author: By the Court, Moncrief, J.

text:
    George W. Platt, plaintiff and respondent, vs. Fannie L. R. Picton and Thomas Picton, defendants and appellants.
    A plaintiff, in ejectment, cannot establish his title to the premises by the mere recitals in a lease introduced in evidence of proceedings in the late court of chancery, by virtue of which the shares or interests of infants in the premises in question were ordered to be, and were, leased for a term of years. The proceedings themselves must be proved.
    (Before Moncrief, Garvin and McCunn, JJ.)
    Heard December 14,1864;
    decided December 31, 1864.
    This action was brought 'to recover the possession of real estate. It was tried before a justice of this court and a jury. On the trial the plaintiff proved that one Augustus Wynkoop, in his lifetime, and at the time of his death, in July, 1836, was owner and in actual possession of the property described in the complaint in this action. The plaintiff then proved the due execution and delivery of a lease of the property in question by the parties thereto, (lessors and lessees,) and payment of rent by the lessees therein to such lessor, and to Francis S. Wynkoop, who was an heir, and acted for the other heirs of said estate, which lease was bipartite and dated in May, 1848, from Augustus Wynkoop and Anna his wife, Francis S. Wynkoop and Sarah F. his wife, (said Francis acting as well in his own right as in the capacity of trustee of the separate estate of Mrs. Mary J. W. Reynolds,) Henrietta Wynkoop, John M. Keese, (acting as well in his own right as in the capacity of special guardian of the property of his infant children, John W. Keese, Henrietta W. Keese, and Franklin S. Keese,) and Mary J. W. Reynolds, wife of Henry H. Reynolds, to George W. Platt and Nathan C. Platt. The premises in question were thereby leased for the term of twenty-one years, from May 1st, 1848, at $120 per annum, payable quarter yearly and taxes and assessments. Such lease contained a covenant to pay for the buildings erected or to be erected, (as provided in the former lease recited therein, and whereof it was a renewal,) or to renew the lease. Such lease was duly executed, acknowledged and recorded July 13, 1848.
    The counsel for the plaintiff offered such lease in evidence. The counsel for the defendants objected to the reading of the recitals as evidence of the facts related therein; that a petition in chancery had been theretofore “ presented to the vice chancellor of the first circuit by John M. Keese, on behalf of his infant children above named, praying for authority to execute leases of certain real estate which had belonged to their late mother, Catharine B. Keese, deceased, including, their share or interest in the land ” therein described; that such proceedings were thereupon had that by an order of the Court of Chancery, entered in the office of the clerk in chancery for the first circuit, on the 26th day of June, 1845, the said John M. Keese was appointed special guardian of the said infants, for the purposes of the said application, upon his giving the security therein required that “ such security, duly approved and acknowledged, was subsequently filed in said officethat “ by an order of the said court, duly entered in the same office, on the 5 th day of November, 1845, the said John M. Keese, special guardian as aforesaid, was empowered, among other things, to contract for the leasing of the shares and interest of the said infants in such real estate as aforesaid that “in pursuance of the last .mentioned order, the said special guardian afterwards made his report to the Supreme Court in equity, bearing date the 16th day of May, 1848, stating in substance, aihong other things, that he had entered into an agreement, subject to the ratification of said court, for the execution of a lease of the land therein described to tue said parties of the second part for the period and upon the terms and conditions therein mentionedthat “ an order of the said Supreme Court was made on the 23d day of May, 1848, by which the said report and agreement were ratified and confirmed, and * * said guardian was directed' to execute such lease on behalf of said infants.” And that “an undivided fifth part” of and in the premises therein mentioned was “held by said Francis S. Wynkoop, in trust for the sejparate use of Mary J. W. Reynolds, above named, who for that reason became a party to that-lease and was authorized and directed “ to join and execute the same on her behalf” by such order.
    The court overruled such objection, and allowed said recitals to be read in evidence, to which the counsel for the said defendants excepted.
    The plaintiff then duly proved and read in evidence an assignment of the interest of said Nathan C. Platt to George W. Platt, dated June 19, 1861.
    The plaintiff having rested, the defendants’ counsel moved to dismiss the complaint on the following grounds :
    1st. That the plaintiff had not shown any title to the land.
    2d. That the proceedings alleged to have been taken in the Court of Chancery on behalf of the infant heirs were not shown, nor had any proof been shown of any authority to act for the infant heirs referred to in said lease.
    3d. As to the defendant, Thomas Picton, the plaintiff had not proved any wrongful act of his, and he was not liable for his wife’s wrongful acts, and was not proved to be in possession.
    4th. Because no wrongful possession of the defendant, Mrs. Picton, was proved, and she could not be held liable for her husband’s acts.
    The court denied the motion, and the defendants’ counsel excepted.
    The defendants’ counsel moved to amend the answer of the defendants by inserting averments as to the purchase of said property and holding possession thereunder, and of an agreement to execute an assignment, as proved. The court denied such motion, and. the counsel for the defendant, Mrs. Picton, excepted. The counsel for the defendants insisted that the evidence and case should be submitted to the jury, which the court refused, and directed a verdict for plaintiff, to which the counsel for the defendants excepted. The jury thereupon found a verdict for the plaintiff for the premises described in the complaint, and the court directed an .order to be entered that the exceptions taken be heard at the general term, in the first instance. Judgment was in the meantime suspended.

      J. C. Garter, for the plaintiff.
    I. The exception taken by the defendants to the reading of the recitals in the lease from the heirs of Augutus Wynkoop cannot be maintained. The truth of the recitals should be left to subsequent proof. If not given, the proper time to dispose of the question how far the plaintiff has maintained his title, was at the close of his case.
    II. When the defendants’ counsel, at the close of the plaintiff’s case, again made use of this point, he made it the ground of a motion for a nonsuit. A nonsuit could not properly be granted' upon such a ground. The utmost effect that could be given to it would be to limit the plaintiff’s recovery to an undivided share of the premises in question for the term of. years mentioned in the lease.
    1. Previous to the Code, the plaintiff, in ejectment, might claim, in his declaration, an entire interest in the premises, and upon proof of an undivided share in the same premises, the variance would be disregarded, or the declaration would be amended to conform to the proof. The matter was regarded as one of form, except surprise was alleged.
    2. Under the broad provisions of the Code touching the disregarding of variance between the allegations and the proof, the objection has even less force. (Code, §§ 169, 170.)
    III. If the defendants had stood upon their motion for a nonsuit, and had not gone into their defense, the court would even then, after the trial, have amended the verdict to conform to the proof, in case it was of the opinion that the plaintiff had not made out title in himself to the share of the infant heirs.
    IY. But the defendants did go into their defense, and, by their own evidence, supplied the very defects which they had made the grounds of previous objection. They proved that the only title or claim they had to thé premises in question, was under an agreement with Nathan C. Platt for an assignment of this very lease. Nathan C. Platt, as one of the parties to this lease, was bound by all the recitals in it, and the defendants, in claiming under him alone, were equally bound. This is the familiar rule of law.
    1. The rule is equally clear and familiar, that where a defendant has objected to the plaintiff’s proof for any insufficiency, and has then, in the course of his own evidence, supplied the defect, he waives the objection.
    Y. The other grounds upon which a nonsuit was moved for, are clearly frivolous.
    YI. The defendants, on going into tlieir own case, introduced evidence tending to show that Mrs. Picton had an equitable right to an assignment of Nathan 0. Platt’s interest in the lease. The learned judge ruled that this defense could not be. made under the pleadings. His ruling was certainly correct, both upon principle and authority.

