author: By the Court.—Sedgwick, Ch. J.

text:
    KENNETH E. MACLENNAN, Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.

      Hailroad company—intending passenger j rights and duties of; contributory negligence. — Carrier ; negligence and duties of.—Evidence; mental operation, as to loss of business and permanency of injury, as bearing on.

    Where, to prove a cause of action or a defense, it is necessary to show that a witness acted upon a certain supposition, evidence to that effect is material and relevant, and he is a competent witness to testify that he so acted ; but it must also be shown by the evidence that the appearance justified the witness in having the supposition, and that the party against whom he testified was responsible for that appearance.
    Accordingly, where the plaintiff, on coming out of the passenger depot where he had bought his ticket, on to the platform, which was joined to and on the same level with the platform to the freight station, which was some distance from the passenger station, and which latter platform (i■ e., the one in front of the freight station) appeared to be used in connection with said freight station, saw a train of cars with an engine attached, heading in his direction, standing on the track some distance away.

      Held, tha-t he had a right to suppose that the train would bo brought up to the passenger station and then stop to take on passengers ; and that his waiting, in the passenger station, for the train to come up and stop, was not negligence contributing to the injury received in the dark by falling over an obstruction, to wit; a box in his way on the freight platform, wdiile proceeding to take the train at the place where it stood, as soon as he was notified' by the ticket agent that the train would start from there.

      Held further, that his running, while so proceeding, instead of walking, was not, under the evidence, contributory negligence, as matter of law.

      Held further, as resulting from above holdings, in an action for injuries so received, that requests to charge (1st) “that it was the duty of the plaintiff to take notice of the time of the departure of the train and to board it at a reasonable time before departure,” and that (2d) “ if the plaintiff remained near a light for the purpose of reading a book, and then, at the last moment, attempted to board the train when the time was so short that he could not do so in a prudent and careful manner, he was guilty of negligence,” and that (3d) “the company has a right to make up its train and let it stand in front of any part of the station connected with the station as a starting point, and that it was the duty of the passenger to inquire whether it would stop in front of the station or not,”—were properly refused.

      Further held, that if the defendant used the freight platform for a passenger platform, so that passengers were obliged to go from the latter to the former, and especially if the defendant’s employees invited the plaintiff to go on the line of approach which he took, the court could not say, as matter of law, that the defendant had a right to leave the box in the way of the plaintiff; and there being evidence on which the jury might have found in both these questions in plaintiff’s favor, and the box having been there for some time, it was properly left to the jury to determine whether or not the defendant was guilty of negligence in leaving the box where it was under the conditions under which it was so left. "Where it is sought to prove damages for loss of business, evidence of particular facts, where there is no effort to make the testimony the ground of any claim for damages for specific loss therefrom, is admissible to show the general character of the business lost.
    The plaintiff, being a physician, may he asked whether, from his experience as a physician, there is any probability of his suffering thereafter, from a particular one of the injuries received, damages which are claimed in the action. An answer: l-No probability, only a possibility,” is favorable to the defendant.
    Before Sedgwick, Oh. J:, O’Gorman and Ingraham, JJ.

      Decided April 6, 1885.
    Appeal by defendant from judgment entered upon a verdict for plaintiff.
    The action was for damages from negligence of defendant’s servants.
    The facts sufficiently appear in the opinion.

      Hinsdale & Sprague, attorneys, and E. B. Hinsdale, of counsel for appellant, on the questions considered in the opinion, argued.
    I. The motions for non-suit should have
    been granted for failure to prove negligence on the part of defendant. The defendant was not bound to have the train drawn up to a point opposite the door of the depot. Such a proposition is unworthy of serious consideration. Nor was it bound to put up a notice advising passengers of the spot from which the train would start. It is the duty of passengers to inform themselves of the ordinary incidents of railway traveling, and to inform themselves of the company’s regulations for running its trains (Mitchell v. Chicago & G. T. R’w’y. Co., 12 Am. & E. R.

