text:
    William Kiernan, both Individually and as Executor, etc., of James Kiernan, Deceased, and Esther Kiernan, Appellants, v. The Agricultural Insurance Company of Watertown, N. Y., Respondent.

      Hire insurance — indorsement on a policy — policy upon real and personal property, separately valued — eo/ulition avoiding the entire policy for an incumbrance upon a part of the insured property.

    On the death of James Kiernan and the admission of his will to probate, his son and executor, William Kiernan, took possession of real and personal property devised and bequeathed to him, consisting of a farm, dwelling house, household furniture, barns and farming utensils and stock, and took out a New York standard policy of fire insurance on the buildings and personal property valued separately. The policy ran to “William Kiernan and mother.” There was at the time a mortgage on the land, and the policy provided that the loss, if any, on the buildings was payable to the “mortgagee and assured, as interests may appear ” Shortly after the issuance of the policy, the agent of the insurance company, at the request of the mortgagee and with the consent of William Kiernan, indorsed on the policy and signed the following words. “It is hereby understood that this property is held by and insured in the name of William Kiernan, executor of James Kiernan estate, and mother.”
    The policy provided that the entire policy should he void if the insured property, real or personal, should he incumbered. Thereafter William Kiernan executed chattel mortgages upon the insured personal property, except the household furniture, and a judgment was recovered and docketed against him. The dwelling house and furniture wore subsequently burned, and an action was brought against the insurance company for a reformation of the policy, by striking therefrom the elauses as to incumbrances, on the ground of representations alleged to have been made by the defendant’s agent, and to recover for the loss of the house and furniture..

      Held, that a case for reforming the policy was not made out.
    The plaintiffs insisted that the chattel mortgages made by William Kiernan did not invalidate the policy, for the reason that after the above indorsement on the ^policy, only the property ot the estate of James Kiernan, deceased, and that of his widow', were insured.

      Held, that the indorsement in question had no effect in changing the interests of tiie parties insured in the property
    The plaintiffs further contended that their claim was divisible, and that mortgaging the personal property, other than the furniture, did not invalidate the insurance upon the house and furniture, as they were separately valued in the policy,

      Held, that as the policy provided that the entire policy should he void if the insured property, real or personal, should be incumbered, and as the judgment against William Kiernan had become a lien upon the realty, it must he held, under the circumstances, that the policy was rendered wholly void, and that not even a recovery for the loss of the furniture could be had thereunder.
    The doctrine approved and applied — that, although a building and its contents may be separately valued in a polic3r of fire insurance, yet if the policy provides, that “ this entire policy shall be void,” in the event of the violation of- certain conditions, and such violation affects the realty or building only, the loss is not severable, and the entire policy is void.
    Appeal by the plaintiffs, William Kiernan, individually and as executor, etc., of James Kiernan, deceased, and Esther Kiernan, from a judgment of the Supreme Court in favor of the defendant, the Agricultural Insurance Company of Watertown, N. Y., entered in the office of the cleric of Cattaraugus county on the 29th day of September, 1892, upon a decision of the court rendered after a trial at the Cattaraugus Special Term, dismissing the complaint.
    The policy in suit states that it “ does insure Wm. Kiernan and mother.”

      E. L. Nortlvrwp, for the appellants.

      A. II. Sawyer, for the respondent.
   Lewis, J.:

The action was brought for a reformation of a policy of insurance issued by the defendant to the plaintiff, and upon the policy as reformed, to recover judgment for $2,300, for loss of a dwelling house and furniture therein by fire. The policy was for $2,000 on a dwelling house; $300 on household furniture and other personal property therein; $600 on barn No. 1; $500 on produce therein; $100 on barn No. 2; $200 on farming utensils; $200 on horses, and $200 on cattle. The form of the policy was the one provided for by chapter 488 of the Laws of 1886, and is known as the standard fire insurance policy of the State of New York. There ivas in the main body of the policy a provision as follows : “ If the subject of insurance be personal property, and be or become incumbered by a chattel mortgage, * ":f * or if any change......take place in the interest......of the subject of insurance......whether by legal process or judgment,” the entire policy shall be void.

The policy also contained a provision as follows : “ This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be indorsed hereon or added hereto ; and no officer, agent or other representative of this company shall have the power to waive any provision or condition of this policy, except such as, by the terms of this policy, may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission, affecting the insurance under this policy, exist or be claimed by the insured, unless so written or attached.”

Other provisions were added to the policy in the form of a rider attached thereto by mucilage. There was contained in the rider a description of the property insured, separately valued, and among other provisions the following: If the property, real or personal, covered by this policy be or become incumbered by a mortgage, trust deed, judgment or otherwise, this entire policy shall be void, unless otherwise provided by agreement indorsed hereon or added hereto.”

The property insured was situated in the town of Ellicottville, Cattaraugus county, and belonged, during his lifetime, to James Kiernan, avIio Avas the husband of the plaintiff Esther, and father of William Kiernan. James Kiernan died on the 10th day of September, 1890, leaving a last will and testament, by the terms of which the insured property Avas devised and bequeathed to the plaintiff William Kiernan, subject to some conditions not material to mention.

The will Avas duly admitted to probate on the sixteenth day of the same month, and the plaintiff William Avent into possession of the property, and thereafter made application for and obtained the policy of insurance in question; and on the 15th day of December, 1891, the dAvelling house and contents Avere destroyed by fire. The plaintiff in his complaint asked for a reformation of the policy by striking therefrom the clauses as to incumbrances upon the insured property, alleging that they AA'ere not a part of the contract between the parties for the reason that defendant’s local agent, at the time the policy was issued, represented to the insured that the provisions therein as to incumbrances were not to be considered as a part of the contract of insurance and were of no effect, and that the plaintiff accepted the policy and paid the premiums relying upon such representations.

There was upon the farm upon which the dwelling house was situated at the time of the insurance, a mortgage running to Thomas W. Litchfield to secure $2,300. The policy provided that the loss, if any, on the buildings was payable to Thomas W. Litchfield, mortgagee, and insured, as interests may appear.

The policy was delivered to the plaintiffs on the 17th day of August, 1891, and on the eighth day of October thereafter, at the request of the mortgagee, Litchfield, and with the consent of the plaintiff William Kiernan, who was the acting executor of his father’s will, the defendant’s local agent wrote across the face of the rider attached to the policy as follows: “ October 8th, ’ 91. It is hereby understood that this property is held by and insured in the name of William Kiernan, executor of James Kiernan estate, and mother.” Signed by the agent. There was at the time of the delivery of the policy, a chattel mortgage of $600 given by the plaintiff William Kiernan to H. M. Harmon, upon the cows, horses and hay insured in the policy.

The trial judge held that the agent had notice of this mortgage at the time of issuing the policy.

After the delivery of the policy a chattel'mortgage securing the same debt secured by the mortgage to Mrs. Harmon before mentioned, and interest, amounting to $635, was given to Mrs. Harmon, and thereafter, and on the 7th day of October, 1891, the plaintiff William Kiernan executed and delivered to Elihu S. Stewart, as president, etc., a chattel mortgage upon the cows, horses, hay and farming utensils insured by the policy; and on the 30th day of November, 1891, he gave another chattel mortgage upon other personal property upon the farm included in the policy of insurance, for the sum of eighty-nine dollars, and on the 8th day of October, 1891, a judgment was recovered against the plaintiff and others for the sum of $670.46, and was docketed on that day in the Cattaraugus county clerk’s office, and became a lien upon the dwelling house.

It is the contention of the plaintiff that these chattel mortgages do not invalidate the policy, for the reason that after the indorsement of October eighth, only the property of the estate of James Kiernan, deceased, and that of his Avidow was insured. The indorse ment upon the rider mentioned, Ave have seen, Avas made at the. request of the mortgagee, Litchfield, he entertaining the opinion that it Avas necessary in order to protect his mortgage.

We do not see that the indorsement had any effect in changing the interests of the parties insured in the property. By the will of the father it was vested in the plaintiff William Kiernan, subject to his mother’s dower interest, and the indorsement mentioned did not. in any way change the rights or interests of the parties therein.

The plaintiffs farther contend that their claim is divisible ; that mortgaging the cows, horses and farming utensils did not invalidate the insurance upon the house and furniture, as they were separately valued in the policy.

This argument, so far as the dwelling house is concerned, leaves, out of view the recovery of the judgment against the parties insured. The policy provided that incumbering the property by judgment should make it void, and, as we have seen, after the issuing of the policy, plaintiffs permitted the docketing of the judgment mentioned, which became a lien upon the premises upon which the insured house was located. The recovery of this judgment must be held to prevent a recovery for the loss of the dwelling house ; but the judgment cannot be said to have incumbered the household furniture before levy thereon, and as none of the chattel mortgages covered the household furniture, the question is presented whether under this policy the plaintiffs are entitled to recover for the loss of the household furniture. As we have seen, the policy provides thai “ if the property, real or personal, be incumbered by mortgage,” etc., “ the entire policy shall be void.”

In Merrill v. The Agl. Ins. Co. (13 N. Y. 452), the property insured was itemized and separately valued. The policy contained a condition that if the property insured should be or become incuml>ered by mortgage or otherwise it should void the policy. A portion of the property insured was incumbered by a mortgage, and the court held that the claim aauis divisible and that plaintiff could recover the value of the property insured that was not mortgaged. ■ But it will be observed that in that case the policy did not provide that the entire policy should be void in case the insured property should be mortgaged. The form of the policy in question was prepared after the decision of the Merrill case, and we think that the use of the word “ entire ” in this policy may he held to distinguish this from that ease.

