text:
    Victor M. Sutphen, an Infant, by Charles J. Sutphen, his Guardian ad Litem, Respondent, v. The Town of North Hempstead, Appellant.

      Construction and maintenance of highways — a highway commissioner’s responsibility to bicycle riders — contributory negligence.

    Reasonable care in the construction and maintenance of highways is the measure of, duty resting upon the highway commissioner of a town, and municipalities are not liable for injuries resulting from accidents which are not, by the exercise of reasonable forethought and prudence, to be anticipated.
    A commissioner of highways owes no larger measure of duty to bicycle riders than to persons traveling upon the highways on ordinary vehicles; he is only bound to keep the highways in a condition which is reasonably safe for general and ordinary travel.
    The fact that a gutter was constructed on a country highway, two and one-half feet below the crown of the road, with a vertical side of a foot or eighteen inches next to the roadway, with no rail or guard erected between the gutter and the road, does not render the road unsafe for travel in ordinary vehicles, and on foot, where the highway was twenty-five feet wide, in good order, and safe for the ordinary use of a highway.
    When a bicycle rider fails to observe conditions which are open to his observation, and which he could have seen if he had looked, if an accident results therefrom he is guilty of such carelessness as deprives him of the right to recover for his injuries.
    Appeal by the defendant, The Town of North Hempstead, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 11th day of November, 1893, upon the verdict of a jury, rendered after a trial at the Queens County Circuit, and also from an order entered in said clerk’s office on the 23d day of November, 1893, denying the defendant’s motion for a new trial.

      A. Britton Havens, for the appellant.

      Harrison 8. Moore, for the respondent;
   Brown, P. J.:

The accident which resulted in the plaintiff’s injuries occurred upon a public highway in the town of North Hempstead about sundown on an evening in August, 1892.

The highway ran east and west on a hill upon the top of which it passed through a deep cut. A gutter or ditch existed upon the side of the road to carry off the surface water.

Shortly before the accident the commissioner .of highways had deepened the ditch, and at the place of the accident the bottom was about two and one-half feet below the crown of the road. The side next to the beaten track was cut down vertically about a foot or eighteen inches. The beaten track of the road was about twenty» five feet wide and extended right up to the side of the gutter and was in good condition.

The soil was sandy, and the wheels of vehicles passing over it sank into it a few inches. There was no sidewalk, and pedestrians walked along the edge of the road nearest the gutter, and as a result of this the surface there was packed harder and the road was smoother than elsewhere. ; ñ

The plaintiff, a lad between twelve and thirteen years of age, was riding a bicycle, and finding that his machine cut into the soft sand in the middle of the road, he turned into the smooth track near the gutter and rode within a few inches of the vertical side. The front wheel cut through the soft earth, and the side of the gutter giving-way he was thrown from his machine and received the injuries complained of. There, was nothing to obscure from plaintiff’s view the gutter, or the maimer of its construction, and he testified that there was light enough for him to see the road, and that he could have seen the gutter if he had looked at it. In our opinion the town was not chargeable with negligence upon the facts stated, and the complaint should have been dismissed. The gutter into which plaintiff fell was not an obstruction' in the highway, but was constructed to carry off tlie surface water flowing from the hill, and thus keep the road in a proper condition for travel, and no negligence can be imputed to the commissioner of highways from the fact of its existence.

No claim is made that the road itself was not in good order and safe for the ordinary use of a highway in the country. It was of ample width for all kind of travel, and the injury which plaintiff received was primarily due to the fact that he rode his vehicle so near to the gutter that the wheel .cut through the soft ground and caused liis fall. Reasonable care in the construction and maintenance of highways is the measure of dirty resting upon the highway commissioner of the town, and municipalities are not liable for injuries the result of accidents which are not by the exercise of reasonable forethought and prudence to be anticipated. The case is within the rule ajjplied in Hubbell v. City of Yonkers (104 N. Y. 434) and Glasier v. Town of Hebron (131 id. 447).

The negligence of which it is claimed the commissioner was-guilty was, first, constructing the gutter with a vertical side next to the roadway, and, second, omitting to erect a rail or guard between the gutter and the road. The highway was not dangerous to persons using it with ordinary vehicles by reason of either of these facts. It w’as twenty-five feet wide, a space on which four wagons could stand abreast, and there was no occasion for any one to ride upon the extreme edge of the road near the gutter, and the fact that the soil was soft, into which a wheel would sink, counteracted any damage which might have existed if the vertical, edge of the gutter had been cut through solid material. The accident which happened to the plaintiff was unusual and incidental to the character of the vehicle he was riding. It was not one within the anticipation or apprehension of a reasonable, prudent man, and there was, therefore, no occasion for extraordinary precautions to prevent it. It cannot be successfully claimed that a larger measure of duty on the part of the commissioners of highways is due. to bicycle riders than to persons traveling rrpon the road in ordinary vehicles. It is apparent that a bicycle rider upon an ordinary country road is exposed to greater dangers than a person riding in a wagon, and the great increase in the number of jjersons using these vehicles has created a demand for better and safer roads, but under the present highway laws a road in a condition which is reasonably safe for general and •ordinary travel is all that the commissioners of highways are bound to maintain.

The road in question was safe for travel in ordinary vehicles and •on foot, and the evidence did not in our opinion permit the conclusion by the jury that the defendant was negligent in its construction and maintenance.

The plaintiff was guilty of contributory negligence.

In his desire to find that part of the road best suited to his mode •of travel, he rode so near the edge of the gutter as to cause the •accident. He failed to observe conditions which wore open to his ■observation, and which he.could have seen if he had looked, and was therefore, guilty of such carelessness as to deprive him of the right to recover for his injuries. (Weston v. City of Troy, 139 N. Y. 281.)

The judgment must be reversed and a new trial granted, with costs to abide the event.

Dykman and Cullen, JJ., concurred.

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


source: Caselaw Access Project

author: Brown, P. J.:

license: Public Domain

text:
    Charles Benner, as Trustee, etc., Respondent, v. Phœnix Towing and Transportation Company, Appellant.

