text:
    Maria A. O’Harra, as Administratrix, etc., of Charles N. O’Harra, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Personal injv/ries — sentinel gua/rding carrs at the request of a railroad company — the company changeable with notice of his presence — contributory negligence — newly-discovered evidence.

      A. new trial will not be granted upon the ground of newly-discovered evidence, unless the new evidence is of such importance that it would probably overcome all the evidence given upon the trial inconsistent with that newly discovered.
    In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, a railroad corporation, it appeared that, owing to a strike upon the defendant’s road in and about Buffalo, the Governor called out the militia, and a company of which the deceased was a member reached the defendant’s stock yards about eight o’clock on the morning of August seventeenth, and that about eleven o’clock the next morning, while the deceased was acting as sentinel and in obedience to his instructions was pacing a distance of about 200 feet, with a view to guarding the property of the defendant, he was struck by a train of cars and killed; that near the end of the beat given to the intestate there was a train, standing in what was apparently a “dead yard,” which had not been moved in any way while the intestate was in the yard; that these cars extended from west to east, the easterly portion being upon a curve and the most easterly portion apparently not being discernible from the westerly portion nor from the beat occupied by the intestate; that these cars were suddenly put in motion by an engine which was at the east end of the train pushing several cars down against the body of dead cars, and the movement thus occasioned caused the westerly end of the train to collide with the deceased, causing his death. There was evidence tending to show that no signal was given to indicate any movement of the cars.

      Held, that, as the company had requested the presence and protection of the militia, it was chargeable with notice of the position of the intestate and of the possible danger that might arise from a sudden movement of the cars;
    That it was for the jury to determine whether the defendant had exercised reasonable care in the management of its cars;
    That the question whether the intestate was, under the peculiar circumstances of the case, guilty of contributory negligence, was one to be determined by the jury.
    Appeal by tbe defendant, The New York Central and Hudson River Railroad Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of Oswego on tbe 2d day of February, 1895, upon tbe verdict of a jury rendered after a trial at tbe Oswego Circuit, and also from an order bearing date tbe 16th day of January, 1895, and entered in said clerk’s office, denying tbe defendant’s motion for a new trial made upon tbe minutes, and also from an order made at tbe Onondaga Special Term, bearing date tbe 9th day of March, 1895, and entered in tbe office of tbe clerk of the county of Oswego, denying the- defendant’s motion for a new trial on tbe ground of newly-discovered evidence.

      J¡fullm, Griffin <& Wallcer and O. G. Griffin, for tbe appellant.

      O. JV. Bxólger and JD. P. Morehouse, for tbe respondent.
   Hardin, P. J.:

In August, 1892, there was a strike on tbe defendant’s road, in tbe city of Buffalo and East Buffalo. It became so general and alarming that tbe defendant appealed to tbe Governor of tbe State to exercise his powers as commander of tbe militia, and be did so by calling out tbe militia of tbe State to tbe extent of some 8,000 men. Tbe call that was communicated to the Forty-eighth Separate Company of Oswego reached there about twelve o’clock on tbe night of tbe sixteenth of August, and about three o’clock in tbe morning of tbe next day tbe company were placed in cars and transported immediately to the scene of the trouble, and upon reaching the defendant’s property some of the defendant’s officers immediately communicated their desires to the officers of the Forty-eight Separate Company in respect to the directions to be observed in order to carry out the efforts to protect the property of the defendant. Defendant’s property was in the hands of riotous strikers and a mob spirit prevailed, and its property was in great danger of disaster and destruction. After the officers of the Forty-eighth Separate Company had received information and instructions from the officers and managers of the defendant’s affairs they proceeded to deploy their men in and about the stock yard of the defendant, in East Buffalo, where there were numerous tracks and side tracks, besides the main tracks of the defendant. Plaintiff’s intestate was called upon to act as sentinel in guarding a certain portion of the yard. He was a young man, about twenty-one years of age, and apparently obedient to the instructions of his military superiors, and in the discharge of his duty, after receiving such instructions, he was engaged in pacing a distance of about 200 feet, in uniform, attempting to guard the property of the defendant against depredations, either from the strikers or evil-disposed riotous persons, and while engaged in the discharge of his duty, in' obedience to the instructions of his commanding officers, he received the injuries which resulted-in his death. There was a train of some twenty-five cars standing in the yard, near the end of the beat given to the intestate, and they had not been moved in any way by the defendant during the time the intestate had been in the yard. The arrival of the Forty-eighth Separate Company was at eight o’clock on the morning of the seventeenth. The injuries resulting in the intestate’s death were received about eleven o’clock in the morning of the eighteenth of August. Considerable evidence was offered tending to show that the yard was apparently a “ dead yard,” or to show that there had been no movement of this train of cars, and that, judging from the fact that no movement had been made of them, it was not reasonable to apprehend a sudden change of operations on the part of the defendant. The twenty-five cars extended from west to east and the easterly portion seemed to be upon a curve, and the most easterly portion apparently was not discernible from the westerly portion or from the beat occupied by the intestate. They were suddenly put in motion by an engine which, was at the east end of the train pushing several cars down against the body of dead cars and suddenly moving the-whole line westerly, and apparently the movement thus occasioned . caused the westerly end of the cars to collide witli the deceased and to,cause the injuries to him which he received on that occasion resulting in death in about an hour after he was struck. After reading the evidence presented in the appeal book, we are of the opinion that the question of whether the defendant exercised towards the intestate ordinary care and precaution, whether its omission to give-timely and due warning of the movement of the ears, or in some way to apprise the intestate that the cars were to be set in motion,, was a question of fact for the jury. In considering this question it was very proper for the jury to bear in mind that the soldiers were-invite^ by the defendant to come to its aid when its property was in peril and when its business was interrupted, and that, at the instance, of the defendant, the soldiers were placed in the yards and were-instructed in a general way to look out for all depredations and depredators, and that, under the circumstances of the case, the railroad was called upon to treat the soldiers with care and prudence. There was evidence tending to show that no bell was rung or whistle sounded or alarm given which could in any way call the attention of the deceased to the disposition of the defendant to suddenly change its course in respect to the dead cars standing near the termination of the intestate’s beat. The defendant was chargeable with notice of the position occupied by the intestate, and of the possible-dangers that might arise from a sudden change of its action by causing its cars, without warning of any kind, to be put in motion. The question, therefore, was for the jury to determine-whether such reasonable precaution in their management as ordinary prudence dictates to protect the intestate was given. (Hollender v. N. Y. C. & H. R. R. R. Co., 19 Abb. N. C. 18; Young v. N. Y. C. & H. R. R. R. Co., 13 Daly, 294; S. C. affd., 103 N. Y. 678.)

It is contended in behalf of the appellant that the intestate was-chargeable with contributory negligence. After all the facts and circumstances surrounding the situation of the deceased at the time-of receiving the injuries are considered, a reasonable deduction, therefrom seems to be that it was a question so circumstanced that. the question of whether he was guilty of negligence or not, was one which should have been, and was properly submitted to the jury. (Parsons v. N. Y. C. R. R. Co., 113 N. Y. 355.) We think the facts of the case before us differ quite essentially from the pivotal facts disclosed in Van Schaick v. The Hudson River R. R. Co. (43 N. Y. 527). In that case it did not appear that Van Schaick had any such assurances from the lapse of time, as the deceased in the case now before us had, as to the stationary condition of the cars which he was passing. The instructions of the trial judge were quite reasonable upon the question of the intestate’s freedom from negligence on the occasion of his receiving the injuries. We see no error in the course of the trial which requires us to interfere with the verdict of the jury.

(2) A motion was made for a new trial on newly-discovered evidence based upon the affidavits of Cottle and Harlach. Some of the facts which are stated in the affidavits are upon subjects upon which testimony was given, and can, at most, be said to be conflicting with some of the evidence found in the progress of the trial. Hnder the rule, which is to the effect that the new evidence must be of such importance that it would probably overcome all the evidence given upon the trial inconsistent with that newly discovered, we think the trial judge committed no error in refusing to grant a new trial. (Adams v. Bush, 2 Abb. [N. S.] 104; Geneva, Ithaca & Sayre R. R. Co. v. Sage, 35 Hun, 95.)

The trial judge saw the witnesses during the progress of the trial, and was called upon to judge as to whether or no, in his opinion, the affidavits furnished indication of such evidence that, if considered in connection with that given upon the trial, would lead to a different result, and his judgment, and, therefore, his decision in the premises was that the alleged newly-discovered evidence would not produce a change of result.

We are not persuaded that he committed any error in that regard. We are of the opinion that the judgment and oi’ders should be affirmed, with costs.

Martin and Merwin, JJ., concurred.

Judgment and orders affirmed, with costs.


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    Charles Baker and Edwin R. Plumb, Respondents, v. Sanford E. Loring, Appellant.

      Payment — must he pleaded — entries in hooks of account.

