author: Eobebtsoh, Oh. J.

text:
    Ellen Lehey, adm’x, &c. plaintiff and appellant vs. The Hudson River Railroad Company, defendants and respondents.
    1. The 44th section of the general railroad act, {Laws of 1850, p. 233,) requiring railway companies to fence in their roads, is inapplicable to depots in cities.
    2. A possibility, or even probability, of injury to any one who may happen to be behind stationary cars in a railroad depot, does not make it incumbent on the railroad company, as a duty, to ascertain that no one is there, before they move any of those cars.
    3. Where the plaintiff’s intestate came upon the land of a railroad company, to a depot, not being a part of any public highway, without any assignable motive or business, and while leaning against a stationary car standing upon a side track, was prostrated, run over and killed by a moving train striking against such car, the decedent being in a position where he could not be seen by the brakeman on the moving cars, nor could he see such cars ; SM that the decedent was guilty of negligence contributing to the accident, and that the railroad company Was not liable for damages.
    4. No new rules, or modifications of an old one, adopted latterly, as to negligence on railway tracks or highways, are applicable to a case where the injury caused by negligence of servants was done upon the premises of the defendants in the course of the ordinary occupations of their servants in such depot' without any peculiar relations between them and the person injured. For such injury the servants alone are liable. Ter Robertson, Ch. J.
    (Before Robertson, Ch. J,, and Monbli, and Garvin, JJ.)
    Heard May 17, 1866;
    decided June 30, 1866.
    This was an action for damages arising from the death of the husband of the plaintiff, of whose estate she had been appointed administratrix, which death the plaintiff alleges was caused by the negligence of the defendants and their servants in permitting a railway car belonging to them to prostrate the intestate and pass over his body. He was killed on land claimed to belong to the defendants and not to he part of any public highway. •' The latter generally used such land as a freight depot; cars were brought into it by a side railway track, and were loaded and unloaded upon it; and remained stationary there until drawn off. At the time of the decedent’s death, eight or more cars were standing at rest in such depot, on such side track. The cars generally entered the depot on such side track from Twelfth street, which was to the northward. The decedent, at the time of the accident, stood outside of the rails of such track, at the end of the southernmost car, to the west of it, leaning against it. There was no evidence of the cause or object of his being there, except one witness from his pantaloons being open thought he might have been there obeying a call of nature. Some cars which had been previously drawn by horses, but from which the latter had been disengaged, continued their motion upon such side track, struck the northernmost of the stationary cars, moved them forwards either together or in succession, against each other, until the last one struck the decedent and prostrated him. Two of its wheels then passed over and killed him. The decedent, when he was struck, could not, from where he stood, see the train coming in, although he might have done so had he been two or three, steps to the eastward. Nor could he be seen by the brakeman on the cars as they came into the depot.
    On the trial the complaint was dismissed, and the exceptions were directed to be heard in the first-instance at the general term. Motions were made by the plaintiff for judgment; and by the defendants for a new trial.

      P. Y. Cutler, for the appellant.
    I. The place where this casualty took place was not fenced off from the highway. This is apparent from the conflict of evidence as to whether it is, or is not, a part of the public street.
    By the forty-fourth section of the general railroad act, (Laws of 1850, p. 233,) the duty to fence is on the defendants. The consequence of omitting to make such fence is declared, to be, “ that the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses, or other animals thereon.”
    If dumb beasts are thus protected, a fortiori the same duty devolves on the railroad company in respect to man.
    II. The act fixes the duty of the defendants, and wherever the duty rests, and is violated, a liability accrues to pay the damages. (Corwin v. The New York and Erie R. R. Co., 3 Kernan, 42. The Mayor of Albany v. Cunliff, 2 Comst. 165, 169.) .
    That Lehey was not to be treated as a trespasser, is clear from the authorities. (Cowen’s Treatise, “ License.” Bolch v. Smith, 7 Hurlst. & Norm. 736. 8 Jurist, N. S. 197. 31 Law Jour. Excheq. N. S., 201. 10 Wend. 387. 6 Law Jour. N. S. 158. Cleveland v. Cleveland, 12 Wend. 172.)
    II. If a railroad company is managed with such negligence as to run over and kill á human being, his personal representatives may recover, although he was not a passenger, and the company had no contract with him out' of which a duty arose. (Hartfield v. Roper, 21 Wend. 615.)
    1. Even if he was, technically, a trespasser at the time, the defendants are bound so to conduct their mighty engines for good as not to endanger human life. (Lynch v. Nurdin, 1 Q. B. Rep. 29. Deane v. Clayton, 7 Taunt. 496. Bird v. Holbrook, 4 Bing. 628.)
    2. But the plaintiff was not even technically a' trespasser. He could not know that he was off the line of the street. This is plain, from the fact it is even now difficult to ascertain whether it was on the street or not.
    3. But, if not in the street, as there was nothing to indicate where the line of the street was, no fence or inclosure, he had a license, as all the public had, to walk on the lot, which is one of the public dumping grounds of the .city, and open to all ■ men. (See City Ordinances; Cowen’s Treatise, “ License.”)

      C. A. Bapallo, for the respondents.
    This action cannot be maintained, unless the deceased was killed by the wrongful act, neglect or default of the defendants, without contributing fault on his part. The plaintiff was, therefore, properly nonsuited. ( Wilds v. Hudson River R. R. Co., 24 N. Y. Rep. 430. 29 id. 315.) First. There was no proof of wrongful act, neglect or default on the part of the defendants.

      I. The deceased was not their passenger, and they were not bound to exercise towards him the degree of care which the law requires from passenger carriers.
    II. It was not the common case of a wayfarer in a highway, coming in collision with a vehicle, whose owner would be bound to the exercise of ordinary diligence to avoid a collision.
    III. Deceased was not the servant of the company, and they were not bound, by any contract, to any degree of care towards him.
    IY. He was not upon their premises under any license, expressed or implied, to be there, and they were not bound to • exercise that care which the law requires towards one transacting business with them.
    Y. He was a mere trespasser, and the utmost obligation of the defendants towards him was not to injure him, knowingly or intentionally.
    YI. There is not only no evidence that the defendants, or any of their servants, knew, or could by reasonable diligence have discovered the presence of the deceased; but it affirmatively appears that the brakesman on the moving cars, the only servant of the defendants on whom negligence could possibly be charged, could not see him.
    YII. The defendants, upon their own premises, were transacting their own business in the ordinary way. There is no evidence that the moving cars were not “switched in” in precisely the usual manner, with the usual number of cars, horses and men, the usual speed, the usual brakes and other appliances, and in the way best adapted for accomplishing the object required for the company’s business.
    Second. The negligence of the deceased caused, or contributed to cause, his death.
    I. He was technically a trespasser, a wrongdoer. It is well settled law that a trespasser upon another’s land cannot recover for injuries caused by mere negligence, however gross, on the part of the owner of the land. (Degg v. Midland R. R. Co., 1 Hurlst. & Norm. 773, 780, 781, 782. Tonawanda R. R. Co. v. Munger, 5 Denio, 266. Same v. Same, 4 Comst.
      349, 359. Bush v. Brainard, 1 Cowen, 78. Robertson v. The N. Y. and Erie R. R. Co., 22 Barb. 91. Terry v. The N. Y. Central R. R. Co., Id. 586. Sarch v. Blackburn, 4 Car. & Payne, 297. Brock v. Copeland, 1 Esp. 203. Blyth v. Topham, 2 Cro. Jac. 158. Lygo v. Newbold, 9 Exch. R. 302.)
    II. If he had been rightfully there, the movement of cars about a freight depot is so common an occurrence that “ ordinary care” required him to see that he was not exposed to danger by any such movement. Instead of taking any precaution, he placed himself where he could not see any approaching car, although two or three steps off they would have been in sight.
    III. He must have been leaning against the car in an unusual position, for, although not in front, but at the side of the car, its movements threw him down and under the wheel. If he had been standing upright, supporting his own weight, no possible movement of the car could have harmed him.
    IV. The impulse given to a car, at one end of a long line, and communicated from one to another till it reaches the last, always causes a continuous succession of sounds, which the witness in this case twice calls “ the thunder of the cars." It attracted this witness’ attention at some distance off, and would have given sufficient warning to the deceased if he had bqen paying ordinary attention. He had only.to stand up, instead of leaning against the car, and he would have been in safety.
   By the Court,

Eobebtsoh, Oh. J.

As the pleadings formed no part of the printed case before üs, we have no judicial knowledge of the nature of the action, except from the evidence. A trial, however, having taken place, and no objection having been made for a variance between the cause of action set out in the complaint and that, if any, given in evidence, we are bound to inquire whether evidence tending to establish any cause of action was offered. Such cause of action is claimed, to consist of the homicide of the plaintiff’s husband, by the negligence of the servants of the defendants.

It was suggested, on the argument, that greater care was required of the defendants, because the decedent was on a public street when killed ; that, however, is disproved by the evidence. (The court, after examining the testimony, proceeded.) It must, therefore, be assumed that the accident took place on the defendants’ own premises. I do not see how the failure to enclose such depot of the defendants, if it were proved, could affect their liability. The 44th section of the general railroad act, (Laws of 1850, p. 233,) requiring railway companies to fence" in their road, is inapplicable to such a case. The decedent was not killed in consequence of the want of such fence. The same rule is not to be applied to him as to dumb animals, who stray on uninclosed tracks, and get killed. The remarks of Judge Denio, in Bissell v. N. Y. Cent. R. R. Co., (25 N. Y. Rep. 460,) as to the comparative value of human and bestial life which are appropriate in regard to care in transporting the bodies animated by them, become wholly inapplicable to destroying the life of a person not a passenger.

