text:
    THE KNICKERBOCKER ICE COMPANY v. THE FORTY-SECOND STREET & GRAND STREET FERRY R. R. CO. and THE NEW YORK, ONTARIO & WESTERN RAILWAY CO.
    I. New York city.

      ■1. Lands under water, bounded east by high-water mark on the eastern shore of the North river, west by the west line of Thirteenth avenue, north by the north line of Forty-third street, south by the center line of Forty-second street.
    1. Various conveyances of; construction of, and determination of certain rights under.
    II. Easements.

    1. Appurtenances, what passes under.
    (a) Pier, deed oe so descriptive—with the appurtenances.

      1. The grantor, owning the lands under water on the side of the pier, an easement therein to a “reasonable distance will pass to the grantee.
    1. Effect of deed on subsequent purchaser of the adjoining land under water.
    1. The first deed being recorded, the latter is subject to the easement thereby created.
    3. Covenants running with the land to be performed by a common grantor, when so required in a prescribed manner.
    (a) Effect of on subsequent gbantees.
    1. The performance of the covenants by a grantee of a portion of the land in which there is an easement in favor of a grantee of another portion, may have the effect of destroying the easement.

    1. It will have such effect when the grantor of the common grantor has a legal interest iu the performance of the covenant, and requires performance in the prescribed manner.
    3. Municipal corporation, when it is the grantor of the common grantor, and its only interest is that of performing a public duty, the requirement for the performance of the covenants must be in the discharge of its public duty, and in conformity with the covenants or the requirements of an authorized improvement.
    III. Maxim.

    1. He who asks equity must do equity.
    1. Trespasser.—Where plaintiff asks an injunction to restrain defendant from trespassing on land, in which the plaintiff has a certain interest, by doing certain things whicli he has no right to do as between the parties, and which are prejudicial to that interest, his prayer will not be denied by reason of the fact that he himself is, so to speak, a trespasser, as to the defendant’s certain other interests in the same lands, by doing-certain things which, as between the parties, he has no right to do, and which are prejudicial to the defendant’s interest; but on granting the injunction prayed for he will also be enjoined; and if his trespass be in whole or in part the erection of structures, he will be required to remove them.
    Before Freedman, J., at Special Term.

      Decided January 22, 1883.
    Motion for the continuance of an injunction restraining the defendants from filling in the space on the south side of plaintiff’s pier at Forty-third street, ■on the North river, in the city of New York.

      Moses B. Maclay, attorney, and Albert Stickney, of counsel, for the plaintiff.

      Moses Ely and Alexander & Green, attorneys, and William C. Gulliver, of counsel, for the defendants.
   Freedman, J.

Under chapter 182 of Laws 1837, the mayor, aldermen and commonalty of the city of New York became vested with all the right and title ■of the people of this State to the lands covered with water along the easterly shore of the North or Hudson river, between Hammond street and One-hundred-and thirty-fifth street, and extending from the westerly side of the lands under water, previously granted to the city of New York by the act of February 25, 1826, to the westerly line of Thirteenth avenue.

This includes the premises owned or claimed by all the parties to this action.

By the same chapter, the Thirteenth avenue, as laid out on a certain map, was made the permanent exterior street or avenue in said city along the easterly shore of the North or Hudson river, between Hammond street and One-hundred-and-thirty-fifth street, and the several streets south of and including One-hundred-and-thirty-fifth street were ordered to be continued and extended westerly along the then existing lines thereof, from their then existing westerly terminations, on a certain map or plan, to the said Thirteenth avenue. The Eleventh avenue was ordered to be continued and extended from its southerly termination at Thirty-third to Nineteenth street; and the Twelfth avenue was ordered to be continued and extended northerly, along its line from Thirty-sixth street to One-hundred-and-thirty-fifth street.

On July 1, 1850, the city conveyed to Caleb F. Lindsley, by two conveyances, certain water lots or vacant grounds under water, described as being bounded on the north by the center line of Forty-third street; on the south by the center line of Forty-second street; on the east by the line of high-water mark on the eastern shore of the North river, which line was an irregular one ; and on the west ,by the westerly exterior line of Thirteenth avenue, which line was described as “being the permanent exterior line of the said city in said river.”

These deeds grant the property described in fee. The following exception, however, was made in each of said grants, viz.:

“Saving and reserving from out of the hereby granted premises so much thereof as, per said map annexed, forms part or portions of Twelth and Thirteenth avenues and” Forty-third street in the one, and Forty-second street in the other, ‘‘for the uses and purposes of public streets, avenues and highways, as hereinafter mentioned.”

In these deeds the grantee covenants for himself, his heirs and assigns, when required so to do by the city, “at his own proper costs and charges, to build, erect, make and finish, or cause to be built, erected, made and finished according to any resolution or ordinance of the said parties of the first part, or their successors, already passed or adopted, or that may hereafter be passed or adopted, good and sufficient bulkheads, wharves, streets or avenues, which shall form so much and such parts of Forty-third street, Forty-second street, Twelfth and Thirteenth avenues, as fall within the premises described in the deeds mentioned and reserved, as hereinbefore mentioned from out thereof, and will fill in the same with good and sufficient earth, and regulate and pave the same, and lay the sidewalks thereof.” The grantee also covenants for ever thereafter to keep the streets designated “in good order and repair,” and to “obey, fulfill and observe such, ordinances, resolutions, orders and directions, as the city may from time to time enact, or pass, or make relative thereto.” And also covenants that the said streets and avenues “shall forever thereafter continue to be and remain public streets or avenues and highways for the free and common use and passage of the inhabitants of said city and all others passing and repassing by, through and along the same, in like manner as the other public streets, avenues, bulkheads, and wharves of the said city now are or lawfully ought-to be.”

In these deeds the city covenants that Lindsley, upon observing his covenants in the deeds, shall be entitled to wharfage accruing “from that part of the said exterior line of the city lying on the westerly side of the hereby granted premises fronting on the Hudson river .... forever excepting therefrom such wharf-age, cranage, advantages and emoluments to grow or accrue from the westerly end, of the bulkhead in front of the entire width of the southerly half of Forty-third street, .... “And of the bulkhead in front of one-half of the pier of Forty-second street,” both of which were reserved in thé city, with full power to collect and receive the wharfage for their own proper use and benefit forever.

Each of said deeds further provides as follows:

“And it is hereby further agreed, by and between the parties to these presents, and the true intent and meaning hereof is, that this present grant, and every word or thing in the same contained, shall not be construed or taken to be a covenant or covenants of warranty or of seizin of the said parties of the first part, or their successors, or to operate further than to pass the estate, right, title or interest they may have or may lawfully claim in the premises hereby conveyed, by virtue of their several charters and the various acts óf the legislature of the people of the state of Nevr York.”

These deeds were recorded on the 4th and 14th days of August, 1850, respectively.

By a further deed, dated November 11,1852, tho city conveyed to Lindsley the pier now owned and occupied by the plaintiffs. The description reads :

“All the estate, right, title and interest of the said parties of the first part of, in, and to all that certain pier in the city of New York, situate at the foot of Forty-third street, North river, bounded, described and containing as follows: Beginning at the point formed by the intersection of the northerly side of Forty-third street with the easterly line or side of the Twelfth avenue; running thence southerly, along the easterly side, of the Twelfth avenue, to the northerly side of said pier; thence westerly, 211 feet 3 inches ; thence southerly, 40 feet 5 inches ; thence easterly, 212-feet 2 inches to the easterly side of the Twelfth avenue and thence southerly, to a point where the southerly side of Forty-third street intersects with the said Twelfth avenue.
This description by metes and bounds does not include the full width of the street. Nor does the description include the full extent of the street. The-pier was not then as wide as Forty-third street. Nor did it have the full extent of Forty-third street. The street was then nominally laid out to the west side of Thirteenth avenue. The deed then continues: “Together with the extent of the present width of the street, with the right of wharfage thereon, together with all and singular the tenements, hereditaments, and appurtenances belonging,-or in any wise appertaining, and also all the estate, right, title, interest, property, claim and demand whatsoever, as well in law as in equity, of, in or to the above described premises,, and every part and parcel thereof, subject to the right of the parties of the first part, to order said pier extended into the river at the expense of the party of the second part, whenever and in whatever way they may see fit, reserving to the party of the first part, the right to extend said pier at the expense of the corporation of the city of New York, or to grant the right to do so-to other parties, if the said party of the second part fail or neglect to extend said pier when ordered. so to do, in which case the right to wharfage, &c., at the-portion of the pier extended, shall belong to the parties at whose expense the extension shall be made.”

The deed further provides, as the preceding two-deeds had provided, that the true intent and meaning-thereof was to pass only the estate, right, title and interest in the land described, which the city had by virtue of its several charters and the various acts of the legislature, &c.

The property acquired under these three conveyances was conveyed by Lindsley to La Farge.

Both parties to this action, plaintiff and defendants,, hold under mesne conveyances from La Farge’s devisees.

By deed dated March 28, 1860 and recorded May 26, 1860, in Liber 811 of Conv., p. 447, La Farge’s devisees conveyed the pier property to Scholey, Schindler- & Conklin. The latter, by deed dated July 25, 1865, and recorded January 17, 1870, in Liber 1129 of Conv.,. p. 270, conveyed the same property to the New York Ice Co., and the said company, by deed dated March 7, 1867, and recorded January 17, 1870, in Liber 1129 of' Conv., p. 266, conveyed to the plaintiff in this action.

About September 25,1873, the plaintiff was ordered, by the Board of Commissioners of Bocks to extend said pier into the waters of the Hudson River for a-distance of about 300 feet, and about November 21, 1873, the plaintiff was further ordered by said board to. widen said pier to a width of 60 feet for its entire length, as the same then was and as it had been ordered to be extended.

The plaintiff in this connection shows that thereupon the said pier was extended and widened as directed, and that the plaintiff has ever since remained in the full and free use and occupation of said pier so extended and widened as aforesaid.