      Amendment of pleadings to conform to the facts proved — limitation of the power — action founded on a contract and one based on its breach, distinguished — burden of proof of damages sustained by a breach of contract.

    The power to amend pleadings upon the trial of an action, so as to conform them, to the facts proved, does not extend to changing the cause of action sued on, and such power can only be exercised when the amendment does not change substantially the claim or defense made.
    The distinction between a cause of action based upon the existence of a contract, and one for its breach, is vital to the rights of the parties; and when the plaintiff in an action does not claim in his complaint that the contract was broken, he cannot recover a judgment for its breach.
    Upon the theory of the breach of a contract, the plaintiff in an action brought to recover damages therefor is entitled to recover its value or what he lost by ■ being deprived of his chance of profit, and the burden of proof as to the amount of such damage, is upon the plaintiff.

      Appeal by tbe defendant, the Phoenix Towing and Transportation Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 23d day of August, 1892, upon the report of a referee.

      Hewry H. Mem, for the appellant.

      Henry O. Wilcox, for the respondent.
   Brown, P. J.:

On August 15, 1889, the parties entered into a written agreement whereby the plaintiff leased to the defendant, for a term ending April 1, 1892, the privilege to excavate and remove sand upon certain property situated upon Flushing bay. By the second clause of the agreement plaintiff agreed to improve the approach by water to-the dock on said property, so as to give a depth of eight feet at high water along said dock, and also to excavate a channel thirty feet in width, extending 100 feet from said dock into Flushing bay.

The defendant agreed, first, to pay ten cents per cubic yard for all sand removed from said premises, and, second, to excavate and remove between April first and November first, in each year of the term, “ an amount of sand not less than an average value of $250 per month at the rate above stated * * * provided, however, that the period of said guaranty shall commence to run when the party of the first part (plaintiff) shall have first performed the covenants in the second clause of this agreement.”

The complaint set forth two causes of action: First, to recover $108.20 for 1,082 yards of sand removed by the defendant in the year 1889 ; and, second, to recover $1,750 upon the guaranty afore-, said for the period between April and November, 1890.

Upon the second cause of action plaintiff alleged that he had performed all the conditions of the contract upon his part, and that the defendant had neglected to remove any sand during the year 1890. The defendant denied that plaintiff had performed his agreement, and alleged that he had failed to improve the approach to the dock or excavate the channel to the bay, and that because of that fact it had in .January, 1890, canceled the agreement.

The referee found as a fact that plaintiff never performed his agreement in reference to improving the approach to the dock, but that defendant consented that such improvement be postponed until the spring of 1890, and that such performance, as a condition precedent to defendant’s obligation under said agreement, was waived by defendant, and that in January, 1890, without justification, it renounced and repudiated the contract, and that by reason of such renunciation plaintiff was damaged to the extent of $1,750.

From this statement of the case it appeal’s that no recovery could be had by the plaintiff upon the second cause of action set out in the complaint, as the period of guaranty was not to begin to run until the improvement of the channel was complete, and that while defendant could waive this provision of the contract, the waiver found by the referee was not absolute, but only extended the time of performance by plaintiff until April, 1890. But, although the plaintiff failed to establish the case made by his complaint, he has been permitted to recover uj>on a cause of action for a breach of the contract, which was not pleaded The power to amend pleadings upon the trial so as to conform them to the facts proved does not extend to changing the cause of action sued on. It can only be exercised' when the amendment does not change substantially the claim or defense made. (Code Civ. Proc. § 723.)

No amendment was made or requested in this case, and the complaint stands as originally served.

The distinction between a cause of action based upon the existence of the contract and one for its breach is vital to the rights of •the parties. If the contract is still in existence, plaintiff may sue upon the guaranty at the end of each month to which it applies; but if it has been repudiated by defendant, there is but a single cause of action for its breach, and a recovery of damages in one action is a bar to all other suits. The plaintiff never has claimed that the contract was broken, and while he assumes that position he cannot recover a judgment for its breach. (Wright v. Delafield, 25 N. Y. 266; Day v. Town of New Lots, 107 id. 148; Elting v. Dayton, 17 N. Y. Supp. 849.)

The referee also erred in the measure of damages applied to the case. Upon the theory of a breach of the contract, plaintiff was ■entitled to recover its value or what he lost by being deprived of his chance of profit. (Taylor v. Bradley, 39 N. Y. 129 ; Wakeman v. W. & W. M. Co., 101 id. 205.)

The referee apparently recognized this rule, but held that it was for the defendant to prove that it would have been less than the amount of the guaranty. This burden, could not be cast upon the defendant, and the cases cited by the referee have no application to such a case as this. It was for the plaintiff to prove his loss, and it was apparent from the contract that he could not be entitled to the monthly stipend until he had improved the approach to the dock, and proved that the sand itself had some .substantial value. The judgment awards the plaintiff the full amount, to which he was entitled only in case he had performed his covenants of the contract, and it leaves him in possession of the sand.

The judgment must be reversed, the order of reference vacated, and a new trial granted, with costs to abide the event, unless plaintiff sti])ulates within twenty days to reduce the judgment to the sum of fifty-seven dollars and twenty cents, with interest from January 1,1890, in which case the judgment so reduced is affirmed, without costs.

Dyxman and Cullen, JJ., concurred.

Judgment reversed and new trial ordered, costs to abide event unless plaintiff stipulates within twenty-days to reduce judgment to fifty-seven dollars and twenty cents, with interest from January 1, 1890, in which case the judgment so reduced is affirmed, without costs.


author: Cullen, J.: Brown, P. J.:

text:
    George L. Simpson, Respondent, v. New York Rubber Company, Appellant.

      The risks, as regards defective machinery, assumed try a senjant — statutory provisions for the protection of employees cannot be waived.

    A servant accepts tlie service of liis master subject to the risks incident to it, and when he enters into the employment, knowing the character and condition of the machinery and implements used in the master’s business, he voluntarily assumes the risk resulting from their use, and can make no claim upon the master to furnish other or different safeguards.'