    Payment-is an affirmative defense and should be pleaded; it cannot be proved under a general denial.
    In an action brought to recover the price of certain lumber alleged to have been sold to the defendant, it appeared that the salesman of the plaintiff knew the prices to be charged therefor; that each day when the lumber in question was loaded the salesman made a memorandum of the measurement of the load and charged the amount up every night; that he took the memoranda to the bookkeeper of the plaintiff and called the amounts off to him. It further appeared that this book of the salesman was burned. The bookkeeper testified that the salesman would come into the office late in the afternoon, read off the charges, and that the bookkeeper would write them down; that the charges were put on the day book and that book was also burned; that he posted from the day book into the ledger, giving the aggregate amount only in dollars and cents; that he made the computations himself, and that they were correct and were carried out on the ledger as he made them.

      Held, that the defendant’s motion for a nonsuit was properly denied.
    Appeal by the defendant, Sanford E. Loring, from a judgment of the Supreme Court in favor-of the plaintiffs, entered in the office of the clerk of the county of Onondaga on the 6th day of March, 1895, upon the report of a referee.
    It is alleged in the complaint and admitted in the answer that the plaintiffs are co-partners doing business at Syracuse under the firm name and style of 0. H. Baker & Co. It is alleged in the complaint that the plaintiffs, at the request of the defendant, sold and delivered to the defendant “goods, wares and merchandise, consisting of lumber and building materials and the cartage of the same, of the value and agreed price of $2,551.73, and which sum they were reasonably worth; that said goods were sold and delivered between the 17th day of January, 1893, and the 15th day of May, 1893, * * * and that no part thereof has been paid except the sum of $1,550, paid to -apply thereon at various times prior to June 2, 1894; and that the defendant is justly indebted to the plaintiff in the sum of $1,001.73, with interest thereon from May 15, 1893.” The answer, after admitting the co-partnership, contains simply the following words : “ That he denies that he has any knowledge or information thereof sufficient to form a belief as to the truth of any other allegations in said complaint contained.”

      Miller, Gri'dley dk Pratt, for the appellant.

      Homer Weston, for the respondents.
   Hardin, P. J.:

Under the pleadings as they were framed we think the defendant, in order to be entitled to give proof of payment of the indebtedness stated in the complaint, was called upon to aver in his answer a defense of payment. (McKyring v. Bull, 16 N. Y. 297; Lent v. N. Y. & M. R. Co., 130 id. 504.) Plaintiffs withdrew the objection, however, to defendant’s claim to prove that one Baldwin had paid, on behalf of the defendant, the sum of $900 and $1,000 other than the $1,550, shown to have been paid by the defendant on account. Notwithstanding that withdrawal no proof was given in support of the offer made. The witness Miller testified that he remembered putting up lumber for the defendant, and there was a large amount of it; it was- delivered some time in the winter of 1893; defendant gave his orders and the lumber was loaded and started off for Walton street. It was for Eager and Phelps; it was all taken out of the yard, and, the witness added, “ kept my measurements of loads by the piece; the thick lumber was in pieces and the boards was in feet; kept memorandum of these loads in a book and charged them up every night; I took them to Mr. Bannon; he was the bookkeeper. I called them off to him. I have not the book. It-was in the office and it was burned up. * * * My business was salesman and I was located in the yard. I took most of the defendant’s orders directly from him; he might have telephoned some of the orders. I don’t think he left half of the orders in the office; wouldn’t swear he did not; I think he gave the bulk of them direct to me, and I recorded them upon my book, and no one had charge of that book but myself. * * * The fire was in 1894; I called off the record I made in my book to the bookkeeper, Mr. Bannon, every day; I crossed off my book. The price I called I read from my book. I was watching him write, standing beside him, and after he had recorded or undertaken to record what I had given him.”

Baker, one of the plaintiffs, testified that the defendant was in his office in regard to the lumber in question; he added “ I made an arrangement with him in regard to it sometime in the month of January, 1893. I think the arrangement was he was to have hemlock delivered on the premises for $11.75 per thousand. I saw some of the lumber after it had been delivered. It was delivered in large quantities. I saw some of it on the ground. Was there occasionally while it was being delivered, and know some of -it was delivered. I know that we presented bills as we wanted money. He raised no objections to the lumber. I only know the number of feet delivered from the books. Our employees made the entries in the books.” This witness also testified : “ While he was getting lumber for the Phelps building he got some for the Eager building. I think 1 personally presented no bills to the defendant ; I could not say. I talked with him about his indebtedness to us. That business was left to the bookkeeper part of the time, and part of the time I presented them. I know they were presented. * * * One time Mr. Loring came to the office, and a bill was handed to him. I know I would sometimes take bills and present them. I think I did personally to Mr. Loring. I think I presented bills personally to Mr. Loring. I saw Mr. Loring several times in regard to the payment of this bill.” The witness also testified that it was his recollection that the bills were itemized; and he says “the itemized delivery books spoken of by Mr. Miller were burned. The one Miller kept was burned. My ledgers were saved from the fire. In them the transactions are carried down but not itemized.”

The plaintiffs called the witness Bannon, who testified that he had charge of the books, and that he had the ledger present in court; and he added : “ I am acquainted with Mr. Miller who has testified. Late in the afternoon he would come into the office and read off his charges, and I would write them down. They were put on the day book and that book was burned. I posted from the day book into the ledger, giving the aggregate amount only in dollars and cents. The computations were made by myself. I made them correctly, and carried them out on the ledger as I made them. There are about seventy-five separate charges. Nine-tenths of the lumber was two-inch planks. They used the timber and then laid the brick. I am not able to state the aggregate amount of those items without reference to the books. By referring to the books I can state the amount. I know the prices charged, hemlock $11.75 large percentage. There might have been two to three thousand feet that was not hemlock. I prepared and presented or mailed to Mr. Loring itemized bills, or handed them to Mr. Baker. I know there were itemized bills of this entire lumber sent by mail or given to Mr. Loring.” Subsequently the witness Baker was recalled and he testified: “ The prices that were charged were agreed upon between Mr. Loring and myself. I am not positive whether there was a special understanding in regard to these different items. The salesman and bookkeeper knew the prices. I fixed the prices and my workmen worked under them. Mr. Bannon knew the prices.” The witness Bannon was then recalled and he testified: “I made the charges for this lumber at the market price, except the hemlock. The lumber was charged at the market price.” After this evidence was given, the witness testified that the bill of items was in his handwriting and that it was an exact copy of the ledger, and that the footings were the same as those in the ledger. Thereupon the defendant’s counsel conceded that the bill of items was a copy of the two columns of the figures of the lodger. The witness added: The aggregate amount charged was $2,551.73, and that the amount deducted for payment was $1,550, leaving a balance of $1,001.73. In the course of his cross-examination he said: “ I made out the itemized statements of this account against Mr. Loring on two or three different occasions before and after the Phelps job was finished. I presented one to him. He said nothing about it. He came into the office two or three times and talked about payment.”

After this proof was given, we think the learned referee committed no error in refusing defendant’s motion for a nonsuit. The defendant was sworn as a witness in his own behalf and, in the course of his testimony, said: I received itemized statements of the lumber delivered for the Phelps and Eager buildings. I don’t remember they were presented personally by Mr. Baker.” And he added : “ I have had many talks with Mr. Baker since the lumber was sold for the Phelps building. The question of the quantity of lumber did not, arise. I have never made any objection to him that the quantity of lumber was not delivered. I was generally at the building twice a day. I knew Mr. Baker was delivering lumber. Mr. Baker lias talked with me about paying these bills. The amount of the bill has been presented to me. I understood the amount.” The witness further testified: “ When the bills came to me, I turned them over to Mr. Coon. He has made no detailed report.”

The witness Coon, who was called by the defendant, testified, viz.: “ During the erection of the Phelps building, defendant gave me bills he had received from plaintiffs. The bills he gave me was one of those large foolscap bills, two or three pages. * * * I received the lumber; I did not measure it. * * * The long bill was presented by Mr. Loring to me during the summer after the work was finished. There was a large quantity of lumber used.”

It appears by the testimony given by the plaintiffs that all the lumber charged to the defendant was what was delivered on the Eager and Phelps jobs.”

We think the conclusion of fact stated by the referee to the effect that the defendant is indebted to the plaintiffs for balance due in the sum of $998.23, with interest thereon from June 13, 1894, is sustained by the evidence, and that the conclusion of law, that by reason thereof the plaintiffs are entitled to recover, should be sustained.

The judgment should be affirmed, with costs.

Martin and Merwin, JJ., concurred.

Judgment affirmed, with costs.


text:
    The Tuerk Hydraulic Power Company, Respondent, v. Frederick W. Tuerk, Jr., and Others, Appellants.

      Trade marlcs and names — confusing similcority — injunction without doomages — exceptions to evidence in equity fictions.

    A manufacturer has a right to distingush his goods by a peculiar mark or device and is entitled to equitable relief by injunction against one who adopts a similar device, which is calculated to deceive a purchaser exercising ordinary caution.
    Where a company adopts the name of “ The Tuerk Water Motor Company,” the adoption by other persons of the name “The Tuerk Water Meter Company ” is improper and is calculated to deceive the public.