The defendants, on the other hand, show the following additional facts, viz.:

The order for the extension of this pier was made only after and upon the filing in the office of the Dock Commissioners of an agreement in writing by the plaintiff to pay to the city rent for all land under water covered by the said extensions in length and width of the pier. And upon the express condition that whenever any portion of said land under water belonging to the city and covered by the said extensions of the pier should be required by the city for permanent improvement of the water front, no claims whatever should be made by the plaintiff, or its successors, for damages, or otherwise, for any structures or improvements that may be made upon the land owned by the city.

And upon the further express condition that nothing, contained in the permission or order of the Dock Department for the extension of the pier, “shall be considered or construed as a waiver of the title of the city in and to the land lying outside of the dimensions of the present pier owned by the Knickerbocker Ice Company as laid down in the deed from the mayor, aldermen and commonalty of the City of New York to Caleb F. Lindsley, dated November 11, 1852.”

By another deed, dated February, 1863, and recorded in Liber 867 of Conv., p. 591, La Farge’s devisees conveyed all the property described in the three deeds to Lindsley, except the pier property which they had conveyed to Scholey, Schindler & Conklin, to Charles E. Appleby, who in the next month, March, 1863, conveyed the samé to the defendant, the Forty-second street and Grand street Ferry R. R. Co.

The complaint then charges that the defendant, The ¡New York, Ontario & Western Railway Co., has contracted with the Forty-second street and Grand street Ferry R. R. Co. for a lease of the land under water adjoining the said pier upon the south side thereof and to the west of the easterly line of the Twelfth avenue, or has taken or agreed to take an assignment or transfer of some interest in said premises, and that, claiming to act under authority from, the Commissioners of the Dock Department, The ¡New York Ontario & Western R. R. Co., threatens and intends to take possession of the land under water adjoining the pier of the plaintiff on the .south side thereof, and extending from Forty-third street to Forty-second street, and to drive piles thereon and to fill in the same with solid filling and build thereon ; that by the driving of piles or building crib work and filling in as contemplated by the defendants, the plaintiff will be cut off from its said pier and will be unable to approach the same for a large portion of the south side thereof, or to unload its boats or barges, and will be wholly unable to carry on its business at said pier, and that the injury that will be caused to plaintiff by the threatened acts, if executed, will be irremediable, wherefore the plaintiff prays that the defendants be enjoined.

It therefore becomes important and necessary to ascertain accurately the rights of the respective parties to this action under the conveyances mentioned.

The clause in each of the three deeds by the city to Lindsley, that the true intent and meaning of each conveyance is to pass only the estate, right, title or interest of the city by virtue of its several charters and the various acts of the Legislature, amounts to no qualification or restriction of the grant, because the city possessed and lawfully possessed all the proprietary interests and privileges covered by the grant, and because the grant, as made, did not have the effect of restricting or embarrassing the legislative powers and duties of the city as a municipal corporation. In view of the exceptions made, and even by reason of the insertion of the said clause itself, there is nothing in the decisions of the Presbyterian Church v. The City of New York, 5 Cow. 540 ; Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234; Whitney v. Mayor, &c., of New York, 6 Abb. N. C. 329, and other cases falling within the same class, which militates against the grant.

The question then is, What was, as matter of fact, granted ? Upon this point, the intention of the parties, as appearing from the language used in the deeds, is to govern, but the surrounding circumstances, and the relations between the parties may be considered for the purpose of ascertaining what they meant when they spoke. And this rule applies with equal force in the construction of every subsequent deed.

By the two deeds first mentioned, the city conveyed the land stretching from the center line of Forty-third street on the north, to the center line of Forty-second street on the south, and from the line of high-water mark on the east, which was an irregular line between Eleventh and Twelfth avenues, to the westerly or exteri- or line of Thirteenth avenue, saving and reserving therefrom so much thereof as forms part or portions of the Twelfth and Thirteenth avenues, and of Forty-second and Forty-third streets. The parts or portions thus saved and reserved, constituted, as held by the general term of the supreme court, in Langdon v. The Mayor, &c.,' exceptions and not mere reservations, which left the fee to them in the city, for the uses and purposes of public streets, avenues ^and highways. Aside from these exceptions, the land conveyed was conveyed in fee. Certain covenants were entered into by the grantee, which will be hereinafter considered, but the grant was not diminished thereby. At this time the exterior line of the city on the North river, in that vicinity, had been fixed as coincident with the westerly line of the Thirteenth avenue, which last mentioned line was 646 feet and 2 inches west from the easterly line of the Twelfth avenue, and about 430 feet west of the westerly end of the pier thereafter conveyed.

At the time of the execution by the city of the third deed to Lindsley, by which the so-called pier property was conveyed, the pier then in existence was 40 feet and 5 inches wide, and extended about 211 feet from the east side of the Twelfth avenue. It was situated within the boundaries of Forty-third street in such a way, that, between the southerly side of the pier and the southerly line of the street, there remained a strip of about 4 feet in width. This strip, as well as so much of the' whole pier as was south of the center line of Forty-third street, had been expressly excepted from the two conveyances first mentioned. In conveying the pier property by the description contained in the third deed, the city conveyed not only the pier itself, but also the land covered by the dimensions of the pier in fee, and the words “ together with the extent of the present width of the street,” carried the fee for the length of the pier to the southerly side of Forty-third street, as then laid out on a certain map; for the words used clearly iáeant the width of the street as thus laid out. To the south of this southerly line of Forty-third street, the city could grant no right of way or easement, for the reason that the fee of the land south of that line had already been conveyed without the reservation of a right of way or easement over the water (Outerbridge v. Phelps, 45 N. Y. Super. Ct. 555).

But the position of affairs changed when a union of all the lands and interests and the appurtenances was effected in Lindsley, who was also the owner of the uplands, to the east .of the high-water mark. It then became competent for him to convey the pier property with appurtenances that did not previously belong to it, but were necessary to the use of the pier as a pier, in case of its severance from its other property. He, it is true, did not do so. He conveyed the whole to La Farge. But this placed La Farge in the same position. When, therefore, the devisees of La Farge made severance and conveyed the pier property, while they retained the remainder, and in doing so conveyed the pier by the description contained in the deed from the city to Lindsley, together with the extent of the width of the street, and also together with all and singular the appurtenances, &e., &c., and all the estate, right, title, interest, property, claim and demand which was in La Farge, at the time of his decease, of, in and to the same, and every part ,and parcel thereof, and added covenants in the ordinary form for the quiet enjoyment and warranty, not only of the pier property specifically described, but also of the appurtenances-, the grant carried with it all that La Farge had owned which was necessary to the use of the pier as a pier (Lapman v. Milks, 21 N. Y. 505 ; Doyle v. Lord, 64 Id. 432 ; Simmons v. Cloonan, 81 Id. 557.)

The rule of construction applicable to the deed by the devisees of La Farge to Scholey, Schindler & Conklin, under which the plaintiff claims being as stated, and there being a strip of only four feet of water between the southerly side of the pier and,the southerly line of the street, it was almost absolutely necessary to the enjoyment of the pier, as such, by the grantees, that the land under water remaining in the grantors and adjacent to the southerly line of Forty-third street should remain free and unobstructed, as in times past, for a distance which with the strip of four feet in width would constitute a reasonable distance from the southerly side of the pier, and especially was it necessary, because the right to wharfage on the westerly end of Forty-third street, where said street adjoins the exterior line of the city, had been expressly reserved to the city by the deeds of 1850. This being so, the right to use the water for such a reasonable distance constituted an easement in favor of the pier property conveyed which passed with the land, and a servitude upon the property retained.

From these matters and the fact that the deed to Scholey, Schindler & Conklin was duly recorded, it follows that when, by subsequent conveyances the Forty-second street and Grand Street Ferry Eailroad Co. acquired the title to all the remaining property, such property was and continued subject to the servitude named.

The next question then is as to how long this servitude is to continue. Upon this point the covenants of Lindsley in the deeds accepted from the city become important, because they did and do run with the land. In the two deeds first accepted, he covenanted for himself, his heirs and assigns, that, whenever he should be required by the city so to do, he would build sufficient bulkheads and wharves, and fill in so much and such parts of Forty-second and Forty-third streets,' and Twelfth and Thirteenth avenues, as fell within the premises described and excepted, and to regulate and pave the same, and lay the sidewalks thereof, and that the said streets and avenues should forever thereafter continue to be and remain public streets or avenues and highways for the free and common use and passage of the inhabitants of said city and all others, &c., &c.

The conveyance of the pier property by the" third deed accepted by him was made in express terms, subject to the right of the city to order the said pier to be extended, and although, as already stated, it conveyed with the pier the land covered by the pier in fee, it conveyed, especially as the interest of the city only was conveyed, only such a fee as the city possessed, namely, a fee subject to whatever easements existed in favor of the public. What these easements were, or whether in fact there were any, it is not necessary to determine here. These questions, may hereafter become of importance as between the plaintiff and the city.

It sufficiently appears, however, that both the plaintiff and all its grantors took the pier in question with notice that Forty-third street was to be extended to the exterior line of the city, namely, the westerly side of Thirteenth avenue ; that Twelfth and Thirteenth avenues were to be built between Forty-second and Forty-third streets ; that all the then existing water between Forty-second and Forty-third streets and west of the easterly line of Twelfth avenue was to be filled in, and all access to the southerly and westerly sides of said pier cut off, whenever the city saw fit so to direct; and that in consequence thereof the character of the pier.as a pier would be completely destroyed. As matter of legal effect the title to the streets and avenues thus to be made, was to remain in the city for the uses and purposes stated. In the meantime the plaintiff and all its grantors, took the pier subject to the right of the city to order the same to be extended, &c., so far the city saw fit to require only the extension of the plaintiff’s pier for a length of about 300 feet, and its widening to a width of 60 feet. This was done, and it was done in such a way, that under the deeds of 1850 and the agreement filed by the plaintiff with the Department of Docks concerning the said extension and widening, the title to the land covered by the extension or the new pier, as it may be called, remained in the city. And the plaintiff further agreed that whenever any portion of the land under water, belonging to the city and covered by the said extension, should be required by the city for the permanent improvement of the water front, no claim whatever should be made by the plaintiffs, or its successors, for damages, or otherwise, for any structures or improvements that might be made upon the land owned by the city.