      Although parties may waive statutory provisions enacted for their benefit, and may even make laws for themselves which the courts arc bound to administer, provided there is no question of public policy involved, yet, when there is a statutory-enactment that certain safeguards shall be provided for the security of employees in a factory, and the failure to provide such safeguards is criminal, the employee, by continuing- to work, knowing that the machinery is not guarded as prescribed by statute, does not waive the provisions of the statute, nor does he assume such obvious risks as are incident to the use of the machinery without the required safeguards. (Brown, P. J., dissenting.)
    Aiu>eal by the defendant, the New York Rubber Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the lltli day of October, 1893, upon the verdict of a jury, rendered after a trial at the Dutchess Circuit, and also from an order made at the Dutchess Circuit on the 6th day of October, 1893, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

      M. //. Ilbrscliberg, for the appellant.

      William T>. Dickey, for the respondent.
   Cullen, J.:

This is an appeal from a judgment for the plaintiff entered upon the verdict of a jury. The action is to recover damages for personal injuries. The plaintiff was in the employ of the defendant and had worked in its factory for some two years before the occurrence of the accident. On the occasion of that accident, while moving a truck,, he slipped and fell, and his hand and arm were caught in some cog gearing and so injured as to necessitate partial amputation. The action is based upon the statute requiring cogs, gearing, etc., to be properly guarded. (Chap. 673, Laws of 1892.) The questions of the negligence of the plaintiff, whether he was properly passing the machinery at the time of the injury and whether the machinery wa,s pixrperly guarded, were submitted to the jury. The instructions on these questions were correct, and as we interpret the rather colloquial discussion between the court and counsel at the end of the-formal charge, the defendant has no cause of complaint as to them. The serious question in the case is the waiver by the plaintiff of the requirements of the statute. The learned judge was asked to charge that if the defendant failed to properly guard the shaft and cog wheel, and the plaintiff knew it and still continued in defendant’s employ, he waived the provision of the statute in that regard and assumed such obvious risks as were incident to the use of the machinery in that condition. This the court refused, and the defendant excepted. This request and refusal fairly raise the question.

The general rule settled by authority is: “A servant accepts the service subject to the risks incident to it, and where, when he enters into the employment, the machinery and implements used in the master’s business are of a certain kind or condition, and the servant knows it, he voluntarily takes the risk resulting from their use, and can make no claim upon the master to furnish other or different safeguards.” (Sweeny v. Berlin & Jones Envelope Co., 101 N. Y. 520.)

But the question presented in this case is a different one. The statute has enacted that certain safeguards shall be had for the security of employees of the factory. The failure to provide these statutory safeguards is criminal. It is doubtless true that parties can waive statutory provisions for their benefit and can even make laws for themselves which the courts are bound to administer, provided there is no question of public policy involved. (In re Petition of N. Y., L. & W. R. R. Company, 98 N. Y. 447; Sentenis v. Ladew, 140 id. 463.)

But is there no question of public policy involved here ? To our mind there is, and that public policy should induce us to hold, unless a contrary doctrine is settled by authority, that this statutory protection cannot be waived. Our notion of government has confined State interference with the freedom of individual action within narrow limits, but such interference has never been wholly prohibited. Experience has shown that in some matters persons must be protected from their own imprudence. If there were to be considered only the interest of the individual in his personal security the statute would be unnecessary. The end sought to be accomplished could equally well be secured by contract between the employer and the employee. The matter has always been a subject of contract, that is, no law has ever forbidden employees making the guarding of machinery a condition of their service. Yet such contracts are unknown. If, therefore, assent can dispense with the statutory protection the subject for practical purposes is left in the same condition ns it was before the enactment of the statute.

But the State has great interest in the protection of its members, and this even of the most utilitarian character. In the case of a maimed employee, he and his family are likely to become a public charge; the same is true of the family of an employee killed. The community would seem to have as much interest in the protection of the life and limbs of a member of it as in the question whether he should pay eight per cent or six per cent interest. Yet by no means which human wit can devise can he make a valid contract to pay more than six per cent in this State. The doctrine of waiver or contributory negligence under this statute is but the 'equivalent of the contention “ >m pari delictu” under the usury statute, a claim always repudiated by the courts. We admit that the terms of the Usury Law differ from those of the statute under consideration. But the present form of the Usury Law is simply the result of a long strife between the Legislature and the courts, the latter trying to avoid the effect of the legislation, a strife in which the Legislature eventually proved victorious. Nor is the legislation under discussion anomalous. At the present time there seems to be & tendency to reaction in the doctrine of non-interference. Within a few years the State has prescribed the juices to be charged for elevating grain in the port of New York, by private individuals who possess no franchises nor even sjiecial facilities for the business. Yet this legislation is held valid both by the Court of Appeals and by the Supreme Court of the United States. (People v. Budd, 117 N. Y. 1; 143 U. S. 517.)

The claim that the question is settled by authority adversely to these views is based on the case of Freeman v. Glens Falls Paper Mill Co. (70 Hun, 530; affirmed, without opinion, Court of Apjieals, April 24, 1894). The effect of such affirmance is stated by Judge Finch to make that court “ responsible only for the jioint decided, and did not make us guarantors of all the reasons given or opinions expressed.” (Rogers v. Decker, 131 N. Y. 490.)

In the case cited from Hun the action was for negligence and not based on the statute. The question here was, therefore, not necessarily involved. So far as we have any intimations from the Court of Appeals on the question they are adverse to the contention that the statute can be waived. In White v. Witteman Lithographic Company (131 N. Y. 631), referring to this statute, Judge Earl says : “ It is not always true that the absence of guards about the machinery in such a case, provided the hoy knew it, can have no bearing upon the liability of the employer.”