      1. It has been held that an equitable defense, when pleaded, may be interposed in an action to recover the possession of real property. .(Grary v. Goodman, 2 Kern. 266.)
    2. But, in the case at bar, no hint of the defense was contained in the answer. In such a case, to permit such a defense to be shown, would be in the face of the most settled rules of legal procedure. ' (Miller v. Platt, 5 Duer, 272, 284 Dewey v. Hoag, 15 Barb. 365.)
    3. Had this defense been allowed to go to the jury, and been sustained by their verdict, we should have had the novel instance of a decree for a specific performance made by a jury. And this, too, upon evidence on which any court would have instantly dismissed a bill. And what is more, the record would nowhere have exhibited a trace of the issue upon which the case was determined.
    VII. The refusal of the court to allow the answer to be amended so as to embrace this defense, was not error. Indeed, it would have been palpable error for the court to have granted the motion. To permit a defendant who has given his adversary no intimation of any other than a defense at law, to set up and prove what would properly be the subject matter of a bill in equity, would be a stretch of the practice of granting amendments quite unprecedented.

      Daniel C. Briggs, for the defendants.
    I. The lease was admitted as evidence, only as a muniment of title, in the same manner that deeds of the locus in quo, not between the parties, are evidence to show an estate in the plaintiff. Recitals in such deeds are not evidence. Recitals are evidence between the parties to a deed, and to a certain extent between privies, but they never bind strangers. The defendants were not parties to the lease, nor were they in possession under it. The court erred in deciding that the recitals might be read in evidence. (Hill v. Draper, 10 Barb. 454 Beekman v. Bigham, 5 N. Y. Rep. 366. Jackson v. Harrington, 9 Cowen, 86. Jackson v. Shepard, 7 id. 88. Parmelee v. Thompson, 7 Hill, 77. Brandt v. Klein, 17 John.
      335. Jaekson v. Davis, 18 John. 7. Jackson v. Brooks, 8 Wend. 426, and 15 id 111)
    II. It is a cardinal principle that, in ejectment, the plaintiff must rely on the strength of his own title, and not on the weakness of that of his adversary. Every presumption of law is in favor of an actual possession, and this presumption protects the possession until the plaintiff has established a good legal paramount title ; and when this is done, the presumption changes sides. (Hill v. Draper, 10 Barb. 454, 458. Layman v. Whiting, 20 id. 559. Bartow v. Draper, 5 Duer, 130. Penrose v. Griffith, 4 Binney, 231, 237.)
    In this case the plaintiff failed to show title in himself. (Jackson ex dem. Loop v. Harrington, 9 Cowen, 86.) The paper he produced showed title out of him, (the recitals being good against the party producing them.) The legal proceedings referred to in the lease should have been proved by the record ; without this, the plaintiff failed to show title in himself. It is questionable whether a record can ever be proved by a recital, even between the parties, and it is clear that this cannot be done to the prejudice of infant owners.
    III. The motion for a nonsuit should have been granted. When it was made, the plaintiff had failed to establish a right to recover by competent evidence, and the defendants had a right to a dismissal of the action.
    IV. The defense proved was a conclusive answer to the action. The defendants entered into possession as purchasers, and not as lessees. The plaintiff and Nathan C. Platt were partners in business and partners in this lease, and Nathan sold the lease to the defendant, Mrs. Picton, and received the whole consideration ($5000) in cash, at the time of the purchase. A grantor who has received the whole consideration of the purchase, and is in equity bound to give a deed, cannot maintain ejectment against his grantee. If necessary, the court will presume a grant to Uphold such a possession. The affidavit of Mrs. Picton, put in evidence by the plaintiff, is conclusive as to the character of the holding. (Crary v. Goodman, 12 N. Y. Rep. 266. Chase v. Peck, 21 id. 581. Traphagen

      et al. v. Traphagen, 40 Barb. 537. Thurman v. Anderson et al. 30 id 621. McCray v. McCray, Id. 633. Requa et al. v. Holmes, 19 How. Pr. 430. Miller v. Plntt, 5 Duer, 284.)
    But in this case no grant was necessary. The subject of the purchase was a terminable leasehold interest, and this would pass by payment and delivery of possession. Although such a term could not be created by parol, it might be assignable by parol and delivery of possession, and the termor in possession could hold against his assignor, who would be obliged to rely on the assigned term to recover. He certainly would be estopped from recovering back property for which he had received full and adequate payment, on the principle of estoppel in pais. (Pratt v. Hudson River R. R. Co., 21 N. Y. Rep. 305, 309. More v. Smedburg, 8 Paige, 600. Harder v. Harder, 2 Sandf. Ch. 17. Lowry v. Tew, 3 Barb. Ch. 407.)
    V. It is no answer to this defense that it was not specially pleaded. It was proved without objection, and it is too late to say.it was not admissible. If that objection had been taken at the trial it could have been obviated by an amendment instanter, or by postponement and a motion. The plaintiff prefers to receive it, and having done so the court will conform the pleadings to the facts as established on the trial, in furtherance of justice, under a power in the Code to that effect. (Code, § 150, subdiv. 2. Id. § 173. Hunter v. H. R. Iron Co., 20 Barb. 493. Voorhies’ Code, 8th ed. 1864, 351, note e; 352, notes, b, c, d. Lounsbury v. Purdy, 18 N. Y. Rep. 520. Pratt v. Hudson River R. R. Co., 21 id. 305.)
    VI. The court erred in directing a verdict to be found for the plaintiff. On the contrary, a verdict should have been directed for the defendants, or the evidence and case should have been submitted to the jury.
   By the Court, Moncrief, J.

The plaintiff, to maintain his case, was bound to prove his title to the premises from which he sought to eject the defendant. He attempted to do this by offering in evidence a lease containing recitals of certain alleged proceedings in the Court of Chancery, by virtue of which the estates belonging to infants were embraced and regulated by order of that court.

The offer to read such recital lease was objected to by the defendant and the objection was overruled, and the defendants excepted. This was error. While it might be evidence of title in one of the parties, (lessors,) assignors to the plaintiff and another, it was not evidence of title in the plaintiff, who had a verdict as an entirety. The verdict was in solido and not merely for the portion of him who had shown title dehors the recitals. Parties are not permitted to make evidence for themselves. Recitals of alleged proceedings in a court, or elsewhere, in an instrument purporting to convey a title, are not evidence of facts. The proceedings themselves must be proven, aliunde.

Holding, as we do, that the exception was well taken, the verdict for the plaintiff must be set aside and a new trial ordered, with costs to abide the event.


source: Caselaw Access Project

author: By the Court, McCunn, J.

license: Public Domain

text:
    Zenas D. Basset, jun. et al. plaintiffs, vs. Abner Crowell et al. defendants.
    Where one of several joint owners of a vessel sails her for the joint benefit of all, each receiving a share of the profits, all are liable for money advanced, at the ■ request of the owner sailing her, to pay her necessary expenses, such as port charges and the like.
    (Before Moncrief, Garvin and McCunn, JJ.)
    Heard December 16, 1864;
    decided December 31, 1864.)
    The brig Rogelem, owned by the defendants, arrived in the port of New Orleans, in the year 1854. R. M. Harrison & Co., commission merchants there, did her business and paid her port charges, which amounted to $1271.51, of which a balance of $1174.01 remained due. For this balance of disbursements they were instructed by Abner Crowell, one of the owners in charge, to draw upon the plaintiffs, and in September did so. The draft was drawn “ on account of brig Rogelem, for disbursements,” was accepted by the plaintiffs, and by them paid in November, 1855. The draft was accepted upon the credit of the brig and owners, and was charged to the brig and owners as disbursements of the vessel. The owners refusing to pay the sum thus advanced, this action was brought against them to recover the amount.
    The action was tried by one of the justices of this court, and a jury. The testimony on both sides being closed, and the amount of the draft and interest being admitted to be $1872. 57, the jury, by direction of the court, under exception on behalf of the defendants’ counsel, rendered a verdict for the plaintiffs, for the sum of $1872.57, being the said amount of the plaintiffs’ claim and interest, subject to the opinion of the court, upon a case to be made by the plaintiffs, containing the aforesaid objections and exceptions ; and the court further directed that such objections and exceptions be heard in the first instance at the general term ; and that the entry of judgment upon the said verdict be suspended in the meantime.