The counsel for the plaintiff also contended that the decedent was not trespassing on the premises of the defendants, and that even if he were, the latter were responsible for employing dangerous instruments without proper care or warning. It does not appear for what purpose the decedent was on the defendants’ premises at the time he met his death ; he was not moving, and not apparently engaged in any operation requiring him to be on those premises. He may, therefore, have been a trespasser, although only technically. In such a case, the owner of the premises may, perhaps, be liable for injury done by a secret contrivance, willfully prepared, (Bird v. Holbrook, 4 Bingh. 628,) of which no notice was given, although Chief Baron Pollock intimates very strongly, in Degg v. Midland Railway Co., (1 Hurlst. & N. 773,) that under such circumstances he would not be responsible for mere negligence, instancing the leaving a rotten cover on an old well, and the same principle se.ems to have governed the decision in the case of Southcote v. Stanley, in the same volume, (p. 247.) I do not see, however, any way in which the present case can be distinguished in principle from that just cited, (Degg, admx. v. Midland Railway Co., ubi sup.) There the defendants, a railway company, were sued for causing, by the negligence of their servants, the death of the plaintiff’s husband, of whose estate she had been appointed administratrix, and the importance of the principles involved in that case fully justify an extended examination of it.

The deceased had gone upon the premises of the defendants, in that case, voluntarily, to assist some of their servants, in turning a turntable for the purpose of shifting the position of some trucks ; some trucks were upon the turntable, and the deceased had his head close to a buffer of one of them. While there, a steam engine came intp a side track for the purpose of pushing in (“ shunting”) some other trucks. These were driven against some stationary trucks near the turntable, which they forced against those upon it, so that the latter were shoved off so as to catch the decedent’s head between the buffer and a shed, previously some distance apart, so as to cause his death.

The declaration was, in substance, for so negligently and without warning hy' the servants, propelling a truck against one which the decedent was assisting to remove from one place to another on their premises, as to cause his death. A plea of not guilty, merely, was first put in, the issue made by which was tried, and after such trial a second plea was added, which set up that the decedent was voluntarily assisting the servants of the defendants ; that such servants were persons of competent skill, capable of moving and propelling trucks without occasioning injury to the decedent, and that any negligence of theirs was not authorized by the defendants. Eeplications to both pleas, as well as a demurrer to such second plea, were put in.

On the second trial of the issues of fact, the before recited facts were established. Some evidence was also offered as to negligence of the engine driver in not sounding the whistle, and the signal man in omitting to stop in time, but it does not appear to have affected the judgment of the court. The presiding judge left the question of fact of negligence of the defendants’ servants to the jury, and directed them, if they found such negligence, to find for the plaintiff on the first issue, and he also left to them the skill and competency of the defendants’ servants in shunting” trucks on and off the depot, as a question of fact, and directed them, if they found them competent and skillful, to find a verdict for the defendants on the. second issue. Leave was given to the defendants to move to enter a verdict in their favor on the first issue.

On the argument of such motion, the court directed the verdict on the first issue to be entered for the defendants upon the ground that they were not chargeable with the negligence of ' their servants. Baron Bramwell in delivering the opinion of the court, investigated the claims of the plaintiff to indemnity, in case her husband had been a servant of the defendants,- and held both that they would not have been liable if he had been one, and that he was not one. He then proceeded to discuss the question of their liability for his death by the negligence of their servants, considering him in the light of a stranger. He terms him a wrongdoer; but by that undoubtedly he meant merely a person on the premises of the defendant without any request or special license on their part. He certainly was fully as much entitled to indemnity for any injury as the plaintiff’s husband in the present case. The question of trespassing was not thus involved ; so that if the want of a fence or inclosure made an entry upon the premises of the present defendant less a technical trespass, it would not affect the result.

The learned baron in the case just cited admitted that a master might be liable for injury under the same circumstances if it were his personal act, and he knew the deceased to be where he could be injured; but he asked emphatically “on what principle could he be, for the negligence of his servants ?” And further, “ why should a mere wrongdoer (that is a person who had no business to be where he was,) have power to create a responsibility ?” He proceeded to argue that negligence never was “intrinsic or absolute” but always “relative to time, place or person.” He instanced, riding fast in an inclosure, where a person was seen to be near, who might be injured thereby, and urged, that as a master was not liable for the willful act of a servant, he ought not to Be so, where an act of such servant in the discharge of his duty to his master, not wrong in itself was only made so by reasons personal to the servant, such as his disregard of caution, whether willful or not. He added the defendants in that case might, if they had chosen, without wrong to any one, constantly have propelled trucks against each other, even without notice or precaution, and the deceased could not make such acts wrongful “ by coming there himself; ” so that whether he was a wrongdoer or not no action lay by himself or his representative. He was not injured by any general carelessness of the servants of the defendants, but only by an act made one of special carelessness, in consequence of his being there.

The whole of the reasoning in such opinion is fully and equally applicable to the deceased, whose death forms the subject of the present action. There was no special duty or relation between him and the defendants ; no charge of general incompetency on the part of the persons managing the particular cars whose motion caused his death is made. It was only an act of special negligence, if any, in the particular case for which the parties who were guilty of it were alone responsible.

But even if the defendants could be made liable by their servants, by the neglect of the latter, in bringing about the accident out of which this action grew, they could not, if the negligence of the decedent contributed to such result. Whether rightfully or wrongfully, he had placed himself in a position not to be seen by the servants of the defendants in moving their cars, or to have notice of any approach of danger. This at once raises the question, whether he was guilty of negligence in placing himself in that position on that track, when he ought to have known that the defendants were in the habit of moving their cars thereon, or in order to apply the -true test of negligence to such, act, were the defendants hound, before moving their cars, to examine their premises, and see if any one was upon them in a condition to be injured by their motion ? In other words, on whom did the burden of looking out for, and warning the decedent of the danger rest ? Was it incumbent on the decedent either to ascertain for himself that no train was coming, and take the risk of their arrival, or to warn the defendants of his presence in the way of danger, or on them to keep watch for the presence of persons behind the stationary cars and warn them away ? If the former, the decedent was clearly guilty of negligence ; if the latter, he was not, since he had a right to rely on the performance of their duty by the defendants. The question of negligence thus presented escapes many considerations, which would only tend to create embarrassments. The rule laid down in one English case, (Tuff v. Warman, 15 Com. B. N. S. 573; S. C. 27 Law J. C. F. 322 each,) and, perhaps in others, that the negligence of the party injured does not relieve the party injuring from the consequences of his want of care, if, notwithstanding such negligence, the result might have been avoided by proper care, if it be the law of this state, becomes inapplicable, since there is no evidence that the defendants could have avoided the result, except by discovering, upon investigation, the presence of the decedent within reach of danger. So, too, the very similar principle, if not the same in a different form, that no degree of vigilance on his part could have rescued the decedent from danger, and therefore his negligence was of no consequence, as laid down in Carroll v. New Haven Railroad Co., (1 Duer, 574, and Evansville, &c. Railroad Co. v. Landermilt, (15 Ind. R. 120, and n. p. 123,) if not overruled by other cases, in this state, becomes also inapplicable, since a few steps to the eastward of the decedent’s position would have placed him in safety. Any unusual precaution, or degree of care, rendered necessary by the employment of so tremendous an agent as steam, (Camden and Amboy Railroad Co. v. Burke, 13 Wend. 611; Bissell v. N. Y. Central Railroad Co., 25 N. Y. Rep. 452, per Selden, J.; Status v. Saltenstall, 13 Pet. 193; Philadelphia and Eeading Eailroad Co. v. Derby, 14 How. 474; Caldwell v. Murphy, 1 Duer, 233,) were rendered inapplicable by the fact that the moving power which caused the injury in this case was the strength of animals. Indeed, no new rules or modifications of an old one, adopted latterly, as to negligence on railway tracks or highways, are applicable to a case where injury, caused by negligence, is done upon the premises of the defendants, in the course of the ordinary occupations of their servants, without any peculiar relations between them and the decedent.

There is no evidence as to the failure to sound a bell, as required by the 37th section of the general railroad act, (N. Y. Sess. Laws, 1850, p. 233,) if that provision is applicable to cars propelled by horses, and in cases of negligence the burden of proving it rests on the party charging it. One witness, whose distance from the cars was at least equal to that of the decedent’s, speaks of hearing what he calls the “thunder” of the cars, which ought to have been equally .audible to the decedent, and been sufficient warning of their approach.