In Purdy v. Rome & Watertown R. R. Co. (125 N. Y. 209) an agreement in advance releasing the defendant (master) from damage for every cause was held void as without consideration, the simple continuance of employment being held insufficient to support it. The distinguished judge who -wrote the opinion intimated grave doubts whether such an agreement was not void as against public policy. That view is the one uniformly adopted at Circuit in this district so far as we know. The same public policy which would render such an agreement void would seem also to avoid an agreement to waive the protection of the statute here under consideration.

The judgment appealed from and order denying new trial should bo affirmed, with costs.

Dykman, J., concurred.

Brown, P. J.:

I concur in the affirmance of the judgment in this case, but I do not now agree to the proposition that an employee cannot waive the provision of the statute which requires owners of manufacturing-establishments to properly guard all machinery so far as the statute 'may be treated as having been enacted for the employee’s benefit and protection.

Whether the plaintiff had waived the benefit of the statute was upon the trial treated by the court and counsel as a question-of law. No request was made to have the question of waiver submitted to the jury. It is true the court refused to charge that if the plaintiff waived the provision of the statute he could not recover, but as it had correctly ruled that there was no waiver in law, and as there was no request to submit the question to the jury, there was no error in its refusal to charge as requested.

The rule applied by Justice Cullen excludes waiver by express stipulation, as well as that arising from the continued use by the employee of improperly guarded machinery. It is not raised in this case by any appropriate exception, and while it may be that the views expressed are correct, I prefer to withhold my opinion until the question is directly presented and has been fully argued.

The ruling of the court that the plaintiff could not, upon the facts presented, be deemed to have waived the benefit of the statute, is directly sustained by Knisley v. Pratt (75 Hun, 323) and Freeman v. Glens Falls Paper Mill Co. (61 id. 125), and is in harmony with the remarks of Judge Earl in White v. Witteman Lithographic Co. (131 N. Y. 631).

There is nothing in the second report*of Freemaoi's Case (70 Hun, 530 ; affirmed in Court of Appeals, without opinion, in April, 1894) that necessarily conflicts with these authorities.

Upon the facts found by the jury upon the second trial the plaintiff was guilty of contributory negligence, and as the judgment is sustained by that fact we cannot assume that the Court of Appeals approved of the views expressed. in the General Term opinion.

The judgment must be affirmed.

Judgment affirmed, with costs.


author: Cullen, J.:

text:
    Elizur G. Webster and Another, Respondents, v. Kings County Trust Company, Appellant.

      Specific performance of a contract for■ the sale of real estate — discha/rge of incumbrances— effect of the death of one of the vendors after delivery of a deed in escrow— easement of a street railroad — questions of fact, when not reviewed— parchase by a trustee of the trust estate — creditors of a corporation pa/r'ties to its dissolution.

    On a sale of real estate it is only necessary that, at the time of passing title, the property shall be free from incumbrances. The delivery of the deed and the payment of the purchase money are simultaneous acts.
    The vendor, whose property is subject to incumbrance, is not bound to raise money and pay the incumbrance in advance. If he produces the holder of the lien, ready to satisfy it on payment of the amount secured thereby, he can rely on the purchase money as the fund from which such payment can he made.
    Under a contract for the sale of real estate obligating the vendors, jointly, to convey or cause to be conveyed to the vendee the entire title to the premises, and not each to convey his several shares therein, and providing that a single payment of the purchase money be made, the rights and obligations created by the contract upon the death of one of the vendors devolve upon the survivors, and if they can give a full title to the premises the vendee is obliged to accept the same; in such case it is not necessary, upon the death of one of the vendors, to revive an action, brought by the vendors against the vendee to compel the performance of such contract, by bringing in the heirs or personal representatives of the deceased vendor.
    Upon the trial of an action brought to compel the specific performance of a contract, whereby the defendant agreed to purchase certain real estate, the plaintiffs produced a deed thereof properly executed, tendered it to the vendee, and upon the vendee’s refusal to accept the same, such deed was deposited under the order of the court with the clerk for the benefit of the vendee.

      HM, that there was a delivery of such deed in escrow and that the death of certain of the parties thereto, before the delivery of the deed to the grantee therein named, did not affect the validity thereof.
    "Where a street or elevated railroad is in actual operation in front of real estate, it must be assumed that, so far as the consent, of the property holder is necessary to the operation thereof, it has been given, and a contract for the sale of such real estate must be assumed to have been made subject to the open and apparent easement of the railroad as is the rule in the case of a highway."
    Where there is no statement contained in a case upon appeal that the case cóntains all the evidence, the appellate court cannot review questions of fact. .
    The general rule is that trustees cannot purchase the trust property or deal with it for their own advantage, but where a trustee has a personal interest to protect, he may, under the order of the court, purchase the property of the trust estate at its sale at public auction and acquire a clear and valid’ title thereto.
    In an action brought to liquidate and dissolve a corporation, all the creditors and stockholders thereof are in one sense parties to the action; they are represented by the Attorney-General and by the receiver, when one is appointed. All the creditors are subject to the summary jurisdiction of the court in the distribution of the estate of insolvent corporations.
    Appeal by the defendant, the Kings County Trust .Company, from a judgment of the Supreme Court in, favor of the plaintiffs, entered in the office of the clerk of the county of Kings on, the 27th day of January, 1894, upon the decision of the court, rendered after a trial at the Kings County Special Term, adjudging that the plaintiffs have a lien against the real estate of the defendant, and that such lien is a lien prior to that of certain mortgages upon the said real estate.

      Georye V. Brower, for the appellant.

      John L. Hill, for the respondents.-
   Cullen, J.:

This is an appeal from a judgment in favor of the plaintiffs entered on a decision of the court at Special Term. The action is to compel the specific performance of a contract for the sale of land. The substantial question litigated on the trial was the validity of plaintiffs’ title to the land agreed to be sold. On this appeal the appellant raises further questions as to the form of the judgment entered, and as to the effect of the death of Agar, one of the original plaintiffs and vendors.