      Where a company has, for advertising purposes, adopted a design, representing a girl operating a sewing machine with the help of a motor, the court will prevent by injunction other persons from adopting and circulating a similar design as an advertisement of a machine also calculated to furnish power to run sewing machines by water.
    The fact that in an action brought to restrain the defendants from using a name and advertisements similar to the plaintiff’s, no damages were awtrded to the plaintiff does not prevent the court from issuing an injunction restraining the defendants from such practices.
    In an equity action, exceptions to evidence should be disregarded unless the appellant can show that injustice has been done upon the whole case or that the ruling complained of may have affected the result.
    Appeal by tbe defendants, Frederick W. Tuerk, Jr., and others, from a judgment of the Supreme Court in favor of tbe plaintiff, entered in the office of the clerk of tbe county of Onondaga on tbe 17th day of August, 1891, upon tbe report of a referee.
    In tbe judgment in this action it was adjudged “ that tbe defendants Frederick W. Tuerk, Jr., John Hunter and James 0. Hunter, and each of them, be and they are hereby perpetually enjoined and restrained from using tbe name of‘The Tuerk Water Meter Company/ or any other substantial imitation of the name ‘The Tuérlc Water Motor Company/ and from printing, publishing, issuing or circulating any of the cuts, pictures, prints or printed matter used by the plaintiff in its catalogue or circular prior to the formation of the defendants’ firm, or any substantial imitations thereof.”
    This judgment is in accordance with the conclusion of law found by the referee. The referee found as matter of fact “that the adoption by the defendants of their said firm name, their location at Syracuse, and using and circulating of the said circulars and cards were for the purpose and were intended or calculated to represent to the public that the motors sold by the defendants were those of the plaintiff’s, and to confound the identity of the business carried on by the plaintiff and that of the defendants; that the similarity of the names of the plaintiff as known to the trade — such name being ‘The Tuerk Water Motor Company’' — and that adopted by the defendants is sufficient to deceive or mislead the ordinary purchaser in the exercise of ordinary care and caution; that the use by the defendants of the co-partnership name adopted by them would tend to falsely represent the manufacture or proprietorship of the goods manufactured by them, and to confuse tbe same with those of the plaintiff.”
    No damages were allowed to the plaintiff. An injunction was authorized in the language substantially found in the quotation already made from the judgment, with costs of the action.

      Wilson, Kellogg c& Wells, for the appellants.

      William B. KTlison, for the respondent.
   Hardin, P. J.:

Having carefully read the evidence found in the appeal book, the conclusion is readied that the findings of fact made by the learned referee are sustained by the testimony offered before him at the trial. We think the evidence indicates very clearly that the use by the defendants of the name “The Tuerk Water Meter Company,” and the practices in respect thereto adopted by the defendants, led to confusion arising from its similarity to the name of the motor of the plaintiff, and that the similarity was such as to cause persons dealing in the article to suppose it to be the same as that manufactured by the plaintiff.

In Amoskeag Manufacturing Company v. Spear & Ripley (2 Sandf. 599) it was held that every manufacturer has an unquestionable right “ to distinguish the goods that he manufactures or sells by a peculiar mark or device, in order that they may be known as his in the market for which he intends them, and that he may thus secure the profits that their superior repute as his may be the means of gaining.”

In Colman v. Crump (70 N. Y. 573) it was said: “It is not necessary that the symbol, figure or device used or printed and sold for use should be a fac simile, a precise copy, of the original trade mark, or so close an imitation that the two cannot be •distinguished except by an expert, or upon a critical examination by •one familiar with the genuine trade mark, * * * if the resemblance is such as to deceive a purchaser of ordinary caution, or if it is calculated to deceive the careless and unwary, and thus to injure the sale of the goods of the proprietor of the trade mark, the injured party is entitled to relief.” A similar doctrine was stated in Tallcot v. Moore (6 Hun, 106).

In Popham v. Cole (66 N. Y. 69) it was held that when ordinary attention on the part of customers will enable them to discriminate between the trade marks of different parties, the court will not interfere.

"We think the evidence in this case warranted the referee in finding that the case before him came within the rule of law which the cases we have referred to support.

"We think the contention of the defendants is not aided by the case of Forney v. Engineering News Pub. Co. (10 N. Y. Supp. 814), as in that case there was no evidence showingjactual confusion in any instance from the claimed similarity in names.

The referee found that prior to the spring of 1886, Frederick W. Tuerk, Jr., was in the employ of the plaintiff and had charge of the preparation of catalogues and circulars for the plaintiff, and that he frequently used as an illustration the picture of a girl seated by an open window operating a sewing machine with the help of a motor, and in connection with this picture a statement purporting to have been made by a 'government official at Washington, that women should not be permitted to run sewing machines in the ordinary way. Thereafter the referee found that in the spring of 1886 Frederick W. Tuerk, Jr., severed his connection with the plaintiff and entered into a partnership with the defendants under the style of “The Tuerk Water Meter Company,” and that the partnership had its place of business at Syracuse, N. Y. And that although the partnership was organized for the purpose of manufacturing a water meter, invented by Tuerk, no meters were actually made or sold, and that sometime prior to December, 1886, the co-partnership began the manufacture of a water motor similar in general appearance to that of the plaintiff. After such facts were found by the referee in his report, we think it was entirely proper upon the evidence before him to find that the defendants soon thereafter issued and circulated to the public illustrated catalogues advertising the manufacture and sale by the Tuerk Water Meter Company of a water motor called “ Tuerk’s New Water Motor;” and that upon the motor itself it was designated as the Tuerk Motor, Syracuse, N. Y.” That in the circulars issued there appeared a cut or picture of a girl at a sewing machine beside a window with a motor bearing the name “ Tuerk Motor ” so similar to that theretofore used by the plaintiff and heretofore mentioned “ as to be indistinguishable without comparison.” That these circulars were followed by several others also issued and published by the defendants and containing the same picture and testimonial. Upon the facts found by the learned referee we think his conclusion of law was correct wherein he states that the plaintiffs were entitled to judgment “ restraining the defendants and each of them from using the name of‘The Tuerk Water Meter Comnany’ or any other substantial imitation of the name ‘The Tuerk Water Motor Company,’ by which the plaintiff -is generally known, or from printing, publishing, issuing or circulating any of the cuts, pictures, prints or printed matter used by the plaintiff in its catalogues or circulars, prior to the formation of the defendants’ firm or any substantial imitations thereof.” (Newman v. Alvord, 51 N. Y. 189; Amoskeag Manufacturing Company v. Garner, 54 How. Pr. 298; Gebbie v. Stitt, 82 Hun, 93; DeLong v. DeLong Hook & Eye Co., 10 Misc. Rep. 577; Higgins Company v. Higgins Soap Co., 144 N. Y. 462.)

We are of the opinion that the omission of the referee to find damages against the defendants furnishes no reason for withholding an injunction. The same conclusion was stated in Amoskeag Manufacturing Co. v. Garner (supra) near the close of the opinion.

Nor do we see any error available to the appellants in the refusals of the referee to find in accordance with certain requests made by the defendants. (Crim v. Starkweather, 136 N. Y. 635; Galle v. Tode, 26 N. Y. Supp. 638.)

Several exceptions were taken during the trial to the referee’s admission and rejection of evidence. After careful attention to them we have discovered none which requires us, under the rule applicable in equity cases, to interfere with the conclusion reached by the referee. (Galle v. Tode, 74 Hun, 542.)

This action was on the equity side of the court, and in Donovan v. Clark (138 N. Y. 631) it was said : “ In such cases exceptions to evidence should be disregarded, unless the appellant can show that injustice has been done upon the whole case, or that the ruling complained of may have affected the result.”

The foregoing vieivs lead to an affirmance.

Merwin and Parker, JJ., concurred.

Judgment affirmed, with costs.


author: Hardin, P. I.:

text:
    William Duffus, Respondent, v. Christoph Schwinger and Others, Appellants.

      Yerdict — only set aside as against the weight of evidence when entirely so.