If there had been no stationary cars on the track, or the decedent had not gone behind them, so that he had been in a position to have seen those coming, or been seen by the brakeman in time to have avoided any danger, the question would have been easy of solution; for even supposing that the rule laid down in Degg, admix, v. The Midland Railway Company., (ubi supra,) did not exempt the defendants from liability for the negligence of their servants, the question of the contributing negligence of the decedent, or- that of the want of care on the part of the brakeman, would easily have been solved, either as a question of law or fact. But the act of the decedent id placing himself so as to lose the power of foreseeing the danger, without giving notice of his position, creates the difficulty. It renders him beyond all question guilty of negligence, unless it was the duty of the defendants to ascertain that neither he nor any one else was on their premises in a situation to be injured by moving their cars by horses. And this again resolves itself into the correlative question whether a possitolity, or even probability of injury, to any one who might happen to be behind the stationary cars, by the collision of entering cars, made it incumbent on the defendants, as a duty, to' ascertain that no one was there, before they moved any cars.

This is almost, if not quite a question of first impression ; no case seems to lay down the rule of the degree of vigilance or caution required. It appears to be but just that in the use of instruments of motive power upon one’s own premises, the only caution exacted should be to see that its proper use is not dangerous in itself, and does not extend to taking care of persons whose presence is unknown. Precaution to see that the negligence or unwariness of strangers may not lead them into danger, can certainly form no part of the legal care requisite in such cases. The owner of a cotton mill or a water wheel; is not bound to examine his premises and machinery to see that no one has placed himself within reach of a shaft or bucket- while in motion, in order to escape the charge of negligence, if any such person should be injured. Nor can any one say that such injury was not caused -by the negligence of the party injured, if he place himself where he could not be seen without diligent perquisition, unless he gave notice in some way of his presence. It is perfectly immaterial whether the concealment of the party was designed or not. He had no right, by such concealment, to impose extra labor or vigilance on the owner of the instrument by which he was injured^ beyond what was required if he had not been there.

Judgment must, therefore, be given for the defendants, and the motion for a new trial on the exceptions denied, with costs.


source: Caselaw Access Project

author: Barbour, J. Eobebtson, Oh. J.

license: Public Domain

text:
    William H. Parsons et al. plaintiffs and respondents, vs. Jacob Loucks et al. defendants and appellants.
    m
    An agreement by manufacturers to commence the manufacture of a certain quantity of the article manufactured by them, for a purchaser, after the lapse of a specified time, such article to be of a certain description, and of such sizes and weights as the purchaser shall hy letter direct, and to deliver it so manufactured to him, at a place designated, -is not an agreement for the sale of goods within the statute of frauds, but is a contract for work and labor to be performed at a future day, and therefore need not be in writing.
    (Before Robertson, Oh. J., and Barbour and Jokes, JJ.)
    Heard June 12, 1866;
    decided June 30, 1866.
    Appeal from a judgment entered upon the report of a referee. The action was brought to recover damages for the non-delivery of a quantity of paper. The referee found, as matter of fact:

      First. That in October, 1862, it was agreed between the plaintiffs and the defendants, as paper manufacturers, that the latter should manufacture and deliver to the plaintiffs, at the city of Hew York, ten tons, to wit, twenty thousand pounds of hook paper, similar to other paper, previously made hy them for the plaintiffs, as soon as they, (the defendants,) should finish certain other orders for paper, which they had on hand, which would take about three weeks, with a fair supply of water, to finish, and that the plaintiffs on such delivery should pay the defendants therefor thirteen cents a pound, less a discount of five per cent. That in about the middle of that month, (January, 1863,) the defendants stated to the plaintiffs, that they would not perform the said agreement, and refused to perform it, although requested by the plaintiffs, and the latter were at all times ready and willing to receive said paper and pay for the same, pursuant to the terms of the said agreement, hut the defendants have never delivered to the plaintiffs any part of such paper, but have refused so to do. That by reason of the breach of the said agreement, the plaintiffs have sustained damage to the amount of nineteen hundred and thirty dollars, as of the time when such breach occurred, being the difference between the contract price and the market price of such paper at the time of such breach, on twenty thousand pounds.
    And as matter of law, the referee found that the plaintiffs ', were entitled to recover of the defendants, said sum of $1930, with interest thereon since the first day of January, 1863, that is to say, the sum of $2301.51, with costs.
    From the judgment entered on the report, the defendants appealed.

      Aug. jF. Smith, for the appellants.

      John F. Parsons, for the respondents.
   By the Court,

Barbour, J.

This action was brought to recover the damages claimed by the plaintiff, because of the non-delivery of a quantity of paper, which the defendants had agreed to furnish to them.

Upon the trial, before the referee, it was proved that a verbal agreement was made between the defendants, who were paper manufacturers in Maryland, and the plaintiffs, whereby the defendants undertook to commence the manufacture of ten tons of paper, for the plaintiffs, after three or four weeks from that time should have expired, and to make the same of a certain description, and of such sizes and weights as the plaintiffs should direct by letter, and deliver it to them in New York. The question before us is, simply, whether the agreement in .question is, or is not, within the statute of frauds.

This is a much stronger case for the party sustaining the negative of the proposition than was Mead v. Case, (33 Barb. 202,) where a marble monument, nearly, but not quite, finished, was to be completed and delivered to the defendant by the plaintiff, or Robertson v. Vaughn, (5 Sandf. 1.) which was a contract to make and deliver one thousand molasses shocks and heads. For here, not only was the whole of the paper to be manufactured by the defendants, but such manufacture was not even to be commenced until after three or four weeks subsequent to the time the contract was entered into, nor until the sizes should have been furnished by the plaintiffs; {and it was to be made, too, not of such sizes and weights as the defendants might choose to manufacture for a general market, but of such specific sizes and weights as the plaintiffs should designate and direct. J I not only see no reason for overruling the decisions in the cases referred to, but it seems to me quite clear, independent of those precedents, that, as the object of this contract was not merely to make a purchase and sale of paper, but to" provide for the manufacture of a certain description of the article for the plaintiffs, such agreement was not within the statute.

The j udgment should be affirmed, with costs.

Eobebtson, Oh. J.

Possibly the right to prove by oral evidence an agreement to make, and deliver articles of merchandise when the vendor is to furnish the materials, may be productive of the same kind of evil as those intended to be remedied by the statute of frauds. But that statute has long received a construction in this state which confines it to the sale of existing goods, or of those upon which the vendor is not required to bestow any labor. Whatever may be the language of conflicting cases in England, it has been deemed necessary even there to extend its provisions by statute, expressly to the manufacture of goods. (9 Geo. 4, chap. 14.)

The English authorites cited in Crookshank v. Burrell, (18 John. 58,) by Spencer, Ch. J. fully sustain the doctrine laid down in that case, that such a contract is not within the statute. That doctrine was thoroughly examined and deliberately sustained eight years afterwards in the samé court, in Sewall v. Fitch, (8 Cowen, 215.) The subsequent case of Downs v. Ross, (23 Wend. 270,) was a sale of existing articles, where nothing was to be done to them, except to put them in marketable condition. They were not to have their character changed, and the decision was put on that ground. This was followed by the case of Seymour v. Davis, (2 Sandf. 239,) in this court. But when the doctrine laid down in Sewall v. Fitch, (ubi sup.) came before this court in Robertson v. Vaughn, (5 Sandf. 1,) whatever dissatisfaction was expressed with it, the court deliberately yielded to the authority of that case. Numerous cases since decided sustain the same doctrine. (Courtright v. Stewart, 19 Barb. 455. Donovan v. Wilson, 26 id. 138. Parker v. Schenck, 28 id. 38. Mead v. Case, 33 id. 202.)

Some cases in Massachusetts seem partly to sustain the defendant’s views, (Gardner v. Joy, 9 Metc. 177; Lamb v. Crafts, 12 id. 353;) but I do not find any English cases that go that length. It would be somewhat a novel if not startling doctrine to decide that a tradesman must have every contract put in writing with his customers to manufacture articles in which he deals, such as articles of dress or furniture, in order to bind the latter to pay for them. At all events, it is better to adhere to established doctrines until reversed by an appellate court, or altered by the legislature.

I concur in affirming the judgment.


author: Garvin, J.

text:
    Moritz Marcus et al. plaintiffs and appellants, vs. Leon Barnard, defendant and respondent.
    1. Under the 3d section of the statute of frauds, (2 M. S. 150,) a note or memorandum of the sale of goods of the value of $50 or more, signed by the seller only, is not binding upon him, where not signed by the buyers, and no part of
    • the property is accepted or received, and no part of the purchase money is paid. (Decision in Justice v. Jang, 2 Mob. M. 333, applied and sanctioned.)
    2. The intention of the statute was, that if the contract was in writing, both parties should subscribe it p if no contract in writing, that one party should deliver, and the other not only accept, but receive, a part of the property sold; or that the buyer should pay, and the seller receive, some part of the purchase money, to make the contract effectual between the parties.
    (Before Robertson, Ch. X, and Garvin, X)
    Heard April 9,1866;
    decided June 30,1866.
    This is an appeal from a judgment entered upon the report of a referee. On the 13th of May, 1864, the defendant signed and delivered to the plaintiffs a memorandum in writing, as follows: “ Sold Messrs. Marcus & Co. fifty hhls. whiting, (ground,) to he delivered in June, at 2 c. a lb. cask ; barrels 20 c. cash. May 13, 1864. L. Barnard.” Another memorandum was made on the 14th May, for the same quantity of whiting, at l-¡- cent per lb. signed by the defendant. It appeared, upon the trial, that the defendant wholly neglected to perform the agreement; that the plaintiffs were ready and willing to receive the whiting, and pay for it, during the whole of the month of J une ; that the whiting embraced in the first memorandum of sale increased in value, and was worth one hundred and seventy-five dollars more on the 30th of June, 1864, when it was to be delivered, than the price fixed in the memorandum of sale; that the quantity of whiting embraced in the other memorandum of sale was not delivered, although the plaintiffs were ready and willing to pay for and receive it during the whole month of June, and it had increased in value, and was worth one hundred and ninety-seven dollars more on the 30th of June, 1864, when the same was to be delivered according to the memorandum, than the price fixed in the memorandum of sale. Neither of these memoranda were signed by the plaintiffs, nor was any portion of the property described in them, or either of them, delivered to the plaintiffs, nor was any money paid by the plaintiffs to the defendant, and received by him.
   By the Court,

Garvin, J.