In Smith v. same defendant (118 N. Y. 518), the policy provided that if the property, either real or personal, or any part thereof, shall be incumbered by mortgage, judgment or otherwise, it must be so represented to the company in the application, other- ' wise this entire policy shall be void.” ■ It was held that the claim was not divisible, and that the mortgaging of any portion of the property invalidated the whole policy. In the latter case, however, it will be seen that the words or any part thereof,” were contained in the policy, which it may be claimed distinguishes it from the policy in question.

The word “ entire ” has no significance in the contract unless it be held that mortgaging a part of the insured property makes it wholly void, for if the entire property insured be mortgaged of course the policy is wholly void, and in such case the use of the word “ entire ” would have no significance.

It has no meaning in the contract unless it be construed as making the policy void in toto, in case a part only of the property insured be mortgaged. Experience has taught insurance companies that what is known as the moral hazard is an exceedingly important factor in their business.

It is a well-known fact that during periods of financial and business depression losses by fire of insured property largely increase in number. The right is reserved in this policy to the company to arbitrarily cancel the policy at any time.

Had the company been advised that Mr. Kiernan was placing mortgage after mortgage upon his property insured; that he had suffered a judgment to be recovered against him, it would undoubtedly have availed itself of the right reserved to cancel the policy; its officials would have concluded that there was a moral hazard which they did not wish to be subjected to.

It was this moral hazard defendant was guarding against when it provided in the contract that if the parties insured should incumber the property insured by judgment, mortgage or otherwise (thereby evidencing that they were embarrassed pecuniarily) the company would not any longer carry the risk; that the entire policy should devoid. The real estate was incumbered, as we have seen, by a mortgage of $2,300, at the time the policy was issued ; a judgment was-thereafter docketed which was an additional lien thereon, and all of the personal property insured liable to levy and sale under execution was mortgaged; the only property not mortgaged was the. household furniture, which was exempt from, levy and sale under execution. The furniture was in the insured house and was likely to burn with the house. ¥e think that under the circumstances it must be held that the policy was wholly void. The court, in Stevens v. The Queen Ins. Co. (81 Wis. 335), takes a like view of the. question. A number of authorities to the same effect can be found in Clement’s Digest of Fire Insurance Cases, page 92. One of the-cases in this digest is Holloway v. Dwelling House Ins. Co. (21 Ins. L. J. 379), decided by the St. Louis Court of Appeals. The substance of the case is stated as follows: “ Although building and contents may be separately valued, if policy provides that this entire policy shall be void in event of violation of certain conditions, and such violation affects the realty or building only, the loss is not severable and the entire policy is void.” The word entire ” is italicised by the author. In Knowles v. Ameriecm Ins. Co. (21 N. Y. Supp. 50), the General Term, third department, and the New York Common Pleas in Ameriecm Artistic Gold Stamping Co. v. Glens Falls Ins. Co. (20 N. Y. Supp. 646), have taken a different view of this question. These cases fail to meet our approval. We think they fail to give full effect and meaning to the word “ entire ” in the policy.

The plaintiff failed to make a case for reforming the policy. The judgment appealed from should be affirmed, with costs.

Haight and Bradley, JJ., concurred.

Judgment appealed from affirmed, with costs.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    Adam Hermann, Appellant, v. William E. Passmore, May E. Passmore, Ellen E. Hotaling and Henry J. Humburch, Respondents.

      Pleading — enforcement of apa/rol contract to gire a mm'tgage — failwre of the complaint to state a consideration.

    The complaint in an action brought to compel the performance of a parol contract for the execution and delivery of a mortgage fails to state a cause of action when it, in effect, alleges as the sole consideration for the contract the payment by the plaintiff, to the bank by which it had been discounted, of his own promissory note, which had been indorsed by the defendants, but which had been given for the plaintiff’s benefit and not for any debt or obligation ■owing to him from the defendants, and of which he had received the avails, and for the payment of which it appeared that the defendants were under no legal obligation to reimburse the plaintiff.
    Appeal by the plaintiff, Adam Hermann, from a judgment of the Supreme Court, entered in the office of the clerk of Erie county on the 20th day of May, 1893, dismissing his complaint, with costs, upon a decision of the court rendered after a trial at the Erie Special Term.
    The action was brought to compel the performance of a parol contract made by the defendants, William E. and May E. Passmore, with the plaintiff.
    The complaint alleges that the defendant William E. Passmore was indebted to the plaintiff in December, 1891, in the sum of $500; that May E. Passmore, wife of William E., to secure said indebted-Mess, executed a mortgage to the plaintiff on her premises, and that thereafter the Passmores, desiring to use the mortgaged property as collateral security to their note for $1,000 at a bank, requested the plaintiff to discharge the mortgage given by Mrs. Passmore, and the parties thereupon agreed that the plaintiff should release and discharge the $500 mortgage, and that the defendants would execute to the bank a mortgage on Mrs. Passmore’s premises for $1,000, which was to be used at the bank as collateral security for money to be borrowed by the Passmores, and also as collateral to a promissory note the plaintiff wished to give for $385, which he expected to get discounted at the bank.
    And then follow allegations to the effect that the indebtedness of William E. Passmore to the plaintiff having thereafter increased $100, that it was agreed that the plaintiff would give his promissory note for $600, the payment of which the defendants Passmore would guarantee, and which ^as to he discounted at the Queen City Bank in Buffalo, and the plaintiff was to assign to the bank a mortgage he owned upon real estate for the sum of $1,000 as collateral to his said note of $600; that he discharged the $500 mortgage given by Mrs. Passmore, made his own note for the $385, which was indorsed by the Passmores and discounted by the bank, the plaintiff having the avails of the discount, and that he gave his own note for $600, which was for value received guaranteed by the Passmores, and which he procured to be discounted; that the Passmores agreed to pay the $600 note; that they failed, and neglected to pay said note, and that the plaintiff was compelled to pay and take it up; that the Passmores neglected to pay the $385 note at its maturity or any part of it, and that thereupon another agreement was entered into to the effect that the plaintiff should pay and take up the $385 note; that the Passmores should, in consideration thereof, execute and deliver to the plaintiff their bond for the sum of $600, which should be secured by a mortgage for that sum executed by the defendant May E. Passmore on premises then owned by her; that the bond and mortgage were executed ready to be delivered to the plaintiff, and that thereupon the plaintiff paid and took up the $385 note, but that the Passmores refused and neglected to deliver the bond and mortgage, and that thereafter, with intent to cheat and defraud the plaintiff, Mrs. Passmore conveyed the premises covered by the mortgage to the defendant Ellen E. Hotaling, she giving back to Mrs. Passmore a mortgage for $800, part of the purchase price, which Mrs. Passmore fraudulently assigned to the defendant Henry J. Humburch.
    The plaintiff prayed for judgment adjudging and decreeing that the defendants Passmore deliver over to the plaintiff the bond and mortgage for $600, and that the same should become a lien upon the premises prior to the conveyance to Mrs. Iiotaling, and the mortgage held by Mr. Humburch.
    At the trial the plaintiff read his complaint and thereupon admitted that the note for $385, indorsed by the defendants Pass-more, and used at the bank as stated in the complaint, was not given for any debt or demand owing by William E. Passmore or May E. Passmore to the plaintiff.
    Thereupon the plaintiff’s complaint was dismissed upon the ground it did not state a cause of action.
    The plaintiff duly excepted.

      Frank R. Perhms, for the appellant.

      Hugh 0. Sells, for the respondents.
   Lewis, J.:

We are not able to see that the Passmores were under any legal obligation to reimburse the plaintiff for the money he paid to the bank to take up his own note given for his own benefit. Concededly it was given for his own benefit and not for any debt or obligation the Passmores or either of them owed him.

The plaintiff, it is true, had discharged and surrendered a bond and mortgage he held upon Mrs. Passmore's property for the sum of $500, and they had thereafter promised to give to the plaintiff a bond and mortgage for $600.

The alleged consideration, however, for the promise, as stated in the complaint, was the plaintiff’s paying his own note of $385.

In view of the accommodation extended to the defendants Pass-more by the plaintiff in discharging the $500 mortgage, he might very well have expected that they would extend to him in return the agreed accommodation. The plaintiff, however, does not seem to have any legal claim upon the defendants which the courts-can enforce.

The contract which the plaintiff claims the defendants failed to perform, and upon which he relies for his cause .of action, has to do only with the $385 note.

Reference is made in the complaint to another note of $600, but the allegations of the complaint in regard to the giving of the bond and mortgage for the sum of $600 have no apparent reference to-the $600 indebtedness.

The complaint shows that the plaintiff has a demand against the defendant William E. Passmore for the sum of $600, but he had no interest in the real estate in question, and if he-had plaintiff is not in a position to attack the conveyance to the defendant Hotaling, or the assignment of tiie $800 mortgage to ITumburch, as his demand against William E. Passmore is not in judgment.

The court, at Special Term, correctly held that the plaintiff had failed to state a cause of action in his complaint.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Haight, L, concurred.

Judgment appealed from affirmed, with costs.


text:
    Helen L. Maxwell, as Administratrix, with the Will Annexed, of Joshua Maxwell, Deceased, Respondent, v. Octavius O. Cottle, Appellant.

      Attorney's lien for services — Statute of Limitations — right to set off.