The rights of the plaintiff, so far as they appear material to this motion, may therefore be summed up as follows, viz.:

The plaintiff owns the old pier, and whatever fee the city had to the land upon which it stands and to the strip of four feet between the southerly side of said pier and the southerly line of Forty-third street, as laid out on the map, with a right of way over the water to the south of the last mentioned line for a reasonable distance, and it also has a lease of the land under water on which the new pier stands.

These rights are subject, however, 1. To Lindsley’s covenants in the deeds of 1850 to build, uphold and keep in good repair the south half of Forty-third street and the whole of Twelfth and Thirteenth avenues (so far as described in the deed) as public streets or avenues and highways forever hereafter; 2. To the city’s right to convert the new pier into a public street; 3. To the city’s right of wharfage accruing from the westerly end of the southerly half of Forty-third street; and, 4. To 'the right of the defendant, The Forty-second street and Grand street Ferry It. ft. Co., as grantees of Lindsley, to all wharfage accruing from the bulkhead extending, when constructed pursuant to requirement by the city, along the exterior line of the block from the southerly line of Forty-third street to the northerly line of Forty-second street, and necessarily cutting off all access by water to the southerly side of plaintiff’s pier. Of course, the filling in of Twelfth and Thirteenth avenues under the direction of the city, implies the right to fill in the intermediate space.

But until the city gives such a direction or makes such a requirement, the plaintiff has the right to the continued use of the old and the new pier, and the land of the Forty-second street and Grand Street Ferry R. R. Co., remains subject to the servitude above mentioned. To be effective, such direction or requirement, when given or made, must be given or made in conformity with the terms of the deeds of 1850 (Mayor, &c. v. Smith, Daily Register of November 18, 1882, Opinion by Van Vorst, J.).

The next inquiry, therefore, must be, whether the improvements proposed to be made by the N. Y., Ontario and Western Railway Co. as the lessee of the Forty-second Street and Grand Street Ferry R. R. Co., are of a character contemplated by the covenants, and whether they are about to be made in pursuance of a requirement by the city.

The motion papers present some conflict as to the extent of the intended improvements, but the defendants assert positively that the westerly line of said improvements will not extend beyond the westerly line of the old pier as it existed prior to its extension, and I shall assume the truth of the assertion. Concerning the character of the improvements, the filling in which they involve along the southerly side of Forty-third street, would be clearly within the power of the defendants, in case the Thirteenth avenue were in process of construction or had been required to be built, because in such a case it must have been contemplated by the covenantor. If, therefore, the N. Y., Ontario and Western Bail way Co. can rightfully proceed with the filling in, it clearly may make the other improvements contemplated by it.

But I cannot find that the proposed filling in is to be done pursuant to any requirement from the city. Nor is it to be done as part of the general plan adopted by the Department of Docks and the Commissioners of the Sinking Fund for the improvement of the water front. The N. Y., Ontario and Western Railway Co., as a private party, and for its own purposes, desires to build a ferry landing, and to do so, it is found that the land under water, almost immediately adjoining plaintiff’s old pier, should be filled in. Application is made to the department of docks for permission to do so in advance of the carrying out of the general plan for the improvement of the water front, and the permission is given. This clearly shows that, even if it be assumed, that the Department of Docks is capable of fully representing, and does fully represent, the city for the purposes under consideration, the proposed filling in was neither required by the city to be done pursuant to the covenants of 1850, nor does it constitute part of the authorized plan for the improvement of the waterfront. The permission given can not therefore have the effect of authorizing the defendants to deprive the plaintiff of any right which it possesses in the premises until the city sees fit to act. True, as between the city and the defendants the permission may partake of the nature of a requirement, for the defendants may, so far as they themselves are concerned, waive their rights. But as against the plaintiff, the action of the city must rest in the discharge of a public duty, and must be in conformity with the covenants of 1850 or the requirements of the authorized improvement of the water front.

It has been insisted, however, that even if the plaintiff ever could claim the easement contended for, the same was abandoned, because neither the southerly side of the old pier, nor the water on the south side of that pier, has been used for the purposes claimed by the plaintiff since the extension of the pier. Upon this point there is a conflict of evidence. The preponderanee, in my judgmént, shows a continued limited use owing to insufficient depth of water at certain times, but not an abandonment. Upon the whole, the plaintiff has shown enough to call for the continuance of the injunction, if otherwise entitled thereto, to protect whatever use can be made of the pier as such.

Another point strongly urged in opposition to the motion, is, that the plaintiff is now a trespasser upon the land of the defendants along the entire southerly line of the new pier by reason of the construction upon piles driven for that purpose, and the maintainance and use of a so-called ice platform along said southerly line, and that by reason thereof the plaintiff does not some into a court of equity with clean hands. The trespass seems to have been clearly established. But under the decision of the court of appeals in Comstock v. Johnson, 46 N. Y. 615, this only constitutes matter to be considered in the framing of the relief to be granted.

Other matters have been alluded to, but they do not, after what has already been said, call for special notice. The object of the action being to secure a determination of the rights of the parties to it as between themselves, neither the city nor the Department of Docks is a necessary party to this action, nor is it necessary to determine what action the Department of Docks may take in the exercise of the statutory powers conferred upon it.

My conclusion is that the injunction heretofore granted should be continued against the defendants during the pendency of the action, but in a modified form. In the first place, it should be made conditioned upon the removal within a reasonable time by the plaintiff of all encroachments upon the land of the defendants along the southerly line of the new pier, and in the second place, it should in terms provide for its expiration before the termination of the action in case the defendants should be required by the city under the covenants of 1850 to do any work, the doing of which would necessarily interfere with or destroy the easement of the plaintiff.

Order to be settled on motion.


source: Caselaw Access Project

license: Public Domain

text:
    THE NEW YORK SMELTING & REFINING Co., Appellant, v. GEORGE LIEB, Respondent.

      Contract to manufacture machine—breach of—measure of damages.

    Before Sedgwick, Ch. J., and Freedman, J.

      Decided December 5, 1881.
    Appeal by plaintiff from judgment entered upon verdict.
    The plaintiff brought the action for damages for breach of contract by defendant. The important part of the contract made by defendant was, “I agree to build for the New York Smelting & Refining Company, a machine for casting metals in bar, 13 inches long, g of an inch wide, J of an inch thick, with a cooling apparatus ; also one mould and model of machine; and I further agree to have ready and deliver same within two months.” The breach alleged was the non-delivery, the allegation being that the machine which was made did not satisfy the contract as to fitness for casting metals in bar. The answer denied the alleged breach and counter-claimed for extra work. Verdict was for defendant.
   The court at General Term said:

“The contract implied an obligation on the part of the defendant to make a machine that should be fit to a reasonable degree, to cast metal into bars (Charlotte, Columbia & Augusta R. R. Co. v. Jessup, 44 How. Pr. 447). Under the facts of this case, it was a question for the jury, whether the machine that the defendant made, satisfied his obligation in this respect. Taking the whole charge together, it did not submit this question to the jury; and for that reason, I am of opinion there should be a new trial . . . .”

Leopold Wallach, for appellant.

Walsh & Eckerson, for respondent.

“ I am of opinion that the plaintiff was not entitled to recover ; if he had proved a breach of the contract, any gains or profits that he might have made, by reason of the machine, casting metal, faster than it was cast, by previous processes. Whether there would have been any gains would be a matter of speculation and guess.”

Opinion by Sedgwick, Ch. J.; Freedman, J., concurred.

Judgment reversed, with costs of appeal to appellant to abide event, and a new trial is ordered. Order denying motion for new trial, made upon the minutes, reversed, with $10 costs to appellant to abide event.


text:
    EMILY PRACHT, Respondent, v. JACOB RITTER, Impl’d., &c., Appellant.

      Demurrer—each cause of action must affect all the parties, though for damages for false representations.—Amendments—court has no discretion to make order allowing service defective amended pleading— point may be taken on appeal from order, if complaint be demurrable.

    Before Sedgwick, Ch. J., Speir and Freedman, JJ.

      Decided December 5, 1881.
    Appeal by defendant Ritter, from order allowing plaintiff to serve an amended complaint.
   The court at General Term held :

“ It seems to me that the amended complaint is demurrable upon its face. It in the first place avers a complete cause of action against Ritter solely, and then another complete cause of action against Ritter and the defendant impleaded with him. Both causes of action are for damage from false representations. Section 484 Code of Civil Procedure enacts that all the causes of action united in a complaint shall, except as otherwise provided by law, affect all the parties. If it should be that the actions for damages of this kind are not specified in any of the subdivisions of the section, a similar result would flow from the common law rules of pleading. A court has not the discretion to allow a defective pleading to be served as an amendment of the earlier pleading.”

Yenni & Sawyer, for appellant.

William M. Vanderzee, for respondent.

Opinion by Sedgwick, Ch. J.; Speir and Freedman, JJ., concurred.

Order reversed, and the motion made below denied, with $10 costs.


text:
    MARSHALL ROBBINS, as Executor, &c., Respondent, v. HENRY F. PULTZS, Appellant.
    Evidence—§ 839, Code—where testimony of deceased, plaintiff given on former trial is read on second trial, defendant may contradict, correct and supplement the same as to all that took place at the interview in question; e.g.,he may testify that receipts passed between Mm and the deceased.

    Before Speir and Freedman, JJ.