As the buyers did not sign either contract, this case presents the question whether, under the third section of the statute of frauds, (2 R. S. 140,) such a note, or memorandum, as that signed by the defendant, is binding upon the seller, when not signed by the buyers, and no part of the property is accepted or received, and no part of the purchase money is paid. By the terms of the statute, the buyers cannot be charged thereby, for they have not subscribed it, and without them there is no second party to the contract. How, then, can it be said the seller is liable ? There is no consideration for his promise; it is a mere unaccepted proposal, under the statute, which is not binding upon either party, and cannot be enforced. It is said by Judge Brown, in Brabin v. Hyde, (32 N. Y. Rep. 519,) “ The sale will not be effected without the occurrence of the three acts mentioned in the-statute. These acts are not to be performed by one party only; they are to be concurred in by both parties to the contract. If the memorandum in writing is relied upon, it must be signed by “ the parties not merely “ the party to be charged thereby." The intention of the statute was, that if the contract was in writing, both parties should subscribe it. If there was no contract in writing, that one party should deliver, and the other not only agree to accept, but actually receive, a part of the property sold; or that the buyer should pay, and the seller receive, some part of the purchase money, in order to make the contract effectual between the parties. This precise question has been decided in this court, in the case of Justice v. Lang et al. (2 Rob. 333,) where it was held that unless the contract was signed by both parties, it was void. The judgment in this case must, therefore, be affirmed, with costs. -


author: Robertson, Oh. J.

text:
    George Jones, plaintiff and appellant, vs. The Merchants’ Bank of Albany, defendants and respondents.
    1. Statutes of limitation affect only the remedy, not the right, and except as defenses in actions against the person, only create a presumption of payment of a money demand, and may be rebutted like any other evidence thereof.
    2. So held in an action for the conversion of stocks pledged to secure a loan, begun more than six years after such loan became due, wherein it was admitted that it had not been paid in fact.
    (Before Robertson, Ch. J., and Barbour and Jones, JJ.)
    Heard June 6, 1866;
    decided April 1,1867.
    Appeal from a judgment .entered upon the report of a referee. The action was brought to recover the possession of certain shares of stock, or the value thereof. The defendants in their answer alleged, that the shares of stock and certificates thereof mentioned and described in the complaint, were duly deposited with and pledged to the defendants as collateral security for a certain loan of money, ($1915.04) duly made by the defendants to the plaintiff, and at his request, on or about the 4th day of February, 1854. For which loan the plaintiff executed and delivered his certain promissory note, bearing date on that day, whereby he promised to pay to the order of (John Sill) the cashier of the defendants, the sum of $1915.04 on demand, which loan of money and the note given upon the same, remained wholly due and unpaid. And that by reason of the premises the defendants claimed and insisted that such shares of stock were the property of the defendants, and they are entitled to the possession of the same.
    The defendants also alleged on information and belief, therein, that since the delivery of such note, and the lending of such money, the plaintiff had at sundry times, and within six years then past, paid the defendants divers sums of money as interest thereupon, and that such note remained a valid evidence of debt against said plaintiff, in favor of the defendants.
    On the trial the defendants admitted their incorporation and the demand of said stock which had been stated in the complaint.
    The following facts were admitted by the parties to the action, and on such admission no witnesses were called : That on the 20th day of December, 1861, the defendants had in their possession five certificates of shares of the capital stock of the New York Daily and Weekly Times newspaper establishment, which said personal property was of the value of $12,000. That before the commencement of this action the plaintiff duly demanded from the defendants the shares of said stock, which the defendants refused to deliver up to the plaintiff. Also that those shares of stock, and certificates of the same, were, in February, 1854, deposited with the defendants, as collateral security for a loan of money by the defendants to the plaintiff, for the payment of which the plaintiff executed and delivered the promissory note described in the answer.
    That the amount of that note, for which such shares of said stock were deposited as collateral security, had not been paid. That at the time of the demand by the plaintiff of the . defendants for such stock, and at the time of the commencement of this action, more than six years had elapsed since a cause of action accrued upon the said promissory note. The defendants did not claim on said trial any payments made on such note or any new promise in writing made by the plaintiff to pay the same, whereby the same could be taken from the operation of the statute. The defendants were admitted to be a corporation.
    On these facts and admissions the plaintiff rested his case, claiming judgment against the defendants, as asked for in his complaint. The defendants, by their counsel, moved that the' complaint of the plaintiff be dismissed. On hearing counsel for the respective parties, the referee gave judgment dismissing the complaint of the plaintiff with costs, and assessing the value of the property.
    The complaint in this action was served January 27, 1862.

      Edwards Pierrepont, for the' appellant.
    I, The deposit of stock is a simple pledge in which the “legal title” and “ general property” remain in the pledgor. ( Wilson v. Little, 2 Comst. 443. Cortelyou v. Lansing, 2 Cai. Cas. 200. Barrow v. Paxton, 5 John. 258. McLean v. Walker, 10 id. 471. Brownell v. Hawkins, 4 Barb. 491. Hasbrouck v. Vandervoort, 4 Sandf. 74. Lewis v. Graham, 4 Abb. 106.)
    II. Non-payment of the loan worked no change of title, and no forfeiture of the thing pledged, and no title whatever enured to the pledgor. (Stearns v. Marsh, 4 Denio, 227. Garlick v. James, 12 John. 146. Wheeler v. Newbould, 16 N.Y. Rep. 392. 2 John. Ch. 62-100. 4 Barb. 491. Brown v. Ward, 3 Duer, 660. Dykers v. Allen, 7 Hill, 497. Castello v. City Bank, 1 N. Y. Leg. Obs. 25.)

      III. The pledge is but the incident of the debt secured, and ceases to be a pledge the moment the debt is extinguished. (Jackson v. Willard, 4 John. 41. Jackson v. Blodgett, 5 Cowen, 202.)
    IV. It matters not how; the debt becomes extinguished; whether by payment, by release, or by statute of limitations ; “the legal title” and “general property” remaining in the pledgor, he can forthwith, on demand, take his property the moment the law pronounces the debt ■ extinct. (Schroeppel v. Corning, 2 Seld. 107.) In that case the court held that “ trover may be immediately maintained ” for the property pledged.
    V. The statute of limitations is a most salutary statute, and has been so regarded in every civilized country. The statute of usury, which was applied in the case of Schroeppel v. Corning, (2 Seld. 107,) is far more severe than the statute of limitations. After a lapse of time the law presumes the debt paid. There is no such presumption in the usury act.
    VI. If it had appeared on the trial of this action that the debt for which the pledge was made had been paid by the father of Jones., there can be no doubt that the plaintiff would have been entitled to recover; or if it had appeared that Jones actually received in cash a loan from the defendants of $20,000 ten days before the action, and had agreed to pay 7^V per. annum, he would have recovered in this action, without the payment of a dollar. (2 Seld. 107.)
    VII. The debt had been paid—so the law decides. So the statute decrees. It was not the business of the referee to reconcile conflicting equities. His duty was to pronounce »the law.

    VIII. Whenever courts override the law in pursuit of doubtful equities, their decisions always work mischief. It was the duty of the defendants to have enforced their claim, if they had had one, according to law. They did not do so, and the stock pledged to secure some $1900 is now worth $12,000, which the defendants by this decision keep from the plaintiff illegally. The defendants are without equity and without law.

      IX. The title to this pledged stock, it is conceded, remains in the plaintiff. The defendants have never taken any steps to divest the plaintiff of his title, and they never can do so. The debt is as dead as payment, release, the statute of usury or the statute of limitations can make it. Replevin or trover by the real owner will lie, as in the case of Schroeppel v. Corning, (2 Seld. 107.)

      J. W. Whiting, for the respondents.
    I. This suit is founded upon an utter misapprehension of the nature of the statute of limitations. Unless the expiration of six years from the time of contracting the debt is something more than a mere statutory bar, founded on public policy, and the statute of limitations not only affects the remedy by action, but annihilates all other rights connected with the transaction, including the debt itself, and a pledgor who continues to hold property under an original lawful pledge can be made a wrongdoer by a mere demand and refusal to deliver it to the pledgor after six years have expired, this action is at once misconceived, and a reproach to judicial proceedings. None of these propositions are true. The statute makes the expiration of six years a mere statutory bar, founded on motives of public policy. It does not even impair the obligation of the contract. A new promise sustains an action upon the original contract. It relates exclusively to remedies by action. It does not affect other rights, e. g. of execution after the statute has commenced to run, or of statutory lien. It depends on the option or volition of the debtor. It is only available in judicial proceedings by answer. It constitutes of itself nothing original or affirmative. It is a mere defense—a shield, not a sword. All other rights, except the right of bringing an action for the debt, as such, stand unaffected. (2 Parsons on Cont. 379, and cases cited. 7 Paige, 465. 2 Kern. 140. Story on Bailm. § 362.) The doctrine that securities pledged to pay a debt wholly undischarged, can be made to be the subject of an action of tort, as for a conversion against the pledgor, is simply monstrous.

