author: “ McAdam, J. By the Court.—Gildersleeve, J.

text:
    KATE FLYNN, as Administratrix, etc., Appellant v. GEORGE HARLOW, Respondent.

      Negligence of master as distinguished from, negligence of fellow-servants.

    On or about August 25, 1888, the defendant, as contractor and builder, was erecting and constructing a house on premises in West 83d street, New York City, and plaintiff’s intestate, Charles Flynn, was employed as a day-laborer on this building. His service at the time of the accident was the removal of brick and mortar, contained in hods, from an elevator machine which carried the materials from the ground to the several floors above, and he was engaged on the 4th floor in taking the hods from the elevator and dumping the contents upon a scaffold near the elevator, for use in building the front wall of said house ; and while the intestate was so employed the floor-beams gave away and precipitated the materials that had been deposited near the elevator upon the floor beneath, and carried it and all the other floors below, with their contents, down to the cellar. The deceased intestate fell with the floors and was thereby killed.
    This action was brought to recover damages for the death of plaintiff’s intestate, on the ground of the defendant’s negligence and want of care and skill in the construction of said building, and in negligently and carelessly overloading the beams and girders of said building with brick and mortar and other building materials. When the plaintiff rested her case, the court below dismissed the complaint on the ground that there was no evidence of any negligence on the part of the defendant, but that whatever negligence there was in the premises attached to the plaintiff’s intestate and his fellow-workmen.

      Held, that the complaint having been dismissed on defendant’s motion after the close of plaintiff’s case, without any testimony whatever on the part of defendant, all the evidence contained in the record must be taken as true for the purposes of this appeal, and appellant is entitled to have every doubtful fact found in her favor ; also, that the only inference that can be drawn from the evidence, as to the cause of the accident, is that it was occasioned by overloading the fourth story with brick and mortar, which were brought up from the ground and placed upon the floor of the fourth story, under orders from the defendant, or from his foreman and agent with the knowledge of defendant ; that the quantity of the material that could be safely placed upon the fourth and other floors was not a question for decision in the discretion of the laborers, of whom the intestate was one, and, therefore, the overloading of the floor was not an error of judgment on the part of said laborers, who were charged simply with the duty of taking from the elevator the materials sent up by direction of the defendant or his foreman. The defendant and his foreman must be presumed to have known the quantity of brick and mortar that could be safely placed upon the fourth floor. The evidence did not justify the conclusion of the trial judge. It was not due or owing to the want of judgment on the part of the laborers, of whom the intestate was one. The intestate was free from contributory negligence, for he and his fellow-workmen were obeying the orders of defendant, or his agent, and defendant was present and saw the work going on. The intestate was merely carrying out the orders of defendant, who must be presumed to have had a fair and reasonable knowledge of the business in which he was engaged, which includes a knowledge of at least the approximate strength of the floor timbers he had placed in the building, and a knowledge of the approximate weight of twelve or thirteen thousand bricks and the mortar he had accumulated upon that floor. It was the duty of the trial judge to have submitted the case to the jury.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.

      Decided July 5, 1892.
    Appeal from a judgment entered upon the dismissal of the complaint at trial term.
    The facts and points appear fully in the opinion of the court, and in the following opinion of the trial judge :—
   “ McAdam, J.

There is no proof of defective con struction of the building, nor of any violation of law. There is no evidence of intentional overloading by the defendant. The act of overloading, if done at all, was done by Flynn, the deceased, and the other workmen, who, by their own indiscretion, brought upon themselves the trouble of which complaint is now made. They cannot charge the consequences upon the defendant. In order to hold him, it is necessary to prove affirmatively that the injuries were caused by the negligence of the defendant, and that deceased was entirely free from any fault contributing to the accident.

It does not appear that the defendant did anything he ought not to have done, or failed to do anything he ought to have done, or that any conduct of his resulted in injury to any one. Negligence is not to be inferred from the mere fact of an injury or an accident, hut must be affirmatively alleged and proved. The proofs show that if Flynn and his fellow-workmen did not bring the misfortune upon themselves by their indiscretion, they, by their conduct, at least contributed in bringing about the result. The overloading was done by them and by no one else. They do not appear to have been dominated, directed or controlled by the defendant.

The evidence is insufficient to establish the charge of negligence on the part of the defendant, and the complaint in consequence must be dismissed.

A party overloading a building is liable to any one injured by the overloading, but the right to recover does not belong to one of the overloaders, if he is particeps criminis. If the overloading resulted from indiscretion, it was the want of judgment of the men, of whom Flynn was one; they were employes of the defendant, they were fellow-workmen of Flynn, and it is elementary law that a master is not liable for the errors, mistakes, want of judgment or negligence of fellow-workmen.

“ The complaint will, therefore, have to be dismissed.”

H. ’Warren Love, attorney, and Paul Jones of counsel, for appellant argued:—

I. The dismissal of the complaint having been made upon the defendant’s motion after the close of the plaintiff’s case, without any testimony whatever, on defendant’s behalf the facts contained in the record must be taken as true for the purpose of this appeal, and the appellant is entitled to have every doubtful fact found in his favor. Colegrove v. N. Y. & N. H. R. R. Co., 20 N. Y., 491; see also Wylie v. Marine National Bank, 61 Ib., 415.

II. It having been shown that the accident, through which the death of the plaintiff’s intestate was occasioned, was caused by overloading the floors of the building where he was at work, and that he was there in the performance of the work assigned him by the direction of the defendant’s foreman, and was, at the time, under the personal supervision of the defendant himself, it is submitted that there was sufficient evidence of negligence on the defendant’s part to justify the court in granting the plaintiff’s motion to send the case to the jury, notwithstanding the ruling already made upon the defendant’s motion to dismiss. While indeed the master is not an insurer of the safety of the place where the servant is required to work, not of the tools, implements and appliances given him for the performance thereof ; it is nevertheless true, that the law imposes upon the master certain duties and obligations respecting the servant, by which he is hound to use reasonable care to see that the place where the servant is assigned to work is safe. McGovern v. C. V. R. R. Co., 123 N. Y., 280; Pantzer v. Tilly Foster Mining Co., 99 Ib., 368; Davidson v. Cornell, 10 N. Y. Supp., 521. It is therefore the master’s duty to furnish all reasonable means to secure the safety of his employes. Pantzer v. Tilley Foster Mining Co., supra. ' So, an employer being bound to furnish a safe place and suitable instrumentalities in and by means of which to do the work assigned to an employe, it is wholly immaterial, upon the question of the master’s liability for damages, by whom ■ the place was assigned, or the instrumentality was furnished or constructed, so long as it was assigned or furnished in the master’s behalf. Ryan v. Miller, 12 Daly, 77. Hence, where the direction of the work is given to a foreman, he represents the master, and the latter is liable for any injury to an employe, resulting from a want of care in his directions. Sheehan v. N. Y. Cent., etc., R. R. Co., 91 N. Y., 332. And the master’s duty to make suitable provisions for the safety of employes cannot be delegated. Fuller v. Jewett, 80 N. Y., 549; Flike v. R. R., 53 Ib., 549; Bushby v. R. R., 107 Ib., 37. And where it is shown that an employe is killed without any fault on his part, in consequence of the breaking of an appliance, or by reason of the defective construction ■ of the place where the work is done, or by any imperfection in the tools furnished by the master, the case can only be taken from the jury, and a nonsuit ordered, where there is room for doubt, upon the evidence, not only that the master used due care in the construction or selection of the place, appliances or tools, in the first instance, but also .that he used the further care that they should continue to be safe. Ficks v. Sweney M’fg Co., 58 Hun, 611. And where in such case the accident and the injury resulting therefrom is proved, negligence is presumed to such an extent, as to warrant the submission of the case to the jury. Flynn v. Gallagher, 52 N. Y. Super. Ct., 524; Dobbins v. Brown, 119 N. Y., 188.