      Decided December 5, 1881.
    Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial. (See report of first appeal, 46 Super. Qt. 184.) The action was brought to recover the sum of $500, alleged to have been wrongfully retained by defendant upon a settlement between Mm and plaintiff’s testatrix, as attorney and client.
   The court at General Term, after consideration of certain exceptions, said:

“I am of the opinion, however, that there was error in excluding certain testimony of the defendant. There had been two interviews between Mrs. Robbins, plaintiff’s testatrix, and the defendant, which led to the settlement constituting the foundation of the action: one shortly prior to November 18, 1876, during which the proposition for a settlement was submitted to her, and the other on November 18, on which day the settlement was completed between Mrs. Robbins and the defendant. The latter was not allowed to testify what was said between him and her at the first interview; and at a later stage, his statement that on November 18, he delivered to her two receipts, was stricken out. These rulings, which were duly excepted to, were made-on the ground that since the first trial Mrs. Robbins had died, and that in consequence thereof the evidence was incompetent against her legal representative, under section 829 of the Code of Civil Procedure. But, in making them, sight seems to have been lost of the fact that the testimony given by Mrs. Robbins on her direct examination on the first trial, had been read against the defendant, and that in the course of that testimony the whole version of Mrs. Robbins as to the transactions had with the defendant had been placed before the jury, and that such version embraced the occurrences-during both interviews. Consequently, the case was brought directly within the exception contained in Section 829, viz. : “Except where. . . the testimony of . . . the deceased person is given in evidence concerning the same transaction or communication.”
“ . .. The defendant had the right not only to contradict, but also to correct the version given by Mrs. Robbins (Potts v. Mayer, 86 N. Y. 302). If Mrs. Robbins was permitted to tell all she considered of advantage to her side, the defendant should not have been precluded from telling the rest of what transpired at the same interviews. True, in regard to the interview of N ovember 18, the evidence excluded, as above stated, was afterwards supplied to some extent, but whether it was fully supplied, or with the same effect, is a debatable question. But in regard to the preceding interview the excluded evidence does not appear to have been subsequently supplied. On both occasions the defendant was alone in his office, while Mrs. Robbins was accompanied by her husband, whose testimony corroborates her version.”

Benjamin G. Hitchings, for appellant.

Royal S. Crane and I. T. Williams, for respondent.

Opinion by Freedman, J.; Speir, J., concurred.

The judgment and order reversed, and a new trial ordered, with costs to appellant to abide the event.


text:
    HENRY AMY, et al. v. ABRAM STEIN, et al.

      Real party in interest—who is—motions to substitute name of after direction of verdict.—Draft indorsed for collection.—Exceptions ordered to be heard at general term—-when computation of verdict cannot be considm-ed upon.

    Before Sedgwick, Ch. J.; and Freedman, J.

      Decided December 5, 1881.
    Exceptions ordered to be heard at general term in the first instance.
   The court at General Term held :—“ The draft in question having been indorsed and delivered by A. G. H. Grossman, widow and son, bankers, of Hamburg, to the plaintiffs, for the purpose of collection, and there being no pretense of the existence of any equity against said firm, the case, upon the question of the right of the plaintiffs to maintain the action in their own names, comes within, and is controlled by, the decisions of this court in Freeman v. Falconer (44 Super. Ct. 132, and 45 Id. 383).

T. F. H. Meyer, for plaintiffs.

Joseph C. Wolf, for defendants.

“Defendants’ motion, made after the direction of the verdict, for leave to amend the answer by substituting the name of A. G. H. Grossman, widow and son, in place of the name of Robert Baltzer, as the name of the alleged real party in interest, was properly denied. If granted, it would not have availed the defendants.
“The defendants’ exceptions having been ordered to be heard at general term in the first instance, we can look only at the questions raised by the exceptions appearing upon the record, and there being no exception to the computation of the amount of the verdict, nor an exception to the admission of the testimony pursuant to which the computation was made, the elements which entered into such computation cannot be reviewed here.”

Opinion, by Freedman, J.; Sedgwick, Ch. J., concurred.

Exceptions overruled; judgment on verdict ordered for plaintiffs, with costs.


text:
    JEREMIAH B. GRUMAN, Assignee, &c., Respondent, v. ISAAC T. SMITH, Appellant.

      Action by brokers to recover for moneys advanced and services rendered in stock t/ransaetions—burden of proof—erroneous charge.—Counterclaim for moneys not accounted for advanced for purchase of certain bonds, not supported by proof that bonds were bought and delivered, but were not valid.

    Before Sedgwick, Ch. J., Freedman and Truax., JJ.

      Decided December 12, 1881.
    Appeal by defendant from judgment entered on verdict in favor of plaintiff.

      The action was on the following pleading, viz.: That there was due and owing from, the above named defendant to a certain firm, of which the plaintiff was assignee in bankruptcy, $1,596.29, on account of moneys advanced and services rendered by them as stockbrokers to him, at his request, in “purchasing, carrying and selling” certain shares of stock. There was very little evidence that the stockbrokers had advanced money for the defendant in purchasing the stock in question, or of the terms of the contract, if there were one, between the parties. The judge, in charging the jury, said, “ The question is, whether the plaintiff has proved enough to make the defendant pay for the difference between the price paid for the stock and the price for which it was sold. The plaintiff undertook to discharge his duty, and there is nothing that appears here to the contrary.” The counsel for defendant, beside excepting to the remark last cited, requested the court to charge “ that the burden of proof is on the plaintiff to prove, the purchase, sale and amount of loss on this Rock Island stock transaction.” This request was refused.
   The court at General Term, held: “ That this charge would have been a practical aid to the jury in determining what the fact was upon the testimony that was not explicit or full. It would have prevented the jury from thinking that it was enough if it did not appear that the brokers had failed in their duty. The plaintiff was bound affirmatively to prove what the contract was, and that the brokers had fulfilled their part of it.

“As the answer stood, it did not permit proof of the counter-claim as presented by defendant’s evidence. The breach alleged by the answer was, that the brokers did not account for the money of defendant, alleged to have been received by them. The proof was, that they expended the money on certain North Carolina bonds. The defendant had ordered the money to be expended on North Carolina bonds. He was informed that the brokers had bought the bonds, and they were delivered to him. His allegation was that the bonds were nob valid. The answer was not sustained.”

George Putnam Smith, for appellant.

Jacob S. Van Wyck, for respondent.

Opinion by Sedgwick, Oh. J.; Freedman, J., concurred.

For the error in refusing to charge as requested, the judgment was reversed, and a new trial ordered, with cost of appeal to appellant to abide event of the action.


author: Speir, J., held:

text:
    EDWIN G. DAVIS, Repondent, v. A. STEWART WALSH, Appellant.

      Order of reference, when not granted, gross charge being made for number of items, only issue being as to value.

    Before Sedgwick, Ch. J., Speir and Freedman, JJ.

      Decided December 12, 1881.
    Appeal from an order of reference.
    The complaint does not purport to be upon an account, but simply for professional services rendered to the defendant in the matter of the estate of John Hancock, deceased. It claims, that these services were, together with disbursements expended on that behalf, reasonably worth the sum of $5,000, and admits payment on account thereof of $975. A bill of particulars furnished the defendant consists simply of a copy of the entries in the plaintiff’s register, showing the different steps taken in rendering these services, but no specific charges for what was done, but only a gross charge of $5,000. These entries in the register consist of fifty-one items. The answer admits the employment and rendition of the services, and making the disbursements, but denies the value thereof as stated, and any value whatever, beyond the sum already paid therefor, and for which credit is given to the defendant. The plaintiff’s affidavit read on the motion admits that none of the fifty items in his bill of particulars have separate charges made in detail, but that he has charged the sum of $5,000 in gross for the services, and credited the defendant with the sum of $975.

      R. L. Scott, for appellant.

      E. G. Davis, respondent, in person.
   Speir, J., held:

“This is not sufficient under the Code to compel a reference of an action involving a long account. It is not the immediate object of the suit to take any account or the ground of defense. There is no account to be examined, for it is not disputed. The single issue to be tried, are the services of the value o£ $5,000, or of any value beyond the sum admitted to have been paid. The case is controlled by the following cases, among others: Bathgate v. Haskins, 59 N. Y. 533; Kain v. Delano, 11 Abb. N. S. 29 ; Felt v. Tiffany, 11 Hun, 62.”

Opinion by Speir, J.; Sedgwick, Ch. J., and Freedman, J., concurred in result.

Order reversed, with costs.


text:
    CALDWELL C. DUKE, Respondent, v. JOHN H. WELSH, Appellant.

      Assignment in fraud of creditors—gwy may consider nature of consideration—if promissory notes, that holders cannot recover except upon ponding with new consideration.—Judge's cha/rge.—Conversion—will not lie when chattels have teen allowed to he intermingled with property of another sold on execution.

    Before Sedgwick, Ch. J., Speir and Freedman, JJ.

      Decided December 19, 1881.
    Appeal from a judgment entered upon a verdict for the plaintiff, and from an order denying a motion for a new trial on the judge’s minutes.