      II, Not only obvious principle, but the current of authority, is uniform against the maintenance of such an action, with but a single exception. (Jackson v. Sackett, 7 Wend. 94.) That case is not quatuor pedibus with this. In it a deed had been executed more than twenty years before, with a defeasance from the grantee that the deed was held as security for the payment of an unsealed note. The defense was payment in fact, and that the statute of limitations had run against the note. The court held that the fact of the lapse of time might go to the jury with other evidence of proof of payment. Judge Sutherland utters a doctrine incidentally, at page 99, which Chancellor Walworth, in Heyer v. Pruyn, (7 Paige, 465,) repudiates and condemns, (p. 470 ;) and he states with great force and distinctness, the true principle governing such cases.
    .III. Admitting that by lapse of time the right to bring an action on the note is lost, and that a sale of the pledge will not be permitted, the. interest of the pledgee in the pledge is not affected, and the debt, even if no remedy exists for its collection, is a good consideration to sustain the respondents’ title to it. The property of the pledgor in the pledge is nothing more than a legal right to reclaim the thing pledged, upon payment of the debt. (2 Story on Bailm. 287. Wilson v. Little, 2 Comst. 443.) The pledgor has a special property in- the pledge, with right of possession until his debt is satisfied. His interest only extends to the amount of his debt, and, upon that being paid, his interest ceases. (Story on Bailm. 303. Brownell v. Hawkins, 4 Barb. 491.) At any time before sale the pledgor may redeem the pledge; but against that right the statute of limitations will run, and the lapse of time will be held to furnish evidence of an agreement that the pledge shall be retained by the pledgee in satisfaction of the debt. (Roberts v. Sykes, 30 Barb. 173.) The right to redeem will be denied, after a long lapse of time, as having been extinguished. (Story on Bailm., §§ 346 362.) Although, by reason of- the statute, the right of action on the note may be lost, the lien is not lost.
   Robertson, Oh. J.

The statement, in the complaint, of the mode in which the stock claimed by the plaintiff came into the hands of the defendants, with all its attendant circumstances, may be disregarded. The only question was the legal title to the possession of the stock, and that depended upon the payment of the debt for which it was pledged. It is admitted, in the case before us, that, in fact, it has not been paid; but it is claimed that a recovery for it being barred by the statute of limitations, the right of the defendants to hold such stock is gone. Such statute, however, is, in terms, a mere bar to an action. Seeking to enforce in personam a demand affects only the remedy, not the right, since the original demand remains to form the consideration of a new promise, which constitutes an admission of the continuance of the debt, or can be enforced in countries not having the same statute of limitations. (Ruggles v. Keeler, 3 John. 263.) They do not operate by presumption of payment only, but as positive bars, and, therefore, their effect cannot be extended by implication. ( Waltermire v. Westover, 14 N. Y. Rep. 16.) Thus a limitation of the time of bringing an action, on a judgment, does not restrict the time of issuing an execution on it during its existence as a lien. (Id.) A new promise is a waiver of it in case of contracts, by rebutting the presumption of payment involved in it, (Sluby v. Champlin, 4 John. 461,) although such rebuttal is not admissible in case of torts. (Oothout v. Thompson, 20 John. 277.) In equity, such statute was held not to interfere with the right of enforcing a lien on lands for a debt more than six years old. (Heyer v. Pruyn, 7 Paige, 465.) Even the statute creating, expressly, a presumption of payment of any debt, after the expiration of twenty years from the time it accrued, (2 R. S. 301, § 48,) was held not to be available in an action for specific performance of a contract to convey land, (Morey v. The Farmers’ Loan and Trust Co., 14 N. Y. Rep. 302,) or of ejectment against a defendant in possession under such a contract. (Lawrence v. Ball, Id. 477.)

There existed, at common law, a period whose lapse should be presumptive evidence of the extinguishment of a stale money demand of any kind. (Miller v. Smith, 16 Wend. 425. Oswald v. Legh, 1 T. R. 270.) It, of course, could be overcome by proof, not only of circumstances excusing the lapse of time, (Newman v. Newman, 1 Stark, N. P. C. 101; Oswald v. Legh, ubi supra,) and in that way subjected to the same exceptions as the statute of limitations, but, also, of those repelling its effect as evidence of payment. (Jackson v. Sackett, 7 Wend. 94, and cases last cited, supra.) On the other hand, a much less period of time, with corroborating evidence of payment, was sufficient to establish it. (Jackson v. Pratt, 10 John. 381. Clark v. Hopkins, 7 id. 556. Bander v. Snyder, 5 Barb. 63.) The reason for adopting such period is not known, (Viner’s Abr. Length of Time, pl. 5, 6; Carpenter v. Tucker, 1 Ch. R. 78 ; Geoffry v. Thorn, Id. 88; 10 Car. II;) but the earliest reported case in which it was applied was one of law. (Shellitoe v. Horsefall, Clayt. 102, 8 Car. I.) But it has been since recognized in every court. (Oswald v. Legh, ubi supra.) And the statute of presumption, before mentioned, (2 R. S. 301, § 48,) may have heeu passed to fix the period, so as to prevent the lapse of any less time from becoming presumptive evidence of payment. (In-graham v. Baldwin, 9 N. Y. Rep. 45.)

Presumptions of payment have, it is true, been applied, by analogy, to statutes of limitation, but merely as evidence of it, particularly in courts of equity. (Kane v. Bloodgood, 7 John. Ch. 90. Souner v. DeMeyer, 2 Paige, 574. Moore v. Cable, 1 John. Ch. 385. Demarest v. Wynkoop, 3 id. 129, Slee v. Manhattan Co., 1 Paige, 48. Parker v. Ash, 1 Vern. 256. Deloraine v. Brown, 3 Bro. C. C. 646, per Lord Thurlow.) And such courts required the payment, of which such lapse of time was to be set up, in .the pleadings. (Livingston v. Livingston, 4 John. Ch. 289.)

There may be no good reason why the time adopted by statutes of limitation to prevent actions, after them' being brought, being adopted in other actions and proceedings besides those at law against the person, subject to being repelled as presumptive evidence only by other facts. (Jaclcson v. Sackett, 7 Wend. 94.) The doctrine laid down in the case last cited was impugned by Chancellor Walworth, in Heyer v. Pruyn, (ubi supra,) but upon the ground that, as he understood it, it held the lapse of time to be a presumption in law, and not merely evidence, whereas the court distinctly repudiated the former doctrine.

Such statute of limitations, as that now set up, is, therefore, in this case, mere presumptive evidence of payment, and as the case admits that the debt has not, in fact, been paid, the plaintiff cannot recover; although he might possibly have an action to redeem for ten years after the debt became due. (Roberts v. Sykes, 30 Barb. 173. Code of Procedure, § 97.)

The judgment should be affirmed, with costs.


author: Eobertson, Ch. J.

text:
    The Metropolitan Bank, plaintiffs and respondents, vs. Thomas O. Smith and others, defendants and appellants.
    1. The receipt, by mistake, by the clerk-of á bank with whom a note has been deposited 'for collection, from one of its makers, in full payment thereof, of a less amount than was due thereon, may be established, by circumstantial evidence, against the positive affirmative testimony of such maker that he had paid the full amount.
    2. Proof that the difference between the whole amount received by the clerks of such bank, for negotiable instruments, choses in action, and other debts collected by them on the day of the maturity of such note, and the amount they would have received if the whole of such note had been paid, was exactly equal to the difference between the amount in the body of such note and figures in the margin, or above the same; and that the amount indicated by such figures corresponded precisely with entries in the books of the plaintiffs, and a notice given to such maker of the falling due of such note, and that such figures, as well as the name of the makers, were torn off when the note was produced by them on the trial, without any reason assigned for such mutilation, were held to be sufficient prima faeie evidence to go to the jury.
    3. Although further evidence might have been produced, either corroborative or to clear up doubts, yet, it being a question for the jury, the court will not, under such circumstances, disturb the verdict.
    (Before Robertson, Ch. J., and McOunn and Jones, JJ.)
    Heard March 14,1866;
    decided June 30,1866.