      R. Cas. 163 ; Little Rock & Forth Smith R. R. Co. v. Miles, 13 Id. 10). Defendant was undoubtedly bound to provide a reasonably safe and proper means of ingress and egress between the station and the train, so that a person exercising ordinary care could safely pass from one to the other (Loftus v. Union Ferry Co., 84 N. Y. 460). This duty was performed.
    The box was not an obstruction, and its being there was no violation of defendant’s duty towards its passengers. It is established by. the testimony, and shown by the map, that the box occupied less than two feet of the outer side of the platform (away from the train), the platform being at that point six feet two inches wide. There was, therefore, a clear and unobstructed passage way from the station door to the train of nearly five feet (being at some points much wider). In Loftus v. Union Ferry Co. (supra), the rule is thus laid down : “ The defendant was bound to provide suitable and safe accommodation for the landing of passengers. . . . But the rule does not impose the duty of so providing for the safety of passengers that they shall encounter no possible danger and meet with no casualty ” (See also McMahon v. N. Y. El. R. R. Co., 50 Super. Ct. 507 ; Dougan v. Champlain Trans. Co., 56 N. Y. 1). Any inference of negligence on the part of the company in permitting this box to remain upon the platform is negatived by the fact that the box had been there a long time, hundreds of passengers had got on and off at the same spot, and no injury had been caused or inconvenience occasioned. This principle has been frequently laid down by the courts (Loftus v. Union Ferry Co., supra; Dougan v. Champlain Trans. Co., supra; Crocheron v. N. S. Staten Island Ferry Co., 56 N. Y. 656 ; Cleveland v. N. J. St’mbt. Co., 68 Ib. 306, 313).
    II. The motion for non-suit should have been granted^ because there was a failure to prove that the deceased was free from negligence, and also because the evidence showed that he was in fact guilty of such negligence. It was incumbent upon the .plaintiff to give some affirmative evidence of his exercise of care. And where the proof is not inconsistent with the theory of contributory negligence, a non-suit should be ordered (Hale v. Smith, 78 N. Y. 480 ; Cordell v. N. Y. C. & H. R. R. R. Co., 75 Ib. 330 ; Baulec v. N. Y. & H. R. R. Co., 59 Ib. 356). It was undoubtedly the duty of the plaintiff to use his eyes, and look out for obstacles in the pathway. There is a limit to the degree of necessary caution ; but still some care and foresight must be shown (Delaware, Lack. & W. R. R. Co. v. Napheys, 1 Am. & E. R. R. Cas. 52 ; and cases supra). The case is absolutely barren of any such evidence. The plaintiff says, of course, in just so many words, that there was not light enough to enable him to see the box, but he nowhere says that he looked for any obstruction.
    The plaintiff had no right to assume that the train would start from a particular part of the platform (See cases, supra). Having time enough to have made inquiries and boarded this train in a proper and careful manner, it was grossly careless of him to deliberately place himself in such a position that, at the last moment, in his eagerness to catch this, the last train, he would be naturally impelled to start up suddenly and begin to run along a comparatively narrow platform. This negligence had a direct connection with the injury (Little Rock & Fort Smith R. R. Co. v. Miles, 13 A. & E. R. R. Cas. 10).
    The running along the platform was, in itself, negligent. If it be said that he was compelled to run, we answer : a. It does not appear there was any such necessity. It may well be, for all there is of evidence to the contrary, that the train would have waited for him to have boarded it in a proper manner, b. Such a necessity was of his own creating and not in any way chargeable to -the defendant, c. If the plaintiff saw that he did not have time to go to the train in a careful manner, then it was his plain duty to have refrained from going at all; holding the defendant responsible for any violation of duty of which it. was guilty; but he had no right to do a negligent act which his physical situation enabled him to avoid (Cincinnati, &c., R. R. Co. v. Peters, 6 Am. & Eng. R. R. Cas. 126 ; Watkins v. Great Western R.R. Co., 37 L. T. N. S. 193).
    III. The motion for new trial should have been granted (Smith v. Ætna Ins. Co., 49 N. Y. 211; Houghkirk v. D. & H. C. Co., 92 Ib. 219).
    IV. The court below erred in ruling upon questions of evidence. The exception to the ruling as to plaintiff’s suppostion was well taken. It was wholly immaterial whether the plaintiff supposed the train was to draw up in .front of the station door or not. It was his duty, under the cases above cited, to inform himself of the actual situation, and act according to the facts. The evidence being utterly incompetent from any point of view, it was not necessary to state the ground of objection (Burns v. City of Schenectady, 24 Hun, 10 ; Mulqueen v. Duffy, 6 Ib. 299; Porter v. Parks, 2 Ib. 654 ; West v. Lynch, 7 Daly, 245). The objections to the evidence as to his giving up a particular patient, and as to patients calling to see him who were denied admission, were wholly irrelevant; especially in view of the fact, 'that no attempt was made to show that he lost any money in losing these patients. Yet it may well be that a large portion of the amount awarded in the verdict was based upon this vague and improper testimony. The question as to probability of future suffering from the injury to the nose was clearly improper. Any testimony in response to such a question would be, and in this case was, entirely too vague and speculative to be a proper foundation for the assessment of damages (Strohm v. N. Y. L. E. & W. R. R. Co., 96 N. Y. 305).
    V. The court below was in error in refusing defendant’s requests to charge. The first request embodied a sound proposition of law ; was not covered by the charge, and had direct bearing upon the issue (Mitchell v. Chicago & G. T. R. Co., 12 Am. & E. R. R. Cas. 163; Little Rock & Ft. Smith R. Co. v. Miles, 13 Am. & E. R.R. Cas. 10). The second request was equally proper, pertinent and necessary. The refusal of the court to charge as thirdly requested, was also error for which the judgment should be reversed.

      Oliver W. West, attorney, and of counsel for respondent, among other things, argued:
    I. It was the primary duty of the defendant to start its trains from in front of the station ; but it being its custom not to do so, but to start them from a point sixty or seventy feet eastward therefrom, and to pass the station without stopping, it was its duty to give timely notice to its passengers, either orally or by written or printed notice, of the place of starting, and its failure to do so was negligence (Hurlbert v. N. Y. C. R. R. Co., 40 N. Y. 145). The only notice given the plaintiff was an oral one just as the train was about to start.
    II. It was the duty of the defendant to keep its platform, which was the only passage way for passengers to use in getting on board its trains, free from obstructions ; and its admitted failure in this respect was negligence (Clussman v. L. I. R. R. Co., 9 Hun, 618 ; Hurlbert v. N. Y. C. R. R. Co., supra). The box in question ought not to have been kept in the way of passengers, even in the day-time, but should have been kept in the freight house, or, at all events, near it and at the east end of the station building, and thus out of the way of passengers ; and its continued presence where it was kept, especially in the night-time, was gross if not criminal negligence.
    III. The plaintiff was not guilty of any contributory negligence. This, as a matter of fact, the jury must have found, otherwise their verdict would have been in favor of the defendant. The general term will not, therefore, disturb the verdict on this question of fact (Murphy v. Lippe, 35 Super. Ct. 542. The only facts proved, which, the defendant insists, constituted contributory negligence were : 1. The omission of the plaintiff, on or after buying his ticket, to inquire where the train would start from. 2. His standing by the depot door reading and waiting for the train to come up and stop, instead of early inquiring where the train would start from and going immediately onboard at his leisure. 3. His running or “trotting” towards the train after the conductor shouted, “All aboard !” .4. His omission, in these circumstances, to see and avoid the box.
    The time-table of the defendant was notice to the plaintiff that the train .would start from the station, and he was therefore excused from inquiry if it would start elsewhere. This being so, it was immaterial how he occupied his time, whether in reading or otherwise, while waiting for the train, so long as he violated no rule of the company, and so long as he obeyed any instructions given him by the defendant. Ho such disobedience is asserted. On the contrary, it is undisputed that he at once obeyed the directions of defendant’s employees, and while hurrying in compliance with those directions, neither his obedience thereto nor his failure in the darkness to see and avoid the danger from the obstruction which the defendant had no right to place in his only pathway, and which rendered the pathway unsafe instead of safe, as he had a right to assume it to be, can on any principle be held to be contributory negligence. And even if the box was rightfully where it was, and the plaintiff, ignorant of its existence, had stumbled over it while thus obeying the untimely commands of the defendant, he would not have been chargeable with contributory negligence.
   By the Court.—Sedgwick, Ch. J.