    An attorney’s lien on moneys of liis client in Ms possession, for the amount of a general balance due Mm for professional services, continues to exist after and notwithstanding his remedy by action for the debt has become barred by the Statute of Limitations ; and the attorney has a right to retain such money until his account is adjusted and to have it set off and applied upon Ms account, in ' an action brought against Mm by the client to recover the money in his hands.
    Any 'loan which an attorney has for professional services upon a mortgage placed in his hands for collection, at the time the'mortgage is converted into money by its collection, attaches to the money.
    Appeal by the defendant, Octavius O. Cottle, from an order of the Supreme Court, made on the 28th day of April, 1890, and entered in the office of the clerk of Erie county, denying his motion for a new trial made upon the minutes, upon the rendition of a verdict for the plaintiff of $320 after a trial at the Erie Circuit; and also from an order of the Supreme Court, made on the 26th day of December, 1889, and entered in said clerk’s office, denying the defendant’s motion for a reference of the issues.
    The action was brought by the plaintiff as administratrix, with the will annexed, of Joshua Maxwell, deceased, to recover the sum f $500, the proceeds of a mortgage which had been placed by her testator in the hands of the defendant, an attorney at law, for collection, and which had been collected by him, but not paid over.
    The defendant’s answer was as follows :
    “ The above-named defendant, for answer to the plaintiff’s complaint, says that at the times hereinafter mentioned he was and still is an attorney and counselor of the Supreme Court of the State of New York, and, as such, at divers times between the 1st day of January, 18J0, and the commencement of this action, rendered services for said Joshua Maxwell, at his special instance and request, and upon an open and running account in and about prosecuting and collecting the mortgage mentioned in the complaint, and in prosecuting and defending divers suits and proceedings in divers coirrts, and in drawing various deeds, contracts, wills and instruments, and in examining titles and deeds, and in consultations about matters as to which he, said Joshua Maxwell, requested of this defendant legal advice as such attorney and counselor; and paid, laid out and expended divers sums of money in and about the said business and for said Joshua Maxwell at his request.
    “ That the value of such services and the money expended as aforesaid exceeded the sum of $1,600 over and above all payments made on account thereof. And this defendant alleges upon information and belief that he acquired and had a lien upon the bond and mortgage described in the complaint, and upon the money due thereon and for the sum of money mentioned in the complaint, for said services and money advanced to the extent of said sum of $1,600, and the right to apply the sum alleged in the complaint as a part payment thereof. That the said sum of $1,600 is still unpaid and due to the defendant, with interest thereon, except so far as the same has been paid by the money mentioned in the complaint, and I this defendant will set off the same and apply said $500 on account thereof.
    “ This defendant, after applying all moneys received by him on | account of the matters alleged in the complaint upon the aforesaid f demands in his favor, demands judgment in his favor against said! plaintiff for the balance dire to him by reason of the matters | aforesaid.”
    -The plaintiff replied, alleging that she had no knowledge as tol whether the services were rendered or not, and that she believed! that whatever services were rendered by the defendant were paid for prior to the decease of the testator.
    The ruling of the trial court, stated in the following opinion, against any demand set up by the defendant which accrued more than seven years and six months before he received the money, was based upon section 403 of the Code of Civil Procedure as interpreted in Chcvpman v. Fonda (24 Iiun, 130) and Church v. Olendorf (49 id. 439), in wiiich cases it is held that the six years’ period required to bar a claim is extended one year and six months in case there had been no letters of administration issued at the time when the claim would otherwise have been barred. Letters of administration were not issued in this ease until after the six years had run.

      Fdmtrnd P. Cottle, for the appellant.

      Frank F. Williams, for the respondent.
   Lewis, J.:

The order denying the motion for a reference should be affirmed.

The account of the defendant consisted of items for services and disbursements as attorney for Joshua Maxwell, deceased, in several actions and in other matters. The account was not of the character contemplated by section 1013 of the Code of Civil Procedure.

The granting of the order for a reference was a matter for the exercise of the discretion of the court. (Martin v. Windsor Hotel Co., 70 N. Y. 101; Godfrey v. Williamsburg City Fire Ins. Co., 12 Abb. (N. S.] 250.)

The serious question in the case arises upon the rulings of the court under the Statute of Limitations.

The action was brought by the plaintiff as administratrix with the will annexed of her husband, Joshua Maxwell, deceased, to recover $500 in the defendant’s hands, collected by him as an attorney of her deceased husband.

The defendant admitted collecting the money as attorney, but claimed to have a lien thereon for services and disbursements made and rendered by him as attorney for said Maxwell during his lifetime. The defendant had for many years .prior to the death of Maxwell acted as his attorney in various matters. He commenced to perform the services as early as about 18Y2.

In the year 1875 Maxwell placed in his hands as attorney to collect a mortgage upon real estate in the State of Wisconsin. The defendant instituted proceedings for the collection of it, and in the year 1883 received on account thereof the $500 in question.

This was three years after the death of Mr. Maxwell.

There was evidence tending to show that at the time the mortgage was placed in defendant’s hands Maxwell was indebted to him for services and disbursements as an attorney.

The account accrued less than six years before the mortgage came into the defendant’s hands, and has never been paid.

Before the commencement of this action, and before the defendant received the $500, the Statute of Limitations had run against the portion of the defendant’s account referred to.

The court upon the trial ruled that the defendant had a lien upon the moneys which came to his hands for any amount then due him which was not barred by the Statute of Limitations; but that his lien ceased to exist upon any demand set up in his answer which accrued more than seven years and six months before he received the money.

Any lien which the defendant had upon the mortgage at the time it was converted into money must, we think, be held to have attached to the money.

All there was in the mortgage upon which a lien was effectual was the money that the mortgage represented, and when it was paid his lien must be held to have been transferred to the proceeds of the mortgage. The question is, therefore, presented whether an attorney’s lien on funds in his possession continues after the debt becomes barred by the Statute of Limitations. If not, the ruling of the trial court was correct.

If it continues the defendant is entitled to a new trial; for there was evidence tending to show that there was something due him for services which were performed more than seven years and six months prior to the time the money came into his hands.

The statute, however, had not run against any portion of his claim at the time the mortgage was placed in his hands for collection. It is a well-settled rule that an attorney has a lien on all papers ■ or moneys belonging to his client in his possession for the amount of a general balance due him for professional services.

This rule became well established in England at an early date, and prevails not only in that country but in this.

An attorney has the right to make application of the funds in his possession upon his account without the consent of his client, and we think, upon principle and authority, that the lien continues to exist notwithstanding his remedy by action for the debt becomes barred by the Statute of Limitations. (Spears v. Hartly, 3 Esp. 81; Hulbert v. Clark, 128 N. Y. 295, 302; 1 Jones on Liens, § 231; Overton on Liens, p. 26, n. 1; Jones v. Merchants' Bcmk, 6 Bobt. 162.) After the statute has run against the claim- the remedy by action is barred, but the debt is not discharged. It still exists. (Hulbert v. Clark, 57 Hun, 559.)

s The running of the statute against a claim does not raise a presumption of its payment, but merely creates a bar to the remedy by action. (Rogers v. Murdock, 45 Hun, 30.)

The case 3 Esp. (supra) was an action of trover for a log of mahogany. The defendant was a wharfinger, and claimed a lien on it as well for the wharfage as for the balance of a general account. The account was barred by the Statute of Limitations.

Lord Eldon, in deciding the question, says : “ If what has been stated by the defendant’s counsel be law, that the debt is discharged by the operation of the Statute of Limitations, no lien could be obtained by reason of it. But the debt was not discharged. It was the remedy only.

I am of opinion that though the Statute of Limitations has run against a demand, if the creditor obtains possession of goods on which he has a lien for a general balance, he may hold them for that demand by virtue of the lien.

“ In this case the defendant had a subsisting demand when the goods came to his possession, and I am of opinion he may enforce it by the lien which the law has given him for his general balance.”

It was held in Higgins v. Scott (2 Barn. & Ad. 413), that the Statute of Limitations bars the remedy only, not the debt; and, therefore, where an attorney for the plaintiff had obtained judgment, though he had taken no step in the cause or to recover the amount of his bill of costs within six years, he had still a lien on the j'udgment for his bill of costs, and the court directed the sheriff to pay him the amount out of the proceeds of the goods. (Darby & Bosanquet on Statutes of Limitation, 11.)

It was held in Richards v. Platel (18 Eng. Ch. 79), that the lien of a solicitor on the papers of his client for the amount of his bill is equivalent to a contract, and, therefore, a solicitor will not be ordered to deliver up such papers until he is actually paid.

In MacKelvis & Sterritt’s Appeals (108 Penn. St. 615), it was held that an attorney has a lien for his services upon the papers actually in his possession ; that having the money in his hands he may deduct the amount due him and pay over the balance if there is any. To the same effect is Griffith’s Estate, Nagel’s Appeal (147 Penn. St. 278).

It was held in McNagney v. Frazer (27 N. E. Rep. 431), that while an attorney having taken no steps to perfect a statutory lien on a judgment obtained by him, and the Statute of Limitations having run against his action at law, he cannot sue in equity to establish a lien on the judgment, still if he has in his possession property pledged to secure his debt, his lien would not become extinguished if his debt should become barred by the Statute of Limitations.

It was held in Hulbert v. Clark (57 Hun, 558, opinion Dwight, P. J.), that the running of the Statute of Limitations against a claim did not prevent the foreclosure of a mortgage under seal to collect the amount of the claim thus barred. This case was affirmed by the Court of Appeals (128 N. Y. 295).