HI. While the record shows no positive proof of the absence of contributory negligence upon the plaintifE’s part, the rule, that the plaintiff must show that he has not contributed to the accident, by any act of negligence on his part, in order to hold the defendant liable for damages occasioned by his negligence, does not necessarily impose upon him the duty to furnish positive proof of the absence of such negligence; but, in any event, the rule does not apply to the facts of the case at bar. In actions for the recovery of damages for personal injury, the character of the defendant’s negligence may be such as to prove the whole issue. It cannot, therefore, be said, as a universal rule, that it lies upon the plaintiff to prove affirmatively that he was not guilty of negligence, or upon the defendant to prove the contrary, in order to establish his defence. The absence of any fault may be inferred from the circumstance. Johnson v. H. R. R. R. Co., 20 N. Y., 65 ; Gillespie v. City of Newburgh, 54 Ib., 468. The mere fact, that the plaintiff’s intestate was at the place where he met his death obeying the orders of the defendant is not of itself contributory negligence; Doyle v. Baird, 6 N. Y. Supp., 517, and the question presented being one of care upon his part, the case should have gone to the jury. Weber v. N. Y. C. & H. R. R. R. Co., 58 N. Y., 451. It is only where it clearly appears from all the circumstances, or is proved by uncontroverted evidence, that the plaintiff has by his own acts or neglect contributed to the injury, that the court can take the case from the jury, and nonsuit the plaintiff; Massoth v. Canal Co., 64 N. Y., 529 ; Weber v. R. R., supra, and a nonsuit should never he granted, where any possible inference can be drawn from the testimony which would relieve the plaintiff from the charge of contributory negligence. Stackus v. N. Y. C. & H. R. R. R. Co., 79 N. Y., 464. In the application of these principles to the facts of the present case, it appears that the ruling of the Court of Appeals, in the recent case of McGovern v. The Central Vermont & H. Railroad Company referred to above, is conclusive to the rights of the plaintiff upon this appeal. The principles enunciated in the case of Cordell v. New York Central River Railroad Company, 75 N. Y., 330, do not apply to the present case, because in the case at bar there was no testimony in defendant’s behalf. negativing the plaintiff’s proof, and there is nothing left to speculation. Whatever, therefore, maybe said of the strength of the plaintiff’s proof, it is certain that there was enough to warrant the conclusion that the accident was occasioned, either through the negligence of the defendant alone, or through the negligence of the plaintiff and the defendant jointly, in which case the rule is well settled that the master is liable. Anthony v. Lesset, 105 N. Y., 591. And where it has been shown that the injury might have been attributed to two causes, i. e., the danger of the place and neglect of fellow-servant, the case should always be submitted to the jury. Cullen v. Norton, 5 N. Y. Supp., 523.

IY. The learned trial judge erred in finding that there was no proof of defective construction of the building,” and in refusing to send the case to the jury on that account. The plaintiff’s proof was direct, that the beams intended to support the floors were of a capacity of 75 pounds to the square foot with a sustaining capacity of 225 pounds; that prior to and just before the accident the defendant had accumulated some 12-000 or 13,000 bricks upon the fourth floor, besides a suitable supply of mortar to be used in laying them, upon a scaffold seven or eight planks square. Assuming that these planks were of the full length, and one foot wide, we have a scaffold of 8 x 12 feet, upon which all this material was not only allowed, but directed to be accumulated, and calculating its weight at the smallest amount (12,000 bricks) stated in the evidence (the weight of each brick being four pound), and not taking into consideration the mortar at all, it will be seen that upon the 96 square feet of scaffolding provided by the defendants, for holding this material, there was the exorbitant weight 48,000 pounds, or 500 pounds to the square foot of surface, or over twice as much as there ought to have been. And further, that this enormous amount of heavy building material was placed there by direction of the defendant, through his foreman, because he had determined to dispense with the use of the elevator after that day, and wanted to get all the material up before it was taken away. Upon this testimony and upon a personal examination of the premises, after the accident made before any of the debris had been removed, Mr. Thomas J. Brady, Superintendent of Buildings for the city of New York, a man who had had an experience of twenty odd years in the building trade, testified as an expert, positively, that the cause of the accident was piling material on the floors—overloading them.” Whether, therefore, the defendant had been technically guilty of a breach of a positive statute in erecting the building in the manner in which it was done, is of no consequence, since in whatever manner the work was done, he owed a duty to the plaintiff’s intestate, with which he failed to comply, when he directed the floors to be overloaded, and saw that it was done.

V. The death having been caused, as the evidence shows, by a neglect of duty, on the part of the defendant, the question of intent could have had no effect upon his liability; hence the court erred in dismissing the complaint upon the ground that there was no evidence of intentional overloading by the defendant.

VI. It is no" defence to this action that the injury complained of occurred in the course and conduct of the business in which the plaintiff’s intestate was employed (Booth v. Boston & Albany R. R. Co., 73 N. Y., 38), nor that the injury occurred through the negligence of his fellow employes; and it was error to dismiss the complaint on these grounds. Courtney v. Cornell, 49 N. Y., Super. Ct., 286; Pantzer v. Tilly Foster Iron Co., 99 N. Y., 369. This is so, because the master is only relieved of his liability to his servants from the result of injuries occurring in the course of business, where the defects complained of are apparent. De Forrest v. Jewett, 23 N. Y., 264; Davidson v. Cornell, 10 N. Y. Supp., 521. And the master, owing a duty to tlio servant to furnish him safe and adequate instrumentalities for the performance of the work assigned, cannot escape liability in a case where the action is based upon a breach of duty in this respect, on the ground that the negligence complained of was that of a fellow-servant. Cone v. Railroad Co., 81 N. Y., 206. The rule is general, that where one enters the service of another, he takes upon himself the ordinary risks of the employment, but it has its exceptions, and is, therefore, not of universal application. Thus, while he assumes all the ordinary risks incident to the employment, he does not take upon himself the hazard of extraordinary risks, which are added by the failure of the employer to perform the duty enjoined upon him by law. Rogers v. Lyden, 137 Ind., 50.

VII. Three things, says this court, must be proved in order to entitle plaintiff to recover in an action of this character, viz.: (1) that the machinery or appliance was defective; (2) that the master had knowledge or notice of the defect; (3) that the servant did not know, and had not equal means of knowledge with the master. Reordan v. Com. Card Co., 51 N. Y. Super. Ct., 134. It is respectfully submitted that this case falls within the principles of the rule thus laid down, because the fact is that the floor supporting the scaffold where the deceased was at work was defective, in that it was not built to sustain the weight put upon it by direction of the defendant, who knew or ought to have known that it was being overloaded. Such being the case, the defendant cannot shield himself from liability by claiming that his attention was not particularly called to its imperfect condition; it was his duty to know the condition of the place where he put his employes to work, and he was guilty of want of care in failing to discover it. Klupp v. Ice Co., 15 N. Y. Supp., 597. So, in an action for the death of an employe, caused by a defective appliance furnished by the employer, if the defect was one of construction, it is not necessary to allege the employer’s knowledge of it. C. & E. I. R. R. Co. v. Heins, 33 Ill. App., 271. The relation of the defendant to the plaintiff’s intestate establishes the fact that he did not know and had not equal means of knowing of the defect complained of with the master. He was a common laborer—blindly directed to do certain manual service—while the defendant was the builder of the house in question, familiar with its plans, and knew or ought to have known the capacity of the floors to sustain a given amount of material; and it was his duty to have directed its construction and the labor of the deceased, so that no harm should have come to him, in the manner and under the circumstances of this case.

VIII. In conclusion, the contention is made, that the courts of this state have in numerous instances held that where the master employs servants in the building of houses and other structures, it is his duty to furnish safe and proper scaffoldings and supports, for the use of the servants. Green v. Bants, 48 N. Y. Super. Ct., 156; Pantzer v. Tilly Foster Iron Co., 99 N. Y., 368; Davidson v. Cornell, 10 N. Y. Supp., 811. And the overloading of a floor is negligence for which the master is responsible (Dillion v. 6th Ave. R. R., 48 N. Y. Super. Ct., 283) to a servant injured thereby. Metzgar v. Herman, 12 Week. Dig., 182; see also, Marsh v. Chickering, 101 N. Y., 400; Probst v. Delamater, 100 Ib., 266; Banzing v. Steinway, 101 Ib., 522.