      Action for alleged conversion of stock and fixtures of a men’s furnishing store on February 3, 1876.
    The plaintiff gave evidence that prior to the conversion complained of, he held his father’s notes for $1,652.84, or including interest in February, 1876, for $2,252.84, being the balance due him for five years’ salary, as clerk in his father’s store, and for which a bill of sale was made to him by his father on January 15, 1876, inventoried at $3,452.86, being for the stock, &c., in said store. In addition , to this the plaintiff says he had taken as part payment from his father, at various times, sewing machines, a mirror and other-articles of the value of $200 or $300, which remained in the’ store at the time the goods were seized. The consideration of this transfer of his father’s property was the surrender of these old notes, and the son giving his notes for $1,200 at three and twelve months to run. These notes were immediately disposed of by the father giving $500 to Mr. Schell for interest past due on a mortgage on property owned - by his wife, and the remainder turned over for the benefit of members of his family, andón account of pre-existing debts, no new consideration having been given therefor. Thereafter said stock, &c., were sold by the" sheriff to satisfy a judgment obtained by John H. Welsh, the defendant herein, against plaintiff’s said father, said Welsh indemnifying the sheriff. At the request of the defendant the court charged, “ If the sale and purchase in question (between plaintiff and his father) were made with the intent to hinder, delay or defraud the creditors of John F. Duke, the notes which were given on account of the purchase by the plaintiff could not be recovered upon by John F. Duke.” The defendant then requested the court to charge further, “Hor could the notes be recovered upon by any person to whom they had been transferred on account of the antecedent debt, and who had not parted with some new consideration therefor.” The court refused so to charge, and the defendant duly excepted. A further request was then made by the defendant to charge, “ Under the evidence in this case none of the present holders of the notes so given by the plaintiff can recover upon them, if the transfer to him by his father was fraudulent, and his title to the goods fails.” This was also refused, and defendant excepted.
   The court at General Term held, “We think this was a proper request and should have been granted by the court. The facts and circumstances as disclosed are clearly in accord with, and are governed by the decision in this court in Starin v. Kelly (36 Super. Ct. 366).”

The court was requested by defendant to charge, That the plaintiff claimed all the property levied upon by the sheriff, and did not point out, or distinguish the articles claimed to have been owned by him prior to the bill of sale; and the plaintiff is not entitled to recover for those articles unless he is entitled to recover for the whole property levied upon.” The defendant duly excepted to the refusal so to charge. The plaintiff swears that these goods belonging to him before January 15,1876, were there at that time, and continued there until February 3, following, when they were seized by the sheriff and sold. They were held in store for ten or twelve days, and he was there part of the time, and the defendant Welsh was there. He heard Mr. Welsh give directions to the sheriff or to the man in charge; “ calling them his goods.” The plaintiff did not point out, or distinguish the articles claimed to have been owned by him prior to the bill of sale.

The court at General Term held: “We think the ■ request should have been granted. The rule of law and equity is said in the books to be strict on such occasions as this. The plaintiff was present, hearing the defendants calling all the goods his own, which fact was not true, according to all the testimony in the case. If a party having charge of the property of others so confounds it with his own that the line of distinction cannot be traced, all the inconvenience of ,the confusion must be thrown upon him who produces it, and it is for him to distinguish his own property, or lose it. The effect of the confusion of the title to the kinds of the goods levied upon is this : unless it was pointed out to the jury, they might easily have believed that at any rate, the plaintiff was entitled to recover his own goods, as he had not bought them from his father; and upon thinking about it, that the taking of these' was clearly wrong; a prejudice would be created, and they might further think, that the taking of the other class of goods was wrongful, because they were taken at the same time that the goods which really belonged to the plaintiff were seized. I think a still stronger reason why the charge should have been entertained is, that the plaintiff knew perfectly well that the goods were his own, and he was guilty of a plain violation of law and equity by keeping silent on the subject, which has resulted in a verdict not authorized according to any principle of law or justice, and for that reason a new trial should be had.”

Vanderpoel Green & Cuming, for appellant.

H. E. Averill and W. T. B. Milliken, for respondent.

Opinion by Speir, J.; Sedgwick, Ch. J., concurs ; Freedman, J., concurs in result.

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


text:
    WILLIAM SCHMIDT, Appellant, v. BABETTE SCHMIDT, Respondent.

      Statute of uses and trust—purchase of real property with joint funds of plaintiff and another—when does not inure to benefit of such other person.—Equitable lien—when does not exist in favor of said other person for moneys laid out by him on such property.—Statute of frauds.

    Before Freedman, Russell and Arnoux, JJ.

      Decided February 6, 1882.
    Appeal from judgment dismissing complaint upon its merits.
    Action for specific performance, and to declare a trust in favor of plaintiff in certain real estate field by-defendant. The parties are husband and wife.
    The facts as found by the trial judge are substantially as follows : In 1865, the plaintiff and defendant intermarried. In 1869, plaintiff agreed, that if defendant would dispose of her business and take charge of his business, the future profits of said business should belong to both parties ; thereupon she disposed of her property, and gave her whole attention to the latter business, and the moneys made therein were deposited in savings banks in the joint names of the parties. By April, 1879, profits had accumulated to about ten thousand dollars, nine thousand of which were on deposit in the Bowery, the Dry Dock, and the Gf-erman Savings Banks, and one thousand were in plaintiff’s possession. In 1878, plaintiff notified the Dry Dock and Gf-erman Savings Banks that none of said moneys should be paid lo defendant. In April, 1879, defendant informed plaintiff that she would like to buy or rent a certain house, and plaintiff replied that he had no time to look at it, and would have nothing to do with it, but that she, defendant, might do as she pleased. Defendant thereupon bought the house for $10,000, drew $f¡,0Ó0 from the Bowery Savings Bank, with which and $800 of the money she had in her possession, she made cash payments, balance on mortgage. In May, she and. p’aintiff took possession of the' property, and in June, title passed to her. The plaintiff knew that she had taken title in her own name. Immediately after the parties took possession of said premises, the defendant employed mechanics, who began to repair the house, whereupon plaintiff said, if defendant was satisfied, he would convert the house into a flat-house. Defendant consented, paid the mechanics and discharged them; plaintiff then procured the services of an architect, had plans drawn which were submitted to defendant, who approved of them, and, in accordance with such plans, the house was remodeled and enlarged. No agreement was made between the parties that the legal title should, in whole or in part, be in the name of the plaintiff, or that he should have a lien upon the real estate for any moneys advanced by him in building or remodeling the house.
   The court at General Term, held that If there had been a contract to the effect that the plaintiff should have some interest in the land, it would have been void under the statute of frauds. So no trust can be implied and enforced against the particular premises without proof that the defendant committed some wrong in violation of plaintiff’s rights, or perpertrated some fraud upon the plaintiff, and that the plaintiff has no adequate remedy at law. Even if the plaintiff had advanced the whole purchase money, that of itself would not raise a sufficient equity in plaintiff’s favor to authorize the court to interfere as requested, for the statute of uses and trusts expressly provides, that where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another., no use or trust shall result in favor of the person by whom such payment shall be made, but the title shall vest in the person named as the alienee named in such conveyance, subject only to the rights of certain creditors. bTor can I find that, independently of the considerations stated, the circumstances of the case are sufficient to constitute an equitable lien in favor of the plaintiff.”

Wehle & Jordan, for appellant.

Michael C. Gross, for respondent.

Opinion by Freedman, J.; Russell and Arnoux, JJ., concurred.

Judgment affirmed, with costs.

       As to questions involved herein, see Wood v. Mulock, ante, p. 70.


text:
    LORIN INGERSOLL, as Executor, &c., Appellant, v. ORILAN M. SMITH, Respondent.

      Settlement of case on appeal and amendments—when motion for, denied for laches—procedure in ease of death of judge before whom settlement was noticed—when case. Sc., deemed settled by lapse of time.

    Before Freedman and Russell, JJ.

      Decided February 6, 1882.
    Appeal from an order denying a motion to settle a case and exceptions.
    This action was tried in June, 1878, before the late Judge Saneord and a jury. Judgment was directed in favor of the defendant; it was entered July 10, 1878 ; an appeal was at once taken; a case was made and served; amendments were proposed, and they were noticed for settlement August 20,1878; Judge Saneord was not in attendance on that day, and it is alleged by the appellant that he never again acted in his official capacity. The fact seems to be that Judge Sanford did hold court for a short time in April, 1879. The appellant took no further steps, either before Judge ■Saneord or any other judge, to have the case settled, until after Judge Sanford’s death, in October, 1881, when this motion was made.

      A. B. Cruikshank, for appellant.

      T. M. Wyatt, for respondent.
   The court at General Term held :

.“We think think the motion was properly denied on the ground of laches. The. Code (§ 997) permits a party to have a case and exceptions settled, under the direction of the court, in case- of the disability as well as the death of a judge. The appellant waited until long after it was a matter of public notoriety that Judge Sanford would never be able again to administer his judicial functions. Under rule 33, if a party omits within the time limited, to notice the settlement of a case before a justice after amendments are proposed, he is deemed to have agreed to the amendments as proposed. This case was therefore settled by lapse of time (Whiting v. Kimball, 6 Bos. 690). The appellant, therefore, may not have his case settled by a judge, but may file the case and exceptions so settled by lapse of time, and pursue his appeal, subject to any rights which the respondent may have to move at a general term to dismiss the appeal.”

Opinion, by Horace Russell, J.; Freedman, J., concurred.

Order affirmed, with costs.


text:
    BERNARD STEIVERMANN, Appellant, v. WILLIAM C. WHITE, et al., Respondents.

      Negligence—excavations in highway, legislative authoi'ity to make, does not excuse negligence—disregard of city ordinance—when evidence of negligence—when action not defeated by negligence of third party —oonbrihutory negligence—when question for jury.

    Before Freedman and Russell, JJ.

      Decided February 6, 1882.