Before we deal with the main objection to the plaintiffs’ title it will be convenient to dispose of some minor objections to it. First, it is objected that there are two outstanding mortgages on the property. Such was the fact. But both mortgages were past due and payable at the contract time for passing the title. Before that time defendant had notified plaintiffs that it objected to the title on other grounds, and would not complete the purchase. It was not necessary for the plaintiffs to pay off these mortgages in advance, knowing the sale was not to be consummated. On a sale of real estate it is only necessary that at the time of passing title the property shall be free from incumbrances. The delivery of the deed and the payment of the purchase money are simultaneous acts. The vendor whose property is subject to incumbrance is not bound to raise money and pay the incumbrance in advance. If he produces the holder of the lien ready to satisfy it on payment, he can rely on the purchase money as the fund for such payment. Both mortgages being due, we must assume that the plaintiffs could have produced the mortgagees ready to satisfy the mortgages, had the defendant been willing to pay the purchase money.

A .second objection is a consent given by the plaintiffs that a street railroad in front of the premises might be operated by electricity. The premises described in the contract do not include the adjacent half of the street. Apart from this, the railroad was in operation at the time of the execution of the contract. We think that in case- of street or elevated railroads in actual operation in front of property, it must be assumed that so far as the consent of the property holder is necessary, it has been given, and that the contract of sale is made subject to the open easement of the railroad as is the rule in the case of a highway.

A further objection is made on the fact that the building erected on the premises to a slight extent encroaches upon the highway. It is a sufficient answer to this, that the trial court found that all objections to the title were waived except that as to the defensible character of plaintiffs’ title arising from their position as trustees of the Long Island Savings Bank. There is no statement that the case contains all the evidence, and, hence, we cannot review this question of fact.

The premises agreed to be sold were formerly the banking house of the Long Island Savings Bank of Brooklyn, and its property. I u the year 1877 the bank became embarrassed. The Attorney-General brought an action on behalf of the People to dissolve the bank and appoint a receiver. To avoid a receivership the trustees of the bank proposed to the depositors that they would pay to such of them as wished their money immediately, eighty per cent in cash, and to' the others the full amount of their deposits in six, twelve, eighteen and twenty-four months, the trustees personally guaranteeing such payment, and agreeing to pay any surplus that might arise from the assets of the bank to the depositors, pro rata. On proof of the acceptance of this proposal by ninety-four per cent of the depositors, and the filing of the personal undertaking of the trustees to carry out its terms, the court denied the motion to appoint a receiver, and directed the trustees to make the payments provided for. The bank thus went into liquidation under the management of its trustees. By October, 1879, substantially all of the eighty per cent class had been paid in full, and seventy-five per cent paid to the one hundred per cent class. The principal remaining asset of the bank was its banking house, which, in the state of the market, appeared unsalable, though money had been raised on it by mortgage. On an application stating these facts, an order was made by the court extending the time of payment of the final twenty-five per cent. Parts of the last dividend were paid from time to time, and, extensions obtained from the court as to the remainder, the three original plaintiffs and one Delano advancing the balance, §20,000, to make payment. Finally, in October, 1881, the court directed a sale of the banking house at public auction, by Ogdon, vice-president of the bank. The order gave leave to any of the trustees of tlie Long Island Savings Bank to purchase the property, and directed that out of the jxroceeds there first be paid the remaining unpaid deposits, and then the advances made by the plaintiffs and Delano. At the sale held under this order the property was bought in for the plaintiffs for the sum of $88,000. This sale was not reported to the court till 1893, when an order was made confirming the sale. The plaintiffs, In 1893, made their contract to sell the property for the sum of $201,600. The objection is made that this purchase by the plaintiffs is voidable.

The general rule that trustees cannot purchase the trust property or deal with it for their own advantage, is unquestionable. But to this rule there is a well-recognized exception, that where a trustee has a personal interest to protect, he may, by the order of the court, .purchase at its sale and acquire a valid title. (Scholle v. Scholle, 101 N. Y. 167.)

It is clear that the sale here had was a judicial sale and that there was a proceeding in court in which the plaintiffs could apply -for leave to purchase. The action brought by the People was in effect to liquidate the bank. The agreement between the trustees and depositors was not an agreement made out of court and that could only be enforced in an independent action by depositors. While the motion for a receiver was denied, the action was not discontinued nor did the defendant recover judgment. The order of the court was that the bank be liquidated. It is true the liquidation was to be made in an exceptional manner, the court considering that the depositors would fare better by the manner proposed then by'a receiver, and the depositors being of the same opinion. Nevertheless, the liquidation was a liquidation under the order of the court to the same extent as if made by a receiver, for the court had power to make such an order. (People v. Ulster Co. Savings Bank, 64 Hun, 434; affd., 133 N. Y. 689.)

There was, therefore, at the time the order of sale was made a judicial proceeding pending in full integrity, in which both a sale could be ordered and the plaintiffs be given leave to purchase thereat. In such sale all the trustees had an interest to protect the contingent liability on their undertaking, and the plaintiffs had a further special interest, their advances to the bank then being about $33,000.

It is claimed that the order granting the plaintiffs leave to purchase ' was - ineffectual and irregular in that’ it was made without notice of tlie application. Whatever force may have been originally in this objection, it has been obviated by the order of the court confirming the sale. The case is not similar to one where the trustee alone is a party to the action and the cestui que trusts are not parties. There no order made without notice to the eestui que trusts could bind them. In an action to dissolve and liquidate a corporation, all creditors or stockholders are in one sense parties and before the court. They are represented by the Attorney-General, and by the receiver, when one is appointed. All the creditors are subject to the summary jurisdiction of the court in the distribution of the estate of insolvent corporations. (Attorney-General v. North American L. Ins. Co., 91 N. Y. 57; Same v. Guardian Ins. Co., 77 id. 278; Innes v. Lansing, 7 Paige, 583.)

