author: Barrett, J.: Follett, J.

text:
    Excelsior Steam Power Company and Another, Respondents, v. The Cosmopolitan Publishing Company, Appellant.

      Attachment — what debts w'e subject to — levy upon property incapable of manual delivery — Oode of Oivil Procedure, § 644 — payment to the sheriff — ichen no protection to the ga/t'nishee — estoppel.

    The debt for which an attachment will lie must be an actually subsisting debt, due or about to become due by efflux of time. If the liability be merely possible, and dependent on a contingency which may never happen, an attachment will not lie.
    Where property sought to be attached is incapable of manual delivery the law as to making a levy upon it will be strictly construed; where the levy is made by the service of an attachment and notice upon the person against whom the demand is made, the latter must look solely to the notice to ascertain what property is attached, and base his action thereon; as to the property not specified in the notice, the title is not divested, and the holder thereof remains liable to the owner.
    The additional levies referred to in section 644 of the Code of Civil Procedure are repetitions of the original levy, to be made upon subsequently discovered property, and such fresh levies can only be made in the manner provided by law for the original levy.
    The payment to a sheriff (who has not made an adequate levy thereon), under a warrant of attachment of a sum of money due from the person paying the same to the defendant in the suit in which the attachment was issued, will not protect the person making such payment; he can only defend himself against his creditor by showing that his debt to his creditor was duly attached.
    A promise made by a debtor to pay, to a creditor of a person to whom the former is indebted, the money so due and owing by him, does not create an estoppel against him, in an action in which an attachment has been issued and a levy has been sought to be made, which will prevent his setting up the insufficiency of the levy.

      Semble, that a garnishee cannot he estopped by admissions made before the attachment is issued.

      Semble, that if a debtor gives a certificate or makes a distinct representation, on or after the service of an attachment, for the express purpose of influencing the sheriff’s action thereunder, to the effect that the property levied upon belonged, or the debt attached was due, to the defendant in the attachment suit, he will be estopped from denying the accuracy of the certificate given or the statement made by him.
    Follett, J., dissenting.
    Appeal by the defendant, The Cosmopolitan Publishing Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of New York on the 5th day of J anuary, 1894, upon the report of a referee.
    The facts are set forth in the dissenting opinion of Follett, J.

      William JO. Findley, for the appellant.

      Ha/rold Swain, for the respondents.
   Barrett, J.:

The plaintiffs’ difficulty in this case is that the particular debt due by the defendant to Brown■ — -to recover which this action was brought — was not attached. The attachment Avas served-on the 14th of July, 1890. At that time there was nothing due by the defendant to Brown for the printing of the August magazine. This latter work was not completed until the 29th of July, 1890, and the defendant’s indebtedness therefor did not accrue to Brown until thirty days after the latter date. This the referee expressly finds. ITe also finds that the defendant has paid to the sheriff all the money in Avliich it Avas indebted to Brown Avhen the attachment of the plaintiff company was served.

The rule Avith respect to the attachment of debts is well stated in the American and English Encyclopaedia of Law (vol. I, p. 896): “ The debt for which an attachment will lie must be an actually subsisting debt, due, or about to become due, by efflux of time. If the liability be merely possible and dependent on a contingency which may never happen, attachment does not lie.”

The rule is similarly stated in Drake on Attachment (6th and 7th eds. § 551): The debt from the garnishee to the defendant, in respect of Avhicli it is sought to charge the former, must moreover be absolutely payable, at present or in future, and not dependent on any contingency. If the contract between the parties be of such a nature that it is uncertain and contingent whether anything will ever be due in virtue of it, it avüI not give rise to such a credit as may be attached; for that cannot properly be called a debt which is not certainly and at all events payable either at the present or some future period.” (See, also, "Wade on Attachments, § 17, and Drake [6th ed.], §§ 24, 25, and Mathot v. North River Bank, 16 N. Y Civ. Proc. Rep. 314.)

The present case is directly within this principle. What was due when the attachment was served has beeu fully paid to the sheriff. Beyond the sum so paid there was nothing then due or certainly to become due to Brown. Whether anything more would thereafter become due to him depended upon a contingency — namely, the doing by him of certain work. The printing of the magazine was a condition precedent to the defendant’s liability. Where property sought to be attached is incapable of manual delivery, the law as to levying is strict. Thus it has beeu held that where the levy is made by service of attachment and notice upon the person against whom the deniaud is made the latter must look solely to the notice to ascertain what property is attached and base his action thereon. (Hayden v. National Bank, 130 N. Y. 146.)

As to property not specified in the notice, the court held that the title was not divested and the holder thereof remained liable to the owner.

In Anthony v. Wood (96 N. Y. 185) it was said by the Court of Appeals that that court had held, “ as to the levy permitted to be made upon dioses in action, that the attachment reached and became a lien upon only such debts as at the time belonged to the debtor by a legal title, and for the recovery of which he could maintain an action at law.”

The learned referee acknowledges the force of the defendant’s position, and he concedes (citing Bills v. Nat. Park Bank, 47 N. Y. Super. Ct. 302) that had another creditor of Brown attached this same debt after the work had been completed and the price earned, such other creditor might well have gained a higher right than that of the plaintiffs. He holds, however, that as no other rights had intervened the defendant could not rely upon the objection.

This latter view cannot well be upheld. If interveners would have superior rights to those of the plaintiffs it could only be because they had attached the debt and the plaintiffs had not.

'There is no such thing as lawfully attaching the debt as to one person and not lawfully attaching it as to another. It was either attached or it was not attached. Here it was not attached because there was nothing to attach (beyond the sum which has since been paid to the sheriff) when the levy was made. The statute made ample provision for the attachment of the particular debt in cjuestion after it became due (Code Civ. Proc. § 644), but the plaintiff did not choose to avail itself of the right given by this section to levy from time to time and as often as necessary ” until its claim was secured. The learned referee is in error in supposing that the commencement of this action rvas equivalent to a now and additional levy after the maturity of the debt. The additional levies referred to in section 644 are repetitions of the original levy upon subsequently-discovered property, and such fresh levies can only be made in the manner provided by law for the original levy. Payment to the sheriff without an adequate levy would not jirotect the defendant. ITe could only defend himself against Brown by showing that the debt was duly attached.

The respondents’ contention, that the estoppel which the referee found against the defendant, with regard to its alleged offset, should also be applied to the maturity of the debt itself, is far fetched and without merit. The statements upon which the estoppel was found had no bearing upon the maturity of the debt, but solely upon the offset; that is, upon an offset which might be made against the debt when it did mature. The estoppel did not hasten the maturity of the debt or affect the legal relations of Brown and the defendant with regard to it.

The defendant could not well estop itself into presently owing money to Brown, which the latter might never earn, by statements made to influence the plaintiff’s conduct with regard to its rights.

This action, it will be observed, is not upon the promise found by the referee in his fifteenth finding of fact, quoted by Mr. Justice Folitett. No such promise is averred in the complaint, nor would the sheriff have been a proper party to an action founded thereon. The present action is strictly statutory. It is brought by the plaintiff in the attachment and the sheriff jointly to reduce to possession what was actually attached. Admit that the defendant, as stated in the sixteenth finding of fact, waived all counterclaims which it then had or might thereafter have as against Brown. The question still is, 'what- was diie to Brown — leaving out all question of counterclaims — at the time when the attachment was served ? The referee says that the defendant’s indebtedness to Brown did not then exceed $1,651.41, and that the latter sum has since been fully paid.

That would seem to dispose at least of this particular action. The defendant did not give the sheriff a certificate acknowledging an indebtedness to Brown of $2.459.90. If such a certificate had been given, there would be some ground for the contention that, if the plaintiff in the attachment relied thereon and failed to attach other property (a fact, however, which does not appear), the garnishee should be estopped from denying its accuracy.

Short of such a certificate or of a distinct representation — made upon or after the service of the attachment and for the express purpose of influencing the sheriff’s action thereunder — to the effect that the property levied upon belonged, or the debt attached was due, to the defendant, there can be no estoppel as against the actual fact. It would indeed be a strange rule whereby garnishees were to be estopped by admissions made to creditors of their creditor prior to the issuance of the attachment. Here the agreement between the plaintiff company and the defendant was made two days before the attachment was issued. Surely no estoppel was created thereby which could operate upon the attachment proceedings which followed. Whatever rights the plaintiff company may have acquired • under the agreement were independent rights, not rights created by estoppel. And such independent rights cannot be impressed upon its status as attaching creditor of Brown. Brown was not a party' to this independent agreement, and the relations between him and the defendant were not altered thereby. The defendant is, in fact, still liable to Brown for every penny which was not lawfully attached.