The plaintiff, after buying a ticket in a passenger station of the defendant’s railroad, stood outside of the station near its door, upon the platform in front of the station. To the east of the passenger station was a freight station, and in front of it was a platform ; this platform appeared to be used in connection with the freight station. The passenger platform and the freight platform joined each other, and were on the same level. The plaintiff did not live in the place, and had come there to attend a patient as a physician. When he went out of the door of the passenger station, where he bought his ticket, he saw that there was a train of cars with locomotive engine heading in his direction, standing on the track some distance to the east of the passenger platform. He was asked on the trial, whether at the time, he supposed the train would move up and stop opposite the passenger depot. He answered, “ Tes.” There was an objection to the question; the objection being overruled, the defendant excepted. The question was certainly relevant and material. The plaintiff, after he noticed the train standing away from the passenger platform, did not go to it and get upon it, but stood until he was notified that the train was about to start at once on its trip, from the place where it was, without stopping at the passenger platform to take passengers. He was then obliged to hurry and run, instead of taking an ordinary gait. To prove his cause of action, he had to prove that he was without negligence that contributed to the accident. He was bound, in one aspect of the case, to justify to the jury his remaining on the passenger platform, instead of proceeding to the train. The fact that caused him to stand, was that he supposed the train would come to the passenger platform to take passengers. If he did not so suppose, he was without reason for standing, no matter how much the appearance of things might have justified his making the supposition if he had considered their effect. He was a competent witness to the existence of the fact that he supposed as he testified. Of course, he was also bound to show by the testimony in the case, that the appearances, for which the defendants were responsible, justified him in having the supposition. The judge charged, that the plaintiff had a right to suppose that the train would be brought up before the station,” meaning, no doubt, the passenger station. My opinion is, that there was evidence tending to show that the plaintiff was right in this respect, and no evidence tending the other way. On the facts, the plaintiff had a right to rely on the natural and direct impression that would be made by the situation of affairs. He was not bound to know that the defendants had a sufficient reason for not stopping at a passenger station. It might, perhaps, be that on the issue of defendant’s negligence, a jury would say that the fact that if they stopped for a minute or two at the passenger station, the locomotive and its head-light would frighten horses that might be upon a near highway, was a sufficient excuse for not stopping. But on the question of contributory negligence, the plaintiff was justified in relying upon the significance of such things as appeared to him. Now, the meaning of a passenger platform in front of a passenger station, is that there is the place where passengers await the coming and departure of trains. It is common knowledge, that before a departure of a train, it often waits away from the passenger platform for a certain time, and then, ringing the bell, moves up to the passenger platform for the passengers. If the plaintiff had perceived that the train was standing in front of a freight station and platform, that would have been another reason for which defendants would have been responsible for the plaintiff supposing that he had to await at the place for passengers the coming of the train.

The plaintiff stood reading a book by a light that shone from the passenger station. After standing a few minutes, he received notice from the ticket agent that the tiain was about to depart at once from the place where it stood to the east. He looked at the train, and observed signals, that defendant’s witnesses proved were intended for the plaintiff, and that indicated that the train was to leave at once. He started on a walk, then went to a run, on a direct line for the train. He tripped over a box in the way, and was injured severely. In my judgment, the questions of negligence suggested by these facts were properly submitted for determination to a jury, and could not have been considered by the court as concerning matters of law. If the defendants used the freight platform for a passenger platform, when passengers were to go from the latter to the former, and especially in this case, where the jury might find that the defendant’s conductor and engineer invited, in substance, the plaintiff to go on the line of approach that he took, a court could- not say that, as matter of law, the defendant had a right to leave a box upon the platform in the way of the plaintiff. The box had been there for some time. It was argued that it was an act of negligence on plaintiff’s part to run. As to this, there was a disputable question of fact, of whether the plaintiff running instead of walking was not induced by the signals that were given by defendant’s servants, indicating that they wished him to hurry. It was also for the jury to say whether a person of ordinary prudence would think of the possibility or probability of an obstruction being upon the platform, or would have a right to suppose that there was no obstruction in such a place, and it could not be held to be law that it was negligent for a person to run upon a level, unobstructed platform.

Against objection of defendant, plaintiff was allowed to testify that he had been attending, at the place from which he came to the station, a case of childbirth, and that the hurt he received prevented his attending it after that; that he had other patients, whom he could not attend for the same reason; that several patients called upon him for professional advice, whom he could not see for the same reason. There was no effort to make this testimony the ground of any claim for damages for the specific loss of the cases referred to. It was admissible to » show the general character of his business which he lost, as determined by the description of the particulars testified to.

The defendant objected to a question to the plaintiff, “State whether, from your experience as a physician, there is any probability of your suffering in any way hereafter from this injury to your nose ?” The question was competent, as referring to one consideration pertinent to the certainty of future consequences according to reasonable probability, but the answer was favorable to the defendant, as it was that there was no probability, and only a possibility. This tended to limit damages favorably to defendant.

The defendant’s counsel requested the court to charge, that it was the duty of the plaintiff to take notice of the time of the departure of the train, and it was his duty to board the train at a reasonable time before the time of its departure. This was not correct, for it impliedly declared that, as matter of law, it would be negligence for a passenger, ■ in ignorance of the time of departure, to await the usual signals given by those in charge of the train, that the train was about to depart.

Another request was that if the plaintiff remained near a light for the purpose of reading a book, and then at the last moment attempted to board the train when the time was so short that he could not do so in a prudent and careful manner, he was guilty of negligence. This request referred to a contingency, that according to the witnesses for defendant and plaintiff alike, did not exist within the case. It was the fact, that the conductor and engineer in charge of the train were waiting for the plaintiff, and the plaintiff would have safely boarded the train if he had not fallen, and the train took him after the accident. The accident did not happen because of the train starting.

Another request was that the company had a right to make up its train and let it stand in front of any part of the station connected with the station as a starting place, and that it was the duty of the passenger to inquire whether it would stop in front of the station or not. There are several considerations which justified the refusal of the request. It is sufficient to point out that the jury could find on the facts, that the plaintiff did learn that the train was about to start from the place where it had' been standing, and would have safely reached it by running, if the box had not tripped him.

