do not .regard as new, it having been held in many cases that in an action upon a written contract not under seal, extrinsic evidence may be given to show that a contract was made on behalf of parties other than those whose names appear in or are signed to the instrument, and to charge such other parties. (Dykers v. Townsend, 24 N. Y. 61; Coleman v. First Nat. Bank, 53 id. 388; Briggs v. Partridge, 64 id. 362; Nicoll v. Burke, 78 id. 581.) As said in Dykers v. Townsend (supra) : It seems to have been too long and too well settled, that an action can be maintained against a principal upon a contract for the sale of goods made by an agent in his own name, to be now changed, whatever we may have thought of it as an original' question.” The court, therefore, was correct in its ruling in refusing to dismiss the complaint upon this ground.

It appears that in addition to the testimony of Herron the correspondence between his firm and that of the appellant was produced, and upon this evidence both parties, without asking to have any question submitted to the jury, requested a direction in their favor. As said in Johnston v. Trask (40 Hun, 417): “ The defendants having made no request to submit any question of fact to the jury, and having moved for the direction of a verdict in their favor, they consented that the court should pass upon whatever disputable inference of fact might be deduced from the testimony. They, therefore, cannot be heard to complain if the court, as will be presumed on appeal, resolved such inferences so as most strongly to support the verdict directed.” (See, also, Dillon v. Cockcroft, 90 N. Y. 650; Gregory v. Mayor, 113 id. 416.) There being evidence tending to support the plaintiff’s version, even though susceptible of different inferences, we have no right to resolve these in defendant’s favor, but must, under well-settled rules of law, draw them most favorably to sustaining the direction made by the court, where such direction has been made at the request of both parties for a direction in their favor.

It is insisted, however, that error was committed in the reception of evidence relating to the oral negotiations between Arnold, Hines & Co., and Herron & Spencer, because these were all merged in the contract in writing between them, evidenced by three letters, and that parol evidence thereof was inadmissible. The plaintiff correctly answers this objection by urging that the letter referred to was not produced nor was it shown that it contained the terms of the verbal agreement; oral evidence, therefore, was admissible. Afterwards when the letter was put in evidence no motion was made to strike out the oral evidence. Again, the letters referred to when produced did not cover or purport to cover the whole agreement, and in order to disclose fully the terms of the original agreement, oral evidence was necessary and nnder the authorities admissible. (Chapin v. Dobson, 78 N. Y. 74.) And further, the written agreement was not between the parties to this action, or those with whom they were in privy, the rule forbidding oral evidence of an agreement in writing applying only to parties or *their privies. (Colemam v. First Nat. Bank, 53 N. Y. 388.)

The other exceptions, being clearly untenable, need not be discussed.

We think that the judgment should be affirmed, with costs.

Yan Brunt, P. J., and Eollett, J.f concurred.

Judgment affirmed, with costs.