      Appeal from a judgment for costs entered upon a dismissal of the plaintiff’s complaint. The action was for damages for personal injuries, because of the alleged negligence of the defendants, in not putting safeguards around holes which, they had dug in the Ninth avenue.
    The defendants, as contractors with the New York Elevated Railroad Co., were engaged in May, 1879, in digging pits or holes in the Ninth avenue, for the purpose of laying foundations for the columns required for the support of the road then about to be erected. They had dug two holes in the Ninth avenue between Twenty-fourth and Twenty-fifth streets, at the distance of about forty-five feet from each, other. These holes were about ten feet square and ten feet deep. The earth taken from them was thrown toward the westerly side of Ninth avenue, rendering that side of the street impassable, so that the traffic of the street was had on that portion of the Ninth avenue occupied by the surface car tracks and the street to the east of those tracks. The holes came under the westerly rail of the surface track ; inside and outside of that rail, planks were laid down to allow horses to walk over. There was no railing or barriers or guard of any kind about the hole where the accident befel. On the morning of May 28, 1879, at about half-past five o’clock, the plaintiff, who was a grocer, drove down the Ninth avenue on his way to market, with a friend. He drove with his right wheels between the rails of the westerly track of the surface road, and his left wheels between the rail of the westerly track and the rail of the easterly track. He was walking his horse. As he came into the immediate vicinity of the hole, about forty feet above the middle line of Twenty-fourth street, an ice wagon turned from Twenty-fourth ' street into the Ninth avenue, and came up the avenue. Its westerly wheels were between the two tracks, and collided with the left wheels of the plaintiff’s wagon when opposite the hole, pushing the plaintiff’s right wheel into the hole. The plaintiff was thrown out upon the pavement; one arm was broken, and he suffered other injuries not necessary here to state. His friend, riding with him, was thrown forward upon the horse, but escaped without serious injury.
   The court at General Term held :

“ Inasmuch as the defendants failed to comply with a city ordinance requiring them to erect safeguards about holes of the character of those proved in this case, their failure to do so was alone sufficient evidence of their negligence, to demand the submission of this case to the jury, so far as that matter is concerned. • But without the ordinance, the fact that they left such holes without barriers, in a crowded thoroughfare, in constant use, under the circumstances proved in this case, was at least evidence to submit to the jury to say whether or pot the defendants were negligent. That they were authorized to dig the holes by the charter of the elevated road and by a permit from the city authorities, does not effect this question (Sexton v. Zett, 44 N. Y. 430; Clifford v. Dam, 81 Id. 52).

“ The plaintiff had a right to use that street. He was going down as he had a right to do. He was proceeding upon a walk. He was on the lookout for danger from the holes. He had a right to assume that the ice cart would keep its own side and would yield to him his right of the road. If the driver of the ice cart was guilty of negligence, as it seems he was, in keeping too far to the left, his negligence cannot be imputed to the plaintiff. The law will never hold it imprudent in any one to act upon the presumption that another in his conduct will act in accordance with the rights and duties of both (Newson v. N. Y. C. R. R., 29 N. Y. 383 ; Harpell v. Curtis, 1 E. D. Smith, 78 ; Ernst v. H. R. R. R. Co., 35 N. Y. 9). The plaintiff might perhaps have acted with more discretion than he did, in the flurry of the excitement attendant upon an impending danger, but even if that were clearly so, it could not be considered contributory negligence such as would defeat a recovery. The error book presents no evidence showing that the plaintiff either did or omitted to do anything which can, ás a matter of law, be considered contributory negligence. That his acts, some of them, would perhaps have justified a jury in finding contributory negligence, is not enough. These acts were capable of a different construction. It was, therefore, for the jury, and not the court, to determine which view should be adopted (Thurber v. Harlem R. R. Co., 60 N. Y. 326, 330 ; Lyman v. Inhabitants of-, 107 Mass. 339 ; Hill v. Sekonk, 109 Id. 85; Stone v. Hubbardston, 100 Id. 49 ; Keller v. Fond du Lac, 31 Wis. 180).

T. J. & R. F. Tilney, for appellant.

W. C. Traphagen, for respondents.

Opinion by Horace Russell, J. ; Freedman, J., concurred.

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

       See Irvine v. Wood (51 N. Y. 224 ; 5 Robt. 483; 4 Id. 138), which differs from the case at bar, inasmuch as there was in that case no’ legislative authority for the interference with the highway.


text:
    HUBBARD W. MITCHELL, Respondent, v. HENRY C. JARRETT, Appellant.

      Evidence—where parol evidence admissible to explain and apply single phrase in letter—specific ground of objection—when party making bound thereby.

    Before Freedman, Russell and Arnoux, JJ.

      Decided February 6, 1882.
    Appeal from judgment and from order denying motion for new trial on minutes.

      Action to recover commissions claimed by plaintiff to be due to him from defendant for brokerage upon the purchase of the steamboat Plymouth Rock, from Jay Gould. Defendant contended that plaintiff’s compensation was contingent upon certain conditions which had not been fulfilled. During the progress of the trial the plaintiff read in evidence three letters written by defendant to him, one of which contained, this paragraph: “I have had a talk with Mr. Palmer since I saw you this morning, and have induced him to give your claims a better consideration.’ ’
   The court at General Term held:

“ Neither the words ‘your claims’ nor the context, demonstrated of themselves the subject matter of the conversation referred to in the letter. It required extrinsic evidence to elucidate and explain what ' those claims ’ were. In such cases parol evidence is always, admissible for the purpose of applying the instrument to the facts (2 Phill. Ev. ch. VIII. § 3). In accordance with this doctrine the defendant’s counsel subsequently read said sentence to the defendant, and asked him ‘ to state to what that referred,’ whereupon the counsel for plaintiff objected on the ground that ‘ the letter speaks for itself,’ and the objection was sustained. This ruling was erroneous on the ground assigned for its exclusion. The letter should have been excluded or explained. The counsel for the plaintiff now contends that if upon any ground the question might have been ruled out, the ruling should be sustained, and that the ruling was proper, because it called, for the opinion of the witness, and was leading. Neither proposition as contended for is correct. Where a. specific ground of objection is urged and ruled upon, the party is bound thereby. The reason is apparent. An objection, if validly urged, to the form of a question, can readily be obviated, or if to the competeney of. the evidence, other and competent proof may by supplied. And the question did not call for the opinion or conclusion of the witness. It called for a fact.”

Theodore H. Swift, for appellant.

George F. Betts, for respondent.

Opinion by Arnoux, J.; Freedman and Russell, JJ., concurred.

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


text:
    ANDREW J. ECCLES, Respondent, v. ROBERT L. DARRAGH, Appellant.

      Negligence—liability of person engaged in talcing down building for injuries received by one passing upon the street—respective liabilities of conti'actor and subcontractor—duty to erect barricades, eta.—judge's charge.

    Before Sedgwick, Ch. J.; Freedman and Truax, JJ.

      Decided March 6, 1882.
    Appeal by defendant from judgment entered on the verdict of a jury, and from order denying defendant’s motion on the minutes for a new trial.
    Action to recover damages for an injury to plaintiff’s person alleged to have been caused by negligence. On May 28, 1878, the plaintiff, while walking down Broadway, was struck on his head by a brick, which fell from a building then being demolished. The defendant had a contract to tear down this building and to erect a new one in its place. There was evidence that, at the time of the injury, the defendant’s men were not employed on the front, but were at work on the side and the rear of the building; and that the men employed on the front, from which the brick came which struck the plaintiff,, were the subcontractors or their servants, and the jury were properly instructed as to the liability of the subcontractor, should they find this to be the fact. The defendant further requested that the jury be instructed: 1. That the defendant as contractor was under no legal obligation to erect guards or barricades across the sidewalk, or otherwise warn or notify the plaintiff or the public against accidents which might occur in the performance of the work. 2. That the defendant as contractor was under no legal obligation to erect guards or barricades across the sidewalk or otherwise warn or notify the plaintiff or the public against accidents, which might occur in the performance by the sub-contractors, or by the servants of either of them, of that part of the work which they had undertaken. 3. That even if there was an omission or failure on the part of the defendant to erect guards or barricades across the sidewalk in front of the premises, or otherwise warn or notify the plaintiff or the public of the fact that the work of tearing down the building in question was in progress, that such omission or failure of itself was not negligence for which the defendant is liable.
    As to the first two requests, the court left it to the jury to decide what defendant’s duty was, or whether he owed any duty to the public. The third request was refused.
   The court at General Term, held: “ That the disposition made of these requests was clearly erroneous, because by it the jury were left to determine the law governing the case. It is not for a jury to determine what the duty of a citizen is, in any case.

“As a general rule, the sidewalks of the streets of a city are for the free use of its citizens, and those engaged in building or repairing a building above the sidewalks, or tearing down a building, are required to take all proper care and precaution which a prudent and careful man would take under the same circumstances, to prevent passers-by from being injured by any object falling from the building. If, with ordinary care and precaution, objects cannot be prevented front falling, the duty arises on the part of the persons prosecuting the work to provide adequate means to prevent persons passing in dangerous proximity, or at least to give adequate warning. But what constitutes adequate means in a particular case must always depend upon the special circumstances of the case. The erection of guards or barricades may be sufficient in one case ; stationing a man or men to warn off passers-by in another; posting danger signals in conspicuous places, in the third ; constructing a shed or roof over the sidewalk in the fourth; and so on. The failure to adopt any one of these precautionary measures is not of itself evidence of negligence, provided the one actually adopted is reasonably sufficient under all the circumstances, nor can any person be held for an insufficient adoption unless the work, in the course of which the injury arose, was carried on by himself or by agents or servants of which he had the selection and direction. The test always is, whether the defendant, under all the circumstances disclosed by the evidence, exercised the same care and diligence which a prudent and careful man may be reasonably expected to exercise under the same circumstances. The jury should have been charged in accordance with these views, and they should have been instructed that if, on the day in question, neither the defendant nor any of his men were at work on the front of the building, and the only persons at work there were the sub-contractors, or the men of either, the defendant, though the principal contractor, was under no legal obligation to adopt any of these precautionary measures for the protection of persons passing on the sidewalk, and that in such case the duty devolved upon the sub-contractor actually at work on the front of the building.”

Whitlock & Hamilton, tor appellants.

Warren & Etheridge, for respondent.

Opinion by Freedman, J.; Sedgwick, Ch. J., and Truax, J., concurred.

Judgment and order reversed ; new trial ordered ; costs to appellants to abide event.


author: Sedgwick, Ch. J.

text:
    GEORGE W. WELD and FANNIE E. WELD, Respondents, v. BERNARD REILLY, Sheriff, Etc., Appellant.
    I. Fraudulent transfer.
    1. Husband and wife.—Voluntary gift by former to latter.