Edgar Whitlock, attorney and of counsel, for respondent, argued:—

The court granted the motion of the' defendant to dismiss the complaint, and denied the motion of the plaintiff that the case be submitted to the jury, to both of which rulings plaintiff excepted, and on these exceptions the appeal mainly rests. It is not here intended to discuss the propositions of law laid down by the court below (because they are believed to be elementary in character), but to proceed at once to a consideration of the evidence to sustain the conclusions of the learned justice as set forth in his opinion. While the plaintiff’s intestate was working on the fourth or fifth floor of the building in question, the floor gave way and, with the matter upon it, fell upon the floor beneath, and carried it and all the other floors down to the cellar. The deceased fell with the floors and was thereby killed. There was no direct evidence as to the cause of the floor giving way. The theory of plaintiff’s case (as developed by the testimony) was that the giving way was caused by overloading. It appears that there was no defect in the building itself; the building was in first-class condition ; the walls were in first-class condition prior to the accident ; all the conditions of the permit issued by the building department had been complied with to the letter.” Assuming that overloading was the cause of the accident, it still remains to he established: (1) That the overloading occurred because of defendant’s negligence; and (2) That the deceased did not by his own negligence contribute thereto. To the testimony of the witness McKeon alone must we look for evidence on these points. His story, in brief, is as follows: The deceased (Flynn), with the witness McKeon, and Dunkin and Hart, were working in the defendant’s employ at the time of the accident on the fourth or fifth floor unloading the elevator of the brick and mortar it was bringing up, which they dumped on the floor. They were taking the stuff off the elevator when the defendant came around and ordered them.to stop the machine, saying they had got enough stuff on that floor. They took the stuff off the machine, and the elevator went down, and just after they emptied their hods the floor went down, and that was the last the witness knew. There is no question here as to whether or not the deceased was supplied with proper tools, or implements, or whether machinery was safe or sound; nor whether there was a'ny defect in the building or at the place where the deceased was required to be, but simply and solely whether, by order of the defendant or those for whose acts he is liable, a load was imposed on the floor such as it was not intended to bear, and, if so, whether such order is to be classed as a mistake in judgment for which defendant is not liable, or as so gross an oversight of existing and well ascertainable facts as to constitute negligence. It nowhere appears under what orders the deceased and his colleagues were working, nor are any facts stated from which an inference can be drawn, unless from the statement of the foreman that he wanted to get enough stuff on every floor to raise the front a story higher. They had received no orders from defendant personally as to how much stuff was to be carried up. They seemed to have been left to their own judgment, and they only stopped when the defendant came around and ordered them to stop, and they were obeying this order when the floor fell. There is, therefore, no evidence to show that they were acting under either of the classes of orders above referred to. There is no question of a concealed or hidden danger involved, nor one where the master had opportunities of knowledge not open to the servants. On the contrary, the servants alone appear to have been on the particular spot; they and they only were doing the work ; they had the best opportunity for knowing how much was being unloaded, and consequently for knowing when the danger limit was reached. The matter was entirely in their own hands. They might at any moment have stopped, saying, “ It is not safe to load any more material on this floor,” and to have done so without in any way causing the master annoyance or displeasure. Clearly, they (of Avhom the deceased was one) by their conduct at least contributed in bringing about the result. The overloading was done by them and no one else. They do not appear to have been dominated, directed or controlled by the defendant.”

By the Court.—Gildersleeve, J.

On or about the 25th day of August, 1888, the defendant, as contractor and builder, was erecting and superintending the construction of a house on premises in West 83d street, in this city; and plaintiff’s intestate, Charles Flynn, was employed by the defendant, as a day laborer, on this building. The particular service in which the deceased was engaged, at the- time of the accident hereinafter referred to, on the day aforesaid, was the removing of brick and mortar, contained in hods, from an elevator machine, which carried the materials from the ground up to the several floors above. At the time of the accident by which plaintiff’s intestate met his death, he was at work on the fourth floor in taking the hods from the elevator and dumping the contents upon a scaffold near the elevator, for use in building the front walls of the house. While said intestate was so employed, the floor beams gave way, and precipitated the materials that had been deposited near the elevator, as aforesaid, upon the floor beneath, and carried it and all the other floors below, with their contents, down to the cellar. The deceased fell with the floors, and was thereby killed. This action was brought to recover damages for the death of the plaintiff’s said intestate, on the ground of the defendant’s negligence and want of care and skill in the construction of said building, and in carelessly overloading the beams and girders of said building with mortar, brick and other building materials. When plaintiff rested, the court below dismissed the complaint on the ground that there was no evidence of any negligence on the part of the defendant, but that whatever negligence there was attached to the plaintiff’s intestate and his fellow-workmen.

The dismissal of the complaint having been made upon the defendant’s motion after the close of plaintiff’s’ case, without any testimony whatever on defendant’s behalf, the evidence contained in the record must be taken as true for the purposes of this appeal, and the appellant is entitled to have every doubtful fact found in her favor. Coldgrove v. N. Y. & N. H. R. R. Co., 20 N. Y., 494 ; Wylie v. Marine National Bank, 61 Ib., 417.

testimony shows that the defendant was present and supervised the work, at the time of the accident. The only inference to be drawn from the evidence as to the cause of the accident, is that it was occasioned by overloading the fourth story with brick and mortar, which were brought up from the ground in the machine above referred to, under orders from defendant or his foreman and agent, with the knowledge of defendant. It does not appear that the quantity of material to be placed on the fourth floor, or the other floors, was in the discretion of the laborers, of whom the intestate was one, and therefore that the overloading was an error of judgment on the part of said laborers. The intestate, with his immediate co-workmen, was on the fourth floor at the time of the accident, and these men were charged with the duty of taking from the elevator, at that point, such materials as were sent up in the hods, presumably by direction of the defendant or his foreman. The defendant and his foreman must be presumed to have known the quantity of brick and mortar necessary to complete the work. The evidence warrants such a finding of fact. McKeon, a fellow-workman with intestate, swore that the defendant’s foreman told them (the laborers) “ that was the last day to run the machine, and that he wanted to get enough stuff on every floor to finish the front, so as to raise it a story higher; and that the machine would only run that day, and that there would not be a day’s work for the machine.” McKeon further testifies that just before the accident, the defendant came around and said, Boys, you have got enough stuff on this floor— enough to finish the building—just stop the machine.” The intestate and the other laborers on the fourth floor, where the defendant gave these instructions, took the materials off the machine ; the elevator returned to the ground floor, and, just after these laborers had emptied their hods, the floor went down, carrying the intestate with it to his death. This state of facts did not justify the conclusion of the learned trial judge that, although an injury resulting from the overloading of a building might create a liability, the right to recover could not belong to plaintiff, for the reason that the intestate was one of the overloaders and a particeps criminis. It was not to the want of judgment on the part of the men, of whom intestate was one, that the accident was due. If the accident was the result of such a want of judgment, plaintiff has no cause of action, since it is elementary law that a master is not liable for the errors, mistakes, want of judgment or negligence of fellow-workmen. The intestate appears to have been free from contributory negligence ; he, with his fellow-workmen, was obeying the orders of the defendant, or his agent; the defendant was present, and saw the work going on. The affirmative proof indicates clearly that the intestate and his fellow-workmen did not bring the misfortune upon themselves by their indiscretion. True, they did the work; but it was done by the direction and under the superintendence of the defendant, by whom it appears they were dominated and controlled. The intestate was merely carrying out the directions of the defendant. There was no outward indication of the impending danger to warn the intestate of the peril that was before him, that called upon him for any effort to escape therefrom. Had he insisted upon leaving the floor, or refused to obey the orders of his superiors and continued the unloading of the machine, as he had been directed to do, he would have been guilty of disobedience that would, perhaps, have warranted the defendant in discharging him. Thé work upon which the intestate was engaged was not what is known as extra-hazardous in its nature, calling for the exercise on the part of the intestate of more than ordinary prudence and care. It was manifestly an accident such as in the ordinary course of things does not happen, if those who have the management use proper care. The danger, as we shall subsequently show, was one of which the master had opportunities of knowledge not possessed by the laborers in his employ. From a careful analysis of all the evidence, it affirmatively appears that the intestate did not contribute in any degree to the accident that resulted in his death.

This question remains to be discussed, namely : Was there sufficient evidence of negligence on the part of the defendant to entitle the plaintiff to have the case submitted to the jury ? It is incontestable that the accident was caused by piling too much material on the floors, and especially upon the fourth floor, where the beams or floor timbers first gave way. There is no question here of a failure on the part of the defendant to supply proper tools or implements, nor any question as to whether the machinery was safe or sound; nor whether there was any defect in the building. The inspector of buildings testified that he examined the building the day before the accident, that the building was in first-class condition—the walls were in first-class condition—all the conditions of the permit, issued by the building department, had been complied with to the letter ; ” and that the accident was due to overloading the floors. The question the defendant had to meet was this: Was there placed upon the fourth floor, by order of defendant, or his foreman, a weight of materials in excess of the weight the floor was intended to, or could reasonably be expected to bear ? If so, was such order a mistake in judgment, for which defendant is not liable, or a gross oversight of existing and well ascertainable facts that constitute negligence ? To put it more tersely, was the use of the premises by defendant so unreasonable as to evince negligence ? If there was any evidence to sustain this proposition, and we are correct in holding, as we have already done, that the intestate was free from contributory negligence, it was the duty of the learned trial judge to submit the case to the jury. A master owes the duty to his servant of furnishing a safe and proper place in which to prosecute his work, and, when they are needed, the employment of skillful and competent workmen to direct Bis labor and assist in the performance of his work. This duty cannot be delegated by a master to a servant of any grade so as to exonerate the master from responsibility to another servant who has been injured by its non-performance. Pantzar v. The Tilly Foster Iron Mining Co., 99 N. Y., 368.