      This was an action to recover the amount due on a promissory note, made hy the defendants, for $510.70, payable at the bank of the plaintiffs on the 7th of April, 1863. The plaintiffs claimed that, by mistake, they had entered it on their books as a note for $210.70 ; that the defendants came to the bank and paid $210.70, and got the note before the mistake was discovered; and,.when their attention was called to it, insisted that they had paid the full amount of the note; that the defendants, to shield themselves, mutilated the note, by tearing off the figures from the margin, and returned it to the bank in that condition, to show that no mistake could have occurred.
    The complaint alleged that the defendants had, at no time, paid upon the said note to the plaintiffs, or to any person on their behalf, or for their use, any greater or other sum than said sum of $210.70 ; that there is now actually owing and unpaid, from the defendants to the plaintiffs, upon the said note the sum of $300, and that the said plaintiffs have, since the said 7th day of April, 1863, demanded the same of the said defendants, who refused to pay the same. Whereupon the plaintiffs demanded judgment against the defendants for the said sum of $300, with interest and costs.
    The defendants, by their answer, denied the allegations of the complaint, and alleged that, on or about the 7th day of April, 1863, they paid to the plaintiffs the sum of $510.70, in full payment of the note mentioned in the complaint.
    The action was tried before Justice Babboub and a jury. The plaintiffs’ evidence showed that when the note came to the plaintiffs, the figures on the margin were either $210.70, or so written as to be readily taken for them. It was first entered on the collection register of the defendants, by calling off from the figures on the margin as $210.70.
    A notice or ticket, sent to the defendants, of the note falling due, was made out, by a clerk in the bank, from the figures on the margin of the note, and left at the defendants’ place of business by an express, on a list of notes to be paid on the 7th of April, made up by the receiving teller to guide him. The figures on the note were entered as $210.70; the note was paid according to the list, and the cash entries of the defendants’ books balanced according to it. One of the defendants, (Claus Smith,) when he came to pay the note, handed back the ticket that had been sent tó the defendants, in which the note was designated as a note of $210.70. The ticket agreeing with the figures on the margin of the note, the latter was surrendered without examination. After the error was discovered, the defendants, when called upon, first said that the' note was destroyed, but finally brought it to the bank in a • mutilated condition, with the names of the makers, and the figures on the margin torn off.
    One of the defendants was examined as a witness, and testified positively that he called at the bank and called for T. C. & 0. Smith’s note for $510.70, and handed the money to the teller, who counted it, asked him how much money there was, stamped the note, and gave it to the defendant; and that he, the defendant, tore off the figures from the note, so that nobody could claim it.
    At the close of the testimony the defendants’ counsel requested the court to charge the jury that the evidence, on the part of the defendants, was direct, affirmative, and positive proof of the payment of the whole amount of the note, whilst that on behalf of the plaintiff was not of that character, but was merely circumstantial and inconclusive, and what might be termed weak, inferential evidence, and that, if they believed the witnesses of the defendants to be credible witnesses, they were bound to render a verdict for the defendants; but the court refused so to decide or to charge, to which refusal' the defendants’ counsel excepted. The jury thereupon found a verdict for the plaintiffs for $340.19.
    The defendants moved for a new trial, which was denied, and they appealed from the judgment, and from such order.

      P. Y. Outlet, for the appellants.

      J. O. Dimmick, for the respondents.
   By the Court,

Eobertson, Ch. J.

Although the note in question in this case seems to have been sent to the plaintiffs merely for collection, no question was made, on the trial, of their right to recover the amount claimed to be still due and unpaid upon it. The action was substantially on the note, and the sole question in the case was whether the whole amount had been paid by the defendants to the plaintiffs. The latter endeavored to disprove it by various facts, such as that the aggregate of the amounts received by them by their clerks on the day such' note matured, fell short of the amount claimed as unpaid on such note ($300,) the amount which ought to have been received. That in receiving payments such clerks were always governed by the figures in the margin of or above promissory notes paid at their bank, and not by the amount written in the notes. That the figures written in the note in question were just the same amount below the sum stated in the body of the note. And that the defendants, after taking up the same, endeavored to conceal the short payment by tearing off the top of such note which had such figures written thereon, without any proper motive therefor. If the evidence introduced on the part of the plaintiffs on the trial established such facts, and those facts in any way tended to establish the fact of short payment, the whole matter was in the hands of the jury.

In regard to the figures in the corner of the note, six witnesses were examined on behalf of the plaintiffs, Camp, Baldwin, Williams, Mailer, Buckley and Parmley, who were clerks in their employ, and whose duty it was to make entries of notes received by the bank. They proved a habit of making such entries from the notes according to the figures which showed their amount written on the top or margin of them, instead of the amounts in the body of them. Two such entries were given in evidence ; one ifi the collection book on the receipt of the note, and one in a credit book in which a list of notes due on the same day was entered, both made from the note in question. In both of them the note was entered as of the less sum, being $300 less than the real amount in the body of it. A bank notice, also, of the time the note became due, was produced, having been found on the string at the bank, on which such notices are usually strung when brought back at the time of paying notes. The contents of which notice had been taken from the original note by a clerk (Demarest) whose duty it was to fill up the same, and it was placed, according to his custom, in a tin box, from which such notices were daily taken by a messenger of a letter express company (Earle) to deliver to parties to whom they were directed. Such messenger testified that he always delivered all notices that were placed in such box, to the parties to whom they were addressed, and that he had often left notices of the same kind at the place of business of the defendants. In such notice, the note in question was described as of the smaller amount. The note itself, when produced, had the part torn out where the figures had been, as well the signature torn off. There was, therefore, some evidence that the figures in the note had represented the smaller amount, and this gave plausibility to the theory of the possibility of a mistake having been thereby produced in receiving the less amount, if it was received.

It was also proved that four clerks were authorized to receive payment of notes due at the bank of the plaintiffs, Buckley, Williams, Mailer and Parmley, besides the first assistant note teller (Baldwin,) all of whom testified that they put all the money they received into a drawer or till, from which it was delivered to the note teller. Such note teller testified that he footed up the cash receipts every night, and the amount must agree with the credits, otherwise the books would not balance ; and that on the day of the maturity of such note they, agreed within seven cents. There was, therefore, evidence to show that $300 less was received by the bank upon account of notes on that day, than should have been received if the whole amount due upon the note in question, as well as other notes, had been paid.

The evidence would have been more satisfactory if the amounts paid by other persons than the defendants to the plaintiffs, on the same day, had been proved to have been paid, and on what account, and if possible in what manner, and the aggregate of receipts had also been proved, and the absence of such proof on the part of the plaintiffs, unexplained, afforded reasonable grounds of suspicion for the jury, since it would be extremely difficult for the defendants to fasten a mistake upon any other one of numerous payments ; still it only formed a matter proper for the jury, upon which they alone were entitled to pass.

There was evidence, therefore, that a mistake had occurred in regard to some payments to the plaintiff on the day of the maturity of the note in question, corresponding with the difference between the amount indicated by its figures and that expressed in its body, of which also there was evidence. The character of the mutilation of the note where the figures had been, besides tearing off the signature, also creates suspicion, as it was entirely unexplained. Although the evidence was, to a certain extent, circumstantial, the jury had a right to rely on it in preference to the direct testimony of one of the defendants, who was interested. No error of law seems to have been committed. The judgment and order appealed from must be affirmed, with costs.


author: Jones, J.

text:
    Peter Weitner, plaintiff and appellant, vs. The President &c. of The Delaware and Hudson Canal Company, defendants and respondents.
    1. In an action against a canal company, to recover damages for injuries sustained by the plaintiff, by the falling of a rock from the bank of their canal, carelessness or negligence on the part of the defendant, .is essential to the plaintiff’s cause of action; the burden of proof, therefore, rests on the plaintiff to establish it. If there is no evidence tending to show carelessness or negligence, the complaint should be dismissed.
    2. The mere fall of a piece of rock in a locality near where rocks had been blasted twelve years before, without any evidence that the fallen rock had béen ever shaken or disturbed by such blasting, or the distance at which a blasting shakes surrounding rocks or soil, and that the rock in question fell within that distance, is insufficient to establish the fact that the falling of the rock was occasioned by the loosening or disturbance thereof by that blasting.
    3. The mere fall of the rock in question, even if remotely caused by the blasting, (assuming it to be so,) is insufficient evidence by itself, to establish either that the blasting was not done with ordinary and reasonable care, having regard to the nature of the operation, or that ordinary and reasonable care was not taken to remove, or guard from falling, such portions of adjoining or neigh- ■ boring rocks as were rendered liable to fall in consequence of such blasting.
    4. The fact that the rock had stood for twelve years, without falling, is a very strong, if not conclusive circumstance to show that all proper and reasonable care was taken.
    6. The doctrines relating to actions brought for injuries occasioned by public nuisances in a public highway, have no application to an action against a canal company, to recover damages for a personal injury received on their canal.
    6. A canal, or a railroad, owned by an incorporated company or individuals, is not such a public highway as to render an interference therewith by the owner, unlawful. Such owners are not responsible for accidents, if they do not arise from a want of reasonable care, or, if the owner be an incorporated company, from an omission to comply with an express requirement of the act of incorporation.
    (Before Robertson, Oh. J., and Jones and McCunn, JJ.)
    Heard March 12, 1866;
    decided June 30, 1866.
    The action was brought to recover damages for injuries sustained by the plaintiff, by the falling of a rock, on October 13, 1858, under the following circumstances: The plaintiff was part owner of a canal boat, and on the occasion when the injury happened, he, with others, was on board the canal boat, on the Delaware and Hudson canal, en route from Port Ewen to Hawley. At the time the rock fell, the boat was lying on the berme side of the canal, about fifty or sixty yards below Butler’s lock. Whilst lying there, a piece of the rock bordering on the canal became detached, and fell, striking the plaintiff, and severely injuring him. The boat was at this time lying on the berme side, pursuant to the regulations of the company, and the order given by one of its employees. The complaint alleges that the defendant owned or had the control of the canal, lock, and the banks or sides thereof, and that the rock became detached and fell, through the negligence and carelessness of the defendants, their agents and servants.