The order of confirmation was made on notice to the Attorney-General. Thereafter a creditor named Hannah intervened on petition, stating the facts relative to the purchase by the plaintiffs and applied to vacate the order of confirmation and to declare the purchase voidable or void. This application was denied, except so far as it permitted the depositor to intervene. The order denying the application was affirmed by the Court of Appeals, and the order of confirmation stands in full force. If we are right-in our position that the sale was a judicial sale, and that it was had in a jirdicial proceeding to which all the cestui que trusts were parties, we cannot see how the title acquired by the purchasers on such sale can now be impeached.

Alexander Agar, originally a plaintiff, and one of the vendors, died after trial and before decision. Therefore, no decision could be made as to him. But we think it was not necessary to revive the action as to his heirs and personal representatives. The contract on the part of-the vendors was joint, not several; to convey or cause to be conveyed to the vendee the'entire title, not each to convey'his several shares therein, and a single payment of the purchase money was to be made. The rights and obligations of the contract devolved on the survivors. If the survivors could give a full title, we do not see why they could not proceed with the action. On the trial the plaintiffs produced a deed- properly executed and acknowledged by the three vendors and tendered it to the defendant. Upon , the defendant’s refusal to accept it, it was under tlie order of tlie court deposited witli tlie clerk for tlie defendant’s benefit. This was a delivery in escrow, and it is settled by authority that in such case the death of any of the parties before delivery to the grantee will not defeat the validity of the deed. On complying with the judgment the defendant will be entitled to the deed and acquire the title of Agar despite his death. (Hunter v. Hunter, 17 Barb. 25; Ruggles v. Lawson, 13 Johns. 285.)

If the decision below is correct on the question of title, then the form of judgment is proper. As already said, all the defendant was entitled to was to have the mortgages satisfied when it paid the purchase money. As it will not pay the purchase money except on compulsion, and even that to be delayed by appeal, there is no justice in compelling the plaintiffs to discharge these mortgages and lie out of the money, it may be., for years. It is as easy for the defendant to pay the money to the mortgagees in satisfaction of the mortgages as to the plaintiffs in satisfaction of the purchase price. If it contends that such was not its contract the answer is that the vai’iance is caused by its own fault.

The judgment appealed from should be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


text:
    Benjamin Crosby, Respondent, v. William H. Clark, as the Sole Surviving Executor, etc., of John G. Wilkin, Deceased, Appellant.

      Action by a principal against his agent— the burden of proof rests on the plaintiff— when the pi’oof is sufficient.

    In dealings between a principal and agent, or a master and servant, the law will presume that the agent or servant who has been in the habit of paying over the moneys received by him has properly accounted for the principal’s money which has come into his hands.
    The burden of proof, in an action brought by a principal to recover of his agent moneys received by the latter in the course of the agency, rests on the principal, and it is not sufficient to show the receipt by the agent of money of the principal.
    It is sufficient to show that the money was paid by the principal to the agent to be applied to a particular purpose and that it was not so applied.

      Appeal by the defendant, William H. Clark, as the sole surviving executor, etc., of John G. Wilkin, deceased, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 14th day of February,, 1894, upon the report of a referee, and also from the report and decision of the said referee, dated the 26th day of December, 1893, with notice of an intention to bring up for review on such appeal all questions of fact and of law.

      William Vanamee, for the appellant.

      Daniel Finn, for the respondent.
   Cullen, J.:

This is an appeal from a judgment in favor of the plaintiff entered upon the report of a referee on a reference of a disputed claim under the statute.

The plaintiff’s claim was for $1,000, given to the deceased in 1884 for investment on a mortgage to be made by one Webster. The plaintiff claimed that the money was not so invested, but appropriated by the deceased to his own use. That the money was left with defendant for investment in this intended mortgage, and that it was not so invested, no loan being made to Webster, was proved on the trial, and is, as we understand, conceded by the appellant. No-evidence of a return of the money by the deceased or its subsequent investment or application for the benefit of the plaintiff was given. The appellant contends that the facts proved were insufficient to-authorize a recovery for the cause of action stated in the complaint, and that the plaintiff to entitle himself to prevail was bound to show how deceased had appropriated the money.

It may be conceded that in dealings between principal and agent, or master and servant, the law will presume that the agent or servant who has been in the habit of paying over the moneys received by him has properly accounted for the principal’s money which has come into his hands, and that the burden of proof resting on the principal is not satisfied merely by evidence showing the receipt by the defendant of money of the principal. (Turner v. Kouwenhoven, 100 N. Y. 115.)

But in this case we think that the burden was fully satisfied. The money was intrusted to the deceased for application to a particular purpose; that lie failed to so apply it is proved. I see no good reason in the evidence to show why the loan could not have been made. The $800 due on the old mortgage could have been paid out of the proceeds of the new mortgage. Having failed to apply the money to the use for which it had been received, it then became incumbent on the agent to show either that he had returned the money or in some manner applied it to the use of his principal. As this was not shown, we think that judgment was properly rendered for the plaintiff.

The judgment appealed from should.be affirmed, with costs. .

Brown, P. J., and Dykman, J., concurred.

•Judgment affirmed, with costs.-


author: CuxleN, J.:

text:
    Alexander M. Conway, Respondent, v. Edward O. Carpenter, Appellant.

      Bwrender of a lease — what is not a disclaimer thereof — ejectment of a pastor from a church.

    After the surrender of the lease of a church, the keys of the churqh were delivered to the trustees of the lessor and were held by them for some time; subsequently a redelivery of the keys was made to a trustee of the lessee and permission was given to him to open the church for religious services only, with the direction, that, in case of a disturbance, lie was to return the keys to a designated trus- ■ tee of the lessor.

      Held, that the return of the keys to the trustee of the lessee was not necessarily a disclaimer of the surrender of the lease;
    That the question as to the surrender by the lessee to the lessor should be submitted to the jury.
    If, after the surrender of the lease of a church, the pastor of the former lessee enters the church, occupies the pulpit and insists on preaching, the lessor is justified in having him removed by force from the pulpit and from the church, using such force only as is necessary to eject him therefrom if he after notice refuses to leave the same.
    Appeal by the defendant, Edward O. Carpenter, from a judgment of the Supreme Court in favor of the plaintiff, entered in the •office of the clerk of the county of Westchester on the 12th. day'-of .March, 1894, upon the verdict of a jury rendered after' a trial at: the Westchester Circuit, and also from an order entered in said clerk’s office on the 16th day of March, 1894, denying the defendant’s motion for a new trial.