It was one thing for the plaintiff company to proceed against the defendant upon the promise found by the referee, another to proceed against Brown by attachment. As it chose the latter course it is impossible to hold that the sheriff attached what in point of fact was not due to Brown and what might never become due to him, merely because the garnishee had previously promised such payment to the plaintiff in the attachment.

The referee’s error results from a failure to distinguish between the rights secured to the plaintiff company by the defendant’s promise to it and the rights which it secured under its attachment against Brown.

The attachment was against Brown alone. What the plaintiff company secured thereunder, it secured solely in Brown’s right, not in its own. If, therefore, when the attachment was served Brown had no right of action against the present defendant for the sum here claimed, such sum was clearly not attached.

Now, Brown concededly had then no such right of action; none in his own right; none, certainly, in the right of the plaintiff company. For the promise made to the plaintiff company was, if anything, as Mr. Justice Follett well observes, a new and original undertaking founded upon a valuable consideration moving from such company.

Keeping this clearly in mind, we think it apparent that the particular claim here sued on was not attached. For, as we have seen, Brown had no such claim in his own right, and it certainly was not conferred upon him by a new and independent agreement between other parties.

It follows that the judgment should be reversed and a new trial ordered before another referee, with costs to the appellant to abide the event.

Kan Bednt, P. J., concurred.

Follett, J.

(dissenting):

In 1890 the defendant was the proprietor of the Cosmopolitan, Magazine, which was published monthly, and on the eleventh day of February in that year it entered into a contract with J. Wilson Brown by which it sold to him type for which he agreed to pay $808.43 on the 11th of August, 1890, and by which he also agreed to print and bind several successive monthly issues of said magazine for a price agreed on, the defendant agreeing to pay the amount due for each issue thirty days after it should be delivered by Brown to defendant. The plaintiff leased to' Brown rooms in which he printed the magazine and power with which to operate the presses. The Gardnier Binding and Mailing Company bound the magazine for Brown, and in June, 1890, he was indebted to that corporation in the sum of $1,916.80. In June Brown absconded, and July 3, 1890, the Gardnier Binding and Mailing Company brought an action in the Superior Court against him to recover $1,916.86, and on the same day attached a debt due from the defendant to Brown. At this date the defendant was indebted to Brown in a considerable sum for work previously performed over all counterclaims. On the twelfth of July Brown was indebted to plaintiff for rent of rooms and power. On this date the August number of the magazine was on Brown’s presses. The plaintiff secured from Brown’s books a statement of the accounts between Brown and defendant which showed that defendant was indebted to Brown in the sum of $2,459.90, and presented the statement to defendant. At this time the defendant had the right to eject Brown from the printing office and to refuse to furnish him with power. When the statement was presented to defendant it asserted that it ■ had offsets against the claim of $2,459.90, but agreed that if plaintiff would not dispossess Brown and would furnish power to print the August number of the magazine (then on Brown’s presses), it would not set up any counterclaim against the demand of Brown against it as shown by the statement, and amounting to $2,459.90.

The following are two of the findings in respect to the agreement between the litigants, and they are conclusive oil the facts, as the record contains none of the evidence :

“ XY. That on the 12th day of July, 1891, the defendant promised and agreed with the plaintiff, the Excelsior Steam Power Company, that the defendant would pay the account as presented by Mr. Swain, if said plaintiff would furnish the power and premises so that defendant could get their magazine, which was then on Brown’s presses. That the said plaintiff furnished such power, and the defendant got their magazine.”

“NYI. That on the 12th day of July, 1891, the defendant, with full knowledge of all the facts and circumstances connected therewith, for a valuable consideration, agreed to waive, and did waive, all counterclaims and set-offs against said Brown, which did then exist or which might thereafter exist in its favor by reason of the business dealings and relations theretofore had between the defendant and said J. Wilson Brown.”

July 14, 1890, the plaintiff brought an action in the Supreme Court against Brown to recover its debt, and on that day attached the debt owing by the defendant to Brown, and furnished rooms, and power for the presses, and the August number of defendant’s magazine was printed and delivered July 29, 1890, for which the defendant become indebted to Brown in the further sum of $1,415.96, which became due August 28, 1890.

February 18, 1891, tlie defendant paid to tlie sheriff $1,651.47, which was §808.43 less than §2,459.90. The §1,651.47 was applied on the prior attachment of the Gardnier Binding and Mailing Company, and the defendant refused to pay the $803.43, but asserted its counterclaim for that amount due for type.

This action was brought to recover the §808.43 and arrearages of interest.

The proposition that an attachment becomes a lien only on property or dioses in action in existence when the writ is levied, does not need the support of authority or of argument. A lien by legal process cannot be acquired on nothing. But this proposition does, not seem to me to dispose of this case. On July 12,1890, when the agreement between the litigants was entered into, and on the fourteenth of the same month, when the plaintiff levied its attachment, the defendant was actually indebted to Brown in a considerable sum over and above all counterclaims. This fact is conceded and is established by the findings. An attachable subject existed on which the plaintiff, by its warrant, acquired a legal lien, subject, of course, to the lieu acquired by the prior attachment of the Gardnier Binding and Mailing Company. Had the defendant remained silent, it would have had the right to have asserted whatever counterclaims it had as against the attaching creditors. But it did not remain silent. On the contrary, in the language of the finding, it agreed that it would pay the account as presented (§2,459.90) if the plaintiff would furnish the power and premises so that defendant could get its magazine then on Brown’s presses. Pursuant to defendant’s promise, the plaintiff furnished the premises and the power, and the defendant received its August magazine in time to be issued.

By this contract and the plaintiff’s performance of it the defendant is bound and is estopped from asserting as against the plaintiff' a counterclaim against the. indebtedness as admitted on the twelfth of July. Suppose the plaintiff had found chattels sufficient to j>ay his claim in defendant’s possession, which defendant admitted to be Brown’s property, and the plaintiff had attached them, and, it may be, omitted to take other attachable property, indeed the sheriff would have had no right to take more property than was sufficient, to satisfy the plaintiff’s claim and costs, while in fact the defendant was the owner of part of the chattels seized ; in such a case the defendant would be estopped from proving the truth, that he owned part of the goods. Again, suppose that A. has a claim for $1,000 against B., an absconding debtor, and C. tells A. that he owes B. $1,200, which A. attaches and omits, as he must, to attach other property, C. would be estopped from proving as against A. that, at the time he made the admission, he in. fact owed B. only $500, or nothing. The sujiposed cases are not different in principle from the ■one at bar. In consideration of the plaintiff’s promise to permit the building to be occupied and its power to be used for defendant’s benefit, the latter promised not to set up against Brown’s claim any counterclaim, and the plaintiff having performed and the defendant having reaped the benefit of performance, it cannot now' escape the liability which it assumed. The plaintiff was under no obligation to' furnish power and space so that defendant’s August magazine could be printed in time for delivery, and the contract entered into July twelfth between the litigants was a new and an original undertaking on the part of both, and founded on a valuable consideration.

Note.— Tlie rest of the cases of this term will he found in the next volume (81) Hun.— [Rep.

The judgment should be affirmed, with costs.

Judgment reversed, new trial ordered before another referee to be appointed by the order herein, with costs to appellant to abide event.


source: Caselaw Access Project

license: Public Domain

text:
    Fourth Department,
    July Term, 1894.
    Richard L. Austin, Respondent, v. Fonda Lake Paper Company and Others, Appellants.
   Order affirmed.


text:
    Esther Y. McCarthy, Respondent, v. Eugene McCarthy, Appellant. Esther Y. McCarthy, Respondent, v. Eugene McCarthy and Others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Mary E. Becraft, as Administratrix, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   —Judgment and order affirmed, with costs.


text:
    Ellis H. Roberts & Co., Plaintiff, v. Patrick F. Bulger, Assignee, etc., Respondent; George W. Vietor and Others, Appellants.
   Order so far as appealed from reversed as to the appellants, with ten dollars costs and disbursements, without prejudice to an application by the assignee for an allowance for expenses incurred.


text:
    Harvey Joyce, Appellant, v. The Rome, Watertown and Ogdensburg Railroad Company, Respondent.
   Judgment and order reversed and a new trial ordered, -with costs to abide the event.—

Per Curiam : Under the ruling in Bailey v. Borne, W. & O. R. R. Co. (139 N. Y. 302) the duty rested upon the defendant to cause a proper inspection of the cars before they left Oswego. There was evidence tending to show that the appliances for coupling were defective; that there was an improper play of the drawhead of from one to three inches. Whether this contributed to the injury, and whether it existed when the train left Oswego and might by proper inspection have been discovered and remedied, were questions of fact for the jury. So was the question of contributory negligence. (See Goodrich v. N. Y. C. & H. R. R. R. Co., 116 N. Y. 398, 404; Ellis v. N. Y., L. E. & W. R. R. Co., 95 id. 546.) We think the case should have been submitted to the jury. Judgment and order reversed and new trial ordered, costs to abide the event.