Due care had been taken by defendant, as appears from the evidence, in the construction of tBe building, and there is no evidence of any hidden and internal defect therein that was the cause of the collapse of the building and the resulting injury; but the evidence, uncontradicted, warrants the conclusion that there was an overloading of the floors, by order of defendant, which was wrongful in a legal sense, and which amounts to a specific act of negligence in the use thereof. The defendant was entitled to use the floors and employ his servants upon and about the same by imposing upon said floors quantities of materials of such weight as the strength of the floor timbers could reasonably sustain. Within the limits of such reasonable use, the only limit was the capacity of the floors and the building. It might be assumed that the defendant, being an experienced builder and an intelligent man, had specific knowledge of the strength of the floor timbers he used, and approximately of the strength of the building generally. This, however, is not necessary. The evidence indicates hozo the defendant knew the capacity of the floor timbers. The superintendent of buildings swears that “ the floor beams, where the materials were, were calculated for strength to carry the weight of the floor, so that when you reached an average of 225 pounds to the square foot of weight placed upon that floor, then you would reach what we term a breaking point—each floor was constructed for 75 pounds to the square foot, with a factor of safety of 3.” It further appears from the evidence that just before the accident, by the personal orders of defendant, or his foreman, there had been accumulated some twelve or thirteen thousand bricks upon the fourth floor, besides a suitable supply of mortar to he used in laying them, upon a scaffold 7 or 8 planks square. The plaintiff should have shown the exact or proximate size of these planks; but, assuming that they were planks of the size ordinarily used for the purpose to which these were subjected, we have a scaffold or floor space of about 8 by 12 feet, upon which all this material had been accumulated. It was testified that each brick weighed about 4 pounds; and if we leave out of consideration the mortar, which was evidently no small factor in weight, we find that the floor space in question was subjected to a weight of about 500 pounds to the square foot of surface—more than twice the weight that the superintendent of buildings testified would bring the strain up to a breaking point. This was, clearly, such an oversight on the part of the defendant, who was present and directed and saw the condition of affairs, of existing and well ascertainable facts as to constitute negligence. The defendant was not warranted in ascertaining the full capacity of the floor as to strength by actual use in piling materials thereon. He must be presumed to have had a fair and reasonable knowledge of the business in which he was engaged, which includes a knowledge of at least the approximate strength of the floor timbers he had placed in the building, and a knowledge of the approximate weight of twelve or thirteen thousand bricks and a quantity of mortar that he had accumulated upon that floor.

The case at bar is not analogous to Dillon v. Sixth Avenue R. R. Co., 48 N. Y. Super Ct., 283, where an injury resulted from the giving way of a floor that had been overloaded, and in which case the general term of this court held “that the defendant was justified in ascertaining the capacity of the floor and building as best he could by actual use in the course of his business.”

While we rest our decision upon the grounds above set forth, we may add that the case under consideration is not unlike the case of Green v. Banta, 48 N. Y. Super Ct., 156. In that case, the plaintiff and other servants of the defendant were dumping bricks upon a scaffold when it fell, and plaintiff was injured thereby. The general term of this court held, in that case, “ that it was the duty of defendant to furnish for plaintiff to work upon properly built scaffolding, and any negligence of the foreman or other workmen, employed by defendant, to erect the same was defendant’s negligence, and not that of a fellow-workman of plaintiff.” It also held “ that the fact that the scaffold gave way was prima facie evidence of negligence.”

For the reasons above indicated, we are of opinion that it was the duty of the learned trial judge to submit the case to the jury.

The judgment appealed from is reversed, and a new trial granted, with costs to abide the event.

Freedman, P. J., and Dugro, J., concurred.


source: Caselaw Access Project

author: By the Court.—Gildersleeve, J.

license: Public Domain

text:
    CATHARINE S. HUNTER, Respondent v. THE MANHATTAN RAILWAY COMPANY, et al., Appellants.

      Practice—Marking requests to find pursuant to section 1023 Of the Code of Civil Procedure—When general endorsement at foot of findings sujfi- • dent.

    The action was for an injunction and incidental damages against defendants’ elevated railroad. The trial court failed to note its disposition of the proposed findings of fact and conclusions of law in the margin opposite each proposition as required by section 1023 of the Code of Civil Procedure, hut endorsed upon the proposed findings and conclusions the following ruling: “ Each of the within requests is to he marked 1 Refused,’ except so far as covered by the findings of fact and conclusions of law settled and signed by me.” Held, that while this mode of passing upon defendants’ propositions was not in strict compliance with the provisions of section 1023 of the Code of Civil Procedure, the court did indicate the manner in which each proposition had been disposed of and hence complied substantially with the statute. The question, however, is not properly presented by the record to the general term.' The better practice would have been to apply to the court below to have the omission complained of supplied, or the mistake, if one, corrected, and, in case of refusal, to, have made the application and refusal a part of the record.
    Before Dugro and Gildersleeve, JJ.

      Decided July 5, 1892.
    Appeal by defendants from a judgment entered upon the decision of a judge rendered after trial at special term. The facts are' sufficiently stated in the opinion.

      Davies & Rapallo, attorneys, and R. L. Maynard of counsel, for appellants.

      Ira O. Miller, attorney, and David B. Ogden of counsel, for respondent.
   By the Court.—Gildersleeve, J.

The judgment directs that the plaintiff! recover of the defendants the sum of $12,556.25, damages and interest, and $941.23, costs and extra allowance. It also restrains defendants from maintaining or using them elevated railway in front of plaintiff’s premises, unless the defendants shall, within the time and in the manner specified therein, pay to the plaintiff the sum of $12,000, with interest from the date of this judgment, in exchange for a conveyance and release of the property appropriated hy the defendants.

A fair preponderance of evidence sustains the findings of the court below, and justifies the judgment. There are no exceptions to the admission or exclusion of evidence that are of sufficient importance to require discussion.

The omission of the court below to comply strictly with the letter of section 1023 of the Code of Civil Procedure would not warrant a reversal of this judgment. It will not be denied that if the court below disregarded defendants’ requests and made no response to any of them, it neglected its duty ; and if the error prejudiced the appellants, the judgment should he reversed (Matter of Hicks, 14 State Rep., 323); but if such neglect is not prejudicial to the appellants, it is not ground for reversal. Uhlenhaut v. Manh. Ry. Co., 18 N. Y. Supp., 797.

Section 1023 of the Code provides that “ at or before the time when the decision or report is rendered, the court or referee must note in the margin of the statement the manner in which each proposition has been disposed of,” etc. The court below endorsed upon the defendants’ proposed findings of fact and conclusions of law the following ruling : “ Each of the within requests is to be marked ‘Refused,’ except so far as covered by the findings of facts and conclusions of law settled and signed by me.” This is not a strict compliance with the requirements of section 1023 of the Code, inasmuch as this ruling was endorsed upon the proposed findings, instead of being noted in the margin of the statement, as required by the statute. The action of the court below did, however, indicate “ the manner in which each proposition has been disposed of,” but did not note it “ in the margin of the statement.” Hence, although it is not an absolute compliance with the terms of the statute, it is a substantial compliance (Livingston v. Manh. Ry. Co., 17 N. Y. Supp., 486); for the purpose of the section is, doubtless, to require the court or referee to pass upon each request, and indicate the manner in which it has been disposed of. In the case at bar, each and all of defendants’ requests were refused, except so far as they had been covered by the findings settled and signed by the court. This disposes of the requests substantially in accordance with the purpose of the section referred to.

In the case of Livingston v. Manh. Ry. Co., supra, the general term of this court held that, “ While, therefore, it maybe technically the duty of a judge or referee to pass upon such requests, that duty will be fully performed by a specific denial of each and every one of them demanding a fact to be found which either is immaterial or has already been substantially covered by the findings embodied in the decision or report.” And in the case of McCulloch v. Dobson, 30 N. E. Rep., 641, the Court of Appeals held that the omission of a referee to indicate upon the margin of the paper or otherwise his disposition of certain propositions of fact and law submitted to him, under section 1023 of the Code, is not ground for reversal, where “the propositions- were nearly all either covered by the findings made by the referee, and stated in his report, or they were immaterial.”

In any view, we do not think the grounds here urged for reversal are properly before the general term. The better practice in such a case would have been to apply to the court below to have the omission supplied or mistake, if one, corrected, and, in the event of the request being refused, to have made the application and refusal a part of the record. Such a course would have enabled the court below to supply an omission that might have been the result of oversight or mistake, and would have secured the presentation of a record prepared in accordance with the views of the trial judge. McCulloch y. Dobson, supra.

We are of opinion that the judgment appealed from should be affirmed, with costs.

Dugro J., concurred.


text:
    JONATHAN D. CONDICT, Respondent v. JANE H. COWDREY, Appellant.

      Beal estate broker, commissions of, when earned.

    Upon a former trial of this action the court held, that two papers introduced in evidence, one a receipt and the other a deposit in escrow, established a contract for the sale of the Kentucky lands from defendant to Wolffe and Millikin, and that all prior negotiations merged in these two papers, and directed a judgment in favor of plaintiff, awarding him his commissions. The defendant insisted, upon that trial, “ that there was an unexpressed condition upon which the writings were delivered,” and asked to prove that condition, and so established what defendant claimed was the whole and complete contract between the parties. This parol evidence offered was rejected by the court on the ground that the writings named were conclusive. When the case reached the Court of Appeals, that court held that this ruling rejecting the parol evidence was erroneous, and for the error reversed the judgment. The Court of Appeals also held that there arose a question of fact for the jury which should have been submitted under proper instructions. Upon the new trial the evidence that had been rejected upon the former trial was admitted, and upon the question of fact that it raised, the jury found adversely to defendant upon sufficient evidence.
    Held, that whether the transaction was or was not a sale, was upon all the evidence a question for the jury, as was also the question of plaintiff’s instrumentality in bringing it about, and the jury having found these facts in favor of the plaintiff, he became, in law, entitled to his commissions.
    Before Dugro and Gildersleeve, JJ.