      The answer admits that the defendants were and are a corporation, and have their principal office in the city of New York, and that they were and are the owners of the canal, but denies all the other allegations in the complaint. The only proof tending to show negligence on the part of the defendants was that in 1846 rock was blasted by the company in the neighborhood of Butler’s lock, about four or five boat lengths below the rock; that many holes were left in the rock by blasting. There was evidence that after a rain a great many loose stones would come down; that there were different points where stones frequently fell; and that on one occasion a large stone fell at a point above Butler’s lock, but there is no evidence that any rock ever before fell at this point. The defendants moved for a dismissal of the complaint, on the ground that there was no proof of negligence on the part of the defendants ; the motion was granted; the plaintiff excepted; and the exception was ordered to be heard in the first instance before the general term.
   By the Court,

Jones, J.

The complaint counts upon the negligence and carelessness of the defendants. I do not understand it to be urged that the defendants are liable for the injury in question, if it occurred without the negligence or carelessness of the defendants. There is no authority for such a position.

The existence of carelessness or negligence on the part of the defendants is a constituent part of the plaintiff’s cause of action ; and being such, the burden of proof rests on the plaintiff to establish such carelessness or negligence.

If, then, there is no evidence tending to show carelessness or negligence on the part of the defendants, the nonsuit must be sustained.

The proof on this question of negligence is this : The plaintiff’s boat was lying the third boat below the lock ; blasting had been done in 1846 about four or five boat lengths below the lock. A canal boat is about sixty-six feet in length, thus making the blasting at least sixty feet below the plaintiff’s boat. The rock fell in 1858, twelve years after the blasting, and there is no proof of any previous falling of rock. The rock at this point was one hundred feet high, and the piece in question fell from a height of about twenty-five feet.

Upon this proof the nonsuit must be sustained if the court holds that the mere fact of a piece of rock falling in a vicinity where blasting had been done twelve years prior, there being no proof that the fallen rock was, in fact, shaken or disturbed by such blasting, and no proof as to the distance at which a blasting will shake the surrounding rock, or as to whether the rock in question fell within that distance, is insufficient to establish that the falling of the rock was occasioned by the loosening or disturbance thereof by said blasting. I think the court must so hold ; to hold otherwise would carry the doctrine of presumptive evidence to too great an extent. It is contended that we cannot so hold, because it is insisted that if the rock had not been shaken by the blasting, it would not have fallen. This argument assumes two things : First. That no natural causes existed which may have caused the detachment; the non-existence of such causes is not proved, and in the absence of proof the court cannot assume such nonexistence. Second. That the piece which fell was part of the original formation of rock, and not a mere boulder; the proof on which point is that the. witness who gazed upwards from his boat to the height of twenty feet, swears that the rocks about the spot where this piece fell appeared cracked and rotten, which seems' to me wholly insufficient to establish that the piece was a part of the original formation of rock.

Again, the nonsuit must be sustained if the court holds that the bare fact of the falling of the rock being the remote consequence of the blasting, (assuming for this point that it was the remote consequence of the blasting,) was insufficient evidence to establish either that the blasting was not done with that ordinary and reasonable care which the particular operation required, or that ordinary and reasonable care was not taken to remove, or guard from falling, such portions of the rock as were, with any reasonable probability, in the exercise of human foresight, rendered liable to fall, in consequence of the blasting. I think the court must so hold. The fact that the rock had stood for twelve years, without any piece falling, is a strong circumstance to show that all such proper and reasonable care above referred to was taken. There is no evidence that falling of rocks in this particular locality was so frequent as to put the company or their servants on guard to prevent future fallings, and there is no evidence tending to show that any thing had occurred to notify the company or their servants that this particular rock, or any rock in the neighborhood, had, by blasting or by lapse of time, or from any other cause, become so precarious as to be unsafe, and the company and their officers were clearly not aware of that fact.

The doctrines relating to actions brought for injuries occasioned by public nuisances in a public highway, laid down in the case of Irvin v. Wood, (ante, p. 138,) have no application to this case. Those doctrines are founded on the principle that it is unlawful, (without license from those having the care, custody and management of the highway,) to interfere with a highway, and therefore one who so interferes becomes liable from the mere fact of such interference, although the greatest care and caution was observed. It was not necessary in that case, nor is it necessary in this one, to decide whether the fact of a license for the interference having been given by the authorities having the care, custody and management of the highway would make any difference in the liability of the interferes Those doctrines relating to such nuisances have, I repeat, no application to this case.

A canal or railroad, owned by an incorporated company or individuals, is not such a public highway as to render an interference therówith by the owner unlawful. Such owners are not responsible for accidents, if they do not arise from either a want of reasonable care, or, if the owners be an incorporated company, from an omission to perform an express requirement of the act of incorporation. (Wilson v. Susquehannah Turnpike Road Co., 21 Barb. 68. Exchange Fire Insurance Co. v. Delaware and Hudson Canal Co., 10 Bosw. cited from p. 183.)

J udgment must be entered for the defendants, with costs.


author: Robertson, Ch. J. Monell, J.

text:
    Jeremiah S. Lane, plaintiff and appellant, vs. David B. Salter and Anthony P. Salter, defendants and respondents.
    1. Bringing an action upon a judgment, where it may he brought at all, without the leave of the court required by the 71st section of the Code of Procedure, is a mere irregularity, which mayrbe waived by the opposite party by not taking the objection in time, or otherwise. It does not constitute any part of the cause of action.
    2. Strictly, the prohibition in the 71st section of the Code against the bringing of apy action upon a judgment, without leave of the court, would not include the nominal judgment obtained against parties not served with process in an action against joint debtors. But an action cannot now be. brought, at all, upon a judgment so obtained, against joint debtors, where some have not been served with process. Nor would any court have the right to grant leave to sue on such a judgment against joint debtors, where some only were served, until after the judgment on the special proceeding authorized by the Code, 375 et seg.) to make the judgment binding on all.
    3. The remedy of the plaintiff,'in such a case is, under the 375th and following sections of the Code of Procedure, to serve those defendants not originally served, with a summons to show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned.
    4. In the special proceeding authorized by the Code, the defendant not served is allowed to make the same defense, and in the same manner-, as if originally served.
    5. There is, therefore, no longer any necessity for retaining the plaintiff’s right of action on the judgment; a new remedy equally complete, more summary, and less expensive, having been given, which at the same time preserves all the rights of the defendants.
    6. The special proceeding created by the Code is to be considered as á substituted, not cumulative remedy; particularly in connection with the prohibition of suing on judgments by the 71st section of the Code.
    7. A promissory note, signed by two persons, in form, “I promise,” is joint and several, and the holder has his election to consider it as either, and prosecute his remedy accordingly. Having brought an action against both, jointly, and recovered a judgment, with a right of execution against the joint property of the defendants, he cannot afterwards sever his remedy and have a separate action against either.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard May 1, 1866;
    decided July 14, 1866.
    This action was brought to recover upon a promissory note set out in the original complaint and alleged to be in the plaintiff’s possession, as follows:

      “ $1000. Hew York, July 1, 1856.
    Ten months after date, I promise to pay to the order of Jeremiah S. Lane, one thousand dollars, for value received, with interest from date. Anthony P. Salter.
    David B. Salter.”
    The complaint alleged that in May, 1857, an action was commenced upon the note, in form against both of the makers, but that process was not served on David B. Salter ; that he did not appear in the action, and that in October, 1857, judgment was recovered against Anthony P. Salter and in form only against David B. Salter.
    The defendant, Anthony P. Salter, appeared and demurred to the complaint, alleging that it did not state facts sufficient to constitute a cause of action. The defendant, David B. Salter, answered. Judgment was rendered upon the demurrer, in favor of the defendant Anthony P. Salter, and the plaintiff appealed.
    On the trial before Justice McOunn, without a jury, of the issue formed by the answer of the defendant, David B. Salter, the plaintiff offered the note in evidence, the execution of which by the defendant was admitted. The defendant objected to the admission of such note in evidence for the reason that it varied from the description of the note sued upon in the copy complaint served ; and he produced the copy complaint served, by which it appeared that the note was stated to be in form, “we promise,” instead of “1 promise.” But the objection was not passed upon by the court. The plaintiff then rested.
    The defendant moved to dismiss the complaint, on the ground that the recovery of the judgment in October, 1867, mentioned in the complaint, was a bar to this action.
    The justice, in granting the motion, found, among others, the following facts :

      First. That the note was in form, “ we promise,” &c. and, second, the recovery of the judgment in October, 1857. The plaintiff excepted to such findings, the complaint was, dismissed, and the plaintiff excepted, and appealed fróm the judgment.

      8. 8. Harris, for the appellant.'

      A. R. Dyett, for the respondents.
   By the Court,

Robertson, Ch. J.

Upon the question of the sufficiency of the demurrer of the defendant, David B. Salter, the copy of the complaint served upon his attorney must control as to the character of the note in suit. Only two questions are presented on such demurrer. (1.) Whether a plaintiff can sue upon a claim which has been merged in a judgment against joint debtors, not those who were served with process, either with or without leave of the court. (2.) If the former, whether it is necessary to allege such leave in the complaint.