Present — Hardin, P. J., Martin and Merwin, JJ.


text:
    Ira C. Blasier, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment affirmed, with costs.


text:
    Third Department,
    July Term, 1894.
    Frank H. Pettee v. Mary H. Pettee.
   Motion for leave to go to the Court of Appeals denied, with ten dollars costs. No opinion.


text:
    The Ludlow Valve Manufacturing Company, Appellant, v. The New York City District Water Supply Company and Moses Crow, Respondents.
   Order affirmed, with ten dollars costs and printing and other disbursements. No opinion.


author: Mayham, P. J.:

text:
    Arthur R. Peck, Appellant, v. Johanna Dieterich and Another, as Executors, etc., Respondents.
   Judgment affirmed, with costs.—

Mayham, P. J.:

While the order for the cash register, signed by the defendant, referred to a sample machine exhibited to him at the time of signing the same, it also contained a provision that the register was to be’delivered in good working condition. There was evidence before the jury from which they cbuld reasonably And that that provision of the order was not complied with. The jury having reached that conclusion by their verdict, we think the County Court was right in affirming the judgment entered upon this verdict, within section 3063 of the Code of Civil Procedure. Judgment affirmed, with costs.

Putnam and Herrick, JJ., concurred.


author: Herrick, J.:

text:
    M. Francis Wager, Respondent, v. Thomas B. Link and Others, Appellants.
   Judgment affirmed, with costs.—

Herrick, J.:

The decision of the Court of Appeals (134 N. Y. 126) upon the former appeal in this action, it seems to me, disposes of all there is in this case. The case is the same in all essential particulars now as it was when it was before the court before. The judgment should be affirmed.

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


text:
    Stephen Smith, as Executor, and Kathleen Ryder, as Executrix of the Last Will and Testament of Erastus D. Culver, Deceased, Appellants, v. The Town of Greenwich, Respondent.
    (No. 2.)
   Judgment affirmed, with costs.


text:
    John T. Williams, Respondent, v. Calvin Dater, Appellant,
   Judgment affirmed, with costs. No opinion.


text:
    In the Matter of the Voluntary Dissolution of the National Electric Manufacturing and Construction Company of New York.
   Order affirmed, with ten dollars costs and printing aud other disbursements. No opinion.


text:
    Herbert Waring, Appellant, v. The President, Managers and Company of the Delaware and Hudson Canal Company, Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    Hiram Tompkins, Respondent, v. Cornelius Sheehan, Appellant.
   Reargument ordered. No opinion.


text:
    Catherine A. Garlock, Respondent, v. Valentine O. Garlock, Appellant.
   Order affirmed, with ten dollars coste and printing and other disbursements.—

Mayham, P. J.:

On a careful examination of the record on this motion, we can find no legal ground for reversal of the order made at the Special Term, from which this appeal is taken. Order affirmed, with ten dollars costs and printing disbursements.

Putnam and Herrick, JJ., concurred.


text:
    In the Matter of Proving the Last Will, etc., of William O’Brien and the Judicial Settlement of the Accounts of Thomas O’Brien and Others, as Executors, etc.
   Decree affirmed, without costs. No opinion.


text:
    Philemon Heath, as Administrator, Appellant, v. The Agalite Fibre Company, Respondent.
   Judgment affirmed, with costs. ‘No opinion.


text:
    Susan B. Jones, Respondent, v. Industrial Benefit Association, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    In the Matter of the Application for an Order Directing Isaac Le Roy to Deliver Books, etc.
   Order affirmed, with ten dollars costs and printing and other disbursements. Herrick, J., not acting. No opinion.


text:
    Otis A. Teft, Appellant, v. John Donnelly, Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    Warren Dake, Appellant, v. Prescott Hall Butler, Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    Mary C. Harris, Plaintiff, v. James H. Kenyon and Ellen M. Kenyon, Defendants.
   Order affirmed, with ten dollars costs and printing and other disbursements. No opinion.


text:
    Durward E. Burchell, Respondent, v. James E. Green 2d, and Others, Appellants.
   Judgment affirmed, with costs. No opinion.


text:
    John Kiernan, Respondent, v. The Dutchess County Mutual Insurance Company, Appellant.
   Judgment affirmed, with costs.—

Herrick, J.:

The most serious question raised upon this appeal 'is upon the admissibility of a chattel mortgage in evidence. It is contended that the mortgage is a forfeiture of the policy, either entirely or in part. It seems to me that the forfeiture was waived by the acts of the defendant. Right after the fire the president of the company visited the scene of the fire and inspected the ruins, conversed with the plaintiff, and it was after that that the plaintiff with the defendant’s agent made an arrangement for an appraisal, and an appraisal was made. Proofs of loss were also subsequently put in and accepted by the defendant. It seems to me that these acts constitute a waiver. (Brink v. Hanover Fire Ins. Co., 80 N. Y. 108; Titus v. Glens Falls Ins. Co., 81 id. 410; Roby v. A. C. Ins. Co., 120 id. 510; Trippe v. P. F. Society, 140 id. 23.) The effect of the chattel mortage as a forfeiture having been waived, the efendant was not injured by the court not receiving it in evidence. I see no occasion for an opinion. The judgment should be affirmed, with costs.

Blayham, P. J., and Putnam, J., concurred.


text:
    John S. Cronin v. Johanna C. Crooks.
   Order amended by adding at the end thereof, after the words “printing disbursements,” the following: “Upon the ground that the provisions of section G31 of the Code of Civil Procedure are mandatory, and that no ground was stated in said warrant of attachment for the granting of the same, for the reason that the statement in the alternative stated neither one fact or the other, and for that reason the order should be affirmed.” • No opinion.

Herrick, J., not acting.


text:
    Maria Ives v. The Metropolitan Life Insurance Company.
   Motion for leave to go to the

Court of Appeals granted. No opinion.


author: Per Curiam.

text:
    Solomon Fleischman and Others, Respondents, v. Gertrude Fleischman and Others, Appellants.
   Order modified by striking out the provision therein giving the plaintiffs costs against the defendants, and by inserting a provision requiring the plaintiffs to pay defendants costs up to the time of the discontinuance. and with ten dollars costs of this appeal, together with the printing and other disbursements. Opinion

Per Curiam.

Not published by direction of the court.


text:
    Second Department,
    Judy Term, 1894.
    The People of the State of New York ex rel. John Koch v. The Board of Excise of Town of North Castle.
   Order affirmed. No opinion.

Djdcman, J., not- sitting.


author: Dykman, J.:

text:
    Keturah Willdigg, as Administratrix, etc., of William Willdigg, Deceased, Respondent, v. The City of Brooklyn, Appellant, Impleaded with Another.
   Judgment and order affirmed, with costs.—

Dykman, J.:

While this is a border case, it is yet one in which different minds would reach diverse conclusions. The facts proven leave the case in some obscurity, but the legitimate inferences which a jury would be permitted to draw from the established facts are sufficient to sustain the verdict. The defendant Leucke, being the owner of premises fronting on Broadway in the city of Brooklyn, being desirous of improving the same, procured permission from the city of Brooklyn to make an excavation under the sidewalk in front of his lot for the purpose of constructing a vault. After the issuance of the permit, Leucke re- • moved the sidewalk, made an excavation and erected over it a temporary bridge about three feet above tlic surface and covering the entire width thereof. The bridge was completed on the 18th day of September, 1892. There was testimony which tended to show that the floor of the bridge was loose in some places, and sprung under the feet of passengers ; that there was no diagonal railing down the steps from the horizontal railing to the sidewalk, and that the railing on the sides was not strong. At the end of the platform where the deceased was found there was a step from the sidewalk composed of two large blocks about eight or ten inches high, and then there was a step about twenty inches high to the toil of the platform. One witness said that there was a space of two inches between the ends of the board and the upper step and that those boards which ran lengthwise of the bridge gave under the weight of a person passing over them. The deceased man was about sixty-five years of age, healthy* sober and industrious. On the night of September 24,1892, he left Beck’s saloon a little after twelve o’clock at night, and was found about twelve-twenty or thirty at the end of the bridge nearest his home and furthest from Beck’s. His body was lying parallel with the sidewalk, with his feet about eighteen inches from the foot of the platform and his head under some flagstones which had been piled up on the sidewalk a short distance from the platform. His skull was crushed and he was unconscious and remained so until he died, a few days thereafter. The hand rail on the outer or street side of the platform was broken, and a brace from the top of that rail to a cross plank was loose. This action is brought by the administratrix of the deceased against the city and Leucke, and the plaintiff liada verdict against both, and the defendant, the city of Brooklyn, has appealed from the judgment entered thereon. The duties and obligations of the landowner and of the city were plainly and correctly stated to the jury by the trial judge. The position of the deceased man when he was found is significant of much. He was at the end of the bridge nearest his home and furthest from Beck’s saloon. From this, in connection with other estabfished facts, it may be assumed that he was on his way home. His feet were within eighteen inches of the first step, his head was driven under some flagstones and his skull was fractured. From that it may be inferred that he fell with great force from an elevated position, presumably from the bridge. Hence it may be inferred that he was crossing the bridge on his way home. If there was a space of two inches between the ends of the floor boards and the timber which constituted the upper step, and those boards sunk under the feet of persons crossing, it is easily seen that the fall of the deceased may have been caused in that way. Further, if the hand rail gave way and was broken, it may well be that the deceased man caught hold of the same when he stumbled; to save himself from a fall. All these circumstances, in connection with the testimony of the witness, have an important bearing both upon the question ot the negligence of the defendants as well as the freedom therefrom of the deceased. In relation to the negligence of the city the case is reasonably plain. It had both actual and constructive notice of the defective condition of the bridge. The exceptions in the case present no errors and the judgment and order denying the motion for a new trial should be affirmed, with costs.