      Decided July 5, 1892.
    Appeal from judgment entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial.

      William M. Ivins, attorney, and W. W. MacFarland of counsel, for appellant, argued:—
    I. What the contract was. In order to ascertain what the contract was, it is necessary to go somewhat beyond the writing signed by the defendant, and consider what took place between the parties previously. The negotiation concerning the matter in question which took place before the writing was signed was between the plaintiff and Samuel B. Dickson, the attorney in fact of the defendant. The plaintiff testified, in substance, that he met Mr. Dickson in January, 1887 (the writing bears date May 10, 1887). He had a conversation with Mr. Dickson concerning the sale of the land ; he says, “ he authorized me to go ahead and sell the lands; the price asked was ten cents an acre; he agreed to pay me a commission of ten per cent.” On the 10th of May, 1887, an agreement in writing between the defendant and Jere Baxter was executed, by which an option to purchase was given to the latter. The plaintiff then suggested to Dickson that he would like to have the arrangement between them confirmed by the defendant in writing. Dickson said : “Ton draw it up and I will take it to her.” Thereupon the plaintiff prepared the writing in question. Dickson says that the agreement made and intended to be expressed was that the plaintiff was to receive as his commission 10 per cent, of what the defendant accepted, realized and received, but it may be conceded for the purposes of the case that the terms of the memorandum express fully the agreement •, nothing turns upon the slight variation for it is admitted that if an actual sale of the lands unconditional and complete had been made the plaintiff would have been entitled to commissions though the sale was on credit and payment never realized. It is assumed, then, that the whole contract is contained in the writing prepared by the plaintiff himself and signed by the defendant. In that writing defendant says : “ I hereby agree to pay you a commission of ten per cent, on the price I may accept for the land if sold through your agency. I acknowledge your agency in bringing Jere Baxter and his associates to me, whereby a refusal until September 10th next was given by me.” This was the whole of the contract, according to the plaintiff’s own contention, and, in construing it, it is important to bear in mind that the words are his own. No commission is payable under this contract unless the land is sold; there must be an actual sale ; an executory contract for sale never carried out is plainly not sufficient. The complaint assumes such to be the true construction, and alleges an actual sale. The opinion of the Court of Appeals proceeds upon the same interpretation. When the broker himself does not effect a sale, but merely brings parties together, his right to commissions is wholly contingent upon the result of their negotiation, over which, however, he can exercise no control, and to which he is in no sense a party (Opinion Court of Appeals, 123 N. Y., 469). If parties enter into an executory contract of sale, commissions are not earned and payable at that stage of the affair. If for any reason the contract never results in a completed sale, no commissions are earned, for the parties, so far as the broker is concerned, are at liberty to do as they please in the premises, and the broker is only concerned in the ultimate result. They may, for example, agree to abrogate the executory contract without giving him any cause of complaint. Sibbald v. Bethlehem Iron Co., 83 N. Y., 388. Fraser v. Wyckoff, 63 Ib., 445. 1 Parsons on Contr., 7 ed., p. 109, and notes. The court takes judicial notice of real estate brokers, their customs and usages. Eaton, Cole & Burnham Co. v. Avery, 83 N. Y., 31. The precise question, therefore, is whether upon the evidence there was an actual sale of the property or merely an executory contract for sale never carried out. In the discussion of this question it will be assumed that the contracting parties were brought together by the plaintiff, so that he would have been entitled to commissions if an actual sale had followed.
    II. The land was not sold. It is obvious that no sale was consummated unless we are able to find a contract, the non-performance of which, by the one party or the other, would give rise to an action for specific performance or damages, as the case might be. There was not a completed sale on credit; the title remained in the grantor; the grantees might carry out the contract for sale or not, at their pleasure, under pain of a stipulated forfeiture, or, for just cause, if the abstract proved to be inaccurate. The executory agreement for purchase never was carried out; that is proved and not disputed. It should be observed here that the plaintiff is not concerned with the reasons why the sale fell through ; it is the fact that it was not completed that affects him. The writings distinctly inform us that there was a collateral understanding of some kind between the defendant and Millikin and Wolffe, and the Court of Appeals has decided that parol evidence is admissible to prove what it was, and so ascertain the meaning and intention of the parties as to the consummation of the transaction. It has also been decided that when all the evidence is in, the plaintiff’s right to recover will depend upon whether or not it shows an actual sale of the property, and that he is not entitled to recover if the obligation to pay the drafts and take the title was in fact conditional. The proof that it was so is clear and undisputed, and therefore the case stands upon no controverted facts, no conflict of evidence, and presents only a question of law arising upon the construction of established facts. The abstract of title was to be verified, for nothing but quitclaim deeds were to be given by defendant, and it was the understanding that unless the abstract was found to be correct on examination the agreement for sale was to be abrogated. It was conclusively established as a fact and by the plaintiff’s own evidence that there was no actual and completed sale of the property, but only an executory contract of sale. There was no controverted question of fact to go to the jury, and the case presented when the evidence was in only a question of law for the court. On this point the Court of Appeals decided only that the writings were open to explanation by parol evidence, not that the case must go to the jury whether there was any conflict of evidence or not. . As it. turned out, there was no question of fact to be submitted to the jury, but only a question of the legal construction of certain papers taken in connection with certain undisputed collateral facts.
    III. No commissions were earned by the plaintiff. But little remains to be said on this point. The conclusion is one of law, to be drawn from facts proved and wholly undisputed. The Court of Appeals has decided (a) that the writings in question were somewhat ambiguous ; (6) that on the face of the writings there was a strong indication that the transaction did not amount to a completed sale, and that there were unexpressed conditions (123 N. Y., 46,47) 5 (c) that if there were, it was allowable to prove by parol evidence what they were ; (cl) that if such should prove to be the case and the sale fell through there could be no recovery. It is now established beyond dispute that such was the case, for there was simply a failure to carry out an executory arrangement. Finally, it is submitted, that as a conclusion of law, from evidence wholly uncontradicted and undisputed, the lands were not sold, within the meaning of the agreement with the plaintiff for commissions; that the motion for a nonsuit should have been granted, and that there should be a new trial.

      Cannon & Atwater, attorneys, and Henry G. Atwater of counsel, for respondent, argued :—
    I. The evidence is sufficient to justify the verdict. It will not, of course, be contended that there was not evidence on the trial which might have justified the jury in rendering a verdict for the defendant, but taking the evidence in the plaintiff’s favor and giving to it such construction as the jury were justified in placing upon it, there seems no difficulty in sustaining the verdict.
    II. The real gist of the transaction was this: The defendant had for sale a certain alleged title which was stated in a certain abstract, and this title she employed the plaintiff to sell. The plaintiff by his exertions made a sale of it to Wolffe and Millikin, who afterward refused to complete their purchase because the defendant could not deliver to them the title which she had agreed to sell them. That the plaintiff by his exertions procured to be made whatever contract was made is plain enough. No one can read his evidence without seeing that the verdict upon this point is beyond any doubt. The defendant’s contention is that the defendant did not claim to have any-title to these lands, or at least not any particular title or chain of title, and that all she agreed to sell was such title as it might he discovered she had, and that Wolííe and Millilrin were not obliged to buy unless upon examination they found her title was satisfactory to them. This, however, is contradicted, not only by all other facts in the case, but also especially by the fact that the defendant having been sued by Wolffe and Millikin to get back the cash and acceptances on the ground of the misrepresentation as to title, returned the acceptances and made arrang’ements to payback the cash. This is entirely sufficient to refute any claim that they could still retain the cash as damages for breach of contract, even if they did not have the title set out in the abstract. The jury upon all this evidence were justified in finding that what Condict was employed to sell was a title such as was set up in the abstract furnished by the defendant; and that Condict in fact did find a purchaser who was willing to buy that title at the price named. The jury having so found, the plaintiff became in law entitled to his commissions. Where a broker employed to effect a sale has found a purchaser willing to take upon the terms named and of sufficient responsibility, he has performed his contract and is entitled to the commissions agreed upon. Duclos v. Cunningham, 102 N. Y., 678; Lloyd v. Matthews, 51 Ib., 124; Mooney v. Elder, 56 Ib., 240; Sibbald v. Bethlehem Iron Co., 83 Ib., 378, 382, 384. The broker is entitled to his commissions although the purchaser refuses to take the property on account of an alleged defect of title. Knapp v. Wallace, 41 N. Y., 477. Or on account of alleged misrepresentations made by the seller in regard to the property. Glentworth v. Luther, 21 Barb., 145 ; Holly v. Gosling, 3 E. D. Smith, 262. In this case the uncontradicted evidence showed that the plaintiff had found a purchaser able and willing to buy on the terms named. Upon these facts he was entitled to his commission.
   By the Court.—Gildersleeve, J.