      James M. Iltmt, for-the appellant.

      William Riley and John F. Brenncm, for the respondent.
   CuxleN, J.:

This is an appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury at Circuit. The plaintiff claimed to be the pastor of the Messiah Baptist Church of Yonkers. The Warburton Avenue Baptist Church owned the church property occupied by the former church- and leased it to the Messiah Church at a nominal rent, with the reservation that in case of any disagreement in the congregation or board of trustees of the lessee, or other cause which in the opinion of the trustees of the lessor might make it expedient, the lessor might terminate the lease and re-enter. There was dissension and dispute between the plaintiff and his congregation. The pulpit was declared vacant by the church and the plaintiff excluded from the church edifice. But on the occasion which is the subject of this action he followed some persons engaged in lighting -the church, occupied the pulpit and insisted on preaching. His opponents then applied to the defendant, who was one of the trustees of the Warburton Avenue Church. The defendant had the plaintiff removed by force from the pulpit and ejected from the church. Eor this the present action of assault and battery was brought. The defendant justified his action on the ground that the church had been previously surrendered to the lessor and that the plaintiff was a trespasser. On a former trial the plaintiff was nonsuited. On appeal that judgment was reversed (73 Hun, 540), the General Term holding that the evidence was insufficient to show a surrender, and that even if there had been a surrender it was not justification for the violence of the assault upon the plaintiff. On the present trial additional evidence was given as. to the surrender of the church. But the learned trial judge, though dissenting in General Term from the decision referred to, felt bound by that decision to instruct the jury that there was no surrender and that the removal of the plaintiff was unlawful.

We think this disposition of the case was erroneous.

On the new trial there was shown not only the resolutions of the two church corporations, but the fact that the keys of the church were delivered to the trustees of the lessor and held by them for some time. The trustees of the lessor authorized a delivery of the keys to one Pollard, a trustee of the lessee church, and he was given permission to open the house for religious services only, and directed, in case of disturbance, to return the keys to the defendant in this action. The return of the keys to Pollard was not necessaiúly a disclaimer of the surrender by the lessee. As I read the resolution, its intention was to give Pollard a mere personal license revocable at any time. We think the question of surrender by the lessee to the lessor should have been submitted to the jury, with instructions that in case they found such surrender, then the defendant was justified in using such force as was necessary to eject the plaintiff if the latter, after notice, refused to leave the church.

The court also instructed the jury that the plaintiff was the pastor of the church at the time, and that the Messiah Church could not, under its contract, terminate the plaintiff’s position as pastor till the time at which his resignation was to take effect. To this the defendant excepted. We think the charge in this respect was misleading. If the Messiah Church, in violation of its contract, discharged the plaintiff, it would doubtless be liable to him for damages, but he would not have the right to enter upon the premises of the church against its wish any more than any other employee or servant improperly discharged.

The judgment and order denying motion for new trial appealed from should he reversed and a new trial ordered, costs to abide •event.

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

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


author: Dykman, J.:

text:
    Henry Berau, Appellant, v. Daniel O’Connell, Respondent.

      Partnership accounting — money drawn upon checks and paid, to one partner — the checks are inadmissible in evidence.

    Where, upon the trial of an action brought to obtain an accounting between two partners, the plaintiff was permitted to testify that he drew upon certain checks moneys which were paid to the defendant, the refusal to admit in evidence the checks upon which he drew such money is proper; they are not admissible as against the defendant.
    Appeal by the plaintiff, Henry Berau, from a judgment of the Supreme Court-in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of March, 1893, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the plaintiff’s complaint upon the merits, and also from the order directing the entry of said judgment.

      Hector M. Hitchmys, for the appellant.

      Charles J. Patterson and Anthony Barrett, for the respondent.
   Dykman, J.:

This is an action for an accounting.

On the 29th day of December, 1886, the plaintiff had an individual contract with the city of Brooklyn for the removal of garbage from the streets of that city, and on that day he and the defendant entered into a co-partnership agreement in writing by which they agreed to become co-partners in business under the firm name of Henry Berau, for five years, for the purpose of performing that-contract with the city.

The parties entered upon the performance of their contract; there was a settlement between them every month, and a final settlement at the termination of the partnership.

The claim in this action is that the defendant drew money from the plaintiff from time to time during the continuance of the firm under the pretense that it was to be paid over to certain parties, and instead of paying the same over, appropriated it to his own use.

The plaintiff testified upon the trial that about five months after the formation of the partnership he had a conversation with the defendant in relation to the payment of money to parties in Willoughby street, and that they were entitled to four per cent of the total sum, amounting to $3,000. That the plaintiff said: “All right; I don’t know nothing about this. You have got to. handle that portion and where does my compensation come from ?” Then I told him: “ Who will get that money?” “ Well, you will find out later on ? ”

Then he said he £>aid $1,500 and the defendant $1,500, all of which was placed in an envelope, and the defendant made the letters II. B. upon two cards, one of which, with the envelope containing the money, was given to Mr. Wernberg, who was to pay the same over to some one who should produce the duplicate card.

Then he said money had to be paid the next year, but does not say that he paid any. ITe says he paid $158 every month and $1,200 besides, in addition to the $1,500 before mentioned.

His son was called in corroboration, and testified that he drew money from the bank, and that he saw some money handed over to the defendant.

Mr. Wernberg was called as a witness, and testified that he received the envelope said to contain the $3,000 and the card from the plaintiff, but that the defendant was not present at the time of its reception. It does not appear who received the envelope from Wernberg.

The defendant in his testimony denied all the statements of the plaintiff and his son respecting the conversation in relation to the money to be paid to other parties. He testified that no money was so £>aid and that there was no necessity for such payment. He denied entirely the testimony of the plaintiff respecting the $3,000 placed in the envelope, so far as he vms connected therewith, and denied that he was present when the envelope was delivered to Wernberg.