Earl, J., in his opinion says: “ The Statute of Limitations does not, after the prescribed period, destroy, discharge or pay the debt, but it simply bars a remedy thereon. The debt and the obligation to pay the same remain, and the arbitrary bar of the statute alone stands in the way of the creditor seeking to compel payment. The Legislature could repeal the Statute of Limitations and then the payment of a debt upon which the right of action was barred at the túne of the repeal, could be enforced by action, and the constitutional rights of the debtor are not invaded by such legislation. * * * It is a general rule recognized in this country and in England, that when the security for a debt is a lien on property, personal or real, the lien is not impaired because the remedy at law for the recovery of the debt is barred.”

There are many other authorities sustaining this doctrine, but we do not deem it necessary to refer to them.

The authorities referred to by the respondent, which it is claimed maintain a contrary doctrine, were cases where the attorney sought by an affirmative action to enforce his hen, and it was held he could not maintain the action because his remedy was barred by statute.

The defendant is not asking, nor does he require any affirmative action in his behalf. He has the money in his possession and claims the right to retain it until his account is adjusted.

We are of the opinion that the defendant did not lose his lien upon the moneys for the reason that the Statute of Limitations had run against his claim.

It, therefore, follows that his motion for a new trial should be granted, with costs to abide the event.

Order denying motion for a reference affirmed.

Dwight, P. J. and IIaight, J., concurred.

Order denying motion for new trial reversed and new trial granted, with costs to abide the event.

Order denying motion for reference affirmed.


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    Alfred Johnson, Plaintiff, v. The Steam Gauge and Lantern Company, Defendant.

      Statutory factory fire escape — landing place — liability of the occupcmt of the building to an employee — negligence and contributory negligence — opinion testimony of a surgeon — effect of a factory inspector’s fire escape certificate.

    A safe landing place is an essential part of the suitable and proper fire escape required by statute to be maintained on tlic outside of factories.
    A manufacturing company, occupying as lessee a seven-story factory, maintained no stairs from the upper floor to the roof, as prescribed by the statute, but provided the building with two outside fire escapes, consisting of iron rungs inserted in the walls; one of these escapes was practically useless by reason of shutters opening against it; the other escape ended over an open area, some six feet wide, across which there had once been a platform, but the platform, except a remnant about two feet wide and two transverse iron bars on which it rested, had been removed; between these bars was a wooden chute, about three feet wide, the mouth of which was under the fire escape. The building took fire, and an employee of the occupant, in escaping by means of the accessible fire escape, dropped from its bottom rung and fell into the chute and was injured; lie thereupon brought an action against the occupant of the building to recover damages, claiming that his injury was caused by the defendant’s negligence in failing to provide suitable and proper fire escapes.

      Held, that the evidence tended to show that the plaintiff’s injury was caused by the negligence of the defendant, it appearing that the defendant had caused the covering of the area to -be so removed that persons using the fire escape were liable to receive serious injury.

      Held, also, that the plaintiff was not guilty of contributory negligence in attempting to use the fire escape.
    A surgeon, who had examined the plaintiff immediately after his injury, was permitted to testify, as a witness for the plaintiff, that, judging from the relative position and the condition of the broken bones, in his opinion, the foot of the plaintiff’s broken leg struck upon a sloping object, and that the neel of the foot strucK the object first before the ball of the foot struck, and that his body was in an upright position when he fell.

      Held, that the evidence was competent. *
    The defendant claimed that the approval of the fire escape by the factory inspector operated as a compliance bjr the defendant with the requirements of the statute and constituted an answer to any charge of negligence. It did not appear that the inspector ever saw, or had his attention called to, the condition of things under the fire escape where the plaintiff was injured.

      Held, that this claim could not prevail, as it could not be successfully maintained that the inspector’s certificate could operate to convert an obviously unsafe landing into a safe one.
    Motion by tbe defendant, tbe Steam Gauge and Lantern Company, for a new trial, made upon exceptions ordered to be beard at tbe General Term in tbe first instance, afteh tbe rendition of a verdict in favor of tbe plaintiff at tbe Monroe Circuit on tbe 9th day of December, 1892.

      Walter 8. Hubbell, for tbe plaintiff.

      Louis Marshall, for tbe defendant.
   Lewis, J.:

This action was brought to recover damages sustained by tbe plaintiff for injuries sustained while attempting to escape from tbe factory of the defendant in which be was employed at tbe time. The building ivas destroyed by fire on tbe evening of tbe 9th of November, 1888. His injuries, lie claims, were caused by tbe defendant’s failure to provide suitable and proper fire escapes on tbe building.

The defendants were the lessees and occupants of a building which was located in the city of Rochester adjoining the Genesee river, and were engaged in manufacturing therein lanterns and steam gauges.

The building was seven stories high and consisted of a main part, which extended north and south, a wing about 100 feet long, running east and west, and connected with the main part on each floor by means of arches, thus constituting a single building.

The Genesee river flowed along and against the north and east foundation walls of the main building. On the south side of the wing and on the west side of the main part, was a court, which ran south to Center street and was at its eastern end about forty feet in width.

The court was surrounded on three sides by buildings ; on the west by one extending from Center street to the wing of the defendant’s factory; on the east side by a building extending from Center street to the defendant’s main building ; on the north by the wing of defendant’s building.

The natural surface of the ground of this court descended from Center street towards the north so that at the wing building the surface of the ground was about on a level with the top of its foundation wall.

'Within this court, and near its north end. a building had been constructed to contain an engine and boiler.

It had independent stone walls; its north wall was located six feet two inches south from the south wall of the wing building; its east and west walls were three or four feet distant from the main building and from the west building, leaving an open area between the engine building and the wing building extending to the bottom of the lower story of the wing building. The engine building was about fourteen feet in height.

The top of it was paved and formed the floor of the court, which was used for the purpose of reaching the steps leading from the ■court into the building.

When the factory building was constructed there was a pair of stairs leading from the upper floor of the building to an opening in the roof for the purpose of escape in case of fire.

These stairs had been removed by the defendant previous to the fire, and at the time of the fire the only means of reaching the roof was by one of the fire escapes hereafter mentioned.

There were two fire escapes upon the building, both upon the court sides. One was upon the west side of the main part, which it is not necessary to particularly describe for the reason that in consequence of the presence of window blinds opening against the escape it was exceedingly difficult, if not impossible, to reach the escape from the windows of the building.

The other fire escape was upon the east wall of an elevator shaft, which extended out into the court some six feet from the southerly side of the wing part of the building.

This escape was made of iron pipes, the bent ends of which were inserted into the wall of the elevator shaft. It extended from the roof of the building down the wall to a point about fourteen feet above the roof of the boiler room.

This escape was directly over the area described between the boiler room and the wing' building.

This area extended from the elevator shaft easterly to the main building some eighteen or twenty feet, and was, as stated, some six feet two inches wide, and some twenty to twenty-five feet in depth.

A person dropping from the lower rung of the escape, but for reasons hereafter stated, would naturally fall into this area or open space. There was a door in the south wall of the wing building just east of the elevator shaft.

When the building was constructed, a platform or landing was-placed in front of this door, partially covering the area. There were three or four steps leading from the roof of the engine and boiler building up to this platform.

The treads and platform rested upon two iron rods extending from the boiler building to the wing, and which were so constructed as to support the steps and platform.

The use of this door was abandoned a year or two before the accident in question, and the treads and the outer boards of the platform were removed, leaving only the two iron rods and the remnant of the platform, which was some twenty inches to two feet in width in position.

This change was made to make room for a chute from the court into the lower story of the wing building, and one was placed in between the iron rods mentioned, near the east wall of the elevator shaft. The chute was about three feet wide, and was made of boards with risers on each side about six inches high.

Its upper end extended up about two or three feet higher than the roof of the engine house ; the chute ran down into the wing of the building into a door directly under the door above described and at an angle of about forty-five degrees.

It was used for sliding boxes and supplies from the court into a lower story of the wing building.

The upper end or mouth of the chute extended out into the court beyond the line of the rungs of the fire escape, but just how far does not appear. It was sufficiently near to the escape so that some of the persons who attempted fo descend the fire escape on the night of the fire, in dropping from the escape landed in the chute.

A witness testified that when dropping from the fire escape he swung his body out into the court so as to avoid falling into the area, and fell into the chute.

The plaintiff, in describing his descent, says he dropped straight down from the last rung, and found himself, when he became conscious, in the chute.

There were a large number of employees in the building at the time of the fire. The fire spread with great rapidity filling the building with dense smoke.

The plaintiff was at work at the time the alarm of fire was given upon the fifth floor.

He passed down the stairs leading, from the fifth to the fourth floor and attempted to descend the stairs from the fourth to the third floor, but was prevented from so doing by smoke and fire; he then went to the fire escape upon the elevator shaft, and proceeded to descend into the court, and when he had reached the lower rung of the escape he dropped from the escape and become unconscious. When he regained his consciousness he found himself seated in the mouth of the chute with his legs hanging over its sides; his left leg was broken in several places below the knee, making amputation of the leg mecessary.

The statute made it the defendant’s duty to provide the plaintiff with suitable and proper fire escapes connected with each floor of the factory above the first, well fastened and secured and of sufficient strength. The statute also required that there should be stairs of ■a ladder leading from the inside of the upper story of the building to the roof. The stairs, as we have seen, had been removed, and one of the fire escapes was practically useless because of the obstacles in the way of reaching it.

The evidence, we think, tended to show and justified the jury in finding that the defendant failed to provide a proper fire escape; a safe landing is an essential part of a fire escape; had the fire escape in question been upon the north side of the factory over the waters of the Genesee river, it would not be claimed to have been a fire escape within the meaning of the statute.

The defendant had caused the covering to the area to be so removed that persons using the fire escape were liable to receive serious injuries.