This action is brought, by plaintiff to recover from defendant commissions alleged to have: been earned under a certain agreement between himself and the defendant, relating to the sale of lands. The plaintiff is a real estate broker; and, in January, 1887, was introduced to one Samuel A. Dickson, who, at that time, was agent and attorney in fact of defendant, and represented her in relation to all matters connected with the Kentucky lands, which the plaintiff was employed to sell. At this interview, Mr. Dickson gave Mr. Condict a list of the lands, showing the lands in each county and the original sources of title. Mr. Condict soon succeeded in interesting in the matter one Jere Baxter, with whom was associated one W. A. Millikin; and the defendant gave Baxter an option on the land to September 10th at ten cents an acre ; which option was subsequently extended. About this time, the plaintiff asked for an agreement in writing from defendant, and thereupon defendant gave plaintiff a written agreement in the following terms: u To Jonathan D. Condict, Esq., 145 Broadway, New York. Sir: I hereby agree to pay you a commission of ten per cent, on the price I may accept for the 435,000 acres of land in Eastern Kentucky, belonging to me, if sold through your agency. I hereby acknowledge your agency in bringing Jere Baxter and his associates to me, whereby a refusal until September 10th was given by me. Jane H. Cowdrey.”

It was claimed, in behalf of defendant, upon the trial, that plaintiff was not the moving party in the transactions that took place between.the defendant and others, which, plaintiff claimed, were the consummation showing that he had earned his commission. There was some conflict of evidence as to whether Millikin, as well as Baxter, was first introduced to Dickson by plaintiff. On this question the jury, as indicated by their verdict, found in favor of plaintiff’s contention; the evidence justifies their finding and is conclusive upon this question.

The employment of the plaintiff by defendant not being disputed, and assuming that whatever contract was made with Wolffe and Millikin came through the plaintiff’s instrumentality, this question remains : Was the latter contract such a one as constituted a fulfillment of plaintiff’s contract with defendant, and entitled plaintiff to his commissions? The written evidence of the contract with Wolffe and Millikin, in reference to the Kentucky lands, consists of two papers ; one a receipt, and the other an agreement for a deposit in escrow. Upon a previous trial of this action, the court held that all prior negotiations were merged in these two papers; that they established a contract for the sale and purchase of the Kentucky lands, and directed a judgment in favor of the plaintiff, awarding him his commissions. When the case reached the Court of Appeals, that court held (123 N. Y., 463), as follows : “ If that construction was correct, the judgment awarded was an inevitable result; but the defendant claims that the writings showed merely" an option or privilege, for which the alleged vendees paid the sum of two thousand dollars, and which left them at liberty to purchase or to refuse to purchase, at their own choice and pleasure, and so the minds of the parties never met, and the broker’s efforts to effect the sale failed of success.” The learned appellate court was in doubt as to what construction should be given these two papers, read together, in the light of such surrounding facts and circumstances as were proved; but it did not hold that the construction given by the learned trial judge was erroneous.

Upon the first trial, the defendant insisted “that there was an unexpressed condition upon which the writings were delivered,” asked to prove that fact, and so establish what she claimed was the whole and complete contract. In truth, the defendant did introduce parol evidence, upon the first trial, tending to establish the u unexpressed condition ” she claimed existed ; but, upon final consideration, this parol evidence was rejected by the court on the ground that the writings were conclusive. The Court of Appeals held that this ruling was erroneous, and for the error reversed the judgment. The Court of Appeals say that the rejected evidence of Mr. Dickson, the defendant’s agent, if true, would show that what appears upon the face of the papers to have been an agreement of sale, is in reality a privilege to purchase at a fixed price, or to refuse to purchase upon the forfeiture of a definite sum ; or what seemed to be an agreement of sale, was in truth a mere option to purchase. . . . “ In other words, there was no absolute contract of sale, but merely an option.” The Court of Appeals further says : “ This evidence was contradicted, and so there arose a question of fact for the jury, which should have been submitted to them under proper instructions.”

No exceptions were taken to the admission or rejection of evidence in the course of the trial, and no exception was taken to the charge of the learned trial judge. The evidence above mentioned, that had been rejected upon the former trial, was admitted, and upon the question of fact that it raised the jury found adversely to the defendant, upon sufficient evidence.

We are of the opinion that whether the transaction was or was not a sale, was, upon all the evidence, a question for the jury, as was also the question of plaintiff’s instrumentality in bringing it about.

The jury having found these facts in favor of the plaintiff, he became in law entitled to his commissions.

Where a broker employed to effect a sale has found a purchaser willing to take upon the terms made, and of sufficient responsibility, he has performed his contract, and is entitled to the commissions agreed upon. Duelos v. Cunningham, 102 N. Y., 678; Sibbald v. Bethlehem Iron Co., 83 Ib., 378.

We reach the conclusion that the judgment and order should be affirmed, with costs.

Dugro, J., concurred.


author: Per Curiam.

text:
    SOCIETA ITALIANA DI BENEFICENZA, Respondent v. CATHARINE SULZER, Appellant.

      Contract, defence thereto ; defendant must elect either to stand upon her' alleged counter-claim and affirm the contract, orto abandon the counterclaim and stand upon the alleged facts.

      Meld, that defendant could not have the benefits of a valid contract without bearing its burdens. She could not be permitted to affirm in part, and rescind in part. The trial judge properly compelled the defendant to elect either to stand on her alleged counter-claim and affirm the contract, or to abandon the counter-claim and stand upon the alleged facts as a defence. The offered evidence of preparations made by defendant was properly excluded. The only theory on which such evidence might be admissible is that it would show defendant’s belief in the representations made. But no representation is available for that purpose unless it is a' representation as to an existing material fact, and the representations relied upon for rendering the excluded evidence admissible related to mere expectations and not to existing material facts. If defendant wished to rely upon the representations of expectations which she claimed the plaintiff's committee made to her, she should have exacted a guaranty of the number to be present or a guaranty of profits.
    Before Freedman and Dugro, JJ.

      Decided July 5, 1892.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from an alleged order denying defendant’s motion for a new trial.

      The facts and points fully appear in the opinion of the court.

      Lorenz Zeller, attorney and of counsel, for appellant, argued:—
    I. The defendant on the motion of plaintiff’s attorney was compelled to elect to proceed upon the alleged counter-claim in the answer as being a counter-claim or a defence, to which the defendant excepted. This the defendant contends was an error. The defendant was not in a position to claim non-performance until plaintiff had held the picnic and has thus, at least to a certain extent, complied with the contract. If plaintiff made representations and they turned out to be untrue, it amounted either to an actual or constructive fraud, because they had no right to assert as a fact the existence of which, or probability of existence of which, was in future and was only known to them, and in case of constructive fraud it amounted to a guarantee. The plaintiff thereby not only lost the benefit secured to it by the contract but were liable for any damage which the defendant had sustained, and she was not compelled to pay first and then seek to recover the money paid with damages. Garner v. Mangam, 93 N. Y., 642. Under the Code a defendant may set up as many defences or counter-claims as he may have. An objection of inconsistency between them is not available. The contention, that defendant was not bound to elect, is very forcibly sustained in Bruce v. Burr, 67 N. Y., 237, which case, although exactly similar, is far less strong than the case at bar, because the defendant at the trial was allowed to amend setting up as an additional defence and as a counter-claim a breach of warranty. On the continuance of the hearing a similar motion was made to compel the defendant to elect between the defence of rescission and breach of warranty which was denied and the denial sustained.

      EE. There is no proof whatever that these three men who signed the alleged contract were the committee appointed by the United Italian Societies or the plaintiff corporation, and the proof of the appointment must be made by the production of the records or books of the corporation containing the entry or resolution of appointment. Owings v. Speed, 5 Wheat., 424; Fister v. La Rue, 15 Barb., 323. And hence the exception to the admission of the alleged contract was well taken.
    III. The defendant concedes that if the Italian Societies had held but one picnic and held it in Sulzer’s Park, the plaintiff could come within the provisions of the contract. They then would have been a united body for the purpose of the picnic. The word “ United ” it is true does not mean each and every one of the United Italian Societies, hut united for a purpose, i. e., to hold a united picnic. Hence, to ascertain the real meaning of the word it was proper for the defendant to show acts and representations of a similar character as those made to the defendant under similar circumstances. Cary v. Houghtaling, 1 Hill; Hill v. Naylor, 18 N. Y., 588.
    IV. If the contention of the defendant prevails that the plaintiff has not proven a legal contract between it and the defendant, then the plaintiff has not established a cause of action and the motion made by the defendant to dismiss, should have been granted.
    V. The exclusion of the testimony offered by the defendant, as to what the defendant did in reliance upon the committee’s representations was clearly an error. The proposed testimony tended to show the probability of the representations as his Honor Justice Freedman well stated on admitting the proposed testimony on the first trial upon a similar objection, and if the defendant was entitled to prove the damages it was exceedingly material for that purpose. In an action for fraud it is competent to show the conduct and subsequent acts in consequence, and upon the faith of the representations. Taylor v. Guest, 58 N. Y., 262; Bruce v. Burr, 67 Ib., 237; 36 Hun, 465; 38 Ib., 577.