      C. L. Benedict, for the plaintiffs.

      Dexter & Hawkins, for the defendants.
   By the Court, McCunn, J.

There is no dispute about the fact that the plaintiff paid out about $1174.01 on account of the brig, and that the advances had been made at the request of one of the owners (Crowell,) and the question is simply, was that advance of such a nature, under the circumstances, as to bind the other owners ? I think clearly it was.

It appears from the evidence, that the defendant Crowell was sailing the brig for the joint benefit of all the defendants, and each was receiving a share of the profits, and they all were to pay a share of at least some of the bills. The evidence is not that he chartered the vessel to Crowell, but that he was sailing her for the joint benefit of all the partners, the defendants themselves included. This evidence is uncontradicted, and of course at once fixes the liabilities of these defendants in this action.

Clearly in law, then, these defendants were jointly responsible with Crowell for this debt. There is no more well settled principle in law than that where a vessel is sailed on shares, • all the owners are responsible for her bills, especially where the items of those bills show they were for port dues.

This embraces all the important points of the case, and the exceptions should, therefore, be overruled, and the judgment affirmed, with costs.


text:
    Thomas Loonam, plaintiff and appellant, vs. William E. Brockway, defendant and respondent.
    A master is not liable to his servant for injuries sustained by the latter while using machinery, by reason of its imperfect construction, in the employ of the former, where the servant had the same means of knowledge of its safety as the master, and nothing occurred at, or before the accident, to indicate any danger, such as demanded or suggested precautions which were omitted.
    (Before Moncrief, Garvin and McCunn, JJ.)
    Heard December 16, 1864;
    decided December 31, 1864.
    This was an action brought for the recovery of damages for the loss of an arm of the plaintiff, who was servant in the employment of the defendant, a brewer, carrying on business at 11th street, in the city of Hew York.
    The facts are as follows : The plaintiff was a servant in the employ of the defendant as a common laborer, and was directed by the defendant to clean barrels and casks in use at the brewery of the defendant by a new system of cleaning, by means of a steam apparatus, which consisted of a boiler, from which was constructed a pipe for conveying the steam into the bung hole of the vessel; to this pipe there was no guage or safety valve, or anything to indicate the pressure, or regulate the force of the steam as it issued from the boiler, with the exception of a small wheel or turn off, near the end of the pipe, to stop the. steam from entering the vessel. On the 20th of December, the plaintiff was directed by an employee of the defendant to steam or clean some hogsheads by means of this apparatus. The plaintiff did as directed. The steam rushed rapidly into the vessel for about five minutes, when he went, to turn it off by means of the wheel. The vessel exploded, and blew off the plaintiff’s right arm. The action was tried before Justice Monell, and a jury. After the evidence on the part of the plaintiff had closed, the defendant’s counsel moved for a dismissal of the complaint. The judge, in granting the motion, said : “ This is a question of great importance, not only to the parties in this action, but it is so by reason of the principles involved in it. The action is brought to recover damages for injuries received, as is alleged, by the negligent acts of the defendant. It has of late been said that there are no degrees of negligence—that there was no distinction between gross and common negligence; the plaintiff is entitled to recover damages. But, on the other hand, the plaintiff will not be entitled to recover if he was guilty of the slightest degree of negligence. In a case of this kind, it becomes the duty of the court to examine the evidence, and apply the law according to the principles decided by the courts. The office of the jury is simply to aid the court in determining the questions of fact according to the testimony; and when the facts, according to the testimony, are not disputed, it always becomes the duty of the court to dispose of the case. In charging the defendant with negligence, much depends on his knowledge, because all cases of this kind go upon the hypothesis that there was personal negligence on the part of the defendant; now, there is an entire absence of proof that there was any defect in this machinery, and that would seem to be sufficient to relieve the defendant from responsibility. Now, it has been said, that a man shall not put his servant to the performance of a duty that is hazardous, unless he protects him. It has not been suggested, in any part off this case, that the service is entirely voluntary on the part of the servant; it seems to me that that is entitled to very great weight. It is also necessary to consider whether it is the servant’s duty to ascertain whether the employment is dangerous or not. In the late case of Wright v. The New York Central Railroad Com

      pany, it, seems to me the decision of the court covers every principle applicable to this case; and one principle determined in that case is. that where the servant has the same means of ascertaining the extent of the hazard which he runs in the performance of his services, the master or employer is not liable— not that the servant has the same amount of intelligence, but that if he has the same opportunity of knowing these things, then the master is not liable. So that, if a person who is ignorant of machinery engages to run a steam engine, and is injured by a defective construction of the machinery, then the master will not be liable. Even in the case of running a machine which was not defective, but did not contain all the appliances of modern science, he having voluntarily entered into the service, the master would not be liable. The law, therefore, in this case is, that if he entered voluntarily into this service, having the means and oppSrtunity to investigate for himself, he takes the risk. Therefore, it seems to me, that these principles are fully settled in the case of Wright v. The Central R. R. Co., (25 N. Y. 566,) and there is no proof in this case to .render the defendant liable. It seems to me that this case presents another point, and that is, there is not an entire absence of proof of negligence on the part of the plaintiff. He was there when the first experiment was tried ; he had the same means as others of ascertaining whether it was dangerous to life or not. At the time this accident happened he was at the cask. He knew from his former practice what the stopcock was for, and what the plug was for; so I cannot perceive myself, with the exercise of ordinary care and understanding on his part, by turning off the steam with the cock, or by putting in the plug, why he could not have secured himself against danger. Under these circumstances, I would do great injustice to the defendant to suffer this case to go to the jury. I have a very great sympathy with the plaintiff, but perhaps his greatest misfortune is, that the law does not allow him to recover. I therefore dismiss the case, but I desire to suspend judgment, and let it go to the general term.”
    To which ruling the plaintiff excepted. Whereupon the exceptions were directed to be heard at the general term, in the first instance, and that the entry of judgment in the meantime be suspended.

      Edwin James, for the appellant.
    I. The judge erred in dismissing the complaint, because there was sufficient evidence to go to the jury as to the negligence or misfeasance of the defendant, both in not having the proper machinery to perform the duties for which it was intended, and that the machinery was imperfect, defective and dangerous. The question of negligence, in all cases, involves a question of fact, and it is only where a question of fact is free from all doubt that the court has a right to apply the law without the action of the jury. (McGrath v. The Hudson River Railroad Co., 32 Barb. 144. Bernhardt v. The Rensselaer and Saratoga Railroad Co., Id. 165. 13 N. Y. Rep. 353. Keller v. N. Y. Central Railroad Co., 24 Pow. Hr. 172. Hulesenkamp v. Citizens' Railroad Co., 35 Missouri Rep.)