      (а) Intent to protect as against future creditors.—Effect OF.
    A husband made a voluntary transfer of certain books to his wife. In an action in which the validity of that transfer was attacked, the defendant, on behalf of a subsequent creditor of the husband, the husband testified that at the time of the transfer he was not in any pecuniary difficulties, that he made it on the general principle that it is a proper thing to do, because we never know what the distant future may bring on; that because a man takes such a step it does not show that he is in any immediate peril; that it is a common thing, when people get married; that he made the assignment on general principles, as a matter of precaution against the possibility of incurring further debts, and the property being swept away to pay them. He did not testify that at the time of making the assignment he had an intention of incurring debts.

      Held,

    that this evidence was not such as to necessarily and absolutely compel a jury to find that the assignment was fraudulent, and that a request to direct a verdict to that effect was properly denied—the court saying: “If he (the husband) was not insolvent, if his present indebtedness was sufficiently provided for before future indebtedness was incurred, or other like conditions existed, his transfer or his intent to exclude his future creditors would not have been fraudulent.”
    (б) Insolvency at Ume of gift. —Request to direct a verdict for defendant on this ground properly denied.

    The husband on his direct examination testified that at the time of his assignment, his assets were $175,000, and his debts, about $150,000. On cross-examination he testified that the $175,000 included $20,000 which he admitted were bad debts and had never been collected; $16,000 on a certain stock on which he admitted there was a loss of $7,000. And another item of stock which he admitted was a total loss, wiping out his entire margin. It did not appear how much of the bad debts of $20,000 had accrued at the time of the transfer, nor did it appear that the losses on the stock had been made at that time.

      Reid,

    that the matters drawn out on cross-examination did not neutralize the direct testimony as to the difference in favor of the assets so certainly that the matter could have been taken from the jury.

      (e) Oharge—construction of.

    The court had, at defendant’s request, charged, “That if the evidence showed that when the transfer from the husband to the wife was made he was indebted in a sum exceeding the value of the books so transferred, and if such debts remain unpaid to this day, such transfers are fraudulent and void against creditors existing at that time who are still unpaid, and equally void against future creditors, including the judgment creditor in this case.” The court then proceeded to charge, “ The mere fact that a debt then existing remains still unpaid, is not sufficient of itself. If the jury find that he was actually insolvent at that time, then the transfer was void. ” To this latter charge defendant excepted.

      Held,

    that the debt referred to in the latter charge was not the same kind of debt referred to in the request which had been previously charged; but it was to a debt not to an amount greater than the value of the books. So holding, held the exception not well taken; holding as to the effect of a (d) Debt less than the value of the property transferred, this language:

    “ Of such a debt, which was of less value, it was true that its mere existence did not make the transfer fraudulent, but was evidence as to insolvency; and if the donor were insolvent, then the gift was fraudulent.”
    H. Trial, conduct of.—No conflict of evidence.
    1. Refusal to charge that there is no conflict, when, in fact, there is none, when not error calling for a reversal.

    Defendant’s counsel requested the court to charge that no recovery could be had for certain books which he claimed the husband had bought since the transfer to his wife, and that there was no conflict of evidence as to the time when they were bought. The court charged that no recovery could be had for after-purchased books, but left it to the jury to say which they were.

      Held,

    not error calling for a reversal; the court saying: “As to some of these books the evidence does not with certainty show that they were afterwards purchased; and inasmuch as the evidence consisted of dates spread through several exhibits, the court was not called, instantly and definitely to make an inference from their contents, so far as they were only remembered by the judge.”
    in. DAMASES IN ACTIONS FOB CONVERSION.—INDIVIDUAL OFFERS TO SELL.
    Evidence that the parties (to wit, purchasers under an execution sale) in possession of the articles converted had offered to return them to the plaintiff unconditionally upon the payment of prices less than those that had been testified to on the part of the plaintiS as being their market value, is inadmissible. The plaintiSs were entitled to the market value, and this evidence had no bearing on such value. The court said: “The rule (viz., that the measure of damages is the market value) should not be changed because certain persons actually made an offer to sell at lower prices, even if the testimony could show that they would abide by it, and not withdraw. The owner is under no obligation to have funds on hand, or to use the money he happens to have for his indemnification against the wrong-doer. The wrong-doer should indemnify, and furnish the means for indemnification.”
    IV. Misjoinder not cause fob reversal, when.
    Where an owner, deriving title under a transfer which is claimed to be fraudulent and void, as against the creditors of the transferrer, and a mortgagee of said owner join as plaintiffs in anaction for conversion; and defendant did not, either by answer or demurrer, interpose a defense of misjoinder, either of parties or of causes of action, and the recovery was not placed on the mortgage being valid as against the creditors of the transferrer, except in the single contingency of the mortgagor (the transferee) being the owner of the property, and it was limited to such of the property as was mortgaged,

      Held,

    there was no ground for reversal arising out of a misjoinder either of parties or causes of action.
    Before Sedgwick, Ch. J., and Russell, J.

      Decided April 3, 1882.

      Appeal by defendant, from a judgment and from an order denying a motion for a new trial made upon the minutes.
    The plaintiff, Fannie E. Weld, claimed to be the owner of certain books which she had mortgaged to her co-plaintiff, George W. Weld.
    The defendant, as sheriff, had levied an execution, on the books, issued upon a judgment against the husband of Fannie E. Weld. The plaintiffs claimed that Fannie E. Weld had become owner by a gift to her from her husband. The defendant claimed that this gift was fraudulent as to the creditors of the husband.
    The verdict was for the plaintiff.
    Defendant moved for a new trial on the minutes, which was denied ; an order was entered denying the motion for a new trial. From this order, and also from the judgment entered upon the verdict, the defendant appealed.

      Thomas G. Shearman, for appellant.

      Albert Stickney, for respondent.
   Sedgwick, Ch. J.

wrote for affirmance, holding the propositions contained in the head-notes; Russell, J., concurred.


text:
    THOMAS SHERMAN, Respondent, v. WILLIAM H. HOLMES, et al., Appellants.

      Contract for delivery of goods and payment by installments—payment for each installment condition precedent to next delivery—-what constitutes rescission by vendee—what necessary to cause of action for non-, delivery.

    Before Sedgwick, Ch. J., and Freedman, J.

      Decided April 3, 1882.
    Appeal by defendants from judgment entered upon the verdict of a jury rendered pursuant to the direction of the court.

      By the contract between the parties for the sale and purchase of lumber and timber, delivery was to be made in cargo lots, and upon arrival each cargo was to be settled for when discharged, the buyers to pay the freight in cash and the price in orders on the Dock Department, and each, side to pay one-half of the cost of the measurement and inspection. The cargo of the schooner “ M. A. Folsom ” was delivered to the defendants and accepted by them as the first cargo. The defendants did not settle or tender orders on the Dock Department therefor, as they had agreed to do, but insisted that the plaintiff should first make further deliveries. This the plaintiff declined to do.

      D. M. Porter and Charles D. Evans, for appellants.

      John L. Logan, for respondent.
   The court at General Term, held: “The true contract was as above stated, and in its nature it was severable as to each and every cargo. Upon the arrival and discharge of a cargo the defendants were bound to settle for it according to contract as a condition precedent to the next delivery. This they failed to do upon receipt of the first cargo. Moreover, while thus in default, they notified the plaintiff not to make any more deliveries. This constituted a rescission of the contract on their part. Under these circumstances the plaintiff had a right to recover for part performance made up to that time, and the defendants could no longer sue in affirmance of the contract. A party cannot be permitted to rescind and affirm at the same time, or to rescind in part and affirm in part. He must make his election. To be in a position to urge their counterclaims, the defendants should have refrained from rescinding, and should have offered to perform the contract on their part.”

Opinion by Freedman, J.; Sedgwick, Ch. J., concurred.

Judgment affirmed, with costs.


text:
    IN THE MATTER OF THE APPLICATION OF ISAAC LEWIS.

      New York City—power of court upon petition to summarily order payment of award by Ohamberlain.—Hatch v. Mayor, 43 Super. Gt. 94, foliotoed.

    Before Freedman and Russell, JJ.

      Decided April 3, 1882.
    Appeal from order denying the application of the petitioner for an order that the chamberlain of the city of New York be directed to pay over a certain award for regulating and grading of Madison avenue. The following opinion was delivered at special term, by Sedgwick, J.:
    “In the matter of Hatch (43 Su/per. Oí. 94), it was held that ‘ the legislature intended to confine the action of this court under the statute to such disposition of the money as in its discretion may be proper, only so long as the same remains in the hands of the chamberlain,’ and that the statute did not authorize its withdrawal from his hands.’ The case of Hatch v. Mayor (82 W. Y. 436) does not overrule this construction of the statute. The prayer of the petition must, therefore, be denied.”

      Evarts and Secor, for petitioner, appellant.

      W. C. Whitney, corporation counsel, for respondent.
   The court at G-eneral Term, said : “If the power to entertain proceedings of this character in a summary manner exists at all, it should be exercised in such exceptional cases only as are free from doubt as to consequences. The case at bar falls within the principle of the Hatch case (43 Super: Ct. 94), and should be controlled by the decision of that case.”

Opinion by Freedman, J.; Russell, J., concurred.

Order affirmed, with costs.


author: Per Curiam.

text:
    MARTHA L. THOMPSON, Appellant, v. JOHN J. BURCHELL et al., Respondents.

      Stay of proceedings for non-payment costs of former action.

    Before Sedgwick, Ch. J., and Freedman, J.

      Decided April 3, 1882.
    Appeal from plaintiff from order staying proceedings, until costs of former action ánd ten dollars costs of motion be paid.
    The order was to stay all proceedings of plaintiff in this action against Jennette Burchell and John J. Burchell, on account of non-payment of an attorney fee allowed in a district court in another action against John J. Burchell alone. In the former action plaintiff claimed an amount due on contract for board, etc., viz. : $100; in this action she claims $2,000 damages due by reason of a breach of the contract.