I think that the judgment should be affirmed, with costs.

O’Gorman and Ingraham, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    EDWARD SMITH, Appellant, v. WILLIAM BISPHAM, et al., Respondents.

      Negligence case.-—-Employer and Employee.—Providing safer methods.

    In turning over by hand, under orders of defendant’s foreman, a portion of a moulding apparatus, used in a foundry, being the cope, the men assigned to that work had lifted it on its edge, and were of sufficient number and strength to hold it, so far as its weight was concerned, in its other movements ; a .workman, in order to clear it from the crane which was used to lift the cope, but was then out of order, moved the cope with a crow-bar along on its edge some inches, when, on a further application of the bar, he disturbed its balance, thus suddenly throwing additional weight upon the men who had been safely holding it, causing them to let it fall in consequence of the weight coming so suddenly on them. It fell on the plaintiff, who had been ordered to repair the crane, and who, at the time when the cope fell over, happened to be between the cope and the crane. The plaintiff sustained severe injuries.

      Held, 1st, that the complaint was properly dismissed; 2d, that the case did. not require a consideration of a duty to use a certainly safer method than one that is sufficiently safe in itself.
    Before Sedgwick, Oh. J., O’Gorman and Ingraham, JJ.

      Decided April 6, 1885.
    Appeal by plaintiff from judgment dismissing complaint, entered on a direction of a judge at a jury trial term.
    The action was for damages from negligence of defendants.
    The facts sufficiently appear in the opinion.

      Roger Foster, attorney and counsel, for appellant.

      Paddock & Cannon, attorneys, and William PL. Arnoux and Franklin A. Paddock, of counsel for respondents.
   By the Court.—Sedgwick, Ch. J.

The plaintiff was a workman in an iron foundry, in which the defendants did business. He was in their employment ; he had been directed to mend some part of a crane in the building, and had gone to the crane and was about to begin work upon it. This crane had been used to lift and move a flask, which was a heavy box of wood and iron. The movable top or cover of this box is called a cope. The box was intended for moulding iron, but at the time was empty. There was evidence that the habit was to lift and move the cope apart from the rest of the box by the crane. The crane being out of order, one of defendant’s foremen ordered the workmen near to turn over by hand either the whole of the flask or the cope by itself. The testimony is indefinite on this point. They proceeded to do so ; the result was such, that, according to the testimony, the men were holding up the cope, with its lower edge resting on the ground, when the plaintiff was between it and the crane. The purpose of the men was to let the cope fall on the ground, so that it would clear the crane. As its edge at first rested on the ground, it could not fall back without striking the crane, and in order to push the edge further from the crane, one of the men, by means of a crow-bar, pried it along. This man, after prying it some six or seven inches, applied the crow-bar again, and, as the witness testified, the act disturbed the balance of the cope, and suddenly threw additional weight upon the men, who had been safely holding it, and they allowed it to fall, because the weight came so suddenly upon them. The evidence showed that they were competent to hold it, so far as its weight was concerned, in either of the movements of the flask or cope, for in fact they had managed it safely. The plaintiff’s counsel on the argument placed defendants’ negligence upon a direction of their foreman to move the flask or cope by hand, instead of by the crane. The defendants did not have at the time the crane to use, as it was out of order, and the facts do not require a consideration of a duty to use a certainly safer method, than one that is sufficiently safe in itself. The obligation of the defendants in the most favorable view for plaintiff, was to use ordinary precaution in selecting a safe method. There was no proof, and in the nature of things there could not be, that in allowing the cope or flask to be turned over by hand, there was a duty of entertaining the possibility of some one being in the way when the cope fell over ; and if no one was in the way, it is clear that the falling of the cope would endanger no one. As to the defendants’ obligation to foresee that some one might be in the way, the plaintiff’s being at the place where he was hurt was a fortuitous occurrence. And, indeed, it is not correct to say that he was where he was by order of defendants, through their foreman. That order would have been obeyed if the plaintiff had taken a position where the cope could not have fallen upon him. But the falling that did happen was in fact occasioned not because a machine was not holding up the cope, but because a sudden prying of it disturbed its balance. It is impossible to see on the present testimony that this prying was negligently done, or if it were, that the defendants would be liable for an act that presented an ordinary risk of an employment into which the plaintiff had voluntarily entered.

I am of opinion that the judgment should be affirmed, with costs.

O’Gorman and Ingraham, JJ., concurred.


text:
    OSCAR L. RICHARDS, et al., Appellants, v. DAVID FOX, et al., Respondents.

      False representations—Time material.— Conforming pleading to proofs motion for, when not granted.

    The cause was tried, and turned in the court below, upon questions as to the points of time when defendants received from plaintiffs the sum of money sued for, which plaintiffs alleged defendants had obtained from them on the false representations that a similar one was due them from the United States government as and for a drawback, and that they would pay to plaintiffs the amount of the drawback when the same should be paid to them by the United States,—and also upon 'the question as to when defendants received the drawback from the United States. The evidence showed that defendants made the representations and received the money, from plaintiffs, and also received the drawback on the same day; but failed to show which was received first. Held, that the complaint was properly dismissed.
    A motion to conform pleadings to proof will not be granted when its effect * will be to so amend the complaint that it would appear that there was no cause of action.
    Before Sedgwick, Oh.. J., O’Gorman and Ingraham, JJ„-

      Decided April 6, 1885.
    Appeal by plaintiff, from judgment dismissing the complaint entered upon a direction of a judge at a trial term, with a jury.