    II. Every employer is responsible for injuries resulting to his employees from his own personal negligence or misfeasance. All men alike are liable to respond in damages for such injuries, and the relation of master and servant forms no exception to the rule. He is also liable for doing or directing negligent acts, regardless of the consequences liable to result therefrom. (Keegan v. The Western Railroad Corp., 4 Seld. 175. Ormond v. Holland, 96 Eng. Com. Law Rep. 101. Marshall v Stewart, 33 Eng. Law and Eq. 1. Patterson v. Wallace, 1 McQueen, 748. S. C., 28 Eng. Law and Eq. 48, 51. Bryden v. Stewart, 2 McQueen, 30. Ryan v. Fowler, 24 N. Y. Rep. 410.)
    III. It being the duty of an employer to exercise care and prudence that persons in his employ be not exposed to unreasonable risks and dangers, he is bound to use due diligence in protecting them from injury. (Connolly v. Poillon, 41 Barb. 366.) Thus a master is liable to his servant for injuries resulting from a defect in his machinery, and as ordinary care must be measured by the character, and exposures of the business, the degree required is higher where life or limb is endangered than in other cases, and the master is equally liable, although the negligence of a fellow servant contributes to the accident. (Cayzer v. Taylor, 10 Gray’s Rep.) He is also liable on the broad ground that the owner of dangerous machinery is bound to exercise due care that it is in a safe and proper, condition. Although the servant may have a knowledge of the fact, it is not fatal to his proceeding, for he may be utterly ignorant of the risk. (Holmes v. Clarke, 2 Am. Law Reporter, December, 1862, p. 107.)
    IV. The elements essential to • maintain the action in this case are, the dangerous nature of the steam pipes, the knowledge by the defendant, and the injury resulting from the sub-" sequent use of it, all of which are alleged and proved. 1. It rests on the same principle with that relating to injuries by animals known to be dangerous. (2 Starkie on Ev. 525, 6 Am. ed. 1837.) There the owner must, at his peril, keep the animal secure, or he will be answerable. Even negligence need not be alleged. (May v. Burdett, 9 Ad. & Ellis, N. S. 101.) 2. Using an engine known to be dangerous, is in principle like employing a servant known to be unskillful. For injuries resulting from this, the defendants would clearly be liable. (Coon v. The Utica and Syracuse Railroad Co., 6 Barb. 243, per Pratt, J.)

    VII. The adjudged cases relating to injuries to one servant by the negligence of another, do not conflict with, but rather maintain, the principle on which this action rests.
    1. They go" no further than to deny that the principal is liable to one servant for an injury sustained by the mere negligence of another, while both are engaged in the same service, the principal not being in fault, (Coon v. The Utica and Syracuse Railroad Co., 6 Barb. 231. Brown v Maxwell, 6 Hill, 594.)
    2. Hone of them deny, but on the coutrary most, if not all, of them concede, that the principal would be liable if he was in fault, as well as the servant, e. g. by employing him, with knowledge that he was unskillful, or by using an engine or boiler, or pipe, knowing it to be defective.

      3. The fact that the person employed, entrusted to select and erect the pipe, was in fault, as well as the defendant, forms no ground of defense. The plaintiff was a mere laboring man, and had not equal opportunity of knowledge with the defendant as to the danger, the latter having actual notice. Even if the plaintiff knew that the pipe was defective, he did not know that it was dangerous, this being a question of science on which experts might differ. The person entrusted to select and fit the pipe was engaged in a distinct employment from, that of the plaintiff; the defendant would therefore be answerable, even if he were without actual fault. (See per Gardiner, J., 1 Seld. 494, 495.)
    VIII. Using the pipe in question without guage or safety-valve to control the steam, was an act dangerous to human life, and having been done knowingly, the defendant is responsible even if the plaintiff is in some degree negligent, (which is not in evidence to excuse the defendant.) It must be shown further, that the plaintiff had notice of the danger. (Bird v. Holbrook, 15 Eng. Com. Law Rep. 91, 93 to 96. Loomis v. Terry, 17 Wend. 498, 499. Hartfield v. Roper, 21 Wend. 618. Lynch v. Nurdin, 41 Eng. Com. Law Rep. 422.)
    IX. The case shows that the defendant persisted in using the pipe in question, under circumstances evincing an utter disregard to every thing except his own profit and advantage. It is not a case of simple negligence, but of gross carelessness and wrong, and there is no principle on which he can escape responsibility. (Gough v. St. John, 16 Wend. 649. King v. Dixon, 3 Maule & Selw. 11. Ormond v. Holland, 96 Eng. Com. Law, 100.)

      Thomas C. T. Buckley, for the respondent.
    I. Even if the evidence established that the plaintiff’s injury was owing to the absence of an additional gauge or valve in the pipe, the defendant is not responsible.
    1. Because accidents occasioned by defects in principle, operation or arrangement of machinery are risks incident to the servant’s employment, against which the master is not bound to indemnify him. His protection is to decline the work. (Story on Agency, 6th ed. 453, h. note 4. Dynen v. Leach, 40 Eng. Law and Eq. 491. Hayden v. Smithville Man. Co., 29 Conn. R. 558. Griffiths v. Gidlow, 3 Hurl. & Norm. 648.)
    2. Especially is that rule applicable, where the plaintiff had the same knowledge, or means of knowledge, as his employer, the defendant, had. (Shipp v. East. Co. R. R. Co., 9 Exc. 223. Wright v. N. Y. Central R. R. Co., per Allen, J., 25 N. Y. Rep. 566.)
    3. The only qualification to this rule, is where the defendant is proven to have had notice of the dangerous character of the machinery; but no such proof was given. Ho previous • accident occurred to put the defendant on his guard.
    II. But there is an entire failure of proof that the accident was occasioned by any defect in the means used for cleaning the barrels.
    1. The plaintiff’s complaint is that there was no gauge to regulate or check the flow of steam into the barrel while being cleaned; the proof is, that there were two, viz.' the plug.in the barrel itself; secondly, the cock in the pipe, which was under the control of the plaintiff himself, and by which he turned on and shut off the steam. The barrel had cold water in at first, which was heated by the steam, and the hole in the plug in top of the barrel was to allow the steam, generated in the barrel by the heating of the cold water, to escape. That was a safety valve. On the present occasion no pipe burst, but the barrel itself broke all to pieces, from the plug being hammered down, and from the plaintiff letting in so much steam, that the water “boiled like mad." Such negligence deprived the plaintiff of any right of recovery, even if there was negligence attributable to the plaintiff in the construction or use of the means for cleaning barrels in use at the time. (Wilds v. The Hudson R. R. Co., 24 N. Y. Rep. 432.)
    2. There was an attempt to show that as an abstract question, an additional valve would have 'made the operation a safe one ; but the two witnesses by whotir that was attempted to be established, testified on eross-exaihination: That no general rule could be established, and that the necessity of an additional valve would depend on the distance the steam had to travel, (which, in this case, was over 224 feet in the open air,) the initial pressure at the boiler, which was not known, and the age and strength of the barrel. That the pressure on the barrel would depend on the quantity of steam in it, which quantity, of course, as above shown, was controlled by the stop cock on the pipe. The defendant is not liable even if an additional valve would have made it safer, the want of it being a matter of principle and construction, under the authorities in the first point.
    III. The amount of the whole case is :
    1. That there is neither allegation or proof of any defect in the materials composing the arrangement for cleaning the barrels. It is for this alone, and not for any defect, even if proved, in arrangement or principle, that the owner is liable.
    2. That there is no evidence of knowledge by the defendant of any defect in the arrangement.
    3. Even if the evidence shows any negligence attributable to the defendant, in any respect whatever, the plaintiff himself is not absolutely free from negligence in the management of the apparatus.
    The complaint was, therefore, properly dismissed, and the motion for a new trial should be denied, and judgment ordered for the defendant, with costs.
   By the Court, Moncrief, J.

It was said in Cook v. Bell, (30 Jur. 75, 20 D. P. 137:) “This case was tried before a justice of this court and a jury, and the argument was then as now very fully gone into. But, although the case was then fully heard and fairly tried, we do not regret that this appeal was taken and discussed, at great length, for it enables us to review the whole matter in a case where our leaning, if any, will naturally be with the plaintiff. When the labor to be performed is hazardous, it is fair to presume that it is also more than usually remunerative. This was not an action for injury arising from defect of machinery, or any defect of that nature ; the plaintiff wrought, it may he, under constant peril; that danger and peril were the ordinary condition of that species of labor.”