      H. B. Philbrook, for appellant.

      Henry Steinert, for respondent.
   Per Curiam.

Order affirmed, with $10 costs and. disbursements to be taxed.


text:
    PHILIP QUINLAN, Appellant, v. JEREMIAH P. RUSSELL, Respondent, Impl’d., Etc.

      Appeal, undertaking on—when defendant claiming interest in litigated fund, not permitted to appeal from judgment from which plaintiff and co-defendant do not appeal, without filing bond for payment of judgment, ete., fund not being in court's custody.

    Before Sedgwick, Ch. J., Freedman and Russell, JJ.

      Decided April 3, 1882.
    Appeal from an order staying proceedings pending an appeal to the court of appeals.
    The plaintiff, as the assignee, through several mesne assignments, from one Terence Smith, sued to recover from the city a balance of $700, due Smith for work done upon the Ninth avenue. The defendant Russell, making a claim to the sum of $544.60 out of the fund, because he had furnished to Smith the materials, &c., for the work done by him, was made a party defendant. The action was tried at special term, and judgment was rendered for the plaintiff, against the city, for the sum of $700, and $76.18 costs, and against the defendant Russell, finding that he was not entitled to any lien upon the fund, and for costs. The city did not appeal. The defendant Russell did appeal to the general term, where the judgment was affirmed with costs. After affirmance at the general term, the defendant Russell made this motion for a stay upon the plaintiff and upon his co-defendant, the city, and it was ordered, upon his filing the usual bond to perfect appeal to the court of appeals, and for the judgment for costs rendered against him at special and general terms. No bond of any kind has been given for the payment of the amount of the j udgment, ordered to be paid by the city, nor has the amount been paid into court.
   The court at General Term held :

“ That the defendant has the inherent power to stay execution upon its judgment, without an undertaking •on the part of appellant, is not open to question (Granger v. Craig, 85 N. Y. 619). We think, however, the court ought not to exercise such power except in those cases where the respondent is protected by the fact that the property or money for which he has a judgment, is within the custody or control of the court. In the case at bar, the plaintiff has a money judgment against a party who has not appealed. The defendant claims a portion of the money. It has not been paid into court, nor is it in any way within the control of the court. That the defendant, the city, is responsible and probably will be at the determination of the appeal in the court of appeals, does not take the case out of the usual rule. If the money were paid into court, we should think it necessary to require from the defendant Russell a bond for the payment of accruing interest pending the appeal. As it is not paid into court, we think the defendant, Russell, ought not to have a stay without giving a bond for the payment of the amount of the judgment with interest.”

J. H. Strahan, for appellant.

L. L. Kellogg, for respondent Russell.

Opinion by Russell, J.; Sedgwick, Ch. J., and Freedman, J., concurred.

Order reversed, with costs and disbursements; but defendant permitted, under section 1303, to file a proper bond within ten days after entry order.


text:
    JAMES FITZPATRICK, as Adm., &c., Appellant, v. THE NEW YORK, NEW HAVEN AND HARTFORD R. R. CO., Respondent.

      Action for causing death by negligence—when deceased deemed chargeable as matter of law with contributory negligence in crossing railroad track.

    Before Sedgwick, Ch. J., and Freedman, J.

      Decided June 5, 1882.
    Appeal from judgment dismissing complaint with costs.
    Action to recover damages for causing death of plaintiff’s intestate.
    .The deceased, for a considerable time prior to the occurrence complained of, had been engaged in driving a baggage express wagon to and from the Grand Central Depot in the city of Hew York, and so was familiar with the locality and the manner in which trains came in. On the morning in question, in daylight and with nothing to obstruct his view, he started from the baggage room on the east side of the said depot between Forty-second and Forty-third streets, and drove towards Forty-fourth street, about the length of a block along a track occupied by an in-coming train, and in the face of it. The train consisted of four or five cars which came down the westerly track at a speed of four or five miles an hour, and were manned with four brakemen, one of which was upon the front platform of the first car. The engine had been detached and switched off, and had come to a stand still at the corner of Forty-fourth street, on a track to the east of the track of the incoming train, and on the train the brakes had been put on at Forty-fifth street. At this juncture, the deceased, though he might have halted and remained safely between the easterly wall of the depot and the track of the incoming train, undertook to go easterly across the said track and between the rear of the engine standing still and the approaching train. In consequence of this the collision occurred, for although, when the brakeman hallooed to him, the deceased tried to get back upon the space between the track of the cars and the wall of the depot, he only succeeded in getting the horse off the track, but failed to get the wagon off. The train ran about four feet after striking the wagon. The evidence shows that the deceased could and should have seen the approaching cars for a considerable distance, and for a sufficient length of time to have avoided them.

      Julius Lippman, for appellant.

      William E. Barnett and A. H. Anderson, for respondent.
   The court at General Term, after stating the facts, as above, held:

“Upon the whole case, it affirmatively and clearly appeared that the deceased, in attempting to cross as he did, was guilty of contributory negligence, and the complaint was properly dismissed.”

Opinion of Freedman J.; Sedgwick, Ch. J., concurred.

Judgment affirmed, with costs.


author: “ Arnoux, J. Per Curiam.

text:
    GEORGE R. WILLIAMSON, Respondent, v. THE NATIONAL ELECTRIC LIGHT AND POWER CO., Appellant.

      Pleading—motion to malee definite and certain—action by officer against company for salary, necessary allegations—allegation “that salary was duly and regularly fixed,” sufficient.—Indebitatus count in debt.

    Before Sedgwick, Ch. J., and Freedman, J.
    Appeal from order denying defendant’s motion to make the complaint more definite and certain.
    The complaint alleged that defendant was a domestic corporation, duly organized, etc., having a place of business in New York City, and proceeded : “3. That from April 1, 1880, to September 20, 1881, plaintiff held the office of secretary of said company, and discharged all the duties and services appertaining thereto.”
    “4. That the salary of the said office, during all said times, was duly and regularly fixed by said company at $1,800 per year.”
    “5. That the defendant is justly indebted to the plaintiff in the sum of $2,650, for salary and services rendered by him as such secretary of said company, from the said 1st day of April, 1880, to the 20th day of September, 1881 (both inclusive), which sum has been duly demanded, but the same has not been paid or any part thereof.”
    “Wherefore plaintiff demands judgment, etc.”
    The following opinion was delivered at special term:
   “ Arnoux, J.

The fifth paragraph of the amended complaint states a good and sufficient cause of action (Allen v. Patterson, 7 N. Y. 476).”

“ In view of that fact the other allegations of the complaint might be disregarded; but the allegations complained of are sufficient. The manner in which the salary claimed by plaintiff “was duly and regularly fixed by said company ” is matter of proof. The cases of Beach v. King, 17 Wend. 197 ; Grillett v. Fairchild, 4 Den. 80 ; White v. Joy, 13 N. Y. 83; Currie v. Henry, 2 Johns. 433, have no application. They relate to acts of parties other than the defendant, and of which defendant could not be presumed to have knowledge.”

Butler, Stillman & Hubbard, for appellant.

Stanley, Clarke & Smith, for respondent.

Per Curiam.

The order appealed from must be affirmed, with $10 costs and disbursements.


text:
    AMELIA LANGLEY, Respondent, v. THE SIXTH AVENUE R. R. CO., Appellant.

      Damages—rule as to in case of personal injury—when deemed excessive-costs not imposed on reversal for excessive verdict.

    Before Sedgwick, Ch. J., and Freedman, J.

      Decided June 19, 1882.
    Appeal by defendant from judgment entered on verdict for plaintiff and from order denying motion for new trial, made upon the minutes, one of the grounds of motion being that the damages recovered were excessive.
    The action was for damages for injury alleged to have been caused by negligence of defendant’s servants. The plaintiff testified that in the accident proved, she fell and broke her knee-pan. She was taken to a hospital and there remained for three months and ten days ; in the hospital she underwent great pain ; she made a livelihood by coloring photographs and doing crayon work; in coloring photographs, she was employed five days in the week, her salary for that being $9 ; for three days’ crayon work she would receive $30 or $40, but coloring photographs brought in work more regularly ; after the accident she did not apply for work in coloring photographs, because it was painful to sit any length of time. The surgeon who attended her at the hospital testified, that when she left the hospital, she had a good result; that there was, at the time he testified,'some stiffness of the knee and some swelling; that it was somewhat stiff, but not what is ordinarily called a stiff joint; that in such cases it was probably from six months to two years before there was a thoroughly good use of the joint; that there was no indication that it would be a permanent injury ; that it would take some time, but eventually she would have a good joint; that there was slight danger, very slight indeed, that there would be permanent disability ; that it was impossible to say how long she would be lame ; it depended upon herself ; if used, it would be a good joint; if not used, the stiffness would remain -f that at present she could not go up or down stairs without assistance ; that except so far as being required to walk or go a great distance to work, she could do the business of coloring photographs very well; that the injury would not interfere with her sitting at work. The accident happened October 20, 1881, and the trial' began February 8, 1882. 0

      D. M. Porter, for appellant.

      Benjamin F. Mudgett, for respondent.
   Per Curiam.

There was no error on the trial, but the damages were excessive. The learned judge below seemed to incline to that opinion, but thought it best-that the general term should pass upon the question on appeal. The plaintiff’s case showed, that the consequences of the injury would not be permanent. The damages that may be recovered, are such as the proof shows to be reasonably certain of occurrence (Curtis v. Rochester and S. R. R. Co., 18 N. Y. 534). No estimation of past loss of occupation and pain, and the-future consequences according to the evidence, would justify the jury in fixing the amount of compensation at $6,000.

The practice is to deem the successful party, in such a case, not responsible for the action of the jury: The

new' trial, therefore, should be upon the terms that the defendant pay the trial fee and the. disbursements of that term.

New trial ordered, upon payment of costs above indicated.