The evidence tended to show that plaintiff’s injuries were caused by the negligence of the defendant.

The plaintiff was not guilty of contributory negligence in attempting to use the fire escape.

While he had a general knowledge of its location, had seen the chute and knew perhaps that the steps had been removed, he did not know the precise situation and relative position of the fire escape, the steps, chute and area, and if he did it is not surprising that in the excitement of the occasion he did not think and reason quite correctly.

Surgeons testified that they found both bones of the plaintiff’s left leg broken below the knee, and that one of the broken bones was driven up into the knee joint.

One of the surgeons was permitted to testify that, judging from the relative position, and the condition of the broken bones, in his ■opinion the plaintiff’s foot of the broken leg struck upon a sloping ■object, and that the heel of the foot struck the object first before the ball of the foot struck, and that his body was in an upright position when he fell.

This téstimony was given by one of the surgeons who saw the plaintiff immediately after his injuries and examined his condition.

We think the evidence was competent.

.. The witness being a surgeon, presumably had a knowledge of the anatomy of tlie human body, the strength and position of the bones of the leg, not common to laymen, and having had the advantage of a personal examination of the plaintiff’s leg after the injury, he was properly allowed to give his opinion as an expert.

The defendant’s counsel contends that the approval of the fire escape by the factory inspector operated as a compliance by the defendant with the requirements of the -statute, and as an answer to-any charge of negligence.

The inspector probably never saw or had his attention called to the condition of things under the escape where plaintiff was injured.

It cannot be successfully maintained that his certificate could operate to convert an obviously unsafe landing into a safe one.

The inspector testified that he did observe that the window blinds obstructed access to the fire escape upon the main building, and advised their removal, but that his advice was not heeded by the defendant.

¥e have examined the defendant’s exceptions and find no reason for disturbing the verdict. The motion for a new trial should be denied with costs, and judgment directed for the plaintiff upon the verdict.

Dwight, P. J., and Haight, J., concurred.

Defendant’s motion for new trial denied, -with costs, and judgment ordered for the plaintiff on the verdict.


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    Lillie Kleng, Respondent, v. The City of Buffalo, Appellant.

      Negligence — personal injury — icy sidewalks — duties of municipalities — contributory negligence.

    While municipal authorities are required to be reasonably vigilant in keeping the sidewalks in proper condition, they are not expected or required to do what is practically impossible in this climate, namely, remove snow and ice from the, sidewalks immediately after it forms.
    A person is guilty of contributory negligence who, fully understanding the condition of smooth, sloping ice in the middle of a sidewalk (it being in the daytime and the ice not covered with snow), deliberately walks upon the ice, and slips thereon and is injured, when he could have passed along the side of it with safety.

      Appeal by the defendant, the City of Buffalo, from a judgment of the Supreme Court in favor of the plaintiff, entered in Erie county on the 16th day of February, 1893, upon a verdict rendered at the Erie Circuit, and also from an order denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought for the recovery of damages sustained by the plaintiff in falling upon a sidewalk in the city of Buffalo.

      Philip A. Laing, for the appellant.

      Wallace Thayer, for the respondent.
   Lewis, J.:

Giving to the evidence the most favorable construction for the plaintiff it will bear, it fails, we think, to sustain- the recovery. The accident happened upon the sidewalk upon the northerly side of Swan street between Main and "Washington streets, on the 17th day of February, 1892, at eleven-thirty in the morning, by the plaintiff falling upon ice on the walk and fracturing her arm.

The negligence complained of was in permitting the snow and ice to accumulate and lie upon the sidewalk. There was perhaps evidence enough to show that the ice had remained a sufficient length of time to constitute constructive notice to the defendant. The evidence tended to show that during the month of January and the forepart of February a large amount of snow fell in the city of Buffalo. Nearly four feet of snow fell in the month of January. The streets and sidewalks all over the city were during that month ■and the early part of February more or less covered with snow and ice. The amount of snow was so large that the householders were somewhat neglectful of their duty in removing it from the walks. The weather in the forepart of February, and up to the time of the accident, was very changeable. There was snow, sleet and rain, sometimes thawing and freezing iu the same day. About one and •one-half inches of snow fell on the eleventh of February, accompanied with wind, which drifted the snow considerably. On the fourteenth of that month a small amount of wet snow and rain fell and froze as it fell, forming ice and making the walking all over the city very difficult. It continued to freeze on the sixteenth and seventeenth of the month.

The sidewalk at tlie place of the accident was eight feet in width. Its condition is variously described by the witnesses. The plaintiff testified that the whole sidewalk at the place of the accident was icy ; was hard ice and no snow upon it; that there was a ridge of ice three or four inches thick in the center ; that it was an inch or two inches higher in the center than at the sides, sloping off to the right and left. Salena "Weldorf, who was walking with the plaintiff at the time of the accident, testified that there was some ice. She did not know how thick, but it only covered a part of the width of the sidewalk; and that there was a path near the curbstone sufficiently wide to walk upon where there was no ice. The ice was hard and solid, looking like glass.

The witnesses called by the defense testified that there had been a pathway cut through in the center of the walk sufficiently wide for two persons to walk abreast, that was substantially free from ice. The evidence fairly established that there was at the place where the accident happened smooth ice upon a portion of the width of the sidewalk, some three or four inches in thickness and sloping-very slightly to the sides of the walk.

It was established upon the trial that the winter of 1892 was an unusually severe one, and that the sidewalks in the city the greater part of the winter were covered with snow and ice, rendering the walking difficult. The frequent and sudden changes in the weather made it practically impossible to keep the many miles of sidewalk in the city free from snow and ice. To accomplish such a task it would have required an amount of labor and an expenditure of money not to have been expected or required of the municipality under the circumstances. While the city authorities are required to be reasonably vigilant in keeping the sidewalks in proper condition, they are not expected or required to do what is practically impossible, remove the snow and ice in this climate from the sidewalk immediately after it forms.

The ice at the place of the accident was smooth, the surface of it was practically level, with a slight elevation in the center.

The sidewalk at the place of the accident was, without much doubt, in better condition than most of the sidewalks in the city at the time. It was a thin covering of ice, such as may be expected in case of frequent changes in the weather in winter.

The occupant of the premises adjoining understood it to be his duty to keep the sidewalk free from ice. He testified that he did so far as he could, and frequently sprinkled it with sand or ashes during the winter of 1892.

To hold the city liable for negligence in this case would impose upon it the duty'of keeping all of the sidewalks in the city free from snow and ice during the inclement winters of this climate. It is a matter of common observation that during such weather all the sidewalks of the city are covered to a greater or less extent with snow and ice. And in case of thawing, followed by freezing weather, the whole city is covered with ice.

It was held in Taylor v. The City of Yonkers (105 N. Y. 206), that in such emergencies the corporate authorities may wait without negligence a change of temperature which will remove the danger.

The plaintiff fully understood and comprehended the condition of the ice before she attempted to pass over it. All the information she had' upon which she based her testimony as to the condition of the ice she acquired by looking at it before she fell. She knew about its thickness; that the center was somewhat elevated above the sides; that it was smooth, and deliberately walked upon it, when, if the testimony of the witness who accbmjianied her was correct, she could have passed along the side of it with safety. It was not a case of walking upon ice in the night-time, or when it is covered with snow, so that its true condition is not known.

Understanding, as she did, the situation, she must be held to have been guilty of negligence contributing to her injury.

We think the plaintiff failed to make a case, and that the judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

Dwight, P. J., and Haight, J., concurred.

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


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    Daniel P. Smith, Respondent, v. The Buffalo, Rochester and Pittsburgh Railroad Company, Appellant.

      Railroads — personal injury to a switchman — use of an ordinary engine in place of a sicitching engine in coupling cars — negligence.

    A railroad switchman, employed in a track yard where there were two switching engines provided with extra appliances for the protection of switchmen when engaged in coupling cars, went on duty in the evening and commenced switching with one of the regular switching engines, but during the night this engine was withdrawn for repairs, without his knowledge, and an ordinary road freight engine, which was not furnished with such appliances for the protection of switchmen, was substituted in its place. The switchman was directed by his foreman to couple this engine to a passenger car having a Miller coupler;' it was dusk at the time; he attempted to make the coupling, was caught between the car and the engine, and was injured. This occasion was the first one on which he had attempted a coupling with this engine.
    In an action brought against the railroad company to recover damages for the injury,

      Held, that it was inexcusable negligence on the part of the defendant to use such an unguarded engine for such a purpose, especially in the night-time;
    That it was the defendant’s duty to provide the switchman with every reasonable and well-known safeguard to prevent injury to his person;
    That, under the circumstances, the question of contributory negligence was one for the jury to determine ;
    And, hence, that a verdict in favor of the plaintiff should not be disturbed.
    Appeal by the defendant, the Buffalo, Rochester and Pittsburgh Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Steuben county on the 12th day of' January, 1893, upon a verdict rendered at the Steuben Circuit, and also from an order of the Supreme Court, entered in said clerk’s office on the 12th day of January, 1893, denying the defendant’s motion for a new trial upon the minutes.

      Henry G. Danforth, for the appellant.
    ' F. F. Fdbeoek, for the respondent.
   Lewis, J.:

This action was commenced for the recovery of damages for personal injuries sustained by the plaintiff while employed by the defendant as a switchman in defendant’s yards at Bradford, Pa.

The plaintiff had been at work for the defendant in the capacity of switchman for nine days prior to the accident.

He had prior thereto been employed by railroads in vai'ious capacities, but never before as a switchman.