      Kaufmann & Sanders, attorneys, and Lewis Sanders, of counsel for appellants, made the point on the question of time:
    That the plaintiffs had proved that their office was kept open until six o’clock, except on Saturdays, when it closes between four and five; that they did á general banking business, did not stop drawing checks until they closed, and that the check given the defendants was the last check drawn on July 14, 1883, thus raising a presumption that their check was given after three o’clock, at which hour the sub-treasury closes. They further argued that, independent of this question of time, the plaintiff was entitled to recover; and referring to the facts shown by the evidence that on July 14, 1883, the defendant, David Fox, had a debenture in his possession, which he had received on, and which was payable on July 6, provided the duties arising on the importation in respect whereof the debenture was given were paid, and that the duties were paid June 9, 1883, and also to the other evidence, argued, that there was an intent to defraud, or the defendant David Fox would have surrendered the debenture to the plaintiffs when he received their check for the duties, if he had not then cashed it.
    Fraud and damage combined gave a good cause of action. The action is for fraud and deceit, not false representations. When the defendants made the representations, upon which they obtained the plaintiff’s check, they had in their possession the means of defrauding the latter, and they put that means into effectual operation on the same day, whether it was by converting the debenture certificate, or by the money previously refunded. It is entirely clear that plaintiffs never would have advanced the money had defendants disclosed the fact of their possession of the debenture certificate or check, requiring present payment or refund of the duties. It is equally as clear that, without intent to defraud, defendants never would have asked plaintiffs for their check. A. “He stated that he wanted the money from us, stating that he did not know how long it might be before he could recover the money from the government, and, therefore, he insisted upon our paying the money fii-st.” The fraud consists in the conversion of plaintiffs’ check, obtained by deceit. The facts proved are within the allegation of the complaint, and no amendment was necessary. The evidence was admitted without objection, and no amendment was necessary (Tyng v. Commercial Warehouse Co., 58 N. Y. 313; ch. 431, Laws 1876; § 723, Code; Reeder v. Sayre, 70 N. Y. 190).
    If any amendment was necessary, the court should have granted it, as the defendants could not have been taken by surprise by proof of their own acts. Surprise was not suggested nor possible.

      Richard S. Newcomb, attorney, and Albert Cardozo, of counsel for respondents, argued:
    I. There was proof that the defendants received the money from both the government and the plaintiffs on the same day, but there was a total absence of any evidence as to which payment was prior in point of time. As the plaintiffs held the burden of proof to show that Mr. Fox’s statement was false, it was incumbent on them to show that at the time the money was received by the defendants from the plaintiffs, the defendant had also received the amount from the government. This they utterly failed to do, and in favor of innocence, which the law always presumes, the inference would be that the money was received from the plaintiff first.
    II. To make any case against the defendants, the hour when the payments were made was necessary to be proved by the plaintiffs. In such cases fractions of a day will be considered (Haden v. Buddensick, 39 How. Pr. 246). .
    III. It was not error for the court to refuse the motion to conform the complaint to the proof. (1.) There was no proof of fraud, and therefore nothing to conform the complaint to the proof. (2.) When a plaintiff brings the' action in such form as to entitle him to an order of arrest and an execution against the body of the defendants, he should see to it that he has proof which will entitle him to recover in that form. The statute {Code, § 549, sub. 4), expressly provides that when the action is brought for the alleged fraud the plaintiff cannot recover unless he proves the fraud.
   By the Court.—Sedgwick, Ch. J.

The complaint alleged that the defendants, “with intent to deceive and defraud the plaintiffs by inducing them to furnish defendant’s firm with the sum of $424.10, represented to plaintiffs that the firm of Charles Fox Sons & Co., had paid the sum of $424.10 to the United States government, in payment of certain duties, &c. ; that defendants were entitled to receive back said sum from the United States, less one per centum of the amount thereof ; that the defendants had made a proper claim for the refund of said sum, but that the whole amount thereof was still due them and unpaid,-and that if plaintiffs would reimburse defendants the aforesaid amount of duties expended by them, they, defendants, would return and pay to plaintiffs the amount which would be refunded to defendants, whenever the same should be paid back to them that relying upon the truth of such representations, the plaintiffs paid the money as requested ; “that at the time, the defendants, <&c., knew such representations to be false, and knew that no sum whatever was then due or owing to defendants from the United States government, on any claim made by defendants for refund of duties paid on the entry aforesaid, and knew that the amount of refund on the claim made by defendants had been paid to defendants by the United States prior to the time of said representations.

On the trial, the case turned upon an issue, made by an allegation of the answer, that at the time of the representation, the defendants had not received from the United States the amount of the drawback or any part of it.

The plaintiffs proved by a clerk of the customs, that the defendants received a check for the drawback on July 14, which was the day on which the representations were made, but he could not tell on what hour of the day . the defendants received the check. The check was paid in the sub-treasury. He said he thought the sub-treasury closed at three o’clock in the afternoon. A witness for plaintiffs, who delivered the money to defendants upon their representation, testified that he had no positive remembrance of the time in the day that the affair happened, but he believed it was about the middle of the day. After leaving the stand, he was again called as a witness, and produced the check-book of plaintiffs and testified that from that book it appeared that the check drawn to defendants was the last one in the book of that day, that the office closes at six o’clock, we do not stop drawing checks until we close ; we do a general banking business that he had no definite remembrance of the time, except what he then had from examining the check-book, and that then he could not tell at what hour that check was drawn.

The judge below was right in dismissing the complaint, on the ground that the plaintiffs had not proved that the defendants had received from the United States the amount of the drawback, at the time of the representation. It was not proved that the drawback had been paid before the' middle of the day, when the witness for plaintiffs thought the matter occurred. There were no circumstances in the case which would have justified a jury in inferring that the check was in fact drawn near six o’clock on a particular day, because the firm generally kept drawing checks to.the close of business, and'kept the office open until 6 o’clock. This matter was safely tested by the witness saying that, after all, he could not tell at what hour the check was drawn. The motion to conform the pleadings to the proof could not have been granted, for it was substantially a motion that the complaint be so amended that it would appear that there was no cause of action. It did not incontrovertibly appear that at the time of the representations, the defendants intended not to repay the plaintiffs.

Judgment affirmed, with costs.

O’Gorman and Ingraham, JJ., concurred.


author: By the Court.—O’Gorman, J.

text:
    IDA HORNBOSTEL, Appellant, v. FRANCIS S. KINNEY and THE KINNEY TOBACCO CO., Respondents.

      Patent—me of—royalties—Oonstruetion of agreement as to.—Trademark.—Sweet Garporal.