    In order to justify an appellate court in setting aside a verdict as against tlie weight of evidence, the verdict must he entirely against the weight of evidence.
    Appeal by the defendants, Christoph Schwinger and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 24th day of January, 1895, upon the verdict of a jury rendered after a trial at the Onondaga Circuit, and also from an order entered in said clerk’s office on the 2d day of July, 1895, denying the defendants’ motion for a new trial made upon a case containing exceptions.
    In the plaintiff’s complaint it is alleged that the plaintiff became the owner of three several chattel mortgages upon the boat Kenyon <& Newton and the appurtenances, and that default had occurred in the terms of the mortgages, and “ that said defendants at the city of New York, on the 18th day of October, 1890, and while said property was owned by and in possession of said plaintiff, wrongfully took and converted said canal boat Kenyon t& Newton and appurtenances to their own use, thereby depriving plaintiff' of the possession and of the benefit thereof. The plaintiff on that day, and for a long time before, was and has been entitled to the possession thereof. That said several mortgages were made for good and sufficient considerations, and without intent on the part of said Eugene Cummings, or Daniel Cummings or this plaintiff, of hindering, delaying or defrauding creditors.” It is also-alleged that the plaintiff, before the commencement of this action, demanded of the defendants possession of the said property and delivery of the possession, and that the defendants wrongfully took said property from the possession of the plaintiff, and unjustly detain the same.
    The defendants, in tlieir answer, admit that a demand was made upon them for the possession of the canal boat called Kenyon & Newton. They allege, ■ however, that at the time the demand was made they di4 not have the possession of the boat; and that before this action was commenced the plaintiff took possession of the boat, “ and that the same was lost or destroyed through the carelessness and negligence of said plaintiff, his agents, servants and employees.” They also allege as a defense “ that said canal boat was sunk or destroyed by reason of a storm while lying in the waters of New York, and without any fault or negligence of these defendants, and while the same was not in their possession or control.”
    At the Circuit, held on the 28th of January, 1892, an order was granted allowing the complaint, to be amended so as to demand damages in the sum of $2,500.
    After a former trial, and a verdict for the plaintiff, an order refusing a new trial on the ground of a surprise, and granting a new trial “ upon payment of the costs of the trial by the defendants ” was reversed on appeal to the General Term, and we then held that “ in case the costs are not so paid the order and judgment are affirmed, with costs of appeal from judgment.” (51 N. Y. St. Repr. 941.)
    Upon a second trial the plaintiff again recovered a verdict, and a jnotion for a new trial was made at a Special Term, February, 1894, and denied, and the judge who presided at the trial where the motion was denied delivered an opinion, which is found reported in 7 Mise. Rep. 499. From that judgment and the order denying the motion for a new trial an appeal was taken to this court, and the judgment and order were reversed and a new trial ordered, on which appeal this court held, viz.: “ The fact of agency cannot be proven by the declarations or acts of the alleged agent, and upon the trial of an action the declarations of an alleged agent are inadmissible in evidence for that purpose,” and that the value of a chattel under such an action as this should be fixed, according to the provisions of section 1726 of the Code, at the time of the trial. The case is reported in 79 Hun, 541. Near the close of the opinion in that case it was intimated that it was a question “ whether, in any event, the plaintiff can recover more than the amount of his claims,” and Townsend v. Bargy (57 N. Y. 665) was referred to.
    Upon the trial now brought in review at the close of the evidence the plaintiff expressly stated that he was only “ entitled to a judgment for damages for the value of this boat, and for damages for detention up to the full amount” of the claim shown to exist upon the boat in favor of the plaintiff. At the close of the evidence the defendants asked the court to direct a verdict for the defendants upon several grounds mentioned, which request was denied and the defendants excepted. Thereupon the defendants’ counsel asked the court “ to define the questions which should be submitted to the jury. It may abbreviate my argument.” In response to that request the court observed: “ The main question, of course, 'relates to the possession of the boat. That involves several subordinate questions, such as whether the boat was in existence.at the time the action was commenced ; as to the agency of Mr. Petrie and as to whether there had been an assignment, so that the interest of the defendants had passed from them to Mr. Petrie, and, of course, as to the present value of the boat and the amount of the damages for detention.” The court added : “ I am inclined to follow the intimation of the General Term, in view of the authorities that they cite, and to instruct the jury to find what the present value of the boat is, and what the damages for detention are, with the further instruction that the aggregate of the two cannot exceed the amount of the claim” of the plaintiff. No exceptions were taken to the intimations thus made by the court.

      George W. Cothran, for the appellants.

      Walter 8. MacGregor, for the respondent.
   Hardin, P. I.:

Upon the request of the defendant’s counsel at the close of the evidence, the court outlined the leading questions of fact arising in the case which were for the jury to determine. Thereafter the court delivered a very lucid, clear and elaborate charge to _ the jury, modestly withholding his own opinion upon the questions of fact which arose in the case and which W'ere delivered over to the jury to determine, applying the principles of law which have heretofore been announced in the determination of the case. We are asked to disturb the finding of the jury upon several of the questions of fact which were thus, stated by the trial judge to the jury. Upon looking into the evidence we find a sharp and stubborn conflict in the evidence detailed by the witnesses, and if we were to attempt to reconcile the conflicting statements we should find great difficulty in doing so. If we were called upon to determine the inferences and deductions to be drawn from the evidence we should find that it is quite a difficult task to agree with the conclusions upon all the evidence reached by the jury. If, however, we, upon reading the .evidence were of opinion, that had we sat upon the jury, we might have reached a different conclusion from that arrived at by the jury, still it would be our duty to accept the verdict of the jury. (Beckwith v. N. Y. C. R. R. Co., 64 Barb. 299; Gildersleeve v. Landon, 73 N. Y. 609; Koehler v. Adler, 78 id. 287; Eisenlord v. Clum, 51 N. Y. St. Repr. 98; Halsey v. Hart, 32 N. Y. Supp. 665, 666.)

Appellants ask us to interfere with the verdict as against the weight of evidence. In Morss v. Sherrill (63 Barb. 21) it was said that to justify an appellate tribunal in setting aside a verdict “ it must be entirely against the weight of evidence.” And in that case it was further said that a new trial would not be granted on the ground that the verdict is against the weight of evidence where the testimony is contradictory and the character and credit of the witnesses are questioned. In the case in hand we find that there is a severe conflict, and we are of the opinion that the trial judge, very cautiously and carefully upon all the critical questions, pointed out to the jury the bearing of the evidence, and invoked their attention to it in such a way as to challenge a fair conclusion thereupon. The jury saw the witnesses ; heard them testify; observed their manner of testifying, and were called upon to determine what credit should be given to the respective witnesses in the light of all that transpired at the trial. According to well-established rules in dealing with the verdict, we think the conclusion pronounced by the jury should be allowed to remain. (Chaffee v. Morss, 67 Barb. 252; Brooks v. Moore, 67 id. 393.)

Besides the verdict of the jury, we have the approval thereof made by the trial judge after reviewing the same upon a case and exceptions. "W"e have looked with care through the argument of the learned counsel for the appellants, and we are of the opinion that the contention of the defendants against the verdict must fail.

The judgment and order must be affirmed, with costs.

Martin and Merwin, JJ"., concurred.

Judgment and order affirmed, with costs.

,.


text:
    Christina Kuhn, as Administratrix, etc., of Joseph Kuhn, Deceased, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.

      an^ servant — safe place for a servant — reasonably good appliances — opinion as to the strength of wood.

    In an action brought to recover damages resulting from the alleged negligence of the defendant, it appeared that the plaintiff’s intestate was working upon a scaffold which had been erected by the defendant for use in reslating the roof upon its engine house; that the defendant’s superintendent of repairs directed the foreman of the defendant’s carpenter shop to construct “some horses that would be sufficient for men to work upon and slate the l'oof; ” that he did not give any specific instructions as to what material was to be used, nor State the number of men who were to work upon the scaffold which the horses were intended to support; that the scaffold as constructed was about sixteen feet from the ground, twenty-five feet in length, and was supported by three horses. The evidence tended to show that one or more of the horses gave way, and that this was the cause of the injuries sustained by plaintiff’s intestate.

      Held, that the defendant owed the intestate the duty of exercising reasonable care and prudence in furnishing him a safe and proper place in which to work, and, if the place became dangerous, and the danger could be foreseen, to adopt such precautions as would protect the intestate;
    That this duty could not be delegated to another so as to exonerate the defendant from liability in the premises;
    That tb,e defendant was not bound to use the best possible appliances, and had performed its duty if those supplied were adequate and proper for the use to which they were to be applied;
    That a carpenter and builder of experience might give his opinion concerning the strength of hemlock as compared with other woods, and might testify as to whether it was strong or weak when in the form of a board.
    Appeal by the defendant, The Delaware, Lackawanna and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 19th day of January, 1895, upon the verdict of a jury rendered after a trial at the Oneida Circuit, and also from an order entered in said clerk’s office on the ljth day of January, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    This action was brought to recover damages for alleged negligence which caused the death of plaintiff’s intestate.

      'William Kernem, for the appellant.

      Chrnies H. Beadle, for the respondent.
   Hardin, P. J.:

Plaintiff’s intestate, at the time he received the injuries complained of, was at work upon a scaffold which had been erected by the defendant to use in reslating the roof upon its engine house, in the city of Utica. In September, 1891, the superintendent of repairs of the defendant directed the foreman of the defendant’s carpenter shop to construct “ some horses that would be sufficient for men to work on and slate the roof,” which direction was not accompanied by any specific instruction as to what material was to be used, nor as to the number of men that were to work upon the scaffold, which the horses, thus directed to be built, were intended to support. The scaffold as constructed was some sixteen feet above the ground, and in length about twenty-five feet, and was supported by three horses, one at each end and the other in the center. Evidence was given upon the trial tending to show that the accident, in which the injuries complained of were received, was occasioned by the giving way of one or more of the horses upon which the planks for the platform or scaffold were placed. "While there1 was considerable conflict in the evidence, we are of the opinion that the jury had before it evidence sufficient to warrant it in finding that the injuries which the plaintiff’s intestate received were due to the structural weakness of the scaffold, which originated from the use of insufficient or improper materials, and from its being constructed in an insufficient and improper manner. The defendant sought to have the court nonsuit the plaintiff, and when the motion for that purpose was denied took an exception.