    VI. It has been repeatedly held in actions of this kind that it is proper and material for a witness to state whether he would have done certain things, but for the alleged representations. I only need to refer- to the learned opinion of Ingraham, J., in King v. Fitch, 2 Abb. Court of App. Dec., 515, and Denio, C. J., in same case for this proposition, and as the question proposed was only preliminary and the learned justice below having been apprised of the nature and effect of the testimony it was error to exclude it. If the defendant could have shown by these witnesses that some of the very societies, who plaintiff claims were at defendant’s place, were in fact at Jones’ Woods, could it be successfully contended that the plaintiff performed his contract? The testimony goes to the very heart of the defence and the exception was well taken.

      Warren W. Foster, attorney and of counsel, and Oliver C. Semple of counsel, for respondent, argued :—
    I. It was right to compel defendant to elect either to stand on her alleged counter-claim and to affirm the contract or to abandon the counter-claim as such and to stand on the alleged facts as a defence. Defendant could not have the benefits of a valid contract without bearing- its burdens. She could not assume that it was a valid contract and ask damages under it and at the same time insist that it was not valid, and thus escape payment of its obligations. As the learned judge who presided at the first trial well said : “ If defendant wants to enforce the contract and to recover damages under it (that is, to enforce her counter-claim of $1,000 for loss of profits) she must perform her part and first of all pay the $400 which she agreed to pay on the 20th of September, 1889. If she does not wish to do that, but wants to contest her liability to pay the $400, she must drop her counter-claim. But that counter-claim, being pleaded both as a defence and a counter-claim if withdrawn as a counter-claim, is still available as a defence. It is well settled that a party cannot affirm in part and rescind in part.” If it was improper for any reason to require defendant to make the election, it was not prejudicial error to exclude the counter-claim because a counter-claim would not lie against the plaintiff in this case, for the reason that the plaintiff made no contract with defendant whatsoever, and was under no liability to her. This is true, whether plaintiff sue as a beneficiary under the rule of Lawrence v. Fox, 20 N. Y., 268, or as assignee of United Societies, as admitted by defendant’s answer.
    II. The court was right in excluding the offered evidence of preparations made for the picnic by defendant. The only theory on which such evidence can he claimed to he admissible is that it goes to show defendant’s belief in the representations made. Before this evidence was offered defendant’s manager had testified as to the representations. There is not one scintilla of evidence of any representation of any existing fact. Everything related to the future. “ They were going to he united; that there was nothing going to be only this one affair.” “ It is going to he the biggest thing there ever was in New York. They are going to have from 15,000 to 20,000 people there.” “ They promised me Í would take in a- great deal of money, and I could afford to do it.” “ They will fetch a big crowd, and they will have no other picnics on that day excepting in his place.” “ He should be prepared to expect from 8,000 to 10,000 people.” This is substantially all the defendant’s evidence as to representations of the committee, and the learned judge rightly said: “ The representations, to have any effect and deserve consideration here, must have been as to an existing material fact. Any promise, any representation as to what might take place, is of no consequence and cannot have any weight here. Whatever they said that was untrue must have been said in reference to something that then existed. * * * If they said, ‘ We are going to have 20,000 people; you will make $5,000 out of this. It is going to be a great day.’ That is not a material existing fact. And any evidence of any such promise is not material here.”
    III. If the defendant wished to rely on the statements of expectations, which she claims plaintiff’s committee made to her, it was her privilege, right and duty to exact from the committee a guaranty of the number to be present, or a guaranty of profits. No such guaranty was given, and evidence of defendant’s profit or loss is totally irrelevant, and so is the evidence of defendant’s preparations, help employed, food ordered, other picnics and where held, etc., etc.
    IV. There were only two questions in the case: 1st. Did the committee procure the contract from defendant by representations of existing facts that were false and untrue ? 2d. Was the contract substantially performed on plaintiff’s part ? Now, it will be observed that defendant’s answer pleads but two material representations : (1) That the committee represented all united Italian societies of New York City; and (2) that they were composed of many thousand members; but defendant offered no testimony on the trial of any such representations or of any representations of any existing fact made by the committee prior to the contract, whether true or false. All defendant’s testimony was as to expectations relating to future events. Defendant’s manager was told, when the contract was made, and knew that there were sixteen societies united for the picnic, and that all in New York were not united for it; and it is not disputed or contradicted that the sixteen Italian societies united for plaintiff’s benefit did hold the picnic as agreed in defendant’s park, and that from 900 to 3,000 were present.

      Y. The case contains no certificate or statement or proof that the case on appeal contains all the evidence, and therefore this court cannot say that the order denying a motion for a new trial is erroneous as contrary to or against the weight of evidence. Boyer v. Brown, 1 Hun, 715 ; Porter v. Smith, 107 N. Y., 531; Murphy v. Board of Edn., 6 N. Y., Supp. 99.
   Per Curiam.

The case contains no certificate or statement or other proof that the case on appeal contains all the evidence and consequently this court cannot determine that the order denying defendant’s motion for a new trial, if such order was made, is erroneous as contrary to the evidence or as against the weight of evidence.

Moreover, the case contains no order denying motion for new trial. A mere exception to the refusal to grant the motion, it has been repeatedly held, presents no question of fact for review.

For the reasons stated the exceptions only can be reviewed, and, if they are found untenable, the verdict of the jury must be held to have conclusively established that the contract sued upon was not procured from defendant by representations of existing material facts that were false and fraudulent, and also that the contract was substantially performed on plaintiff’s part.

The trial judge properly compelled the defendant to elect either to stand on her alleged counter-claim and to affirm the contract or to abandon the counter-claim as such and to stand on the alleged facts as a defence. Defendant could not have the benefits of a valid contract without bearing its burdens. She could not be permitted to affirm in part and rescind in part. To such a state of facts the case cited by appellant’s counsel (Bruce v. Burr, 67 N. Y., 237) has no application.

The offered evidence of preparations made by the defendant for the picnic was properly excluded. The only theory on which such evidence might be admissible, is that it goes to show defendant’s belief in the representations made. But no representation is available for that purpose, unless it is a representation as to an existing material fact. It was made to appear that the representations relied upon for rendering the excluded evidence admissible, related to mere expectations, and not to existing material facts. If the defendant wished to rely on the representations of expectations which she claimed plaintiff’s committee made to her, she should have exacted from the committee a guaranty of the number to be present or a guaranty of profits.

The questions at issue were fully and fairly submitted to the jury under a charge which carefully guarded every right which the defendant had, and no exception appears anywhere which calls for reversal.

The judgment should be affirmed, with costs.


text:
    AUGUSTA G. GENET, Appellant v. THE PRESIDENT, ETC., OF THE DELAWARE AND HUDSON CANAL COMPANY, Respondent.

      Court of Appeals—Remittitur—Entry of judgment in regard to costs— Restitution under the Code, powers of the court below to order the same.