Cullen, J., concurred; Brown, P. J., not sitting.


text:
    Isaac O. Woodruff and Others, Executors,etc., of Edwin G. Traleigh, Deceased, Respondents, v. Alfred T. Ackert, Appellant, Impleaded with Others.
   Judgment affirmed, with costs.—

Dykman, J.:

This is an action to foreclose a mortgage and the defense was a counterclaim for professional services by the defendant, who is a lawyer, for the testator of the plaintiffs. The defense was disallowed by the trial judge, and the defendant has appealed from the judgment entered against him. The amount of the claim now made by the defendant is much more than sufficient to extinguish the mortgage which was made to secure the payment of 81,500. Moreover, according to the present position of the defendant, the testator of the plaintiffs owed him 81,500 and more, of which he could have demanded payment at the time when he borrowed the money, but that, instead of doing so, he applied for a loan for that amount and executed a mortgage upon his property to secure its payment. Such a transaction is so inconsistent with the methods of men of affairs, accustomed to the transaction of business, that it surpasses belief. It is inconceivable that this defendant, who was a lawyer, would apply to the plaintiffs’ testator for the favor of a loan of $1,500 when he could have demanded it as a payment as a matter of right. The first charge of the deferidant is under date of March, 1869, and the testator of the plaintiffs died in December, 1892, more than twenty-three years after the first date. So that the defendant allowed the Statute of Limitation to run twice over against some Í)ortion of his claim without any effort to colect the same. All the facts and circumstances of the case tend to confirm the conclusion of the trial judge that the services of the defendant were rendered without the expectation of pecuniary reward. The judgment should be affirmed, with costs.

Brown, P. J., and Cullen, J., concurred.


text:
    Susan W. Hopkins and Others, Respondents, v. Sheldon L. Kent and Another, Respondents; Walter L. Kent, Appellant.
   Judgment affirmed on opinion of Special Term, costs to all parties to be paid out of the estate.

Cullen, J., not sitting.


text:
    Brooklyn Trust Company, Respondent, v. Mary A. Wood, Appellant.
   Judgment affirmed, with costs. No opinion.

All concur.


text:
    Tucker Electrical Construction Company, Respondent, v. Thomas Dobbins, Appellant.
   Judgment and order affirmed, with costs. No opinion.

Cullen, J., not sitting.


author: Brown, P. J.:

text:
    David Zeiley, Respondent, v. George Palisser, Appellant.
   Order affirmed, with costs, unless appellant stipulates within twenty days to reduce the damages to 81,500, and for judgment against him for 8500, in which case the order will be reversed, without costs and judgment directed in favor of plaintiff for 8500.—

Brown, P. J.:

This action was to recover upon a promissory note of 82,000 given in payment of the purchase price of stock in the Gilbert Hardware Company. The answer was a counterclaim for damages arising from misrepresentation concerning the property owned by the company. The jury having rendered a verdict for defendant and thus assessed the damages at a sum equal to the amount of the note, the court set the verdict aside on the ground “ that the evidence affords no basis for ascertaining the damages sustained by reason that the goods manufactured by the company were not covered by any patents.” The representation which induced the purchase of the stock by the defendant and which the jury found was false was that the corporation owned and controlled patents under which it manufactured its goods. Two thousand dollars had been expended on machinery by the company and this constituted substantially all the property it had. After defendant ascertained that the corporation had no patents upon the goods it manufactured, he loaned it 81,100, and took a mortgage upon its machinery, and when the business failed the mortgage was foreclosed and defendant purchased, the property. He testified that he still owned it and that it was not worth to exceed 8500. This sum fairly represented the value of his stock, and the jury would have been warranted in assessing the damages at the difference between that sum and the amount of the note, but not at any greater sum. If the appellant stipulates within twenty days to reduce the damages to the sum of 81,500, and for judgment against him for 8500, the order will be reversed, without costs, but upon failure to file such stipulation it must be affirmed, with costs to-abide the event

Dykman and Cullen, JJ., concurred.


text:
    The People of the State of New York ex rel. Edward Hazlett v. Alfred T. White, Commissioner.
   Order affirmed, with costs.—

Brown, P. J.:

I advise an affirmance of the order in this case without an opinion. Relator was charged with gross carelessness in changing the reading of the water meter of the Citizens’ Electric Illuminating Company in July, 1891, and in recommending the reduction of the reading. The readings from the meter appear at tolio 60 of the appeal bock. There is no evidence that there was anything the matter with the hand of the meter which registered hundred thousands. Without apparently any justification relator recommended a reduction of the reading of March twelfth to 542,157 feet. This was far below the register for January nineteenth. There was no complaint that the reading of December and January were wrong, and unless theywere, the reading of March twelfth was about right. Relator made no examination of the matter until May, and in July reduced the reading of March 1,000,000 feet. His action is somewhat remarkable, and although he had been in the city’s employ many years and bore an excellent character, the respondent had power to remove him, the facts justified it and I do not think the court ought to reverse his decision. There is no question of law in the case and nothing calling for an opinion. Dykman and Cullen, JJ., concurred.


text:
    Anthony Klemmas, Administrator, etc., v. The New York Central and Hudson River Railroad Company.
   Motion for reargument denied. No opinion.


text:
    The People of the State of New York ex rel. Peter Binpo v. John Hoag, County Treasurer.
   Order affirmed. No opinion.

Dykman, JM not sitting.


text:
    The People of the State of New York ex rel. Jeremiah J. Cronin, Appellant, v. William J. Buttling, Sheriff, Respondent.
   Order affirmed on the opinion of Justice Cullen in the case of People v. Jeremiah J. Cronin.

Brown, P. J., not sitting.


text:
    The People of the State of New York ex rel. John J. McIntyre, Appellant, v. William J. Buttling, Sheriff, Respondent.
   Order affirmed on the opinion of Justice Cullen in the case of People v. Jeremiah J. Cronin.

Brown, P. J., not sitting.


text:
    Fourth Department,
    September Term, 1894.
    Emma F. M. Ayres v. The Delaware, Lackawanna and Western Railway Company.
   Motion denied.


text:
    The People of the State of New York, Respondent, v. Henry Brockett, Appellant.
   Plaintiff allowed twenty days m which to make a case and serve upon the district attorney, and the district attorney allowed ten days in which to propose amendments. If case is not so made •and served, conviction and judgment of the Herkimer Sessions affirmed.


text:
    Mary A. Dowd, Appellant, v. Dudley B. Smith, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York ex rel. David Aldridge, as Superintendent of the Poor of Oneida county, Appellant, v. John P. Hughes, Respondent.
   Order affirmed.


text:
    Mary E. Beckwith, as Administratrix, etc., Appellant, v. New York, Ontario and Western Railroad Company, Respondent.
   Judgment and order reversed and a new trial ordered, with costs to abide the event. Held, that whether the intestate was free from contributory negligence and whether defendant was guilty of negligence were questions of fact which should have been submitted to the jury.


text:
    In the Matter of the Accounting of Clarence M. Bates, as Executor of Uriah Baxter, Deceased, Appellant, v. Maria M. Bailey, Respondent.
   Decree of the Surrogate’s Court so far as appealed from affirmed, without costs to eitherparty oí the appeal.


text:
    The People of the State of New York ex rel. Le Roy Maxon, Appellant, v. John C. Schrieber, as Sheriff of Oneida county, Respondent.
   Order affirmed. (See Code Civ. Proc. § 2010; The People v. Cavanah, 2 Park. Cr. Rep. 650; 9 Am. & Eng. Ency. of Law, 228.)