The learned counsel for the plaintiff conceded that this action was not brought for an alleged defect of machinery, but contended, as the complaint avers, that it was, in fact, the duty of the defendant to take due and proper care, and to provide all proper means to insure the reasonable safety of the plaintiff, as his servant, in the use and application of the said steam, &c., and alleges that the want of a guage to check and control the power and quantity of steam was negligence on the part of the defendant, for which, in law, he must respond in damages to the plaintiff. There is no allegation that the defendant knew, or ought to have known, of any thing omitted necessary for the protection of the plaintiff in the use of the steam, or that he was as well aware of the danger in its use as the plaintiff himself. The facts out of which the alleged duty of the defendant arises, are not stated ;■ it does not proceed from statute, as in England, with reference to fencing machinery ; not by contract, express or implied, as the apparatus was not defective, and was in the same condition at the time of the accident as it was when the plaintiff began his employment. The liability of the defendant would arise only from the fact that he was the cause of the injury by employing his servant in work, knowing that the machinery by which he carried on the work could not be safely used for that purpose, and that its use was accompanied by risk and danger. (Potts v. Plunkett, Amer. Law Regis, vol. 7, p. 555.) Such knowledge on the par.t of the defendant is the gist of the action. In England, a declaration without such an averment would be held-bad on demurrer. (Vose v. L. & Y. R. Co., 27 Law Jour. 249. 2 Hur. & Nor. 213. 4 Jur. 769. 25 Law Jour. 839. Williams v. Clough, 3 H.& N. 258. Priestley v. Fowler, 3 M. & W. R. 1. Potts v. Plunkett, supra, and Irish Jurist.)

It has been held otherwise here. (Byron v. N. Y. State Printing Telegraph Co., 26 Barb. 39.) The point was not raised in, Keegan v. The Western R. R. Corp., (8 N. Y. Rep. 175.) In the former case it was held that “the allegation of negligence would be sustained by proving the danger from the defect in the pole and that it was known to the defendants.” There was no such evidence adduced upon this trial; on the contrary, it would appear that the defendant did not consider the employment hazardous, as he illustrated the process to the plaintiff, and the latter successfully pursued the occupation without accident or complaint for fifteen days. It was not pretended that the defendant knew or had reason to believe that any defect or imperfection of the apparatus used by the plaintiff • existed until after the accident happened. The proper inquiry is, whether, at or before the time the accident occurred, there was any indication of danger, such as demanded or suggested precautions which were omitted. As nothing happens without a cause, so perhaps no accident ever occurred as to which suggestions might not afterwards be made by which it might have been prevented. The plaintiff, if he had discovered any imperfection or insufficiency, had not advised the defendant; the latter does not appear to have been present while the plaintiff was engaged at his work, except upon the first day. “ There is nothing legally wrong,” says Bramhall, B. in Dynen v Leach, (26 Law Jour. Exch. 221,) “in the use by an employer of works or machinery, more or less dangerous to his workmen, or less safe than others that might be adopted. It may be inhuman for an employer to carry on his works so as to expose his workmen to the peril of their lives ; but it does not create a right of action for an injury which it may occasion, where the workman has" known all the facts and is as well acquainted as the master with the machinery, and voluntarily uses it.” In Williams v. Clough, (3 Hurl. & Nor. Rep. 258,) the same learned judge said: “ I abide by the opinion I expressed in the case referred to, (just quoted,) that a master cannot be held liable for an accident to his servant while using machinery in his employment, simply because the master knows that such machinery is unsafe, if the servant has the same means of knowledge as the master.” It was held in Assop v. Yates, (2 Hur. & Nor. R. 767,) “that the plaintiff could not recover for injuries, because after he had complained of the ’ and knowing all the circumstances, he voluntarily continued at work.”

The cases of Griffiths v. Gidlow, (3 Hur. & Nor. 648,) and Scrip v. The Eastern Counties Bailway Company, post, in principle, are singularly like the case under consideration. In the first there was evidence that the hook by which the barrel was attached which drew it up was not safe ; that it ought to have been a spring hook, which, it was alleged, would have prevented the misfortune which led to the accident. “ The answer to this (says Watson B. p. 655,) seems to us to be that the plaintiff himself knew the hook, and worked with it himself, possibly attached it to the tub or barrel, which afterwards fell upon him, and seems never to have made any observations or complaint in respect to it. We think that a servant so acting cannot maintain an action against an employer. He himself was contributory to the injury, and as it was stated by Lord Cranworth in' the case, in the house of lords, (Patterson v. Wallace, 1 McQueen, 748,) it is essential for the plaintiff or pursuer to establish that the injury arose from no rashness of his own.”

In Skipp v. The Eastern Counties Railway Co., (23 Law Jour. Rep. 23,) the plaintiff was a railway guard on defendants’ line. His duties were to attach goods carriages to the engine, and dispatch them to a particular station. He was occasionally assisted 'by a porter, On the 5th of July, 1852, it was necessary to shift the carriages from one line to another, and within a limited time, in order to prevent a collision with a down passenger train, which would shortly be due. While he was in the performance of this work, and for the want, as he said, of an additional person to assist him, the engine started, and he was thrown on the rails, and his arm was ■ crushed, and had to be amputated. He had been three months in the service of the company. He sued the company for damages, alleging that it was the duty of defendants to take all due precautions to prevent unnecessary danger, and that, in consequence of their neglecting to assign some one to assist him in the present instance, he had met with the accident. The Court of Exchequer held that the company was not liable.

If there was danger, and great precaution was necessary, the plaintiff in the present action being the sole operator, might have left the employ of the defendant, or omitted to turn the steam into the barrel, or have turned off the steam when he found the water' he had put into the barrel, by contact with the steam, was, as he testified, “ boiling like, mad.” Again, the accident can be attributed to human fallibility, in that the plaintiff hammered the “plug” down into the barrel so tight that even the alleged extraordinary pressure of steam emitted into the barrel for five minutes failed to send the plug out, and the barrel gave way. The consequence of his voluntary act, under such circumstances, cannot be visited against the defendant, however distressing the calamity which befell him, permanently disabling him from pursuing many of the occupations of life.

We might, with great propriety, have rested our disposition of this case upon the reasons assigned by the learned judge upon dismissing the complaint, and the case there cited, (Wright v. The N. Y. Central R. R. Co.; 25 N. Y. Rep. 566,) but in justice to the learned counsel who so ably argued the exceptions, we have carefully examined all the authorities cited by them, as well as some others to which we have alluded.

The complaint was properly dismissed ; the exception must he overruled) and judgment be entered for the defendant.


author: By the Court, Garvin, J. Barbour, J. (dissenting.)