When this case was before us on a former appeal (77 Hun, 389) quite a full discussion was had of the principles of law applicable to the general features of the case, and near the close of the opinion it was said “ that the defendant owed the plaintiff’s intestate the duty to exercise reasonable care and prudence to furnish him a safe and proper place in which to prosecute his work, and if it becarfte dangerous, and the danger could be foreseen and guarded against by the exercise of reasonable care, to exercise such care and adopt such precautions as would protect the intestate, is abundantly established by the authorities cited. That this duty could not be delegated by the defendant to any of its servants so as to exonerate it from responsibility to the plaintiff or her intestate is equally well settled.” After a full consideration of the evidence found in the present appeal book, and due deference being had to the conclusion reached by us on the former appeal, we think the trial judge properly submitted to the jury the question whether the defendant had performed its full duty, and, if not, whether the omission of such duty occasioned the injury to the plaintiff’s intestate, and whether that injury resulted in his death. We think, upon the whole evidence, these were questions of fact for the jury to determine, and that the trial judge properly refused to rule, in accordance with the defendant’s contention upon them as matters of law and committed no error in confiding the question to the jury. Apparently the trial judge, in the course of his rulings at the trial, and in the delivery of his charge to the jury, followed the doctrine laid down in the opinion of this court when the case was here upon the former appeal. The jury were carefully instructed that if the deceased in any way contributed to the injuries which he received, especially if he “ knowingly aided in placing too much weight ” upon the scaffold, that a recovery could not be had.

(2) ¥e think no error was committed by the trial judge in delivering the case to the jury upon that branch of it which relates to the conduct of the deceased after he received the injuries complained of. The jury were told in explicit language that if there was negligence on the part of the deceased contributing to the death, 'and in the absence of which the death would not have occurred, then it could not be said that his death was the result of the accident, but was the result of his own negligence. But if death would have occurred in any event, whether he was careless or not, then I do not think the defendant is relieved.” The language we have quoted was, in substance, again repeated, and we think was sufficiently adhered to in all comments made by the trial judge to the jury on that branch of the case, and that the exceptions taken by the defendant to the charge in regard to that branch of the case do not present any error requiring us to interfere with the verdict.

(é) When the question was propotmded as to the custom of slating upon scaffolds, it appears by the case that the question was answered before any objection was made thereto. When the objection was heard the court observed, “ I think I will let it stand.” The fact had already appeared in the case that scaffolds were used in the process of slating, and we think the question may have been understood to be an inquiry as to the knowledge of the witness on the subject of the use of scaffolds in slating roofs. We think the exception taken to the observation of the couft does not require us to interfere with the verdict.

(5) When Richards, a carpenter and builder, was upon the stand he gave evidence as to his experience in erecting scaffolds for shinglers and repairers to work upon, and stated that he had erected many scaffolds upon which slaters had worked. He also stated, without objection, that hemlock has “a loose fiber.” Thereupon he was asked, “ Is it a strong wood or a weak wood in the form of a board ? ” This was objected to as incompetent, and the objection was overruled and the defendant took an exception. Tlie only answer the witness made was in the following language, “ Well, it is not so strong as some wood.” Thereupon the question was propounded to him, What wood is stronger ? ” This question was objected to and the objection was overruled and the defendant took an exception, and the witness answered, Most any kind of wood.” He was then, against the defendant’s objection and exception, asked to state the effect of nailing upon a hemlock board, and in answer to the question said, Well, of course it don’t hold as much as it would in thicker stuff.” After that answer had been given the defendant moved to strike out the answer and the court refused to grant such motion and the defendant excepted. Some other questions were propounded of a similar nature relating to the nature and character of hemlock and the strength of inch boards. Most of the facts stated by this witness are so well understood that the court may be said to be able to take judicial notice thereof. ■ However, under the .circumstances, we think that the witness was not improperly permitted to give the facts narrated by him in respect to the nature and character of hemlock, and as to its strength as material to be used in scaffolding. Nor do we think there was any error committed in allowing him to state, what must be quite obvious to the common sense of any individual, that a stick of timber two-by-four would exceed in strength one being made of inch boards.” We are of the opinion that there is nothing found in the testimony of Richards, the carpenter,. which requires us to disturb the verdict of the jury.

In the course of the charge delivered by the judge he referred to the rule laid down in Stringhmn v. Hilton (111 N. Y. 195), and called the attention of the jury to the statement in the course of the opinion that the question to be decided in cases of -this character is whether in selecting tools and machinery for their use, he (the employer) was reasonably prudent and careful; not whether better machinery might not have been obtained, but whether that provided was in fact adequate and proper for the use to which it was to be applied.” He followed this rule of law by observing, viz.: “ Evidently the horses might have been made larger and stronger. As suggested by the counsel two-by-fours might have been used for the legs. They might have used immensely stronger lumber all around ; larger size and all that. The defendant was not guilty of negligence because it did not furnish the very strongest hotses that could have been made. That is not the test. The question is, whether the one it did furnish was reasonably safe. That is the rule. Of course it is a question of fact in each particular case.” We think the questions relating to the alleged defective construction of the scaffold were properly and carefully submitted by the trial judge to the jury, and as their findings are adverse to the defendant, it seems to be our duty to accept their verdict.

The judgment and order must be affirmed, with costs.

Martin and Merwin, IJ., concurred.

Judgment and order affirmed, with costs.


author: IIardin, P. J.:

text:
    William H. Rich, Appellant, v. Homer C. Markham, Respondent.

      Justice of the peace — entry of judgment for damages only — the addition of costs after the expiration of the statutwy time does not invalidate it.

    Where a justice of the peace has decided an action upon the merits and has entered judgment for the damages upon the last day of the statutory time given him for that purpose, a valid judgment has been rendered, and it is beyond his power to invalidate the judgment by subsequently adding costs to it.

      Appeal by the plaintiff, William II. Rich, from a judgment of the County Court of Lewis county in favor of the defendant, entered in the office of the clerk of the county of Lewis on the 7th day of May, 1895, upon the decision of the court affirming the judgment of a justice of the peace. •

      Merrell, Hyel & Merrell, for the appellant.

      0. 8. Mereness, for the respondent.
   IIardin, P. J.:

It is contended by the appellant “that the justice never rendered any judgment until the 19th of April, 1893, and after the lapse of the four days after final submission, and after the cause had passed from his jurisdiction.” We think the facts stated in the return and the amended return of the justice are opposed to this contention of the appellant. The cause was tried and submitted to the justice for decision on the 14th of April, 1893, and inasmuch as he was entitled to four days within which to render judgment, the last day for the rendition of a judgment was the 18th day of April, 1S93. On that day he made an entry as follows: “ Judgment is hereby rendered in favor of deft, and agst. plff. for $40.66 damages, besides costs of the action. W. II. Egleton, J. P.” In the amended return the justice certifies, viz.: “ On April 18th, 1893,1 determined that the def’t was entitled to recover damages against the pl’ff to the amount of $40.66, and so entered the same on my docket and on the minutes of the- trial kept by me, besides the costs of the action, and on the same date, to wit, April 18th, 1893,1 entered the items of costs which were to go in the judgment, as follows : * * * The item for serving summons was first entered on the docket among the items of cost, April 19th, 1893. I left the amount of costs unfinished, in order to obtain from pl’ff’s counsel the amount of witness and subpoena fees on the part of pl’ff, in order to include them in the judgment, being of the impression that they should be included in the judgment, and not obtaining the information desired from pl’ff’s counsel in reference to said witness and subpoena fees, I thereupon, and on the 19th of April, 1893, finished the item for filing papers by inserting 24 as the number of papers filed, and $1.20 as the total for filing papers, and also at the same time entered among tlie items of cost the items for serving-summons, $3.25 ; and immediately footed up the costs and arrived at the sum of $7.95 as the costs of the action included in the judgment, and arrived at the sum of $48.61 as the total amount of the judgment against the plaintiff.” "When the justice on the eighteenth rendered a decision upon the merits and made his entry of judgment for the amount of the damages, a valid judgment was rendered against the plaintiff, and it was beyond the power of the justice to invalidate the same by adding costs thereto on the following day. We think the facts in relation to the acts of the justice bring the case within the rule laid down in Dauchy v. Brown (41 Barb. 555). In that case it was held that certain alterations did not make the judgment void; that being “ made after the time limited by statute for the justice to render judgment and enter it in his docket, they were clearly void acts, as much so as if they had been done by a stranger. Being void, they could not affect the judgment.” We are entirely satisfied with the opinion of the court, delivered by James C. Smith, J., and we think the authorities cited in the opinion fully sustain the conclusion reached.

Appellant calls our attention to Putnam v. Van Allen (46 Hun, 492; S. C., 11 N. Y. St. Repr. 855). We think that case differ» from the one before us. In that case the trial was had before a jury and a verdict was rendered for the defendant on October 1, 1885. In that case the justice did not write “Judgment” opposite the total of the items of costs, and upon the facts disclosed it -was held that his acts on the fifth of October were without authority, and that the judgment attempted to be entered on that day was clearly void “ as having been rendered not forthwith after the verdict but, '* * * at a time when the justice had" no right to render any judgment.” In the course of the opinion delivered by Williams, J., he said: “ This judgment appealed from was clearly void as having been rendered, not forthwith after the verdict,'but four days later, at a time when the justice had no right to render any judgment.” And that judge further said, in the course of his opinion, “that no judgment was rendered or entered October 1, 1885.” The case, therefore, differs essentially from the one in hand.

The principal question involved in this appeal is carefully discussed in the opinion of the learned county judge, and we are satisfied. witli the views he there expresses, and for the reasons therein stated, as well as upon the views we have already expressed, we are of the opinion that the action of the County Court ivas proper.