The defendant had in its yards two switching engines for doing that work. They were provided with appliances for the protection of switchmen when engaged in' coupling cars.

• In front of these switch engines, and running acrosB the front thereof, was a footboard about twelve inches wide upon which the switchman could stand when making couplings.

They were also provided with a projection in front called a mouth organ or drawhead ; the front end Avas large and had three openings to receive a link.

The drawhead acted in a measure to preArent the engine and the car Avhen being coupled coming near enough to each other to injure the switchman.

On the night of the accident the plaintiff Avent on duty at six-thirty p. m., and commenced switching with a regular sAviteh engine, but early in the night, Avithout his knowledge, the SAviteh engine was sent to the shop for repairs and a regular road freight engine Avas substituted for use in the yard.

It was a heavy eight-driving-Avheel engine, and Avas not provided with any appliances for the protection of the switchman while making couplings. It had the usual pilot or cowcatcher Avhicli extended out about five feet in front and coming to a point.

The coupling appliance consisted of an iron draivhead, commonly known as a bull-nose, Avliich extended from the face of the pilot beam a distance of two and a half feet. The face of the bull-nose was twelve inches long and ten and one-eiglith inches broad. The opening in the head of the bull-nose Avas five inches square; this was to receive a link.

There was a step or foot-rest on the pilot fifteen inches long projecting five inches from the outside of the slats composing the pilot. The end of this step AAras thirteen inches from the end of the pilot.

The plaintiff Avas directed by the yard conductor or head switch-man to coujfie the engine to a passenger car; it was dark at the time. The passenger car was provided Avith what is known as a Miller coupling, but it had neither bumpers, safety blocks nor deadwoods.

These Miller drawheads extend out from the platform of the car about a foot, with a face width of about eight inches, with an appliance to receive a link. Attached to it is a strong spring which gives a play to the drawhead to the left of about three and one-half inches.

Near the front end of it is a clutch or jaw, and when two of these drawheads come together, owing to this play they pass each other until the clutches are opposite, and then close by springs automatically.

In attempting to effect the coupling on the occasion of the accident the plaintiff stepped with his left foot upon the ledge or step described, and balancing his body upon that foot, the other foot having nothing to rest upon, with his lantern upon his arm,, he took the link attached to the drawhead of the engine in his left hand and with a pin in his right hand attempted to insert the link into the Miller coupling and secure it thereto by dropping the iron pin into the link.

He failed to insert the link and the two drawheads came together, passed each other and the drawhead of the passenger car caught plaintiff’s left leg between it and some part of the pilot'and crushed it, injuring it so that it necessitated amputation.

The accident occurred before daylight in the morning. The plaintiff attempted to make the coupling in the ordinary manner, but obviously with the appliances furnished him it was a hazardous and dangerous thing to do.

There was an entire absence of any safeguards to protect the plaintiff’s person in case of a failure to effect the coupling.

Standing as he was required to do, upon one foot, with the lantern upon his arm, with both hands engaged, it is not surprising that he failed to secure the link in the passenger car.

It was, we think, inexcusable negligence on the part of the defendant to use such an unguarded and unprotected engine for such a purpose, especially in the night-time.

In view of the terrible consequence likely to result to the plaintiff if the slightest mishap should occur, it was the defendant’s duty to provide him with every reasonable and well-known safeguard to prevent injury to his person.

This it failed to do and the jury very properly found the defendant was guilty of negligence causing the injury to the plaintiff.

The evidence tended to show that there was in common use and had been for many years upon engines and cars, bumpers and other appliances for the protection of men when engaged in coupling cars.

It was the first time the plaintiff had attempted to effect a coupling with this engine. He was directed by his foreman to do the work. He had no time or opportunity to investigate the engine and car to ascertain if there were appliances for his protection.

The exigencies of the business required prompt action on his part, and it became a question for the jury to determine from the evidence whether the plaintiff was guilty of negligence contributing to his injuries.

While the plaintiff may have known in a general way that the engine was not provided with deadwoods, he had a right to assume that the defendant would not require him to use an appliance without some safeguard for his protection.

The defendant has no cause to complain of the charge to the i pry.

The law of the case, taking the entire charge together, was carefully and correctly stated.

We find no reason for disturbing the judgment.

The judgment and order appealed from should be affirmed.

Dwight, P. J., and Haight, J., concurred.

Judgment and order appealed from affirmed.


author: Lewis, J. :

text:
    In the Matter of the Proof and Probate of the Last Will and Testament of Stephen T. Groot, Deceased.

      Will — regularity of execution — testamentary capacity — undue influence.

    The admission to probate of a will made by a childless widower, leaving all his estate, which was a moderate one, to a sister of his deceased wife, who had sustained the relation of a daughter to him and was a member of his family, was contested by one of eleven nephews and nieces, the decedent’s next of kin and heirs at law, on the grounds of undue influence, lack of testamentary capacity and informality of execution.

      The evidence showed that the attestation clause was read by the scrivener in the presence of the decedent and the subscribing witnesses, and that the decedent then signed it and declared it to be his last will, and it was then signed by the witnesses at his request, and while the contents of the will were not at the time of its execution disclosed to the witnesses, it was apparent that the decedent was aware of its provisions; that the decedent was always a nervous and eccentric man, and in the latter years of his life addicted to tne use of stimulants to such a degree as to, at times, become intoxicated.

      Held, that the testator was of sound and disposing mind at the time of the execution of the will, and that the disposition he made of his property was, under all the circumstances, natural and proper, and that the will was properly admitted to probate,
    Appeal by the contestant, Helen M. Tallman, from a decree of the Surrogate’s Court of Cayuga county, entered on the 21st day of November, 1892, in said Surrogate’s Court, admitting to probate the will of Stephen Y. Groot.

      Frank 8. Coburn, for the appellant.

      8. C. Payne, for the respondent.
   Lewis, J. :

Stephen Y. Groot died at the city of Auburn on the 24th day of December, 1891, leaving an instrument purporting to be his last will and testament, which was executed on the 20th day of October, 1890. The sole beneficiary under the will is the proponent, Lilia A. Payne, and she was by the will appointed sole executrix. The instrument was, upon Mrs. Payne’s application, admitted to probate as the will of the decedent by the special and acting surrogate of Cayuga county. Its probate was contested by a niece of the decedent, Miss Helen L. Tallman, of the city of N ew Y orle. The grounds of the contest were that the alleged execution of the will was not the decedent’s free and unconstrained or voluntary act, but the will was made and executed by the intervention of force and fraud, and by undue influence, and by misrepresentation, deceit and mistake, and that the decedent was not of a sound and disposing mind and understanding, and that the instrument was not executed in conformity with the provisions and requirements of the statute and was, therefore, invalid as his last will and testament. Decedent had been a resident of the city of Auburn for many years. Up till about twenty years prior to the time of his death he was engaged in the grocery business, and had by industry and economy accumulated a small amount of property consisting of two dwelling houses, in one of which he was residing at the time of death ; the other he had rented. The balance of his estate consisted of personal property.

About twenty years prior to his decease he had, because of failing health, sold out his grocery and retired from business. He was at that time extremely nervous, and his nervousness increased somewhat up to the time of his death. The decedent had a wife who died in the month of October, 1890, about four days prior to the execution of the will in question.. They had no children. The beneficiary, Mrs. Payne, was not an heir at law nor next of kin of the decedent, but when three years of age she became a member of his family, and continued as such up to the time of her marriage. Thereafter and for a short time she resided with her husband and was not a member of decedent's family; but shortly after her marriage she became.a widow, and immediately thereafter returned and remained as a member of decedent’s family until the time of his death. The family consisted, prior to and up to the time of the death of Mrs. Groot, of the decedent, his wife, Mrs. Payne, and her mother, Mrs. Fleetwood.

After the death of Mrs. Groot, Mrs. Payne and her mother managed the household affairs.

The evidence tends to show that the will was duly and properly executed. ' Its provisions were very simple, the entire estate being given to Mrs. Payne. It was drawn by Mr. Turner, who was a practicing lawyer in Auburn. After the execution of the will he became the surrogate of the county of Cayuga, and was holding that office at the time the will was admitted to probate and for that reason the proceeding was heard by the special surrogate, R. F. Huff. Mr. Turner was present at the execution of the will and had charge of its execution. Mr. and Mrs. Chamberlain were present and became witnesses to the will at the personal request of the decedent. They were his near neighbors. When they arrived Mr. Turner had about finished drawing the will, and when he had completed it he read the attestation clause in the presence of the decedent and the witnesses, and the decedent then signed it and declared in their presence that it was his last will, and at his request they became subscribing witnesses thereto.

Wliile the contents of the will were not, at the time of its execution, disclosed to the witnesses, it is apparent from the evidence that the decedent was aware of its provisions. The evidence tended to show that the decedent was all through his lifetime an exceedingly nervous man and in some respects peculiar. TIis peculiarities and eccentricities became somewhat exaggerated in the latter part of his life; the evidence tends to show that his eccentricities existed during the time he was engaged in business. He was very diligent in business, exceedingly particular, especially in small things about the store. He became somewhat addicted, during the latter years of his life, to the use of stimulants to such a degree as to sometimes become intoxicated. But we think the surrogate’s finding that the decedent was of a sound and disposing mind when he executed the will is fully sustained and warranted by the evidence.