text:
    Charles Hargin, Appellant, v. Delos Haring, Respondent.
   Order reversed, with costs to the appellant to abide the event, and motion for a new trial granted.


text:
    John D. W. Darling, Respondent, v. William Waterson, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


text:
    James P. Hart, Respondent, v. Montrose B. Buck, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Elvira B. Gates and Others, Respondents, v. Samuel E. Welch and Others, Appellants.
   Interlocutory judgment affirmed, with costs, and leave granted to appellants to withdraw their demurrers and answer upon payment of the costs of the demurrers, and one bill of costs on appeal.


text:
    Jesse Reed, Respondent, v. Norman Petrie, Appellant.
   Judgment and order affirmed, with costs.


text:
    Wilson H. Gardenier, Appellant, v. Amos Allport and Others, Respondents.
   Decision and interlocutory judgment affirmed, with costs.


text:
    Wilson H. Gardenier, Appellant, v. Charles N. Bulger, Impleaded, etc., Respondent.
   Decision and interlocutory judgment affirmed, ■with costs.


author: Per Curiam:

text:
    Clarence W. Wood, Respondent, v. Sidney Sash, Blind and Furniture Company, Appellant.
   Order reversed, with ten dollars costs and disbursements, motions denied, with ten dollars costs.—

Per Curiam:

Without passing upon the questions raised by the demurrers herein, we are of the opinion that they were not so clearly without foundation as to justify the Special Term iu holding them frivolous. (Cook v. Warren, 88 N. Y. 37.)


text:
    In the Matter of the Final Accounting of John Clover, Assignee, etc., of Miller & Allen; Charles H. Zimmerman, as Receiver, Appellant, v. Charles A. Miller, Respondent.
   So much of the decree as is appealed from affirmed, without costs to either party. Merwin, J., not voting. Held, that no exception is presented by the appeal book which would justify a reversal.


text:
    Mary Haight, Respondent, v. John H. Townsend, as Administrator, etc., Appellant.
   Judgment reversed, and a new trial ordered, with costs to abide the event, unless the plaintiff shall stipulate to reduce the judgment as to damages to the sum of $393, and interest thereon from November 23, 1892, in which event the judgment, as so modified, is affirmed, without costs of the appeal to either party.


text:
    Harry A. Knowlton, Respondent, v. Elizabeth Knowlton, Appellant.
   Judgment affirmed, without costs to either party.


text:
    In the Matter of William Morris, an alleged Lunatic; Elizabeth H. Morris, Respondent, v. William Morris and Gabriella Miller, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the application of the Soldiers’ Home for Money Deposited with the State Treasurer; The People of the State of New York, Appellant, v. The Soldiers’ Home of Washington, D. C., Respondent.
   Order reversed and motion denied. Held, that the act of Congress should not be construed to apply to money which had been actually paid over to the soldier.


text:
    The Tioga National Bank, Respondent, v. Charles Davis, as Receiver of the Elmira National Bank, Appellant.
   Judgment affirmed, with costs.


text:
    In the Matter of the Application of the New York Central and Hudson River Railroad Company, Respondent, v. Harry S. Patten, an Attorney and Counselor at Law, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Jesse W. Amey, Respondent, v. The Knights of Sobriety, Fidelity and Integrity, Appellants.
   Judgment and order affirmed, with, costs.


text:
    Patrick Hickey, Respondent, v. Oswego Street Railway Company, Appellant.
   Judgment' and oraer reversed and a new trial ordered, with costs to abide the event. Held, (1) it was error to receive proof of injury to Cooper and payment of moneys to him. (2) To receive proof of discharge of motorman or that in effect. (3) It was error to refuse to charge the fifth request.


text:
    Peter J. West, Respondent, v. Peter Buttner, Appellant.
   Judgment affirmed, with costs, (See 77 Hun, 337; 134 N. Y. 47; 137 id. 377.)


text:
    Melvin Silkworth, Appellant, v. Edwin A. Simonds, Respondent.
   Judgment affirmed, with costs.


text:
    Carrie M. Kellogg, as Administratrix, etc., Respondent, v. Industrial Benefit Association, Appellant.
   Judgment and order reversed and a new trial ordered, with costs to abide the event, unless the plaintiff stipulates to reduce the recovery of damages to $111.15, in which event the judgment as so modified, is affirmed, without costs of the appeal to either party.


text:
    James E. Green, Respondent, v. William E. Smith and Another, Appellants.
   Interlocutory judgment affirmed, with costs, with leave to defendants to answer upon payment of the costs of the demurrer and of this appeal.


text:
    Charles Hoard, Respondent, v. Abraham Picard, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Third Department,
    September Term, 1894.
    The People of the State of New York ex rel. John I. Platt and Another, Respondent, v. Frank Rice and Others, Appellants.
   Order affirmed, without costs. No opinion.


text:
    In the Matter of the Petition of Marcus T. Hun and Others.
   Order affirmed, with ten dollars ' costs and printing and other disbursements. No opinion.


text:
    Albert Spencer v. Chauncey Kilmer.
   Judgment affirmed, with costs. No opinion.


text:
    Helen Matthews, Appellant, v. Horace Matthews, Respondent.
   Judgment reversed, a new trial ordered, costs to abide the event. Per Curiam: The former judgment obtained in this action by the plaintiff was reversed by the Court of Appeals (133 N. Y. 679), on the ground that the complaint did not set forth an equitable cause of action, and the evidence produced on the trial did not show that the plaintiff should be awarded a judgment for a specific performance. That court held that the cause of action alleged in the complaint was a legal one, not for a specific performance, and hence the allowance to the plaintiff of the value of the property agreed to be conveyed by the defendant as damages, was erroneous. But in the opinion of Judge Finch, he states that the' plaintiff was entitled to recover the value of her services when the defendant asserted the invalidity of the parol contract, and, possibly in her own right, and as assignee of her husband, she might be entitled to recover other damages. On the last trial the court below decided that plaintiff could not recover for her services, because of the want of appropriate allegations in the complaint. While it is true that, unless the complaint shall be amended, the plaintiff cannot recover the greater part of the damages she may be entitled to, yet, we think, that under the allegations set forth therein, she was entitled to a judgment for a small sum for her services and the services of her husband. The first cause of action in the complaint states the facte of the transaction between the plaintiff, her husband and -defendant, and alleges “that after talcing possession of said real estate, and while m the occupation thereof as hereinbefore stated, this plaintiff and the said Henry Matthews made valuable and permanent improvements upon the same to their cost and expense of $100.” At the end of the complaint the plaintiff demands judgment against the defendant for the sum of $2,500. We are unable to see why, under the allegations so contained in the first count of the complaint, plaintiff was not entitled to recover for the improvements put on the defendant’s place by her and her husband while in occupation thereof under the parol contract. There was evidence showing the amount of labor performed by plaintiff and her husband in making said improvements, and the value thereof, which does not appear to have been contradicted. The allegations in the complaint, we think, sufficient to allow plaintiff to recover for the value of the labor in making improvements as proved on the trial, or at least, plaintiff was entitled to a finding of the trial judge in that regard. The evidence also seems to show the conversion by defendant of certain crops belonging to the plaintiff as alleged in the third cause of action stated in the complaint. We think, therefore, that the learned trial judge inadvertently overlooked the fact that, under the pleadings and evidence given on the trial, plaintiff was entitled to recover a small sum for services, in making repairs which were set forth in the complaint, and for crops converted by the defendant, and that, hence, the judgment should be reversed, and a new trial granted. The Court of Appeals having held that the cause of action set out in the complaint is not equitable, or one for a specific performance, and that the facte proved did not entitle plaintiff to that relief, she should be entitled to recover the value of services and board of defendant, and for labor performed and expenses incurred in pursuance of the verbal contract, less the value of the use of the premises. (Stanton v. Miller, 14 Hun, 383; 79 N. Y. 620.) Under the allegations contained in the complaint, however, unless amended, plaintiff will probably be unable to recover the greater part of such damages as she may actually have sustained, but, as above suggested, we think she was, under the pleadings and proofs, entitled to recover a small sum, the value of services in making permanent improvements and of crops converted by defendant. Judgment reversed and a new trial granted, costs to abide the event.