    Plaintiff and defendant, Erancis S. Kinney, entered into an agreement, whereby plaintiff granted said defendant the exclusive use of a certain patented process for treating and curing tobacco during the continuance of the patent, and defendant agreed to pay one cent a pound for every pound of tobacco treated by him by said process; and whereby it was further agreed that should defendant fail to use the process in the treatment of 250,000 pounds of tobacco annually, the license for the exclusive use should cease; but defendant was still to have a license, not exclusive, to use the process in the manufacture of cigarettes and smoking tobacco. At the time of making this agreement, defendant was selling a cigarette, to which he had given the name of “ Caporal.” • He proposed to call cigarettes made according to said process “ Sweet Caporal,” to which plaintiff assented, and he did make cigarettes according to that process and sell them under that title up to a certain period (up to which all royal, ties were paid), after which, neither he nor his transferee, the other defendant, used the process, but they continued to sell cigarettes under the name of “Sweet Caporal.”

      Held, that defendant, Erancis S. Kinney, was not, under the agreement, bound to continue the use of the process, but was only bound to pay a royalty on such cigarettes as he should manufacture under the process; and that defendants, not having manufactured under that process since the period up to which all royalties had been paid, plaintiff had no claim against them for royalties.

      Held farther, that as the word “Caporal” had been applied to cigarettes by defendant, Erancis S. Kinney, before he had ever used the process in question, and as the word “Sweet ” prefixed to it was only descriptive of qualhy, the plaintiff could have no right to the exclusive use of those words, either separately or in conjunction, as a trade-mark applicable to cigarettes; and consequently, as there was no evidence of any agreement, as to the use of the name of “ Sweet Caporal,” specially on cigarettes treated under the process in question, or that plaintiff or her assignees should have any exclusive right to use such a name as a trade-mark, plaintiff was not entitled to an injunction restraining defendants from using that name as applied to cigarettes.
    Before Sedgwick, Oh. J., O’Gorman and Ingraham, JJ.

      Decided April 6, 1885.

      Appeal from a judgment entered on dismissal of plaintiff’s complaint.
    The facts appear in the opinion.

      Johnston & Tilton, attorneys, and Albert Mathews, of counsel for appellant.

      Charles B. Meyer, attorney, and John S. Davenport, of counsel for respondents.
   By the Court.—O’Gorman, J.

The action was tried at special term, without a jury.

The relief asked for by plaintiff was, (1) That defendants be enjoined from the use of the name Sweet Cap-oral ” on cigarettes; and (2) That they pay annually a royalty of „one cent a pound on two. hundred and fifty thousand pounds of tobacco.

The material facts are these : Charles Hornbostel, claiming to have invented a new process for treating and curing tobacco, assigned to his wife, the plaintiff, his right to a patent for the same, which had been applied for by him, and letters patent were issued to her therefor on May 1, 1879. In December, 1878, plaintiff had entered into an agreement in writing with defendant, Francis S. Kinney, whereby she granted to him the exclusive use of the said process during the continuance of the patent, and also agreed to provide him with materials necessary to enable him to make use of the patent. Kinney, on his side, agreed to pay her one cent a pound for every pound of tobacco treated by him by said process ; and should he fail to use the process in treatment of at least two hundred and fifty thousand pounds of tobacco annually, the license for the exclusive use of the process was to cease; but Kinney was still to have a license,—not exclusive,— to use the process in the manufacture of cigarettes and smoking tobacco. Subsequently, and, as it would appear, for better security to defendants, on March 16, 1879, the plaintiff conveyed to said Kinney the exclusive right to use the process in the United States.

Charles Hornbostel had been in communication with Kinney on the subject of this process as early as October, 1878, and was making experiments therein. Kinney, at the time, was in the tobacco business, and selling a cigarette to which he had given the name of “ Caporal.” He proposed to call cigarettes made according to the Hornbostel process “ Sweet Caporal,” to which Charles Hornbostel assented, and cigarettes were made and sold by Kinney according to this process, under that title, up to December, 1879, and royalties were paid to plaintiff thereon.

In December, 1879, Kinney transferred his business to the “ Kinney Tobacco Company,” the other defendant, and about that time Kinney complained to Charles Hornbostel that the process did not work well, and was no good, and offered to return the assignment of the patent which plaintiff had given him, which offer Charles Hornbostel declined.

There is no evidence that, after that time, Kinney or the defendant company used the Hornbostel process, but they did sell cigarettes under the name of “Sweet Caporal.”

On these facts, there appears no cause of action against the defendants, or either of them. Defendant Kinney was not bound under his agreement to continue to use the Hornbostel process, but only to pay a royalty on such cigarettes as he should manufacture under the process ; and as to the defendants, the “Kinney Tobacco Company,” they entered into no agreement with plaintiff on the subject, and were under no obligations whatever to her. Plaintiff, therefore, has no legal claim on defendants, or on Kinney, for payment of royalties after December, 1879, when the defendants ceased to use the Hornbostel process.

As to the use of the word “Caporal” as a special name for cigarettes, it had been used by Kinney on cigarettes manufactured by him before he had ever used the Hornbostel process ; and as to the words “ Sweet Caporal,” there is no evidence of any agreement as to the use of that name specially on cigarettes treated under that process, or that either Charles Hornbostel or the plaintiff had any exclusive right to use such a name as a trademark. The word “ sweet,” added to the name Caporal ” formerly used by defendant Kinney on cigarettes of his own manufacture, was only a description of the quality of the article, which might be equally applied to cigarettes manufactured by others, and did not constitute a trademark to which any one could have an exclusive use (Godillot v. Hazard, 44 Super. Ct. 427 ; Coleman v. Crump, 70 N. Y. 573 ; Royal Baking Powder Co. v. Sherrell, 93 Ib. 331; Van Bill v. Prescott, 82 Ib. 630).

The judgment should be affirmed, with costs.

Sedgwick, Oh. J., and Ingraham, J., concurred.


text:
    AMERICAN EXCHANGE IN EUROPE (Limited), Appellant, v. WILLIAM H. ROBERTSON, Respondent.

      Conversion.—Bill of lading attached to draft—property of discounter of draft in goods consigned, where consignee refuses to accept draft or goods. ■— Collector of port—duty as to freight lien of common carrier on such goods.