text:
    John Underwood, plaintiff and respondent, vs. John Green, defendant and appellant.
    1. Under the act of the legislature “ relative to the public health in the city of New York,” (passed April 10, 1850,) giving to the corporation of the city authority to make all such by-laws and ordinances as they shall from time to time deem necessary and proper for the - preservation of the public health, and also for the abatement and removal of nuisances,” &c,, (Zaws of 1850, p. 608,.$ 2,) the common council were authorized to pass the 7th section of the city ordinances of 1859, which directs the city inspector to “ cause all dead animals, &c. found in any street or other place within the city to be removed and disposed of by removal beyond the limits of the city,” &c.; such ordinance having been deemed necessary and proper by the city corporation, for the preservation of the public health. Barbour, J. dissented.
    2. The city inspector has power, by the laws of the state, and the ordinances of the common council, with-the consent of the board of aldermen, to appoint health wardens, and such other officers as the common council or the board of health-’Shall direct, to carry into effect the rules and regulations of that board and the laws and ordinances of the common council, relating to the public health.
    3. Whenever dead animals are found in any street or other place in the city, a case is presented for the exercise of the judgment and discretion of the city inspector, and he is bound to act. This is a duty imposed by law, is imperative, and in its nature judicial. For an error of judgment in the performance of that duty, while acting within his jurisdiction with power to determine, he is not liable to a civil action.
    4. Any one who acts under the orders of the proper officer, in effecting a removal, stands precisely in the same position as the city inspector, and therefore is not liable in a civil action.
    5. It is well settled that a public officer is not responsible, in a civil suit, for a judicial determination in a matter over which he had jurisdiction, however erroneous it may be, or however malicious the motive which produced it,
    (Before Barbour, Monell and Garvin, JJ.)
    Heard March 17, 1864;
    decided December 31, 1864.
    This action was brought to recover the valué of the carcases of forty-two dead hogs, alleged to have been taken and carried away by the defendant, in 1862. The case was tried before a justice of this court and a jury. It appeared upon the trial that a large number of hogs arrived on the cars at the Hudson river railroad depot in the city of New York, in November, 1862. That the hogs in question had died from suffocation, upon the passage from Albany. It also appeared that the defendant was offal contractor for the city of New York, and that as such contractor he was bound to remove from the city limits such dead animals and offal as he should be directed to remove by the city inspector. That the hogs in question were so removed from the city limits by the order of an officer of the city inspector’s department, (William Travers.) The defendant insisted, upon the trial, (1.) That the taking by the defendant was lawful. (2.) That without a demand and refusal the plaintiffs could not recover. (3.) That the defendant was entitled to a verdict. The justice decided otherwise, and refused so to charge the jury, to which the defendant excepted. The court charged that if the defendant took the hogs away, or directed the taking and carrying away, he was liable, and an exception was taken to the charge, and a verdict was found against the defendant; from the judgment entered on which he appealed, and such appeal was now heard.

      John E. Develin, for the appellant.
    I. The evidence fails to establish any conversion of the property of the plaintiff by the defendant.

      (a.) It does not appear that the defendant ever saw the hogs in question, or that they were ever in his possession. The seizure and removal of them was made by Travers, the “ general inspector” of the city of New York, who, in directing the seizure, was acting under instructions received from his superior, the city inspector. The mere fact that the defendant’s servants and his carts carried the hogs away, cannot, under the circumstances of this case, render him liable to the plaintiff in this action. The defendant's duty was discharged and his contract was fulfilled when he furnished to Travers the men and carts necessary for the performance and fulfillment of his duties as a public officer. If Travers, either intentionally or ignorantly, employed them in the commission of a trespass, he, and not the defendant, should be responsible' to the injured party. The principle once established, that parties furnishing to public officers the means and appliances necessary and .requisite to enable them to discharge their public duties, are to be held responsible as principals for all the illegal and wrongful uses in which such means and appliances may be employed, would soon result in the refusal of all persons to furnish to such officers the facilities without which their public duties could not be performed.
    II. The seizure and removal of the hogs was lawful. . .

      (a.) The corporation of the city of Hew York, with which the plaintiff contracted to remove offal from the city, under the direction of the city inspector, are, by their various char.ters, authorized to enact such ordinances as they may deem necessary and proper for the good government of the city.
    The mayor and common council of the city of Hew York are also vested with all the legislative powers of the board of health, and' when acting in relation to the public health of the city, are declared to be the board of health of the city of Hew York. (Laws of 1850, ch. 275, § 1.) They are specially empowered “ to make and pass all such by-laws and ordinances, as they shall from time to time deem necessary and proper for the preservation of the public health of said city, and also for the abatement and removal of all and every nuisance in said city.” (Laws of 1850, p. 608, § 2.)
    Towards the exercise of these powers, ordinances have been enacted and' regulations established ; among, others, the following, which are relied upon as a defense to this action: (Revised Ordinances 1859, p. 155, § 7 ; Id. p. 409, §§ 9, 10 ; Id. p. 410, § 13.) .
    The passage of these ordinances was within the powers conferred upon the corporation by the act of 1850. They are also reasonable in themselves toward the • accomplishment of the objects of the statute. (City of Rochester v. Collins, 12 Barb. 559.) :Their reasonableness is to be determined by the court. (Commonwealth v. Worcester, 3 Pick. 473.) That is, the court will determine whether or not the means employed in the exercise of power granted will tend to accomplish and realize the purpose or end for which the grant of power was made. And in the absence of proof to the contrary, the reasonableness of ordinances should he* presumed. (Shaw v. Cummiskey, 7 Pick. 76.) The uses to which the evidence shows that smothered hogs are daily put, is a complete vindication of the reasonableness of the ordinances and regulations under which the hogs in question were seized and removed. Ordinances and regulations similar in their provisions and character exist in Boston, and have been approved as reasonable and sustained as valid. (Vandine’s case, 6 Pick. 187.)
    The city inspector’s department, as one of the executive departments of the municipal government, has especial cognizance of all matters relating to the public health, and is charged with the duty of enforcing the ordinances enacted for its promotion and preservation. (Charter, 1857, § 27.)
    (5.) The corporation in the exercise of its powers declares what shall be removed, and prescribes the manner in which the removal shall be effected. The city inspector, in the discharge of his duties, superintends the removal, and the contractor, in the fulfillment of his obligation, performs the work. There is thus constituted a system complete in itself for the removal from the city of all matters and substances likely in any manner to prove detrimental to the public health. It is in the nature of a police regulation, established for the public benefit, and designed to preserve and promote the public health. It is submitted, therefore, that, if the defendant is to be regarded as the principal in the seizure and removal of the plaintiff’s property, he was justified by the authority under which he acted.
    III. There is no foundation for the argument and claim, that the ordinances and regulations, in pursuance of which the plaintiff’s property was removed, deprive the plaintiff of his property. It is clear that the evidence in the case fails to show any such deprivation.

      (a.) The smothered hogs were transported from the depot to the “ offal docks,” thence to be removed from the city. This proceeding in no degree affected the plaintiff’s property in the hogs. For important public reasons, his right to their possession was suspended until they should be removed from the city. It is of the nature of all police regulations to interfere somewhat with private rights, hut such interference does not render them invalid. In such cases, individual convenience and interest must yield to the public benefit. (Baker v. City of Boston, 12 Pick. 192.)
    IV. The defendant’s possession of the hogs being lawful, he could not be guilty of a conversion until they had been demanded from him by the plaintiff, and a refusal on his part to deliver thereon. (Gurney v. Kenny, 2 E. D. Smith, 132. Wilson v. Cook, 3 id. 252. Hall v. Robinson, 2 Comst. 293.)

      {a.) Under the circumstances of this case, and within the principles established by these authorities, it is insisted that the defendant could in no event be found guilty of a conversion of the plaintiff’s property, except by proof that, after the hogs were removed from the city, they were demanded of him by the plaintiff when in his possession or under his control, and he refused to deliver them. There is no proof in this case.

      Henry H. Anderson, for the respondent.
    I. The act of the defendant was wholly without justification. His contract with the corporation did not authorize him to do what the corporation itself had no authority to do.

      (a.) Neither the laws of the state, nor the ordinances of the city passed pursuant to such laws, authorize, or could authorize, the act of the defendant. (Laws of 1850, pp. 607, 608.)
    (5.) It was not pretended, upon the trial, that the hogs taken were in any respect nuisances, or prejudicial to the public health; they were not exposed upon the public highway, nor in the markets, nor intended to be so exposed. The mere fact that life has departed from a person or animal does not justify the offal contractor, or his employees, in entering upon private premises, and carrying the body away, as a nuisance. Some additional facts must be shown in justification, or the act from beginning to end will be a trespass. This case is without the slightest justification on the part of the defendant. He has pocketed the value of the plaintiff’s hogs. For this, the plaintiff had judgment below,, and desires it here.-

      II. The evidence (admitted under plaintiff’s objections and exception) that smothered hogs are sometimes stabbed, and taken to the slaughter house, and exposed for sale, affords no justification to the defendant in this case.
    III. The charge of the judge was unexceptionable. The judgment below should be affirmed, with costs.
   By the Court, Garvin, J.