Present — Mayham, P. J., Putnam and Herrick, JJ.


text:
    The People of the State of New York ex rel. Ferdinand W. Chase v. Edward Wemple, as Comptroller.
   Order of Comptroller affirmed, writ of certiorari quashed, with fifty dollars costs and disbursements.—

Mayham, P. J.:

In the case of The People ex rel. Ferdinand W. Chase v. Edward Wemple, late omptroller, and Frank Campbell, Comptroller, relating to the order of the Comptroller allowing a redemption of this tax on the land in question, we had occasion to examine the validity of the action of the Comptroller in allowing such redemption, and reached a conclusion sustaining the order of the Comptroller. So long as that decision remains unreversed, we see no ground upon which to reverse the decision of the Comptroller, refusing to vacate his order allowing a redemption in this ease. If his original order allowing a redemption was correct, it follows that his refusal to vacate it was not error. Certiorari quashed, with fifty dollars costs and disbursements.


text:
    John Albert v. The New York Central and Hudson River Railroad Company.
   Motion to amend order granted. No opinion.


text:
    Edward Palmer v. New York and Lake Champlain Transportation Company and Others.
   Motion to resettle order denied, with ten dollars costs. No opinion.


text:
    August Schmidt v. John Brown and Others.
   Motion for reargument denied, with ten dollars coste. No opinion.


text:
    Susie Sheldon v. Cornelia Mott.
   Motion to dismiss appeal denied, with ten dollars costs. No opinion.


text:
    Charles A. C. Beller v. Sarah J. Antisdel.
   Motion to dismiss appeal denied, without costs, with leave to appellant to serve notice of appeal upon other parties upon payment of ten dollars costs within twenty days after service of this order. No opinion.


text:
    The People of the State of New York v. George Van Dyke and Others.
   Motion to dismiss appeal granted, without costs. No opinion.


text:
    Annie Rutherford v. Town of Madrid.
   Order reversed, with ten dollars costs and printing and other disbursements, and motion denied, with ten dollars costs.—

Per Curiam:

This case has heretofore been before this General Term (77 Hun, 545), and we do not perceive that it now presents any different aspect from what it did then. The principles then enunciated as to the discretion to be exercised by courts in determining motions of this character, were carefully considered, and the rules then laid down were not merely the dicta of the judge writing the opinion, but were the utterances of the General Term, and they are the rules to govern the hearing and determining of such motions in this department, until reversed or modified by the General Term thereof, or by the Court of Appeals. They are not cast iron rules, but, like other general rules, subject to possible exceptions. The ease before us is not one of those exceptional cases which is exempted from the general rule, but seems to be one to which the general rules are peculiarly applicable. Tne order appealed from is reversed with ten dollars costs and printing and other disbursements, and the motion denied, with ten dollars costs.

Present — Mayham, P. J., Putnam and Herrick, JJ.


text:
    Peter A. Delaney v. Charles Miller, Jr.
   Motion for reargument granted. No opinion.


text:
    Aaron R. Stevens and Andrew A. Douglas v. The Union Trust Company of New York and Others.
   Judgment affirmed, with costs.— Decided with Harrison v. Union Trust Company. See ante, page 465.


author: YaN BeuNT, P. J.:

text:
    Martha Morris, Respondent, v. The Strobel & Wilken Company, Appellant.

      Oa/re in the erection and maintenance of structures — a trawler along a city street' injured ly the dropping of a sign — manner of erection of signs.

    A traveler passing along a public street is entitled to immunity from sucli injury as may be caused by tbe dropping of a street sign attached to a building erected upon the same, and if such person be injured by the falling of such a sign, it becomes the duty of the owner thereof, in an action brought against him to recover damages for the injuries sustained, to show that he used reasonable care in its construction and maintenance, and that the accident happened without any fault or negligence upon his part; the absence of that care may fairly be presumed from the fact that the defect existed from which the accident arose.
    In the erection and maintenance of signs upon buildings fronting upon the streets of a city, the owner thereof is bound to secure the same, so that they will not only be able to withstand the ordinary known vicissitudes of the weather, but will also be able to sustain the force of gales which experience has shown will be liable to occur.
    Appeal by tbe defendant, Tbe Strobel & "Wilken Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in tbe office of tbe clerk of the county of New York on tbe 24th day of November, 1893, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 29th day of November, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      1T. A. Thomson, for the appellant.

      Leonard J. La/ngToeim, for the respondent.
   YaN BeuNT, P. J.:

This action was brought to recover damages sustained by the plaintiff by being struck by a sign which had been attached to the defendant’s building and which fell and struck the plaintiff. There was no question but that the sign belonged to the defendant, had been put up by it in front of its building and that it fell on the day in question, and the jury found that it struck the plaintiff and that she was severely injured thereby. The court held, upon the trial, that the plaintiff had made out a case to go to the jury without showing affirmatively that the sign in question had been defectively constructed, and that the fact of its having been constructed by the defendant and attached to its building, and that it fell in the public street without any apparent reason for so doing, called upon the defendant to show that it was without fault.

It is urged upon the part of the defendant, however, that the learned court erred in the rule in respect to negligence, in that the case at bar was not one in which the maxim res ipsa loquitur was applicable, and that the rule has been established that this maxim does not apply except where contractual relations existed between the parties. It is-undoubtedly true that expressions may be found in opinions to support the contention of the appellant, but an examination of the adjudications upon the subject shows that it is not a f correct statement of the law. A leading case upon this subject is that of Kearney v. London, etc., R. R. Co. (L. R. [5 Q. B.] 411); S. C. in the Exchequer Chamber (L. R. [6 Q. B.] 759). The facts were that the plaintiff was passing on a highway under a railway bridge, when a brick fell and injured him on the shoulder. A train had passed over the bridge shortly before the accident. The bridge had been built three years, and was an iron girder bridge resting on iron piers on one side, and on a perpendicular brick wall with pilasters on tbe other, and the brick fell from the top of one of the pilasters, where one of the girders rested on it. A motion was made for a nonsuit on the ground that'there was no evidence of negligence to leave to a jury. The Court of Queen’s Bench, by a divided vote, held that this was a case to which the maxim res ipsa loquitur was applicable, or, in other words, that there was prima facie evidence of negligence. The principle stated was that whenever it is a defendant’s duty to use reasonable care to keep a bridge, or other structure or premises, in a proper condition as respects persons passing along the highway, and these are out of condition and an accident happens, it is incumbent upon him to show that he used that reasonable care and diligence which he was bound to use; and that the absence of that care may fairly be presumed from the fact that there was the defect from which the accident liad arisen. This principle was unanimously affirmed in the Court of Exchequer Chamber.

In Byrne v. Boadle (2 Hurl. & Colt. 722) the facts were that an injury was caused by the falling of a barrel into a highway from the window of a shop. In discussing the question of the proprietor’s liability PormocK, C. B., said: “ There are many accidents from which no presumption of negligence can arise; but I think it would be wrong to lay down as a rule that in no case can presumption of negligence arise from the fact of an accident. Suppose in this case the barrel had rolled out of the warehouse and fallen on the plaintiff, how could he possibly ascertain from what cause it occurred % It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima, facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence, seems to me preposterous. So, in the building or repairing a house, * * * if a person passing along the road is injured by something falling upon him, I think the accident alone would b prima facie evidence of negligence.”

In Mullen v. St. John (57 N. Y. 567) various other cases are cited in addition to these, illustrating the same rule. Therefore, when tbe plaintiff was passing along tlie public street she was entitled to immunity from injury by the dropping of appendages to buildings erected along the same, and when she was injured by the fall of such an appendage it became the duty of the owner of that appendage to show that he used reasonable care in its construction and maintenance, and that the accident happened without any fault or negligence upon his part.

In the case at bar an attempt was made to show that this accident occurred by reason of a high wind which was prevailing at the time, and that it was, therefore, to be considered as an act of God for which the defendant could not be held responsible. The evidence in the case showed that at the time of the happening of the accident the wind was blowing at the rate of about nineteen miles an hour, and that it increased subsequently to twenty-five miles an hour, and three or four hours later to thirty-one miles an hour. It further appears that a wind of nineteen miles an hour is not an unprecedented one in this city, but one which frequently occurs, although the average rate of wind during the summer months is from eight to nine miles an hour, and during the winter months from eleven to twelve miles an hour. It appeared further that a wind from twenty-five miles an hour up is known as a high wind.

The evidence shows beyond question that there was no extraordinary stress of weather, and that the falling of the sign was not to be attributed to any such cause. In the erection and maintenance of these appendages the defendant was bound to secure the same so that they would not only be equal to the ordinary known vicissitudes of the weather, but would be able to withstand the force of gales which experience has shown to be liable to occur. The defendant in this action has wholly failed to meet these requirements. It has shown how this sign was attached to its building and the manner in which it was secured ; but we are left in utter ignorance as to whether it was constructed in a manner proper for the use to which it was put, as no evidence was offered upon this point, and it is apparent from the fact that it fell- in a- moderate wind that it was insufficient for the use for which it was constructed.