    Where a bill of lading is delivered as collateral security, by the consignor to the discounter of a draft on the consignee, and the consignee refuses to accept the draft or the goods, or to pay the duties or freight, the holder of the draft and of the bill of lading as collateral, has no absolute legal right to the possession of the goods.
    The collector of the port, the goods not being entered in the custom-liouso, but remaining in his custody subject to the duties, charges and carrier’s lien for freight, and he having no notice of any claim by the holder of the draft and bill of lading, is justified in regarding himself as bailee of the carriers, and as holding the goods as their agent and in their behalf and subject to their lien for unpaid freight.
    The collector’s permitting, upon the carriers filing bills of lading of the goods together with the other papers required by the custom-house regulations, the goods to be withdrawn from the custom-house and re-shipped to the place whence they came, without any notice of any claim on the part'of a holder of a draft with a bill of lading as collateral, will not render him liable to such a holder as for a conversion of the goods.
    The principle of Strickland ®. Barrett (20 Fide. 465), which is, that where the negligence or laches of the true owner causes or seems to justify one, whose possession was not tortious in the beginning but rightful, in dealing with the goods as his own, an action for conversion will not be sustained, might, with justice, be applied to the case at bar.
    Corson ®. Oliver (2 Abb. If. O. 852), and Pease ®. Smith (61 If. T. 477), are not applicable to the case at bar.
    Before O’Gorman and Ingraham, JJ.

      Decided April 6, 1885.
    Appeal from a judgment against the plaintiff, dismissing the complaint, entered on the decision of a judge, before whom the case was tried, without a jury.
    Action for conversion.
    The facts appear in the opinion.

      Sullivan & Cromwell, attorneys, and Alexander S. Bacon, of counsel for appellant, on the questions considered in the opinion, argued:
    I. In April, 1883, the title to, and right of possession of the goods, was in plaintiff, for it is undisputed that 0. & Co. owned the goods and transferred the bill of lading therefor to plaintiff as collateral security for a draft drawn against the goods and never accepted nor paid (City Bank v. R., W. & O. R. R. Co., 44 N. Y. 136 ; Indiana Nat. Bank v. Colgate, 4 Daly, 41; First Nat. Bank v. Kelly, 57 N. Y. 34 ; Mechanics & Tra. Bk. v. Farmers’ & M. Nat. Bank, 60 Ib. 40 ; Colgate v. The Penna. Co., 31 Hun, 297 ; Natl. Bank v. Dearborn, 115 Mass. 219; Ryberg v. Snell, 2 Wash. 294 : Merchants’ Bank v. U. R. R. & T. Co., 69 N. Y. 373 ; Conrad v. Atlantic Ins. Co., 1 Pet. 386). The principle in the case of Lee v. Bowlen, 5 Biss. 154; Cayuga Co. R. R. v. Daniels, 47 N. Y. 635 ; Bank of Rochester v. Iowa, 4 Ib. 497 ; Schimmelpennick v. Bayard, 1 Pet. 264, also applied.
    II. The act that defendant had parted with the possession of plaintiff’s goods before demand—innocently or otherwise—and with or without notice of plaintiff’s ownership—instead Of relieving him from liability, made the plaintiff’s cause of action complete at once, and relieved plaintiff of the necessity of demand. The moment v plaintiff delivered the goods to the White Star line, and thus parted with the possession, he became liable in conversion at once, and without demand, to the owner or whoever might become the owner thereafter (Pease v. Smith, 61 N. Y. 477; Ross v. Cassidy, 27 How. 416 ; Collins v. Rolli, 20 Hun, 246 ; Corson v. Oliver, 2 Abb. N. C. 352 ; Spence v. Blackman, 9 Wend. 167). If it should be found that plaintiff’s title was not complete until April, 1884 (when Thurber & Co. indorsed the bill of lading to plaintiff), defendant is still hable to this plaintiff ; for “ an action brought by an assignee of goods, for their conversion, is not defeated by the fact that defendant parted with possession before the plaintiff became assignee, and before he made demand on defendant ” (Corson v. Oliver, 2 Abb. N. C. 352 ; Ross v. Cassidy, 27 How. 420 ; Nichols v. Michael, 23 N. Y. 263; Latimer v. Wheeler, 3 Abb. Ct. App. Dec. 35).
    III. The White Star line had no lien upon the goods and claims no title thereto. They had surrendered possession of the goods six months before, and had lost any lien for freight by such surrender. At any rate the defendant had no right to deliver the goods to a common carrier for the freight. Section 2981, U. S. R. S., provides for the payment of unpaid freight by a sale of the goods, after one year (§ 2973). In short, there is not a scintilla of evidence that the collector delivered the champagne to any one who had—not claimed—title or right of possession to said goods. So far as this plaintiff is concerned, the collector might just as well have given the champagne to some friend as a Christmas gift, or have consumed it in his own family. The fact remains that this plaintiff is the owner, and the defendant, having had the possession of the goods, refused to deliver them on demand. This is conversion, and the plaintiff is entitled to the full value of the goods (Commercial Bank v. Pfeiffer, 22 Hun, 327).