The judgment of the County Court of Lewis county should be affirmed, with costs.

Merwin and Parker, JJ., concurred.

Judgment of the County Court of Lewis county affirmed, with costs.


author: ■ Hardin, P. J.:

text:
    Jerome R. Petrie, Respondent, v. The Trustees of Hamilton College, Appellant.

      Judgment — a, decision that a complaint he dismissed does not authorize a judgment dismissing it ‘ ‘ on the merits ” —purpose of the Code of Civil Procedure, § 1209 —■ power to send a case hack to a referee.

    Section 1209 of the Code of Civil Procedure, declaring that a judgment dismissing the complaint is not a bar to a new action for the same cause, unless it expressly declares, or it appears by the judgment roll, that it was rendered upon the merits, was adopted for the purpose of applying the common-law rule to equitable actions.
    Where the decision of a referee, to whom a case has been referred to hear and determine, directs “ that the plaintiff’s complaint should be dismissed, without costs,” the clerk has no power to enter a judgment dismissing the complaint “on the merits,” without costs.
    Where such a judgment has been entered, the court has power either to eliminate from the judgment the words “on the merits” or it may in its discretion vacate the judgment entirely.
    The court has no power, in such a situation, to send the case back to the referee with leave “to further report or to change his decision or direction for judgment and conclusion of law, so that the same shall express his precise or full intention with reference to dismissing the complaint upon the merits or not upon the merits.”
    Where a report is sent back to a referee to supply alleged omissions it should only be done to supply some merely technical or clerical omission, and not to reinvest the referee with judicial functions touching a case which has already been submitted for decision. And even when a case is sent back for such a purpose the necessity and propriety of such action should he clear.
    Appeal by the defendant, The Trustees of Hamilton College, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oneida on the 25th day of July, 1895, setting aside a judgment entered in the action and sending the case back to the referee upon whose report the said judgment was entered.
    The order appealed from contained the following provision: “ Ordered,.that the judgment entered and docketed in this action on the 29th day of May, 1895, be and the same hereby is vacated and set aside, and that this cause be and the same hereby is referred back to said referee, William Neman, Esq., with leave to further report or to change his decision or direction for judgment and conclusion of law, so that the same shall express his precise or full intention with reference to dismissing the complaint upon the merits, or not upon the merits, but without prejudice to a re-entry of judgment upon the corrected report to the same force and effect as if no judgment had heretofore been entered herein.”

      G. D. & Beth G. Aclasis, for the appellant.

      L. M. Martin, for the respondent.
   ■ Hardin, P. J.:

May 29, 1895, the referee, to whom this action had been referred to hear and determine it, made a report in which is found the following language : “Upon the evidence given upon the trial I find and decide that the plaintiff has failed to make out and maintain his alleged grounds and causes of action, or either of them, and that his complaint should be dismissed. * * * I, therefore, decide that the complaint of the plaintiff should be dismissed, without costs, and judgment is ordered accordingly.” On the same day the defendant entered a judgment which contained the following language : “ It is adjudged that the plaintiff’s complaint in this action be, and the same hereby is, dismissed on the merits, without costs.” Evidently it was the intention of the defendant when it caused to be inserted in the judgment «the words “ on the merits,” to avail itself of the provision found in section 1209 of the Code of Civil Procedure. That section declares that a judgment dismissing the complaint “ does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment roll, that it is rendered upon the merits.” If those words, i. e., “on the merits,” had been allowed to remain in the judgment, no question or doubt would remain as to the force and effect to be given to such judgment, as it was made to expressly declare, by the language used therein, that the judgment was ' “ on the merits.” It seems section 1209 was adopted for the purpose of applying the common-law rule to equitable actions. (Wheeler v. Ruckman, 51 N. Y. 391.) By an inspection of the complaint it is clear that this was an equitable action in which the plaintiff sought equitable relief. Inasmuch as those words were not found in the report of the referee there was no warrant for their insertion in the judgment, and it was, therefore, the right of the plaintiff to have those words striken from the judgment, or to have the judgment vacated, to the end that the judgment should conform to the decision of the referee.

In Card v. Meincke (70 Hun, 382; S. C., 54 N. Y. St. Repr. 285) it was held: “ The clerk can only enter a judgment as directed by the decision filed, or upon a subsequent approval by the trial judge of the judgment proposed to be entered. Where the decision is simply that judgment be entered in favor of defendants and against plaintiff, an entry of judgment dismissing the complaint ‘ upon the merits’’ is erroneous.” In that case a motion was made to ’amend the judgment by striking out the words “ upon the merits.” In the course of the opinion delivered it was said: “ In the case at bar the decision filed contained no such explicit directions, and certainly did not state that any judgment should be entered dismissing the complaint in this action on the merits, whatever might have been the intention of the learned judge who tried the cause. We think, therefore, that the motion should have been granted, striking out from the judgment the words ‘ upon the merits.’ ” (See, also, Freeman v. U. S. Electric Light Co., 59 Hun, 311.) Doubtless in the case before us the Special Term might have eliminated from the judgment the words “on the merits.” It, however, had power to vacate and set aside the judgment. The “ power of the court over its own judgments, and its habit to exercise it,” were fully declared in Hatch v. Central National Bank (78 N. Y. 487). In the course of the opinion in that case it was said : “ It is an inherent power and not limited in matters of substance by the sections of the Code.” This court followed the doctrine of that case in Underwood v. Sutcliffe (21 Hun, 357) as will by a reference to the opinion of Talcott, P. J., appear to have been explicitly stated. The power was again declared in Kiefer v. Grand Trunk Railway Co. (28 N. Y. St. Repr. 474) and again in Ladd v. Stevenson (112 N. Y. 325). It is correct practice where a judgment entered upon a referee’s report is incorrect under it, to apply by a motion to have the judgment corrected. (Decker v. Decker, 108 N. Y. 128; People ex rel. Oswald v. Goff, 52 id. 434; Kenney v. Apgar, 93 id. 539.)

"We must now consider the second branch of the order appealed from, which requires the cause to be referred back to the referee with leave to such referee to further report or to change his decision or direction for judgment and conclusion of law, so that the same shall express his precise or full intention with reference to dismissing the complaint upon the merits or not upon the merits.

In McLean v. Stewart (14 Hun, 472) this court held that after a decision had been made and filed in a cause a subsequent Special Term had no power, upon motion, to alter the judgment entered on such decision as to matters relating to the merits, and that such a change could only be made after a rehearing before the trial judge upon the case being sent back to him, or after a review by an appellate court. That case has been referred to with approval in Rockwell v. Carpenter (25 Hun, 532) and in Rosa v. Jenkins (31 id. 384) and in Jones v. Jones (71 id. 524). The practice of sending a case back to a referee for further findings has, in certain cases, be.en. upheld.

In Wright v. Sanders (28 How. Pr. 395) the referee was ordered “ upon the proofs and allegations already made and taken before him ” to make a new report stating separately all the material facts found by him, with his conclusions of law. That practice seems to have been approved in Carroll v. Staten Island Railroad Co. (65 Barb. 33) and in Rogers v. Wheeler (52 N. Y. 262).

In McLean v. Stewart (supra), in the course of the opinion, it was intimated that where changes relating to the merits are sought upon a special motion they “ should be allowed only after a rehearing before the trial judge upon the case being sent back to him.” It is to be observed that the order appealed from does not provide an opportunity for the parties to again be heard before the referee. Again, it appears that on the 10th of June, 1895, plaintiff served exceptions to the referee’s report, and that on the fourteenth of June a notice of appeal from tlie judgment was served, together with an undertaking, and that the plaintiff commenced preparing a case to be used in connection with the appeal. *

In Gardiner v. Schwab (34 Hun, 582) it was held that the “ report of a referee cannot be sent back to him with instructions to make additional findings of facts or conclusions of law.”

In First National Bank v. Levy (41 Hun, 461) the court followed Gardiner v. Schwab (supra), and -in the course of the opinion, Landon, J., said: “We think the practice of sending a report back to the referee to supply alleged omissions ought not to be encouraged, and if allowed in any case it should be only to supply some merely technical or clerical omission; not to reinvest that officer with judicial functions touching the case theretofore submitted for his decision. The necessity and propriety of such action should be clear.” In accordance with that doctrine we are inclined to say that that part of the order which referred the case back to the referee should fall. No clear necessity for it was presented by the motion papers. (Heath v. N. Y. B. L. B. Co., 146 N. Y. 260.) Besides, the plaintiff had taken an appeal from the judgment and had filed exceptions to the referee’s report before the motion to require a further decision from the referee was noticed.

We think the order appealed from should be modified by striking therefrom so much as refers the cause back to the referee with leave to further report, or to change his decision or direction for judgment and conclusion of law, so that the same shall express his precise or full intention with reference to dismissing the complaint upon the merits or not upon the merits,” and as so modified should be affirmed, without costs of the appeal to either party.

Martin and Merwin, JJ., concurred.

Order modified in accordance with the views stated in the opinion, and as modified affirmed, without costs to either party.


text:
    Clark S. Bennett, Appellant, v. Nelson Gray, Respondent.