It is also claimed upon the part of the defendant that the damages were excessive. Without discussing at length this proposition, we do not see upon an examination of the evidence that we can interfere with, the verdict of the jury upon this ground. Judgment and order appealed from should be affirmed, with, costs.

Rabeett, J., concurred; Paeeee, J., dissented.

Judgment and order affirmed, with costs.


author: PARKER, J.:

text:
    Max Danziger, Respondent, v. The Metropolitan Elevated Railway Company and Another, Appellants.

      Trial of equity suits — the verdict of a jmy only advisory — order directing the submission of special facts to the jury — binding although erroneously granted — a verdict thereon cannot be disregarded — waiver of the right to a trial by the cowrt.

    It is the rule in the trial of equity suits, where questions of fact are submitted to a jury, to follow the findings of the jury or not, as the conscience of the court may prompt, the verdict being treated as advisory.
    Where a court of general jurisdiction in law and equity, having jurisdiction of the parties to an action and of the subject-matter thereof, erroneously makes an order directing the submission to a jury of special questions of fact in a case not authorized by section 970 of the Code of Civil Procedure, such order is not wholly void.
    The court having determined that such order was proper and having made the same, the order becomes binding on both the parties to the action, and continues binding upon them until vacated or set aside, and a party who proceeds with the trial of the action without protest or objection assents to the binding force of such order.
    The right of the plaintijf in an action to have the court at Special Term, instead of a jury, pass upon the questions of fact involved in the action, whether constitutional, statutory or otherwise, can be waived by him.
    The verdict rendered by a jury upon specific questions of fact, submitted to it in an action brought to recover damages, is conclusive until set aside, and upon the trial at Special Term of the action in which such verdict was rendered the court may not treat the verdict as simply advisory, and disregard the same.
    Appeal by tlie defendants, Tlie Metropolitan Elevated Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on tlie 29th day of January, 1894, upon the decision of tlie court, rendered after a trial at tlie New York Special Term, awarding the plaintiff an injunction restraining the defendants from maintaining their elevated railway structure in front of the plaintiff’s premises, unless the defendants pay $10,000 for future damages to the plaintiff’s premises, and awarding the plaintiff $4,000 damages for past damages to said premises, with notice of an intention to bring up for review on such appeal an order made at the New York Special Term and entered in said clerk’s office on the 29th day of January, 1894, amending and resettling the judgment of November 9,1893.

      Julien T. Da/oies and Brai/nerd Tolies, for the appellants.

      Louis Banders, for the respondent.
   PARKER, J.:

Section 910 of the Code of Civil Procedure, providing for a tidal by jury in a case where a party as a matter of right is entitled to ' an order stating specific questions of fact for trial by jury, and providing that the findings of the jury upon each question so stated is conclusive in the action unless the verdict is set aside or a new trial is granted, was, by chapter .208 of .the Laws of 1891, amended by adding at the end thereof the following:

“ Where one or more questions arise on the pleadings as to the value of property or as to the damages which a party may be entitled to recover, either party may apply upon notice, at any time, to the court for an order directing all such issues or questions to be distinctly and plainly stated for,trial accordingly (by jury).”

It was thereafter held by the local courts in a number of cases that it was the right of the defendants in suits similar in character to this to have questions relating to the value of the property and to the amount of damages determined by a jury. The motion made by the defendants in this suit resulted in an order made November 18, 1891, stating two questions for trial by jury.

The order read in part as follows:

“ It appearing to the satisfaction of the court that certain questions arise on the pleadings as to the value of property and as to the damages which the plaintiff may be entitled to recover in said action, it is, pursuant to statute in such case made and provided, and on motion of Messrs. Davies, Short & Townsend, attorneys for • defendants:
“ Ordered, that the said questions be, and they hereby are, stated for trial by jury as follows: ” After stating the questions the order further directed: That this cause, for the purpose of determining the said questions so stated, be placed upon the calendar of the Circuit Court, part II, to be held in and for the city and county of New Tort, at the county court house in the city of New York for December, 1891.”

From this order no appeal has ever been taken, and in May, 1892, the questions came on for trial before the court and jury.

No objection was made to the court’s proceeding with the trial as directed in the order, and the parties proceeded as if the method of trial provided by the order was entirely regular.

It resulted in a verdict not at all satisfactory to the jdaintiff, whose counsel promptly made a motion upon the minutes of the court that it be set aside, which was denied.

Subsequently the suit came on for trial at Special Term, when the defendants caused the facts relating to the making of the order, the trial and the verdict to appear upon the record, at the same time insisting upon the conclusiveness of the verdict until lawfully set aside.

The court refused to so rule, and ignoring the verdict, rendered a judgment in hostility to it.

It is the rule in the trial of equity suits where questions of fact are submitted to a jury, to follow the findings of the jury or not, as the conscience of the court may prompt.

The verdict being treated as advisory, the learned trial court thought this rule applicable to the situation presented on this trial, and reaching the conclusion that the jury had erred in their findings of fact, it refused to follow them, and instead made such findings as it thought the evidence required. Whether it was a mistake to treat the verdict rendered in this suit as a mere recommendation to the court, which it could follow or disregard, presents the question which we shall consider.

Before the trial at Special Term, which took place in March, 1892, the Court of Appeals decided that the amendment to section 970 did not apply to suits of this character. (Shepard v. Manhattan Ry. Co., 131 N. Y. 215.)

Thus, it was established that the order in this suit was erroneous, and should not have been granted. But while the court made a mistake in granting the order, and it is now clear that it would have been, reversed on appeal, still the order was not wholly void. The court was one of general jurisdiction in law and in equity. It had jurisdiction of the parties, and of the subject-matter, and being called upon to determine whether, under section 970 of the Code of Civil Procedure, which provides that the findings of a jury upon questions stated thereunder shall be final, the defendants had the right to have certain questions stated for trial by jury, it decided that the pleadings in their statement of facts so far conformed to the requirements of the statute as to entitle the defendants to prevail on the motion. And the order, into which this decision ripened, became at once binding on both parties, and would necessarily so continue until vacated or set aside.

But assuming, for the purpose of the argument, that the order might have been safely ignored; that the plaintiff, in his further proceedings, could have treated it as if it were of no force or effect whatever, and the situation would be now' none the less embarrassing for the plaintiff. Eor the fact is he did not treat the order as if it were void. On the contrary, he acquiesced in its binding force by proceeding with the trial without protest or objection.

Undoubtedly it was plaintiff’s right in the first instance to have the court at Special Term, instead of the jury, pass upon the questions of fact. But that right or any other, whether constitutional, statutory or otherwise, he could waive. And he did waive it by omitting to appeal from the order, and proceeding under it to trial before the court and a jury without protest or objection down to the point where everything which the order provided should be done had been done.

Indeed, he did not even then call in question the regularity of the procedure under the order. Iiis motion was to set aside the verdict of the jury on the usual grounds, and not that the jury was without authority to pass upon the questions which had been submitted to them.

The verdict rendered, therefore, was conclusive until set aside. The questions necessarily disposed of in reaching the verdict were passed upon in another form, it is true, than the plaintiff could have had, but, nevertheless, one which he had accepted as a proper one for the purpose after the making of the order, and, therefore, he was bound by the verdict until set aside.

Not only at the opening of the trial, but later on by proposed findings of fact and conclusions of law, the defendants called to the .attention of the court the question we have discussed, and the exceptions taken thereto, as we think, present an error which requires a reversal of the judgment.

The judgment should be reversed, with costs to the appellants to .abide the event.

YaN BruNT, P. J., and Follett, J., concurred.

Judgment reversed, new trial ordered, costs to appellants to abide •event.


author: PaeKbe, J.:

text:
    Louis F. Martin and Others, Appellants, v. Eliza Jane Adams and Others, as Executors, etc., of Henry Adams, Deceased, Respondents.

      ■Compromise agreement between a debtor and Ms creditors — not vitiated by acts of a third person — when it may, by reason of preference to one, be repudiated by the other creditors — estoppel by accepting benefits under a contract.

    If a debtor executes a compromise agreement with his creditors in good faith, and faithfully and honestly carries out its terms, he cannot be deprived of such benefits as may have accrued from such agreement and his subsequent labor in furtherance of it, because of the act of a third party, done without his consent and without his knowledge.
    When an insolvent debtor, endeavoring to make a compromise agreement with his creditors, for the purpose of inducing one of his creditors to join in such compromise agreement, secretly and without the knowledge of his other creditors, offers an extra inducement to such creditor to accept such compromise agreement, the compromise agreement thereafter made may be repudiated by any of his other creditors upon their becoming cognizant of such fact, although in fact the creditor to whom such offer was made never derives any benefit therefrom.
    One who takes a benefit, under a contract after knowledge of the fraud which vitiates it, is not thereafter entitled to have the contract adjudged fraudulent.
    Appeal by the plaintiffs, Louis F. Martin and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 25th day ■of June, 1892, upon the report of a referee.