There is no dispute about the facts in this case. The carcases of the hogs in question were taken and carried beyond the city limits by order of an officer of the city inspector’s department. The defendant justifies the taking, under the seventh section of the ordinance of 1859, which is, “ He shall cause all dead animals, and every putrid, offensive, unsound or unwholesome substances found in any street or other place in the city, to be forthwith removed and disposed of by removals beyond the limits of the city, or otherwise, so as most effectually to secure the public health.” This ordinance has reference to the city inspector, and is his authority-in the action taken in regard to the property in question. If the mayor, aldermen and commonalty of the city of New York had the power to make and pass this ordinance, it is difficult to see any reason why the city inspector should not carry it into effect. The power to make exactly such an ordinance is found in section 2, Laws of 1850, page 608. The language is : “The mayor, aldermen and commonalty of the city of New York shall have full power and authority to make and pass all such by-laws and ordinances as they shall, from time to time, deem necessary and proper for the preservation of the public health of said city ; and also for the abatement and removal of all and every nuisance in said city, and for compelling the proprietors or owners of the lot or lots, upon which the same may be, to abate and remove the same.” All legislative powers heretofore vested by any existing law of this state in the board of health of the city of New York, are now vested in the mayor and common council of the city. (Laws of 1850, § 1, p. 597.)

This ordinance was deemed necessary and proper by the mayor, aldermen and commonalty, for the preservation of the public health, and they have discharged a high and important obligation by making and passing it. The city inspector has power, by laws of the state and ordinances of the common council, to appoint, with the consent of the board of aldermen, health wardens and other officers, as the common council or the board of health shall direct, to carry into effect the rules and regulations of the board of health, and the laws and ordinances of the common council of said city, &c. relating to the public health. (Laws of 1850, sub. 1, § 1, article. 1, title 3, p. 607.) It is thus shown: 1. That the power to pass the ordinance in question is clearly derived from the statute. 2. That the ordinance itself, in express terms, authorized and required the city inspector to remove the property from the city limits. 3. That the order was given by the proper officer of the city inspector’s department, who was, and is authorized to give effect to the ordinance under consideration. It was seen that it would be necessary, in order to give effect to' the regulations and ordinances of the board of health and the common council, that there should be health wardens and other officers appointed by the city inspector, In this view of the law, and the undisputed facts, a case was presented for the exercise of the judgment and discretion of the city inspector, within the terms of the ordinances, and obnoxious to the mischiefs it was intended to prevent, It was for him to act; he was bound to do so ; it was a duty imposed by law, and imperative, and in its nature judicial, and he is no more liable to a civil action for an error of judgment, than would be jurors, judges, or any other officer performing judicial duties, while acting within his jurisdiction with power to determine. It is well settled that a public officer is not responsible in a civil suit for a judicial determination in a matter over which he had jurisdiction, however erroneous it may be, or however malicious the motive which produced it. (Weaver v. Devendorf and others, 3 Denio, 117, and cases there cited.) If the officer is corrupt he may be punished criminally, but a civil suit cannot be maintained for what he does in the performance of a judicial duty. If this action had been brought against the city inspector, under the same proofs against him, it would have been the .duty of the court to have directed a verdict for the defendant, or .dismissed the complaint.. The defendant, having acted under the orders of . the proper officer, stands in the same position as the city inspector, and is, therefore, not liable in this action.

In this great city, it would be impossible for one person to perform, individually, all the duties pertaining to the office of city inspector; hence the necessity of subordinates in various sections of the town, to perform the duty, and carry into effect the regulations of the board of health, and the ordinances of the common council. The property enumerated in the ordinance is to be removed forthwith, beyond the/limits of the city, and disposed of by removal.” The ordinances provide that this shall be done by the offal contractor, who is the defendant in this case. The declared object and design of this ordinance is to secure the public health.” It is very easy to see how important and wise a regulation this is, for the well being of every citizen. While the powers conferred by it should not be improperly exercised, nor enlarged, courts of justice should be careful to see that they are not so abridged and impaired as to prevent securing the end designed to be accomplished by its enactment.

The purpose of this ordinance was to prevent as well as abate all and every nuisance which might affect the atmosphere of the town, or the good or health of the citizen, and secures to the city clean streets, pure air and wholesome food. We think' the defendant was justified in removing the property from the city, and that the judgment should be reversed, and a new trial ordered, with costs to abide the event.

Monell, J. concurred.

Barbour, J. (dissenting.)

The defendant does not claim that the property taken by him from the plaintiff was removed under or by virtue of any adjudication of the board of health of the city of Hew York, or under any order or direction made by such board. Hor is it pretended that the dead animals in question were, when so taken from, the plaintiff’s possession, putrid, or in a state of decomposition so as to injure or endanger the public health; nor, even, that they were in such a condition that they could not have been removed by the plaintiff and converted into grease, lard oil, or stearine, before decomposition should have taken place to any dangerous, injurious, or obnoxious extent. In-other words, the defendant does not claim that any evidence was given upon the trial tending to show that the animals were, or were likely to become, a nuisance, in the condition they were in when carried away by him. But, on the contrary, he bases his justification of the alleged trespass, wholly upon the statute of the state relating to the public health of the city of Hew York, an ordinance of the mayor, aldermen and commonalty, and a direction given by one of the officers of the city inspector to the defendant's employees, to take possession of and remove the animals.

The state statute in question creates a board of health of the city of Hew York, to be composed of the mayor and common council, or any ten members thereof, sitting together as one body, and presided over by the mayor, and invests such board with all the judicial powers usually .conferred upon boards of health ; such as adjudging it to be necessary that any particular matter or thing within the city, that may be putrid or dangerous to the public health, shall be removed or destroyed ; determining, on notice of hearing to the party interested, that any business, trade, or profession, carried on by any person in the city, is detrimental to the public health, and to make its final and conclusive order thereupon, &c. (2 R. S. 5th ed. p. 1, §§ 1, 2 ; p. 15, §6) p. 13, § 1, subd. 3.) Another part of the statute, being that portion of it which is more particularly relied upon by the defendant, authorizes and empowers the mayor, aldermen, and commonalty of the city of Hew York, (that is, the corporation known by that name, and not the board of health,) “ to make and pass all such by-laws and ordinances as they shall, from time to time, think necessary and proper for the preservation of the public health of said city, and also for the abatement and removal of all and every nuisance in said city, and for compelling the proprietors or owners of the lot or lots upon which the same may be, to abate and remove the same.” (Id. p. 13, § 2.)

The ordinance of the corporation enacts and declares, that the city inspector shall cause all putrid and unsound beef, pork, fish, hides or skins, all dead animals, and every putrid, unsound, or unwholesome substance, found in any street or other place in the city, to be forthwith removed and disposed of, by removal beyond the limits of the city, or otherwise, so as most effectually to secure the public health.” (Vol. Ord’s of N. Y. p. 158, §7.)

The question for us to determine, as I understand it, is, whether this act of the legislature' and the corporation ordinance, legally empowered the officer of the city inspector to take possession of, and remove, the animals, or direct the defendants to do so ; for, unless such statute and ordinance, and the act of the officer, constituted that “due process of law” which is contemplated in and by the constitution of this state, (Const. art. 1, § 6,) the defendant is without justification and is a trespasser.

The highest courts of this, as well as our sister states, in numerous decisions, have held that the legislature may create boards of health, and invest them with full power to adjudicate upon and condemn, and compel the removal- or other disposition of property, which, in their judgment, may endanger the public health; and that the adjudications and decisions of. such tribunals in regard to matters of which they have so been vested with jurisdiction, are final and conclusive, and justify their officers in carrying the same into effect. It may be considered as settled, therefore, that the decisions of those tribunals, and the proceedings had thereunder, constitute that due process of law of which the constitution speaks. But, I know of no method, other than such adjudication by a competent tribunal, whereby a person can, legally, be deprived of his property without his own consent, unless it shall be taken for public use. Chancellor Kent, in treating of this constitutional provision, says : The words, by the law of the land, as used originally in magna charta, in reference to this subject, áre understood to mean due process of law, that is, by indictment or presentation of good and lawful men; cand this/ says Lord Coke, 1 is the true sense and exposition of those words.’ The better and larger definition of due process of law, is, that it means law in its regular course of administration through courts of justice.” (1 Kent’s Com. 612, § 13 and n.) Indeed, the rule in this regard is too well settled to require discussion.