The case is quite barren of evidence tending to sustain the allegation of undue influence. The evidence tends to show that Mrs. Payne, her mother and the deceased resided in the same housé as members of one family and upon terms of great friendship; the decedent frequently spoke of them in terms of affection and esteem. The case is barren of any evidence showing any acts on the part of Mrs. Payne or her mother to influence the decedent to make the will. The heirs at law and next of kin of the deceased consisted of eleven nieces and nephews. His relations with them, while not unfriendly, were not shown to have been of a very intimate character. Mrs. Payne had sustained the relation of a daughter to the deceased. She was a younger sister of the deceased’s wife.

A few years prior to the making of the will in question, he had executed a will devising and bequeathing all of his property to his wife. Four days after her death, he executed the will in question, and the evidence failed to raise a reasonable presumption that its execution was brought about by any undue influence brought to bear upon him by anyone. The disposition he made of his property, under all the circumstances, appears to be natural and proper. The estate was not large, consisting, as stated, of two dwelling houses and a small amount of personal property, the income from which was barely sufficient, by economy and frugality, to support his family; and he naturally, under the circumstances, concluded that the proper disposition to make of his estate was to devote it to the support of Mrs. Payne and her mother. We find nothing in the record justifying a reversal of the decree appealed from.

It should be affirmed, with costs against the appellant.

Haight and Bradley, JJ., concurred.

Decree of the Surrogate’s Court of Cayuga county appealed from affirmed, with costs against the appellant.


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    Charles C. Cleveland, Plaintiff, v. The Town of Pittsford, Defendant.

      Highway — negligence in driving upon wn untraveled portion — enm'oaching fence.

    The public authorities are not obliged to prepare the entire width of a country highway for the public use.
    A portion of a country highway, between the turnings of two traveled tracks of a road approaching it, was permitted to remain unprepared for public use, elevated about two feet above and sloping down to the traveled tracks, and was untraveled. A person who was familiar with this condition of the road, drove a sleigh with a top-heavjr load, upon this elevation, when it was covered with unbroken snow; his sleigh overturned and he was injured, and he thereupon brought an action against the town to which the highway belonged, to recover damages, on the ground that his injury was caused by the defective condition of the highway.

      Held, that the facts established contributory negligence on the part of the plaintiff, justifying a nonsuit.
    The plaintiff claimed that the traveled track had been encroached upon by a fence post, and that thereby the turn into the intersecting road had been made more difficult.

      Held, without discussing the question of the right of the highway commissioner to give the adjacent owner permission to build the fence, that the existence of the fence did not justify the plaintiff in knowingly driving over a place where he was almost certain to upset his load.
    Motion by tlie plaintiff, Charles C. Cleveland, for a new trial, upon exceptions ordered to be heard at the General Term in the first instance, after a nonsuit at the Monroe Circuit, on the lltli day of January, 1893.

      George F. Slocum, for the plaintiff,

      George F. Yeoman, for the defendant.
   Lewis, J.:

This action was brought to recover damages alleged to have been sustained by the plaintiff, by being overturned in the highway in consequence of its defective condition, in the town of Pittsford, Monroe county.

There is in the town a country highway running southerly from the village of Cartersville, and is known as East street or Cartersville road. Intersecting this road at a point south of Cartersville is a highway running easterly and nearly at right angles to the Carters-ville road, to what is known as Richardson’s Mill. The latter highway is known as Mill street. ,

There is quite an ascent in the road as you leave Mill street to go upon' East street. The traveled roadway on Mill street separates into two tracks as it enters East street, one turning to the north and the other to the south.

Between these two tracks, at the junction of the two streets, is a portion of the highway, the surface of which ’ is some two feet or more higher than the northerly track.

The higher portion of the highway had never been used for traveling, the vehicles, as stated, passing upon one side or the other of it. The surface of this elevated place descends northerly and southerly towards the tracks mentioned.

On the 21st day of January, 1892, the plaintiff was going from Cartersville southerly along East street, intending to pass down Mill street to Richardson’s Mill.

lie had a team of horses drawing a load of 100 empty barrels, and in attempting to turn down into Mill street from East street his load was upset, and he ivas quite seriously injured, and he brought this action to recover for the damages he sustained, alleging that his injuries were caused by negligence on the part of the defendant in permitting the highway to be out of repair.

The trial court nonsuited the plaintiff, and directed plaintiff’s exceptions to be heard at the General Term in the first instance.

The knoll between the two tracks referred to was, at the time of the accident, covered with snow of the depth of from eighteen to twenty-four inches, which was lying upon the ground as it had fallen, and had not been disturbed by anything passing over it.

The plaintiff was perfectly familiar with the highway.

He testified that he had been driving over it all of his lifetime; had known it from the time he was a boy, and lie was at the time of the accident 'sixty-five years of age.

He knew this elevated portion of the road had never been used for driving over; that it had never been prepared for that purpose, and was not intended to be used for travel.

His barrel-rack was upon a pair of bob-sleighs; was twenty-one feet ten inches long, three feet and six inches wide where it rested upon the bobs, and eight feet four inches wide at the top of the rack.

Plaintiff testified that when, he came to the turn in the road he drove his team on past the center of the road over the knoll between the two tracks, and attempted to draw his sleigli over this knoll between the two tracks, intending to go down straight into Mill street,- and that as he drove his horses down the hill his load upset, falling towards the north.

Mr. Basset, a witness sworn for the plaintiff, who resided in a house at the head of Mill street, testified that he was standing at his window when the plaintiff drove up ; that he stopped right in front of the witness’ house with a load of barrels ; that lie then started up, made his turn for down Mill street, and as his forward bobs went over the knoll they pitched off sidewise and that raised his hind bobs and threw his load right over to the north.

He further testified that there were two beaten tracks, one coming from the north going, down Mill street, the other from the south, and that in between these two roads there was a spot of ground where Mr. Cleveland attempted to turn that was all covered with snow, and no tracks or nothing to be seen there, even a man’s foot was not through here.

The snow was from a foot and a half to two feet deep at that place; that there was a rise of about two feet and a half from the wagon track on the northerly side up to the level of the middle of the road where the plaintiff attempted to drive; that there was al little bit of a hill right there, and as the forward bob of the runner,! or near runner, I would say, struck into that, that raised the hind! bob and threw him right square over into the road. I

The front bob dropped off there a little; that is just what carriedl him over.

It is apparent that the plaintiff was guilty of negligence contributing to his injuries.

He was familiar with the surroundings, he knew the uneven condition of the highway, and was aware of the ease with which his top-heavy load might be upset, and should have known that an attempt to drive over the place he did must almost inevitably result in overturning his load. He could as well have driven into a ditch upon the side of the road and expect liis load to remain intact.

He complains of the uneven condition of the surface of the highway.

It is true it was in the highway, but the authorities had not, neither were they obliged to prepare the entire width of the road for the public use.

There was a considerable descent from the top of the knoll to the tracks, but it was not intended for driving; such uneven places are to be found upon every country road.

It is quite common for the public authorities to prepare a track for driving in dry weather, and a parallel one at a considerable elevation to be used in the rainy seasons, and it could hardly be claimed that if the plaintiff had been attempting to pass from one of such tracks to the other and had been upset, the town would be held liable for damages.

The plaintiff also claims that the northerly track leading from East street into Mill street had been encroached upon by a fence post, and that thereby the turn had been made more difficult.

If so, it did not justify him in driving over a place where he was, almost certain to upset his load.

There was evidence showing that Mr. Bobbins, the owner of the land adjoining the two streets, had, by permission of the highway commissioner, put the corner of his fence out into the old beaten track around the corner.

Mill street had been used for many years, but had never been surveyed and a record made of its location until a short time prior to the accident.

The highway commissioner had caused a survey of it to be made,, and located the northeast corner of the two streets mentioned, and consented to the building of the fence mentioned, which, as stated, did encroach to some extent upon the old traveled road.

We do not deem it necessary to discuss the question of the right of the highway commissioner to give permission to Robbins to build the fence; the plaintiff knew of the alteration of the fence; he knew that it somewhat narrowed the highway as it had been theretofore used, and concluded to make the hazardous experiment of driving over the knoll, with the result stated.

We think he failed to show himself free from negligence contributing to his injuries, and that the trial court made the proper disposition of the case.

The motion for a new trial should be denied and judgment ■ordered for the defendant upon the nonsuit.

Dwight, P. J"., and Haight, J., concurred.

Plaintiff’s motion for new trial denied, with costs, and judgment •ordered for the defendant upon the nonsuit.


text:
    Henry S. Anderson, Respondent, v. Edward T. Dickinson, Appellant.

      Contract for the sale of foreign nursery stock — commissions — duration and scope of the cont/ract— the annual shipping season — quantum meruit.

    A contract between a nurseryman engaged in business in this country and a nurseryman engaged in business in France, for the sale in the United States of the latter’s nursery stock upon commissions to be paid on final settlement, dated August 25, 1886, and stated to be “for term of one year from date, or until the business of the season of 1886-1887 is wholly closed,” construed in connection with the dealings of the parties and the usages of the business, and held, to cover only transactions on orders for foreign nursery stock to be delivered during the shipping season of 1886-1887 (which was shown to begin in the fall and continue through the winter, and until about April first, depending somewhat upon the weather), and not to cover orders sent after the close of the shipping season in the spring of 1887, to be filled in the shipping season of 1887-1888, so as to give a right, under the contract, to commissions on such orders.
    Under a complaint which states only a cause of action under a written contract a recovery cannot be had upon a quantum meruit, for services not rendered under the contract.
    Appeal by the defendant, Edward T. Dickinson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Cayuga county on the 18th day of July, 1892, upon the report of a referee.

      Herbert Green, for the appellant.