Bringing an action upon a judgment where it may be brought at all without the leave of the court required by the 71st section of the Code, is a mere irregularity, which may be waived by the opposite party, by not taking advantage of it in time or otherwise, and it does not constitute any part of the cause of action.

The Code prohibits the bringing of any action upon a judgment rendered in any court of this state (except those of justices of the peace) between the same parties, without leave of the court for good cause shown, obtained on notice. .(§ 71.) It may be doubted, however, whether strictly such prohibition extends to parties not served with process in an action against joint debtors, as regards the nominal judgment rendered against them, as it has been held that as regards them the original contract is not merged in such judgment. (Oakley v. Aspinwall, 4 N. Y. Rep. 514. S. C. 13 id. 500.) It becomes necessary, therefore, to determine whether such action can be brought at all upon a judgment obtained against joint debtors, where some have not been served with process. At common law no judgment could be rendered against joint debtors, until they had all been notified of the suit or appeared or been outlawed. Provision was made in this state by statute, (1 R. L. 1802, 353,) allowing judgment to be entered in form against several joint debtors where only one had been served with process. Under this statute it was early held that an action of debt would lie on such judgment, against all the defendants, because it was to some extent a merger of the original cause of action, (Dando v. Doll, 2 John. 87,) and this was confirmed by subsequent decisions, (Bank of Columbia v. Newcomb, 6 John. 98; Taylor v. Pettibone, 16 id. 66,) down to 1830. (Carman v. Townsend, 6 Wend. 206. S.C. 6 Cowen, 695.) In that year the revisers introduced in the Revised Statutes a provision making the judgment evidence only of the extent of the plaintiff’s demand, after the defendant’s liability' should be established by other evidence, (2 R. S. 377, § 2,) but they permitted personal property held by the defendants not served jointly with those served, to be levied upon under an execution issued on such judgment. (Id. § 4.)

The revisers in a note to such second section (2 R. S. 177,) say ; The law on this subject seems unsettled and after referring to the cases of Taylor v. Pettibone, and Carman v. Townsend, (ubi sup.) before cited, add •; “ The better opinion probably is, that the defendant not brought in, may contest the judgment, but this throws upon him a very onerous bur-then of proving a negative, The above section seems calculated to prevent fraudulent combinations and to give a plaintiff all that he could require.” Under this statute it was held that if in the original action, the defendant served omitted to contest his liability, the joint defendant not served was concluded by the judgment as to the amount, although not as to the question of joint indebtedness. (Eddy v. O’Hara, 14 Wend. 221.) Such statute was amended in 1833, by giving to judgments and executions in actions commenced by the service of a declaration upon one of several joint debtors, the like effect as if the action had been begun by service of process on one.

Under these provisions, it was held that in a petition to obtain an attachment against joint defendants, as non-residents who had not been served with process, in an action in which judgment had been entered against them, it was improper and insufficient to state that the claim arose upon a judgment against such defendants, (Oakley v. Aspinwall, ubi supra;) the main ground of such decision being that it was not conclusive, or even evidence of the liability of the party not served.

The Code, however, provides, (§ 136,) that when an action is brought against several defendants jointly indebted on contract, if the plaintiff recover judgment, he may enter it against all the defendants,, to be enforced against the joint property .of all, wholly omitting the provision of the Revised Statutes as to the effect of the judgment as evidence of the extent of the liability of the defendants not served. But subsequent sections, (§§ 375, 377, and 379,) provide that in that case, those not originally served with a summons, may be summoned to show cause why they should not be bound by the judgment in the same manner as if they had been originally summoned. They prescribe the form of such summons, and give the party summoned the right of denying by answer the judgment, and setting up any subsequent defenses, or in cases under the 375th section, (such as that in question,) any defense which he might have had to the action, if originally served with a summons. The statute of limitations was originally excepted, but that exception has been lately abolished by an amendment. The 380th section permits demurrers, and replies to the answer and demurrers to the latter ; and gives a right of trial and judgment in the same manner “ as. in an action,” to be enforced by execution or attachment. Such a proceeding is evidently in the nature of a scire facias, and is one of the remedies entitled a “ special proceedings,” in the Code, (§§ 1, 2, 3.) Without such a provision, there was no mode of enforcing a claim against a joint debtor not originally served with process in the action in which a judgment had been rendered, except by levying on property which he held jointly with the defendants served or by a new action, which it was held must be brought formally on the judgment, although the latter did not constitute the cause of action. The right of action against some joint debtors, upon a judgment against all, in an action where the former were not served with process, was, therefore, never a ■ creation of the statute but of necessity, in order to prevent a failure of justice. And courts were obliged to hold that although the action was in form upon the judgment, the latter had none of the essentials of a judgment, except what the statute expressly gave. The former statutory effects of such judgment, to throw upon a joint defendant not served the burthen of making out affirmatively his defense, and to be conclusive as to the amount of liability when the fact was established, have been successively removed, and the defendant not served is now allowed by the Code, in the special proceeding thereby authorized, .to make the same defense, in the same manner as if originally served. This takes away all the privileges . formerly possessed by a plaintiff who had obtained a judgment against several, having only served some with process; except the execution against joint property which is independent of the right of recovery. There is, therefore, no longer any necessity for retaining his right of action on the judgment, a new remedy equally complete, more summary and, less expensive, having been given, which at the same time preserves all the rights of the defendants. Any right of action on the judgment which might remain, would be derived, not from the Code, but from the insufficiency of former statutes to do complete justice, and it must retain all the advantages to the plaintiff, and disadvantages to the defendants, which it acquired under them, hut which under the new special proceeding created hy the sections of the Code before referred to, (§ 375, et seq.) are excluded. Such a proceeding is, therefore, to be considered not as a cumulative but as a substituted remedy. It comes within the spirit, (if not the letter,) of the 469th section of the Code, which abrogates the former practice of courts, and the 470th, which repeals all statutory provisions inconsistent with that act. The permission by such 469th section, to adopt the practice previously in use, in cases in which an action for enforcing or protecting a right, or redressing or preventing a wrong, could not he had under that act, following as it does a permission, to prosecute all rights of action in the manner provided by that act, indirectly limits such permission to such cases only.

It is strongly corroborative of this view that in the section of the Code which prohibits an action on any judgment without leave, except in certain courts, in certain cases, without such leave, one of the enumerated cases in which such action was permitted in such excepted court, was where there had been a failure to serve process on some of the defendants ; the plain reason of which was that such courts were not constructed and had not machinery to carry out a similar proceeding to show cause and give a new judgment making the old one binding on the newly served defendants, after a new trial.

I am, therefore, satisfied that no court would have any right to grant leave to sue on such a judgment against joint debtors where some only were served, until after the new judgment on the special proceeding to make the judgment binding on all.

I think, therefore, the demurrer was properly sustained, and the judgment upon it should, be affirmed.

As regards the judgment against the defendant Anthony P. ■ Salter, I do not see that the form of the note would make any difference as to his rights. If it be in form, “ I promise,” it was joint and several, and the plaintiff had his election to consider it as either, and prosecute his remedy accordingly. He has done so by the action against both jpintly, on which he has taken judgment with a right of execution against their joint property. He cannot now sever his remedy and have a separate action against either. His proper remedy consisted in proceeding under the 375th and following sections of the Code, to make the judgment complete against both defendants. The judgment in this case does not interfere with such proceeding, and must be affirmed, with costs of the appeal. Ho application seems to have been made to confine the defendants to one bill of costs, and the judgment is therefore regular in that particular also. This attempt to get a second bill of costs has therefore ended in subjecting the plaintiff to an additional expense of over $450.

Monell, J.

I am satisfied the judgment sustaining the demurrer is correct. The judgment recovered in October, 1857, against Anthony P. Salter is a bar to another action against him upon the note, and a suit cannot be sustained upon that judgment without leave of the court. The note proved on the trial was a joint and several promise, and a joint or several action could have been maintained upon it. So, therefore, whether the action was joint or several, it merged the note as to the defendant Seward, and the judgment is a complete bar to another action.

The judgment sustaining the demurrer must be affirmed, with costs.

The learned justice, in his finding of facts, has found that the note in suit was a joint and not a joint and several note ; and he has set out in his written finding that the note made by the defendants was “ we promise,” &c. The evidence shows very cléarly, as given to us in the printed case, that the note described in the complaint and introduced and proved at the trial was, “I promise,” &c. and thus a joint and several note.

The finding, therefore, of the learned justice, was directly in opposition to the evidence.' Whether it is a mere clerical error., or how otherwise it occurred, does not appear; but it stands upon the record, it is fatal to the judgment dismissing the- complaint.

Upon a correct finding as to the character of the note, the question can he fairly presented, whether in a joint action against all the makers of a joint and several note, a judgment in form against one is a bar to another action against him upon the original cause of. action.

As the case now stands, with the erroneous finding of fact, we can see no other way but to send it back to be corrected on a new trial.

The judgment as to the defendant David B. Salter, must be affirmed, and that dismissing the complaint as to Anthony ' P. Salter, must be reversed, and a new trial ordered, with costs to the appellants to abide the event.