It is hardly necessary to consider the question, whether the legislature can invest a municipal or other corporation, not being a natural person, with judicial powers ; it is sufficient that they have not attempted to do so in the statute referred to. The judicial powers, those powers which enable a court to adjudicate upon existing facts and cases, and to apply the remedy in each distinct and several case, as the law and the necessities of the public require, are conferred by the act upon the board of health; while, so far, at least, as concerned this suit, the corporation of New York is clothed with legislative authority, merely; that is, authority to pass by-laws and ordinances, (applicable, however, only, to classes of cases thereafter to arise,) for the purpose of so regulating the uses of property that it shall not create nuisances, and become dangerous to the health or comfort of the citizens. (See 2 Kent’s Gom. 398.) For instance, under the powers granted by the legislature, the corporation was probably authorized to pass a by-Iaw,"or ordinance, if not unreasonable in its character, forbidding, under a penalty, to be enforced by a court of justice, the bringing of any dead animal into the city, or slaughtering one within its limits. But the statute does not, in terms, empower the corporation to declare the forfeiture of any property, or to direct the removal of it from the city, unless the same shall be a public nuisance ; (see 4 R. S., 5th ed. pp. 13, 14, §§ 2, 3;) which, as we have seen, is not claimed in regard to the subject matter .of this action; and, I may add, in passing, that this power to compel the removal of nuisances, could not have been given for the purpose of protecting the persons employed in such removal, inasmuch as every man is justified in abating a public nuisance, but, only, in order that the corporation might impose the duty of performing such abatement upon such officers as should be designated for that purpose.

Boom v. The City of Utica, (2 Barb. S. C. Rep. 104,) was an action brought to recover damages occasioned by the alleged conversion of the plaintiff’s house into a small-pox hospital, under the direction of the common council. The court, ¡in deciding that the corporation had no legal right thus to dispossess the owner, say : We do not mean to deny the largest powers, and the most liberal discretion, to boards of public health, duly and legally constituted, to preserve the public health, and prevent the spreading of contagious disease, by the severest quarantine regulations. But, that question does not arise here. There is nothing in the act of incorporation, conferring on the common council any of the powers of a board of health.” * * The power conferred upon the common council is, merely, legislative; to make and publish ordinances, &c.” * * “ It is a mere grant of authority to adopt general rules and regulations.” (See also Dunham v. Trustees of Rochester, 5 Cowen, 462, and Clark v. Mayor of Syracuse, 13 Barb. 32.)

Assuming, for a moment, however, that the powers conferred upon the corporation in this regard, were not merely legislative, but judicial, so as to authorize it to adjudicate upon, and, by its ordinance, to direct the removal of property from the city, because dangerous to the public health; it seems to me clear that no such adjudication had been had in relation to the animals embraced in this suit. For, not only is the ordinance of the corporation, a legislative act, a mere law or rule of action for the government of the city inspector in future cases, but there is no pretense that any action whatever was had by said body, touching this particular property, by way of condemnation or otherwise.

For these reasons, I am of opinion that the defendant wholly failed, upon the trial, to justify the act complained óf, and, therefore, that the charge of the court, which is excepted to, was quite correct.

Although I am content to rest the decision, so far as my own opinion is concerned, upon the views above expressed, there are further questions suggested by the arguments on appeal, which it may not be amiss to consider.

An ordinance of a municipal corporation, like a statute of the state, must be construed, where its meaning is doubtful in regard to some of its provisions, whether because repugnant to the general scope and object of such ordinances, or otherwise, according to the intention of its makers ; and that is to be ascertained upon and by a consideration of the evil sought to be removed or avoided, the remedy to be applied, and the reason of such remedy. (Heydon’s case, 3 Co. Rep. 7. Purdy v. The People, 4 Hill, 384.) The guide to that intention is, in this case, found in the statute concerning the public health of the city of Hew York, which confers upon the corporation the power to pass ordinances relating to that matter, as well as in the ordinance itself, for we are bound to assume that the corporation acted honestly, and designed, in good faith, to carry into effect, by its ordinance, the intention of the legislature; and, clearly, the great object and design of the latter was to preserve and protect the public health of the city, by preventing the influx, and providing for the removal or regulation of such deleterious substances and matter, as, if left uncontrolled, would injure or endanger the public health, and nothing more. I may add, no authority to pass ordinances was given to the corporation by the statute, except such as, in their opinion, were necessary and proper for the preservation of the health of the city. Considering this, and assuming that the common council designed to pass ordinances of that character only, it is much more reasonable to believe that the words “ all dead animals," used in the ordinance in question, were intended to include those animals only, which are valueless when dead to the owners, and which he has no pecuniary interest in removing, such as horses, dogs, &c. than it is to suppose the mayor and common council designed to cover, by these terms, all the thousands of animals which are daily slaughtered in, or brought dead to, the city for the sustenance of its inhabitants, and to make it the imperative duty of the city inspector to seize every one of those animals ; and that, too, without having previously passed any ordinance forbidding the killing of animals in the city, or the bringing of dead ones into it. It seems to me, therefore, that the ordinance in question could not have been intended by its makers to include dead animals of the-description of those embraced in the complaint; animals of very considerable value, and in the removal of which by himself, before decomposition should have commenced, the owner was pecuniarily interested to such an extent as to render it in the highest degree improbable that any action in that regard, on the part of the city authorities, would be necessary.

Even if this were otherwise, however; if it could be assumed that the mayor and common council designed to include all dead animals, of every description, in the direction to the city inspector, which is contained in the ordinance, or even animals like those in question, which are valuable to the owner for lawful and proper purposes, and which he is pecuniarily interested in so appropriating, I should have no hesitation in holding that such ordinance was unreasonable, and not within the powers conferred by the statute, and, therefore, to that extent, at least, void. For, to be valid, an ordinance or by-law of a municipal corporation'must be not only conformable to its charter or the statute conferring its authority, but it must also exhibit a reasonable execution of such powers. (2 Kyd on Corp. 107. Dunham v. Trustees of Rochester, 5 Cowen, 462.) The words “ such by-laws and ordinances as they shall think necessary and proper,” imply a direction to exercise a sound and prudent judgment, and restrict the common council to the enactment of such by-laws and ordinances only, as shall be reasonable and best calculated to effectuate the grand design and object of the statute; that is, to preserve the public health. In the case last cited, although the corporation of Rochester had been empowered by the act of the legislature, in terms, to make such prudential bylaws, rules and regulations as they, from time to time, should deem meet and proper relative to taverns, gin-shops and huckster shops, and relative to anything whatever that might concern the good government of the village,” yet, the Supreme Court held that a hy-law requiring grocers, hucksters and .victuallers to take out licenses from the trustees, was unreasonable, and, therefore, inoperative, because in restraint of trade. If, then, a by-law which is clearly authorized by the strict letter of the statute is unreasonable and void because it is in restraint of trade, how can we uphold a corporation ordinance which not only prevents the owner from selling his property for legitimate and proper purposes, to a soap boiler or candle maker, as in .the case before us, but actually divests him of his possession; and that, too, by a mere direction to one of its own officers, and without making any provision for the return of such property to the owner, either within or beyond the city limits, or even for giving him such information touching the place to which it has been, or is to be, conveyed, as will enable him to recover it ?

I think the judgment appealed from should be affirmed.

New trial granted.