      F. £>. Wright, for the respondent.
   Lewis, J.:

The action was brought to recover commissions claimed by the plaintiff to be due him for services rendered under a written contract made by the parties, and dated August 25,1886. The defendant is a resident of Chatenay, France, and is engaged in the business of importing to the United States foreign nursery stock, seeds, pits, etc. Plaintiff is a nurseryman, residing in the town of Springport, N. Y. A Doctor Farley had, for a number of years prior to his death, acted as the defendant’s agent in this country, under contracts similar in terms to the one in question. Plaintiff was interested with him in the business, and had assisted in performing the doctor’s contracts with the defendant; he was at the same time engaged upon his own account in dealing in nursery stock.

Doctor Farley died on the 24th or 25th of September, 1885, leaving a contract with the defendant for that year partially unperformed. Plaintiff notified the defendant of the doctor’s death, and proposed to act as the defendant’s agent in carrying out the contract, to which the defendant assented. Negotiations were thereafter-entered into between the parties looking to the plaintiffs acting as defendant’s agent for the following year.

Some correspondence passed between them, but no definite arrangements were made until the defendant visited this country in the summer of 1886, when the .terms of the contract which is the basis of this action were agreed upon, and-a written contract, the substance of which is as follows, was entered into between the parties : Dickinson agreed to furnish stock to fill the orders which Anderson might send him at prices that compare favorably with those of leading French houses, and to pack the same in proper manner.

Then follow provisions as to the preparation of catalogues and publishing the same, and that the expense shall be borne equally by the parties; and Anderson agreed to send to Dickinson all orders sent to him, and all which he might procure for all kinds of foreign nursery stock, seeds and pits during the continuance of the contract. The terms of payment for stock shall generally be cash, but to parties whose references are satisfactory the terms may be one-half cash in November and one-half immediately on receipt of goods, and in a few cases, from parties of unquestioned financial responsibility, if. thought advisable, time of payment for the total amount may be extended to June first, but not later.

Anderson is to make collections and settlements with all parties in the "United States for stock sent to them by Dickinson, and if it should happen, by failure of any of the customers to pay for the goods ordered, that there should be a loss, it should be borne equally by the parties. In consideration of Anderson’s discharging all the minor conditions of the agreement Dickinson agreed to allow and pay him a commission of ten per cent on net value of goods on all orders that he may receive from him or that he may receive direct from customers, the same as if forwarded through Anderson. ■ Commissions are to be paid to Anderson at the time of final settlement. Anderson is to forward to the defendant all moneys as soon as collected from the customers. The contract provides that a final settlement between the parties is expected to be reached by August first, sooner if possible. And then follows a provision to the effect that if in making settlements with customers a loss of twenty per cent on the net price of goods is sustained, Anderson is to have no commissions. The last provision of the contract is as follows : “ This agreement is for term of one year from date, or until the business of the season of 1886-1887 is wholly closed up.” The contract is dated Chatenay, 25th August, 1886.

The manner of conducting the business was as follows: Shipments of stocks commenced in the fall and continued on through the winter and until about the first of April, the time for commencing. and closing shipments depending somewhat upon the conditions of the weather. Both parties testified that the business season in the nursery business is understood to be from the commencement to the close of the shipping season. Soliciting orders for the follow- j ing year was commenced at the close of the shipping season and continued on into the shipping season following.

The plaintiff, after the close of the shipping season under the Farley contract in the spring of 1886, assuming and expecting that he would be able to make arrangements with the defendant to act as his agent, solicited orders and forwarded them to the defendant. The defendant arrived in this country about the first of June, and negotiations were carried on looking to the making of the contract in question.

The plaintiff had failed to remit moneys collected for the defendant under the Farley contract, and was indebted to him in a considerable sum of money, and this fact delayed the consummation and execution of the contract. The plaintiff testified that he continued after the close of the shipping season in the spring of 1887, to solicit orders for the defendant, and otherwise interested himself in the business, but he nowhere states that he was requested so to do by the defendant, except as it might be inferred by conversations between the parties about the business, and defendant delivering to plaintiff a price list for the next year. When these occurrences took place the defendant had not succeeded in collecting the money plaintiff owed him. The orders were not sent by plaintiff to the defendant; they were sent by the customers. The last order plaintiff sent personally was on the 17th day of March, 1887.

The defendant came .to this country again in the summer of 1887 and attempted to effect a settlement with the plaintiff for the business of the prior year. The plaintiff had failed to pay over all the moneys collected for defendant, and was indebted upon that year’s business to the amount of $2,700. The defendant, failing to obtain the amount due him, placed the claim in the hands of an attorney and declined to enter into a contract with the plaintiff for another year and returned to his-home in France.

It is the plaintiff’s contention that under the contract he was entitled to commissions upon the orders sent to the defendant after the close of the shipping season in the spring of 1887, and which were to be filled during the shipping season of 1887 and 1888. The defendant’s contention is that the plaintiff was only entitled to commissions upon the orders which were forwarded to be filled during the shipping season of 1886 and 1887. The referee to whom the action was referred reported in favor of the plaintiff and assessed his damages at $770.04.

No mention was made by the plaintiff during the negotiations for the settlement of the business of 1886-1887, that he (¿aimed to be entitled to commissions for the orders sent by customers after the close of the shipping season of the spring of 1887. Plaintiff made out and presented to the defendant an account for commissions, which was dated July 19, 1887, and which was headed “ Statement, season 1886 and 1887.” All of the items of this account were for orders sent and which had been filled during the shipping season of 1886-1887. A large proportion of the orders for which commissions are sought to be recovered in this action were forwarded before the date of this account, and yet no mention is made of them in it. Plaintiff had stated in one of his letters to the defendant that “ there were a few points in the contract that we both seemed to have overlooked.” Upon being interrogated by the defendant as to what he referred to, he declined to inform him ; being asked to explain the letter when he was upon the stand as a witness, he first stated : I referred to commissions due in case I did not make a new contract with him; ” but when farther interrogated upon the subject he replied, “ There was one item besides what I have spoken of; that was where he charged me more in the invoice for stock I had ordered for myself than the price I was allowed to sell for to custornera. I also think I had in mind this Baltimore order. I don’t remember anything else.” The matters last mentioned were manifestly not what he referred to in the letter, for the contract nowhere made mention of the prices at which the goods were to be sold, nor of any Baltimore orders. The contract contains provisions inconsistent with the construction given to it by the learned referee. It bore date, as we have seen, August 25, 1886, and if the plaintiff under it was entitled to recover commissions upon all orders forwarded prior to the 25th of August, 1887, as the contract provided for selling the goods on time, and in some cases the credit to be extended until the following June, it was manifestly impracticable to effect a settlement between the parties by the 1st day of August, 1887, as provided by the contract. A part of the duties of the plaintiff under the contract was to attend to the delivery of the goods shipped and to make collections.and settlements with all the customers, and in case of failure of the customers ultimately to pay, plaintiff was to sustain one-half of the loss, so that it was impossible to know by the time mentioned in the contract for a settlement whether the plaintiff had earned or was entitled to any commissions upon orders to be filled during the following season. Commissions were not earned upon the orders being forwarded. A large part of the work was to be done after the orders were sent before commissions were due, which was never done by the plaintiff, and yet he has been allowed full commissions on all the orders sent. The learned referee, as stated, construed the contract as entitling the plaintiff to commissions on all the orders sent after the close of the shipping season of 1886-1887, and before August 25,1887. lie construed the clause, “ Or until the business of the season of 1886-1887 is wholly closed up,” as intended to give to the parties such time as might be necessary after the close of the term definitely mentioned, to wit, August 25, 1887, for winding up the business that had been done during the year intervening between the 25th day of A.ugust, 1886, and August 25, 1887. We are unable to agree with this construction of the contract, reading it in the light shed upon it by the evidence, as it is our duty to do. (Smith v. Clews, 114 N. Y. 190 ; Atkinson v. Truesdell, 127 id. 230; Woolsey v. Funke, 121 id. 87; 1 Greenl. Ev. 363, 374, 375.)

The contract, we think, should be construed as entitling the plaintiff to commissions only upon the orders secured and filled during the time intervening between the close of the shipping season of 1885-1886, and the close of the season of 1886-1887. The object of the disjunctive clause mentioned was to provide for the termination of the contract when the year’s business was settled and finally closed, whether that should occur on the 25th of August, 1887, or at any time either before or after that date. This construction, we believe, is in accordance with the understanding of the parties when they made their agreement, and as they understood it while it was being performed, and such a construction works justice between them.

It is suggested by the plaintiff’s counsel that the defendant’s conduct shows that he had the same understanding of the contract as the plaintiff did, and he asks if not, why was defendant making inquiries of the customers as to whether them orders were sent before or after the 25th of August, 1887 ?

An obvious answer to this question is, that in view of the claim made by plaintiff, such information might be important, depending upon the view the courts should take of the contract. If plaintiff’s construction prevailed it was important that defendant should know the extent of his liability. If the court should construe the contract according to the defendant’s contention the inquiries would then be of no avail.

Plaintiff claims that he rendered services in procuring orders to be filled in the fall, winter and spring of 1881 and 1888, for which he should receive compensation in this action. That depends upon whether they were performed under this written contract, for the cause of action stated in the complaint is under that contract, and he cannot, under such a complaint, recover upon a quantum meruit for services not performed under the contract,

. The plaintiff failed to make a case' entitling him to recover. The judgment appealed from should be reversed and a new trial granted, with costs to abide the event.

Dwight, P. J., and Haight, J., concurred.

Judgment appealed from reversed and anew trial granted, with ' costs to abide the event.