      Bjectment — not maintainable by proof of mere equitable rights under a, contract of sale — admissibility in evidence of a judgment roll against the common grantor in an action, of trespass for injun'y to personal property.

    Where a person has, at most, only an equitable title to land arising out of an executory contract for its purchase by him he cannot maintain ejectment; that form of action is only maintainable by one who has a legal estate in the premises.
    In an action brought to recover the possession of certain premises it appeared that Calvin H. Bell was the common source of title; that on April 21, 1888, the plaintiff entered into a contract with him for the purchase of certain premises (other than those here in question); that this contract, among other things, provided that if the plaintiff failed to perform it Bell should have the right to declare the contract void and to retain whatever had been paid upon it and to treat the plaintiff as his tenant, holding over without permission, and to take immediate possession of the premises; that on May 31, 1888, the plaintiff, by an instrument in writing, requested Bell to exchange the premises mentioned in this contract for the premises here in question, and agreed to pay him §300, with interest from April 21, 1888; that the exchange was effected and the plaintiff entered into the possession of the premises, as was claimed, subject to the provisions of the contract of April 21, 1888; that subsequently, Bell claiming that Bennett was in arrear in his payments, ousted Bennett in summary proceedings by a judgment rendered on the 20th of November, 1889, which judgment was reversed on appeal about a year later; that on November 25, . 1889, the defendant purchased, and received a conveyance of, the premises from Bell and on the next day the plaintiff brought an action of trespass for injury to personal property against Bell, which was based upon the ouster in summary proceedings, and recovered in that action; that the defendant was not a party to the action for trespass, nor was any Us pendens filed therein.
    It appeared that the plaintiff had not paid to Bell the contract price of the lands in question at the time when Bell conveyed them to the defendant.

      Held, that as the plaintiff was thus in default, his rights, if any, under the contract were purely equitable and were consequently insufficient to support an action at law to recover the possession of the premises;
    That the judgment roll in the action of trespass, begun subsequent to the time when Bell conveyed to the defendant, was inadmissible against the defendant;
    That the pendency of such an action would not prevent a purchase of the land upon which such a trespass had been committed, even if the purchase was made pendente lite, nor give to the judgment for damages subsequently recovered the effect of an adjudication binding the title of an intermediate purchaser, even though he might have known that the action was for a trespass upon the lands purchased.

      Appeal by tbe plaintiff, Clark S. Bennett, from a judgment of tbe Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Delaware on the 31st day of May, 1894, upon a nonsuit granted by the court after a trial at the Delaware Circuit, and also from an order made at the Chemung Special Term and entered in the office of the clerk of the county of Delaware on the 4th day of May, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.
    The action was brought to recover possession of certain premises described in the complaint, situated in the town of Delhi, Delaware county. The complaint contained the usual allegation found in actions of ejectment, to wit, “ that the defendant is wrongfully in the possession thereof and wrongfully withholds the same from this plaintiff.” The foundation of the plaintiff’s claim is fully set forth in the opinion of the court.
    The answer contained a general denial and an averment that the defendant is in possession and is the owner of the land and premises described in the complaint.
    The evidence indicated that the defendant was in possession under a warranty deed of the premises, which he received on the 25th day of November, 1889, executed by Calvin II. Bell to the defendant. "When the defendant took the deed from Bell, Bell “ said there was nothing against it (the property).” After the defendant received the deed he went into possession of the premises. At the close of the evidence the trial judge held that there was no proof that the purchase price specified in the contract, under which the plaintiff claimed the premises, had been paid, and that if the plaintiff has any remedy it is by way of an action in equity to get title. Plaintiff asked to go to the jury upon all the questions in the case. That motion was denied and an exception was taken. An exception was also taken to the nonsuit granted.

      W. & G. W. Yovmcms, for the appellant.

      W%cjner cfe Fisher, for the respondent.
   Hardin, P. J.:

Inasmuch as both parties found their respective claims upon the several transactions they have had with Calvin H. Bell, it was assumed • at the trial that on the 31st day of May, 1888, Bell had legal title to the premises described in the complaint. Prior thereto the plaintiff had entered into a contract with Bell on the 21st of April, 1888, for the purchase of certain premises other than those in question in this action described in that contract, and in that contract was found the following stipulation: It is mutually agreed between said parties that said party of the second part (Bennett) shall have possession of said premises on this date, and he shall keep the same in as good condition as they are in at the date hereof, until the said sum shall be paid as aforesaid; and if said party of the second part shall fail to perform this contract, or any part of the same, said party of the first part (Bell) shall immediately after such failure have the right to declare the same -void, and retain whatever may have been paid on said contract, and all improvements that may have been made on said premises, and may consider and treat the party of the second part as his tenant holding over without permission, and may take immediate possession of the premises and remove the party of the second part therefrom.”

Subsequent to-the execution of that contract a second contract was entered into, which is in the following language :

“ I, Clark S. Bennett, do hereby consent to and request C. H. Bell to exchange the within mentioned property with "William Smith, Jane M. Zeller and Elizabeth G. Flowers for a wood lot of about twelve acres and a dwelling house and lot of about three acres, as described in a deed from Alfred L. Mason to William Smith, dated October 25, 1883, and a deed from Edward Bell and wife to Mary Ann Smith, now deceased, and I do hereby agree to pay said C. II. Bell the sum of three hundred dollars with interest from April 21, 1888, for the above-mentioned piece, said Bell to hold the judgment which he now has as security for the within contract, with the like force and effect, until the above-mentioned pieces are paid for, and said Bell is not to assume or be held to any responsibility on account of the title to the above-mentioned pieces.

“ Witness my hand and seal, this 31st day of May, 1888.

“CLARK S. BENNETT, [l. s.]”

In pursuance of this agreement, the premises described in the second contract, which land is the subject of this action, were exchanged for the lands described in the first contract, and Bennett went into possession of such lands, as is claimed, subject to the terms of the first contract.

In November, 1889, Bell took the position that Bennett was in arrear in his payments upon the contract and instituted summary proceedings to remove Bennett from the premises, and a trial was had before R. A. Frasher, a justice of the peace, who awarded possession to Bell of the premises described, by a judgment rendered on the 20th of November, 1889, and an order was issued removing Bennett from the premises. The proceedings had before the justice were removed to the County Court of Delaware county and that court, by a decision pronounced on the 4th day of November, 1890, reversed the order made and the judgment rendered by the justice, and the judgment of reversal was entered on January 21, 1891. On the 26th of November, 1889, Bennett brought an action in the Supreme Court against Calvin H. Bell in trespass, alleging that on or about November 20,1889, Bell, with his agents and servants, wrongfully, unlawfully and maliciously entered into and upon the plaintiff’s lands and premises and removed the plaintiff’s household property to the highway, greatly injuring and destroying the same to the damage of the plaintiff. Bell caused an answer to be served, and issue was joined and the action brought to trial at a Circuit, and the plaintiff recovered therein as damages fifty-two dollars and fifty-eight cents. The judgment was appealed to the General Term, and on the Jth of February, 1893, an order was granted by the General Term affirming that judgment.

On the trial now under review an objection was taken to the reception in evidence of the judgment roll in the action of trespass. It appeared that the action was commenced subsequent to the day when the defendant received his deed from Bell and subsequent to the time when the defendant went into possession of the premises, and the court rejected the judgment roll as evidence. The defendant here was not a party to that action, and it does not appear that any lis pendens was filed in that action ; that it was simply an action in trespass for damages alleged to have been done by Bell to the personal property of Bennett, and we are of the opinion that the trial judge properly excluded the judgment roll filed therein. (Hailey v. Ano, 136 N. Y. 569.) Near the close of the opinion in that case Andrews, Olí. J., said : The theory that parties are presumed to be cognizant of what is passing in the sovereign courts of justice, assumes that by consulting the records of the courts the fact may he ascertained. But we think the pendency of a trespass suit does not prevent a purchase of the land ujton which the trespass was committed, pendente lite, or give to a judgment for damages subsequently recovered therein the effect of an adjudication binding the title of such intermediate purchaser, even though he may have known that the action was for a trespass upon the lands purchased.” We are of the opinion that no error was committed in refusing to receive in evidence the charge delivered by the Circuit judge before whom the action of trespass Avas tried. When the defendant entered into possession of tlie premises under his deed he did so, having acquired the legal title of Bell, the former owner of the property, and that legal title drew after it the right of possession. After a careful inspection of the appeal book we are satisfied there was no evidence given upon the trial now under review to establish that the contract price had been paid by Bennett to Bell prior to Bell’s conveyance to the defendant. In the first contract that was made between Bell and the plaintiff Bennett, it was expressly provided that if Bennett failed to perform the contract, or any part of the same, Bell was entitled to immediately have the right to declare the same void.” If Bell had resumed, possession of the. premises on the day when he executed the deed to the defendant peaceably, the plaintiff Avould, in order to be entitled to recover possession from Bell, be obliged to establish that the terms of the contract in respect to the purchase of the premises had been kept and carried out. We see no reason why the same burden does not rest upon the plaintiff when seeking to oust the grantee of Bell, who went into possession after having derived the legal title from him. It was, therefore, incumbent upon the plaintiff to establish, by satisfactory evidence, that he had complied Avitli the terms of the contract of purchase, and that, hy virtue of its stipulations, having made payment of the contract price, ho was rightfully entitled to have possession of the premises. In the absence of such proof Ave are of the opinion that he was not entitled to maintain an action on the law side of the court for the recovery of the possession of the premises, and that no error was committed, by the trial judge in granting a nonsuit, or in denying the motion for a new trial.