At the close of the testimony the trial judge dismissed the complaint of the plaintiff upon the merits, and the plaintiff has appealed from the judgment entered upon such decision.

The judge refused to find that, upon the statement of the defendant that it was necessary to pay four per cent to certain parties in Willoughby street, the plaintiff contributed $1,500 and the defendant $1,500, which was inclosed in a sealed package which was delivered to Wernberg.

He also refused to find that upon similar statements of the defendant the plaintiff drew from his private bank account in 1888 $1,300; in 1889, $1,200 in 1890, $1,200 ; in 1891, $1,200, and paid the same over to the defendant to be applied by him to the same purpose.

The trial judge also refused to find that, after obtaining- the last contract from the city, the defendant falsely stated to the plaintiff that it was necessary to pay to the parties in Willoughby street out of that contract, the sum of $10,000 per annum, payable monthly.

He also refused to find that plaintiff paid over to the defendant his share of said $10,000 in bills, $458 each month.

Also, that during the continuance of the partnership there was paid over by the plaintiff to tlie defendant the total sum of $26,552, to be paid to parties in Willoughby street.

It thus appears from the findings that the trial judge did not believe the testimony of the plaintiff, and if that was untrue the testimony of the son fell with it. Even when considered by itself alone the testimony of the plaintiff is very unsatisfactory. It is difficult to believe that he would hand over $1,500 to the defendant upon his simple request, without any explanation and for iio apparent purpose. He had his contract, and there was no conceivable way in which he could expect to be benefited by parting with that money.

The same is true of all the sums paid subsequent to the first. He required no influence of any kind, and never requested any. In fact, his whole conduct, as he describes it, is so much at variance with the motives which actuate men in the ordinary affairs of life, that it surpasses belief.

Then he is contradicted by Wernberg, who corroborates the defendant, and says the defendant was not present when the plaintiff left the envelope with him.

That is a very important point in the case, for if the defendant was not present at that time, and the statement of the plaintiff upon that point is untrue, it is easy to conclude that the entire story is a fabrication. Moreover, the present claim is entirely dissimilar to the demand made by the plaintiff in his letter to the defendant under date of July 20,1892. In that letter he says the defendant received various sums, amounting to some $50,000, from the profits of the firm, one-lialf of which belonged to the plaintiff. In his amended complaint he claims that the money was obtained from him individually, by false and fraudulent representations.

The change is suspicious. If he had any claim against the defendant lie knew its character as well when he wrote the letter as he did when he made his amended complaint.

This is one of the cases in which much deference should be paid to the decision of the trial judge. There was an irreconcilable conflict between the testimony of the plaintiff and his son and that of the defendant. It became necessary to determine which gave out the truth. The trial judge had the opportunity of personal observation of the witnesses, which is a very important fact. (Westerlo v. De Witt, 36 N. Y. 345.) After a close scrutiny of the evidence and a careful consideration of the case, we reach the same conclusion as the trial judge.

Upon the trial the plaintiff produced some checks of his own, upon which he testified he drew money from his bank to pay to the defendant. They were offered in evidence and excluded, and them exclusion is assigned as error.

The plaintiff was permitted to testify that he drew the money upon the checks to pay to the defendant, and that was all that was necessary. The checks themselves were not evidence against the defendant.

¥e find no error in the record, and the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    The First National Bank of the City of Brooklyn, Respondent, v. Herman Stuetzer and Another, Defendants; William T. Wallis and Another, Appellants.

      Promissory note — when it is a personal obligation of the makers who sign it in a representative capacity.

    An action was brought upon a promissory note in the following form:
    “ $1,100. Jersey City, N. J., Jan. 20, 1893.
    “ Wallis Three months after date, we promise to pay to the order of H. Iron Stuetzer & Co., Eleven Hundred Dollars & 00-100 at the First Works. National Bank of Jersey City. Yalue received.
    “WILLIAM T. WALLIS, President.

    “GEO. T. SMITH, Treasurer.”

    It was shown upon the trial of the action that the payee on the date of the note obtained the discount of the same at a bank which had no knowledge, except from what appeared upon the face of the note, whether the note was an individual note of the persons signing the same, or a note of the Wallis Iron Works.

      Held, that the bank discounting the note was a bona fide holder for value, and was authorized to treat the note as a personal obligation of the individual makers.
    Appeal by the defendants, William T. Wallis 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 Kings on the 11th day of April, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Circuit.

      Hamilton Wallis, for the appellants.

      Jos. A. Purr, for the respondent.
   Dykman, J.:

This is an appeal by the defendants, William T. Wallis and George T. Smith, from a judgment entered against them and the other defendants.

The action is upon a promissory note in the following form : ■

“ $1,100. Jersey City, N. J., Jan. 20, 1893.

“Wallis Three months after date, we promise to pay to the Iron order of H. Stuetzer & Co., Eleven Hundred & Works. Dollars at the First National Bank of Jersey City. Yalue received. WILLIAM T. WALLIS, President.

“ GEO. T. SMITH, Treasurer

On the day of its date the note was presented by the defendant Herman Stuetzer, one of the members of the firm to whom it was payable, to the plaintiff for discount, and it was discounted by the plaintiff and the proceeds paid to Stuetzer.

When the note was discounted no knowledge had been communicated to the plaintiff respecting the purpose for which the note was given.

The discount was made on the faith of Stuetzer, without inquiry or knowledge whether it was the note of the Wallis Iron Works or the individual note of the defendants Wallis and Smith, except what appeared upon the face of the note.

Under such circumstances the plaintiff was authorized to treat the note as the personal obligation of the persons whose names were signed to the paper as makers.

The plaintiff was a bona fide holder for value, and the case is controlled by the case of Casco N. Bank v. Clark (139 N. Y. 307) and The Merchants’ N. Bank v. Clark (139 id. 114).

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.