      M. JV. Pegensburger, for tbe appellants.

      Hugh Porter, for tbe respondents.
   PaeKbe, J.:

On a former review in April, 1891, this court reversed a judgment in favor of tbe defendants, on the ground that one of tbe creditors uniting in tbe compromise agreement bad a secret contract by which it acquired further advantages than those obtained by the rest of the unsecured creditors.

The retrial resulted, as did the first one, in a judgment in favor of the defendants, and the appellants insist that such a result could only have been reached by disregarding the prior decision of this court. ^

On the 9th day of August, 1882, the firm of R. & H. Adams-made a general assignment for the benefit of their creditors. Thereafter a compromise agreement was entered into, by which these plaintiffs and the other creditors agreed to accept and receive in satisfaction of the debts owing them, fifty-five per cent, in the notes of their debtors indorsed by Robert Adams, and further secured by mortgage upon certain property situated at Paterson, N. J., the notes being payable in five equal annual installments with interest. There was a further agreement that Henry Adams-should pay to each of the creditors, at the expiration of one year after the payment of the notes, his share of the net profits or earnings of the business of any firm of which he should thereafter become a member, but not exceeding ten per cent of the principal of the respective claims of the creditors, and interest on the ten per cent, at the rate of six per cent from the date of the mortgage given to secure the fifty-five per cent and interest. "While effort was being made to induce all of the creditors of the insolvent firm to become parties to the compromise agreement, Wm. Adams, a son of Henry Adams, one of the assignors, without the knowledge of the other creditors, made a further agreement with the Second National Bank of Fall River, by which he agreed to purchase the interest of the bank in the ten per cent which the debtor Henry Adams promised to pay only on condition that a profit should result to himself individually or as a member of such firm.

In payment for this interest lie agreed to give his notes for a sum. equal to ten per cent of tbe bank’s claim. While the notes which were given by ¥m. Adams in pursuance of his contract were never paid,, and it does not appear that he was solvent when they were given, still the conclusion was reached, as we still think rightly, that- if the notes were accepted in preference to the contingent offer of the debtors, the element of advantage to one or more creditors as against the others (essential to the making out of such a cause of action as the complaint alleges) was present. It was still necessary to entitle the plaintiffs to recover that it should in some way appear that the debtors, or one of them, were so connected with the transaction that they should be chargeable with the consequences of it.

That such was the fact this court deemed reasonably established by the evidence, and it referred to a memorandum signed “ H. A.” as a strong evidentiary fact tending to establish that such was the relation of the parties, the other person who signed his initials to the writing having testified that the initials “ H. A.” were subscribed to the writing by Henry Adams in the presence of the witness. The memorandum reads as follows:

“April llth, 1883.
Henry Adams says he will see that the notes given by ‘William Adams in settlement of affairs of R. & H. Adams will be paid at maturity.”
“H. A. C. E. O.”

This writing, considered in connection with the other facts and circumstances proved, induced this court to hold that Henry Adams understood and participated in the attempt to persuade the Second National Bank of Fall River to sign the compromise agreement by giving to it something which it preferred to the possibility only, which the debtors offered beyond the fifty-five per cent.

The referee in his report, upon which the judgment under review is based, found that “No creditor received from said firm or said Henry Adams, on signing the said deed, or at any other time, any sum of money or any property or valuable thing, over and above the said sum of fifty-five per cent, as in said deed provided, and that the said Henry Adams or Peter Horne, or. said old or new firm of R. &■ H. Adams, have not given or granted to the said creditors, or either of them, any preferences whatsoever, and that the amount of such payments was $491,000 of principal, and about $100,000 of interest.”

After making this general finding, he passes upon the facts relating to the purchase of the contingent dividend.

He finds:

First. That ¥m. Adams gave to the Second National Bank of Ball River his two certain promissory notes for $250, in pursuance ■of the agreement made in the month of April preceding.

Second. That “ neither the said, agreement, nor the giving of said notes, nor the purchase of said dividend, was known to the said Henry Adams, Peter Horne or Robert Adams, and the payment of said notes was never guaranteed by said Henry Adams.”

Third. That “the exhibit received in evidence and marked Exhibit B ’ was originally dated in the year 1884, and was subsequently antedated 1883; the. words ‘Wm. Adams, in settlement of the affairs of R. & H. Adams,’ therein contained, were written over an erasure ; said paper had no consideration, was not subscribed by Henry Adams, and he had no knowledge of the existence thereof.”

Thus we are confronted with findings asserting that the debtor Henry Adams was not a participant in the transaction relating to the purchase of the contingent dividend from the Second National Bank of Fall River by "William Adams. And further that he had no knowledge whatever of the transaction. Even the memorandum which purports to guarantee the payment of the notes of William Adams, and which this court on the former review regarded as an important piece of testimony, is found not to be genuine.

The learned referee finds that this memorandum was not subscribed by Henry Adams, and that he had no knowledge of its existence. If these findings of fact have legal support in the evidence contained in the record, it is at once apparent that an entirely different situation is presented, for the findings, if properly made, command'the judgment rendered.

If Henry Adams executed the compromise agreement in good faith, and faithfully and honestly carried out the terms, he cannot be deprived of such benefits as may have accrued from the agreement and his subsequent labor in furtherance of it, because of the .act of another, done without his consent and without his knowledge.

The attempt to connect Henry Adams with the transaction between William and the bank was made through C. E. Orvis, who acted as agent for the bank in the transaction. He produced a priyate memorandum book from wbieb was taken the so-called guaranty of Henry Adams, whicli we have already quoted.

Orvis testified that the initials “ H. A.” were written by Henry Adams at the date which the memorandum bears.

On the part of the defense, Mr. Holmes, the cashier of the Second National Bank, testified in substance that the resolution of the directors authorized Orvis to settle on the terms proposed in the composition deed; that he was without authority to make any different arrangement; that the receipt of the Wm. Adams notes was never made the condition or prerequisite for the acceptance or signing of the compromise, nor was authority given Orvis at any time, or in any place, either verbally or in writing, to ask or receive any guaranty which would give the bank a preference over any other creditors. Npon being shown Exhibit B, which is the writing taken from the memorandum book of Orvis, the witness testified that the bank ” had no knowledge of such a paper and had never ratified it.

■An examiner of questioned handwriting was produced by defendants, and he testified that the letters “ IT. A ” in Exhibit B, were not written by the person who wrote what was admitted to be Henry Adams’ genuine signature. He further testified that the body of the memorandum had been altered by the erasure of that which had been originally written, and for it had been substituted the words “ William Adams, in settlement of affairs of R. & H. Adams.”

Henry Adams denied writing the letters “H. A.”

Wm. Adams, Sr., and Wm. Adams, Jr., each testified that the initials “ H. A.” were not in the handwriting of Henry Adams. It is clear that the finding by the referee, that Henry Adams did not sign the memorandum, is so sustained as to deny to this court the right of reversal on the ground that it is against the weight of evidence. Without further discussing the evidence relating to the alleged connection of Henry Adams with the agreement of Wm. Adams to purchase the contingent dividend, it may be said that such findings in all material respects are as well sustained as the one asserting that Henry Adams did not sign the memorandum.

For still another reason the affirmance of the judgment is required.

The complaint is in equity ; the prayer for relief asks that the composition deed be decreed utterly void and of no force or effect,, and that the defendants be forever enjoined from pleading or proving it in any suit or action at law. But the referee finds that “ In or before the month of July, 1888, and before the last compromise notes were paid, the plaintiffs herein were informed of the alleged frauds committed in relation to said compromise, as set forth in said complaint, and with such knowledge the plaintiffs, and each of them, received and accepted the money due on said notes, which became due in August, 1888, without protest or objection.” And that “After the payment of said last-mentioned compromise notes, and before the commencement of this action, the said plaintiffs did not, nor did either of them, obtain or acquire any additional information in relation to said alleged frauds.”

Thus it appears that with full knowledge of all the facts which the plaintiffs have proved, they proceeded in affirmance of the contract.

They retained in their possession the notes not yet matured. At maturity they accepted the payment of them and surrendered the notes. Immediately thereafter this suit was commenced, but too late, for the rule is well settled that one who takes a benefit under a contract after knowledge of the fraud which vitiates, it, is not thereafter entitled to have the contract adjudged fraudulent.

The acceptance of benefits under such a contract, with knowledge of the wrong which discredits it,-operates as a ratification. (Cobb v. Hatfield, 46 N. Y. 533.)

The judgment should be affirmed, with costs.

YaN BeüNt, P. J., and BaiíRett, J., concurred.

Judgment affirmed, with costs.