    This is an appeal from an order made at special term by Judge Gildbbsleeve granting a motion made by defendant to vacate an order heretofore made in the action setting off costs, and amending the judgment so as to make it include the costs to which defendant was originally entitled, hut which were extinguished by the set-off. The complaint stated two causes of action. Upon the trial defendant prevailed upon the first cause of action, and plaintiff upon the second. Each party thus became entitled to costs as against the other. Defendant moved for an order directing that the costs of each party when taxed by the clerk to set off one against the other, and the balance only included in the judgment. This motion was granted by Judge Fbeedmatt, and an order entered February 15, 1887, and it is this order which the order now appealed from has set aside. The costs of each party were taxed in pursuance of Judge Fbeedmait’s order, those of plaintiff at $618.67, and those of defendant at $570.44, and judgment entered in favor of plaintiff for the balance of costs in her favor, $48.23. Both parties appealed from the judgment to the general term, which affirmed it, and both parties then appealed to the Court of Appeals, which court affirmed so much of the judgment as was appealed from by plaintiff and reversed those parts appealed from by defendant, and dismissed the entire complaint with costs. The remittitur was filed, and the judgment of the Court of Appeals made the judgment of this court February 15, 1892. Defendant presented a bill of costs to the clerk for taxation, including in it the amount of the costs of the trial as originally taxed in.February, 1887, and the entire costs of the action, which were allowed by the clerk. Plaintiff appealed against such taxation and Judge MoAdam reversed it, holding that the costs awarded by the Court of Appeals were the costs in that court only, in the following opinion : “ MoAdam, J.—The complaint states two causes of action. One at law to recover $150,000 damages for breach of contract, the other in equity for an injunction and incidental damages. The referee dismissed the first cause of action, but awarded plaintiff judgment on the second. The plaintiff thereupon taxed her costs at $618.67, and the defendant its costs at $570.44. Set-off was allowed and the plaintiff in consequence entered judgment in her favor for the equitable relief, with $48.23, costs (the difference), and the defendant for the dismissal of the first count, without costs (the set-off having absorbed them). Both sides appealed ; the judgment on the first count was affirmed by the general term, and the second count (modified in form) was also affirmed thereat 1 without costs to either party.’ Both sides again appealed, this time to the Court of Appeals, which court expressed its judgment in these words : 1 That said judgment so far as appealed from by the plaintiff be affirmed, and that said judgment, so far as appealed from by the defendant be reversed, and the complaint dismissed with costs.’ The clerk on application of the defendant taxed defendant’s costs in all the courts. This was error. He should have taxed the costs to the Court of Appeals only. In re Water Commissioners, 104 N. Y., 677; Franey v. Smith, 126 27)., 658. The taxation must therefore be reversed, but with liberty to the defendant to move by way of restitution to vacate the order for set-off and for leave to amend the original judgment roll nunc pro tunc by inserting therein in suitable language the costs originally taxed on the dismissal of the first cause of action, to the end that the defendant may not be deprived of them. These belong to the defendant as of right, not by the courtesy of the court but by force of the statute. The judgment made by the Court of Appeals eliminated not only the plaintiff’s recovery but the costs allowed to her which were made the subject of set-off. The new condition, final in its character, seems to warrant restitution to the defendant in furtherance of justice and to prevent abuse. The control which every court has over its own judgments would seem to sustain the power.”
    The order now appealed from was moved for in accordance with the suggestions contained in the above opinion, and, on granting the motion, Judge Gildebsleeve filed this memorandum : “ The question presented on this motion has been passed upon by my learned associate, Judge Mo Ad am; motion granted without costs; order to be settled in accordance with Judge McAdam’s opinion.”

      Held, That the court at special term had power to order restitution, and the order should be affirmed.
    Before Freedman P. J, and Dugro, J.

      Decided July 5, 1892.

      George C. Genet, attorney and of counsel, for appellant, argued:—
    I. The judge who ordered the adjustment of the costs by the clerk, set aside, suggested that defendant might recover the costs it had disposed of in a different way before judgment, under the sections of the Code relating to restitution. The defendant thereupon made the motion which has been granted in deference to that opinion. Prior to these sections of the Code, 1323, 1292, restitution could only be had by action. These sections give the court that renders the final judgment this power in connection with the judgment rendered. They do not change or extend the right. Section 1323 provides, “ When a final judgment or order is reversed or modified upon appeal the appellate court or the general term of the same court, as the case may be, may make or compel restitution of property or of a right lost by means of the erroneous judgment.” The Court of Appeals having rendered the final judgment, the power to order restitution was in that court alone. Murray v. Bedell, 90 N. Y., 480; Market Nat. Bank v. Pacific Bank, 102 Ib., 464. Section 1292 applies to cases where the final judgment is rendered by the court of original jurisdiction, where an appeal has been taken and the judgment reversed and a new trial had, with a result the reverse of the first trial.
    II. It is not within the power or jurisdiction of the court of original jurisdiction to alter, vary, reverse or modify a judgment that has been affirmed or finally adjudicated and judgment rendered by the appellate court. Genet v. Del. Hud. Canal Co., 113 N. Y., 475 ; Fisher v. Repburn, 48 Ib., 41, 53 ; Embury v. Connor, 3 Com., 231; Le Guen v. Gouverneur, 1 John. Cases, 492 ; Wilcox v. Jackson, 13 U. S. R., 511; People v. Sturtevant, 9 N. Y., 275; Smith Lead. Cases, Title Estoppel; Merwin v. Brewster Iron Co., 56 N. Y., 671. The judgment entered on the return of the remittitur where the Court of Appeals renders a final judgment is the judgment of that court, and not of this court, although it is entered by the clerk of this court on the order of one of its judges. It is made the judgment of this court for the sole purpose of enforcing it. Wilkins v. Earle, 63 N. Y., 358 ; Kennedy v. O’Brien, 2 E. D. Smith, 41. The order from which the appeal is taken not only renders an entirely new and different judgment, but goes further back still and vacates an order disposing of these same costs on defendant’s own motion before the judgment was entered. This was in effect a payment of them by plaintiff and actually prevented them from ever being any part of the judgment appealed from.
    III. The defendant now seeks relief under the sections relating to restitution and to reach it, asks to set aside an order made on its own motion and to vacate, change, alter and render an entirely new judgment, and it has been -ordered. The plaintiff has never been paid any of these sums by defendant. It is absurd to claim restoration of what has never been received. It would be a misuse of language. It is only where money has been paid that it can be claimed to be restored. See old Code 3369.

      IV. Should the court surmount all these obstacles and conclude that the case comes within its power to order restitution, the plaintiff offers the following objections : (1) That the motion is not for restoration but to cancel and vacate a final judgment and to order the clerk to enter an entirely different one. (2) That except as to the $125 costs, the defendant could not now tax the bill of costs against her that was taxed in 1887.

      Matthews & Smith, attorneys, and Frank E. Smith of counsel, for respondent, argued:—
    I. The set-off of costs was properly vacated. This order was correct when it was made, but the costs of plaintiff which were in effect paid by it, having now been extinguished by the reversal, it now works an injustice which can be corrected only by setting it aside. The fact that the order was made on motion of defendant is no objection to vacating the same now on its motion. Hatch v. Central Nat. Bank, 78 N. Y., 487; Montgomery v. Ellis, 6 How., 326.
    II. The court has power to amend its own records, even after its judgment has been passed upon by the Court of Appeals. In Corn Exchange Bank v. Blye, 119 N. Y., 414, Ruger, J., says: “ This appeal presents the question whether the court has authority to vacate and annul so much of a judgment in replevin as provided for the payment of damages for the detention of the property, in addition to its return, after four years from the entry of the judgment, and the same had been affirmed in the court of last resort. * * * * It is urged on this appeal by the plaintiff, that the court below had no power to vacate or modify the judgment actually entered, after it had been affirmed by the appellate court. This contention rests upon the question whether the error in entering the judgment raised a question which could be availed of by the defendant on appeal; if it could then, obviously, the court below could not afterwards change the substantial character of the judgment affirmed. We think the decisions are uniformly to the effect that when an error has been made in respect to the form of a judgment by which its scope or amount has been enlarged or increased beyond that plainly authorized by a verdict, referee’s report or decision of a court, a question is not presented for the consideration of the court of appeal, but the error must be corrected, if at all, by motion in the court of original jurisdiction.” The change in the judgment made by the order appealed from does not relate to the substance, but merely the form. It is not asked for on the ground that anything originally done was incorrect, erroneous, or even irregular, but solely on the ground that the reversal of part of the judgment by the Court of Appeals leaves the portion of it, which was affirmed in such shape as to work injustice to defendant, by not including in it the costs, to which defendant is entitled, and which in legal effect were awarded to it by the original judgment.
    III. Every court has inherent power over its own orders and judgments and can modify them as justice requires. The existence of this power is well established, though its precise limits may be hard to define. That the extent to which the power was carried by the present order comes well within the limit may be best shown by reference to decided cases. Genet v. D. &. H. Canal Co., 113 N. Y., 472; Hatch v. Central Nat. Bank, 78 Ib., 487; New York Ice Company v. North-Western Ins. Co., 23 Ib., 357; Toronto Trust Co. v. C. B. & Q. R. R., 123 Ib., 37; Produce Bank v. Morton, 67 Ib., 199; Ladd v. Stevenson, 112 Ib., 325 ; Gasz v. Strick, 30 St. Rep., 226; Adams v. Ash, 46 Hun, 105 ; Van Denburgh v. The Mayor, 28 St. Rep., 578.
    IV. The amendment made is hut a form of restitution. The judgment in plaintiff’s favor was used to extinguish the costs for which otherwise defendant would have had judgment. Being now out of the way by reversal, defendant should be put in the position to which it would have been but for the erroneous judgment ; that is, with judgment in its favor for the costs as taxed. ' The power of the court to make restitution does not depend upon statutes, but exists at common law. Hæbler v. Meyers, 44 St. Rep., 403.
   Per Curiam.

The court at special term had power to order restitution (Wright v. Nostrand, 100 N. Y., 616; Carleton v. The Mayor, 19 Weekly Digest, 354), and as the method adopted to enforce it carried out the necessary effect of the judgment of the Court of Appeals and rendered it effectual, there is no necessity for condemning it by a reversal.

The order should be affirmed, with ten dollars costs, etc.