In Peck v. Newton (46 Barb. 173) it was held that “ where the plaintiff has, at most, a mere equitable title to the piece of land, the possession of which he seeks to recover, no action will lie.” Near the close of the opinion in that case Parker, L, said: “ Plaintiff had not proved a cause of action entitling him to a .recovery against the defendant, and should have sought relief in an equitable action against all the parties obligated to grant him his equitable rights.”

The same doctrine is stated in Moore v. Spellman (5 Den. 225), and is again alluded to and stated in Townshend v. Frommer (25 N. Y. St. Repr. 365).

In Wright v. Douglass (3 Barb. 556) it was held: “Ejectment cannot be maintained unless the plaintiff has the legal estate in the premises.”

Ve are of the opinion that the nonsuit was properly granted.

Merwin and Parker, JJ\, concurred.

Judgment and order affirmed, with costs.


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    Elias Warn, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Personal injuries — rule in rega/rd to signals on a car under inspection — a failure to enforce it presents a question of negligence — contributory negligence.

      . Where an action is brought to recover damages for personal injuries resulting from the alleged negligence of the defendant, a railroad corporation, the court may properly allow the jury to determine, as a question of fact, whether the defendant was guilty of negligence in failing to promulgate and enforce a rule adopted by it requiring the use of blue flags and blue lights upon cars under which car inspectors were at work, provided the jury find that the rule was applicable to the particular train under which the injuries occurred.
    The court may also properly submit to the jury the question whether the defendant had failed in the performance of the duty which it owed its car inspectors, to provide such appliances and such a system for the transaction of its business, conformably with rules, as would'render their work reasonably safe.
    Where, upon the trial of such an action, there is evidence upon the part of the defendant that the plaintiff had been directed to get out from under the car before the accident occurred, and there is also evidence to the effect that the plaintiff was so absorbed in his work that he did not hear the directions given, the question of contributory negligence is properly submitted to the jury.

      Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of tlie plaintiff, entered in tlie office of tlie clerk of tbe county of Onondaga on tbe 25th day of October, 1894, upon tbe verdict of a jury rendered after a trial at tbe Onondaga Circuit, and ■also from an order entered in said clerk’s office on tbe 20th day of October, 1894, denying tbe defendant’s motion for a new trial made upon tbe minutes.

      Miscode, Doherty <& Miscode, for tbe appellant.

      Jenney & Marshall and Loiots Marshall, for the respondent.
   Hardin, P. J.:

Tbe respondent was in tbe employ of the defendant as an inspector of its cars at tlie Syracuse depot on tbe 29th of May, 1890, when be received injuries by tbe sudden movement of tbe cars without any warning to him of an intention to move tbe cars which be was engaged in inspecting. He seems to have been an inspector for several years, and bis duties were to inspect tbe cars that came into tire depot. His habit was to commence at the rear end, sound tbe wheels if they were cast iron, and if they were paper wheels and .steel tires be looked them over, and looked at tbe brakes and brake rods, brake beams, shoes and at tlie air hose. This work was performed by going under tbe cars and in between the tracks. As the train approached tbe depot on tbe occasion in question, tbe depot master informed tbe plaintiff that an excursion train was coming from tbe ■east going through to Buffalo, and when tbe train was pulling in, the depot master called out, “ Hurry up, boys, look over the train so we can get it out before No. 10 comes in.” Tbe plaintiff, as well as bis associates, commenced work at tbe rear end, and when between tbe cars lie coupled tbe hose and fixed tbe bandies and coupled the safety chains as be went along, and while thus engaged in tbe performance of bis work be rose up to back out when lie “ got caught.” He received no notice or warning that tbe train was to be put in motion. Tlie plaintiff offered in evidence a rule known as No. 36 from tbe printed rules of the defendant, which was in tbe following language : “Tbe blue flag by day and a blue light by night placed on tbe end of a car, denote that car inspectors are at work under or about tbe car or train. The car or train thus protected must not be coupled to or moved until tlie blue signal is removed by the car inspectors. When a car or train standing on a siding is protected by a blue signal, other cars must not be placed in front of it so that thebine signal will be obscured, without first notifying the car inspector,, that he may protect himself.” It appeared by the evidence that “ the rules of the company are bound in pamphlet form and divided under headings and are classified, and rule 36, introduced in evidence with several others, is under the head of Train Signals.’ ” At the close of the plaintiff’s evidence the defendant moved for a nonsuit upon several grounds, which was denied and an exception taken. Evidence was given during the trial that there had been a practice of several years’ standing to omit the observance of the» rule when inspecting trains at the Syracuse depot. Controversy was made upon the evidence as to whether the rule applied to passenger trains. We think the evidence warranted the court in submitting to the jury “ as a question of fact, whether the rule did apply to passenger trains as they arrived in the station in Syracuse or not, in view of all the circumstances.” After announcing-the language we have just quoted, the judge observed: “ Taking into account as one of those circumstances the fact that no attempt, was ever made since that rule was devised to enforce it. If you find, gentlemen, that that rule was made for the purpose of applying-to railroad trains that came into the depot, and you also find that it was not promulgated and that it was not enforced, then, gentlemen, those are important considerations for you to have in mind in deciding whether the defendant used reasonable care or not for the protection of its employees in the dangerous position to which it had assigned them to duty.” The judge properly instructed the jury that if they found the rule did not apply to defendant’s station and passenger trains at the station, and that it was not promulgated and not enforced, they might inquire whether the defendant “provided in place of that rule some other reasonable protection adequate to tlie situation.” And he followed that instruction by an observance that the. law required reasonable diligence in the premises, and that wliat was reasonable diligence was a question for the jury under the circumstances of this case.

This case was before us on a former appeal, and our decision appears in 80 Hun, 11, where we held, viz.: “ The law imposes upon a railroad company the duty to its employees of diligence and care not only in furnishing proper and reasonably safe appliances and machinery and skillful and careful co-employees, but also of making and promulgating rules, which, if faithfully observed, will give reasonable protection to- the employees. (Abel v. President, etc., D. & H. C. Co., 103 N. Y. 581.) It is also required to exercise such a supervision over its servants and the prosecution of its business, as to have reason to believe that it is being conducted in pursuance of such rules. * * * The defendant, in making rules for the government of its employees, is bound to use ordinary care, and to anticipate and guard against such accidents and casualties as may reasonably be foreseen by its managers exercising such ordinary care. * * * The rule that a servant takes the risk of the business is subject to the qualification that the master must exercise reasonable care to gua¡rd the servant, while engaged in his duties, from unnecessary. hazards, including hazards from negligence of co-employees. (See, also, McGovern v. C. V. R. Co., 123 N. Y. 280.) Negligence of a servant does not excuse the master from liability to a co-servant for an injury which would not have happened had the master performed its duty.”

We have made a careful inspection of the. evidence produced on the trial now before us, and are of the opinion that the trial judge followed the rule of law laid down when we disposed of the former appeal in this case; and that he committed no error in submitting to the jury as a matter of fact to determine whether the defendant was guilty of negligence in failing to promulgate and enforce the law which it had adopted requiring the use of blue flags and blue lamps upon the cars under which inspectors were at work, in the event that the jury should find that the rule was applicable to the train under which the injuries occurred; and whether the defendant had failed in its performance of the duty which it owed to provide for its inspectors such appliances, and a system of transacting its business regulated by a rule that would render their work reasonably safe. (Abel v. D. & H. C. Co., 103 N. Y. 581; S. C., on subsequent appeal, 128 id. 662; Whittaker v. D. & H. C. Co., 126 id. 544.)

(2) We are of the opinion that the trial judge properly submitted the question as to the plaintiff’s contributory negligence to tlie jury. Bearing upon that question was the evidence of Swanton, to the effect that he had directed the men to get out from under the cars; and in connection with that evidence was the testimony that the plaintiff did not hear the direction when it was given, as he was engaged in work which absorbed his attention, and that fact, together with his testimony as to what transpired at the time he received the injuries, presented considerations properly left to the jury to determine whether he was guilty of negligence which contributed to the injuries which he received.

The learned counsel for the appellant calls our attention to Potter v. N. Y. C. & H. R. R. R. Co. (136 N. Y. 77). We think that case is distinguishable from the one in hand. In the course of an opinion delivered in that case, Andrews, J., said: The evidence did not disclose any omission of duty by the defendant; ” and he added : Nor is claimed that proper regulations had not been established defining the duties of employees, and for the management of the business of the yard.” And in many other respects the case differs from the one before us. We have looked at the exceptions taken to the charge as delivered, and to the refusals to charge as requested, aud are of the opinion that they do not require us to interfere with the verdict. The trial judge seems to have carefully regulated -the course of the trial-by the doctrine laid down by us upon the former appeal. Under such circumstances we are of the opinion that it is our duty to adhere to the decision made when the case was considered when the nonsuit was brought in review.

The judgment must be affirmed, with costs.

Merwin and Parker, JJ., concurred.

Judgment affirmed, with costs.