      Nash & Kingsford, attorneys, and of counsel for respondent, argued:
    I. The consignees named in the bill of lading were presumptively the owners (Sweet v. Barney, 23 N. Y. 335 ; Angell on Carriers, § 497 ; Everett v. Saltus, 15 Wend. 474; Fitzhugh v. Wyman, 9 N. Y. 562 ; Thompson v. Fargo, 49 Ib. 188). And the rules of the custom house require a bill of lading indorsed by the consignees to enter goods (as plaintiff conceded) and pay the duties. The consignees having refused to enter the goods, the collector, after waiting six months, allowed the carrier, the only other person he knew in the transaction, and from whom he had received them, to withdraw them for re-shipment in bond. The defendant and the carriers both had the right, at this time, to consider the shippers the owners.
    II. Defendant cannot be held responsible as for a conversion, because he did not deliver the goods on demand, he having no notice of plaintiff’s claim of title until long after the goods had left his control, and he was entitled to show that compliance with the demand was impossible (Hill v. Covell, 1 Comst. 522, Whitney v. Slauson, 30 Barb. 276 ; Gillett v. Roberts, 57 N. Y. 28 ; Carroll v. Mix, 61 Barb. 212 ; Hoyt v. Baker, 15 Abb. N. S. 495 ; Hazard v. Abel, Ib. 413). When the rule is stated the other way the obtaining possession must have been tortious (Nichols v. Michael, 23 N. Y. 269).
    III. Plaintiffs must also establish title in themselves and a tortious conversion by defendant (Hill v. Covell, 1 Comst. 522 ; Gillett v. Roberts, 57 N. Y. 33 ; Schroeppel v. Corning, 5 Den. 240).
    IY. Thurber, the consignee, really acquired no title to the goods until he accepted the drafts (Bank of Rochester v. Jones, 4 N. Y. 497 ; Cayuga Bank v. Daniels, 47 Ib. 632). Amd his indorsement of the bill of lading to the plaintiff, five months after the goods had left defendant’s possession, on receiving an indemnity from the plaintiff, • in no way improved plaintiff’s position.
    V. The carriers, the White Star line, having a lien on the goods for unpaid freight, were entitled to resume possession of them, and never parted with them so as to lose their lien. They were obliged, by law, to put the goods in care of the collector on their arrival here, and no owner claiming them for six months, to withdraw them again. Whatever may be the position as between the White Star line and the real owners, the collector could know no one but them, when no consignee appeared, and he allowed them to withdraw the goods. The defendant is entitled to show title in a third party (Davis v. Hoppock, 6 Duer, 254).
   By the Court.—O’Gorman, J.

This action was brought for the alleged conversion, by the defendant, of 55 cases of wine, valued at $lj350, which were placed in his custody in May, 1883, as appears by manifest of cargo of steamship “Republic,” one of the steamships of the “White Star” line, filed on May 5, 1883.

Defendant was then collector of the port of New York. This wine was shipped in Liverpool, by a firm, named Campbell & Co., and by them consigned to Thurber & Co., of New York. Campbell & Co. drew a draft for £150 on Thurber & Co., the consignees, and the plaintiffs advanced that sum to Campbell & Co., on the draft, receiving two of the bills of lading attached to the draft, as collateral. When the goods arrived in New York, Thurber & Co., the consignees, refused to take them, or to accept the draft, or to pay the duties or freight. The goods were not entered in the custom-house, but remained there in the custody of the defendant, subject to duties, charges, and the carrier’s lien for freight. In November, 1883, the agents of the “ White Star ” line of steamships, the carriers of the goods, acting under instructions from the managers of the line in Liverpool, caused to be filed, bills of lading of the goods, together with such other papers as were required by custom-house regulations, and withdrew the goods from the custom-house, and they were re-shipped to Liverpool, the shippers being indemnified by parties in Liverpool, supposed to have been the owners. In March, 1884, about five months after the goods had been thus withdrawn from the custody of the defendant, the plaintiffs caused Thurber & Co. to indorse the third part of the bill of lading to “A. T. Downey & Co.,” the firm of Thurber & Co. being indemnified therefor by the plaintiffs. Finding that the goods had been previously re-shipped to Liverpool, demand was made on defendant, and this action was begun.

From the time of the arrival of this wine in Hew York until March, 1884, no notice was given to the defendant, of any claim on the part of the plaintiffs of any lien upon, or any right or claim to the possession of this property, or of any connection whatever on their part with it.

The manifest of the steamship “Republic,” showing that the wine was consigned to Thurber & Co., did not convey any notice to defendant that the plaintiffs had or claimed any lien upon it, and the plaintiffs took no steps to make any lien which they claimed to have, effectual; nor had they, during all the time during which the wine remained in the custody of the defendant, any absolute legal right to the possession of it.

It is held that an action for conversion cannot be sustained, unless at the time of the alleged conversion, the plaintiff had the legal right to the property converted (Clement v. Yturria, 81 N. Y. 285). ,

Under these circumstances, the defendant was justified in regarding himself as bailee of the carriers, during all the time the wine was in his custody, and as holding possession of it as their agent, and on their behalf, and subject to their hen for unpaid freight (Western Transportation Co. v. Barber, 56 N. Y. 544; Rogers v. Weir, 34 Ib. 463).

It is, no doubt, held that an action in favor of the true owner will not be defeated, merely because the defendant has parted with the property before commencement of the action. This is on the theory, that the act of the defendant in .parting with the possession, without the consent of the true owner, is unlawful (Corsan v. Oliver, 2 Abb. N. C. 352). In cases, also, where the defendant never-acquired any legal title to the goods in his possession, as where goods were stolen from the true owner and came into the defendant’s possession innocently, as purchaser, and without knowledge or suspicion of the theft, there it is held that he is nevertheless liable for conversion (Pease v. Smith, 61 N. Y. 477). But these decisions do not apply to the case at bar.

The defendant here came into possession of this property lawfully, and plaintiffs had not, at the time of the withdrawal of the goods from the custody of the defendants, any absolute legal right to the possession thereof. It seems, also, that where the defendant’s possession of the property, as in the case at bar, is not tortious in its beginning, but rightful; and the negligence or laches of the true owner causes or seems to justify defendant in dealing with the goods as his own, an action for conversion will not be sustained (Strickland v. Barrett, 20 Pick. 465). This principle might, with justice, be applied to the case at bar, where the plaintiffs left the defendant in ignorance of any hen they claimed to have on the property, until long after he had parted with its possession.

But the defendant, during all the time in which he had custody of this property, was under no obligation to the plaintiffs and owed them no duty, and plaintiffs had no right to demand the possession of the property, nor had they, during all that time, any cause of action against him.

The findings of the learned trial judge are sustained by sufficient evidence, and the judgment below should be affirmed, with costs.

Ingraham, J., concurred in the result.


text:
    HENRY M. BRADHURST, Respondent, v. THE MAYOR, &c., OF THE CITY OF NEW YORK, Appellants.

      Award to unknown owners—payment to chamberlain after action commenced., pleaded as defense—effect on costs and interest.

    In an action to recover an award to unknown owners, payment to the chamberlain, pleaded as a defense, does not, in any way, affect the question of costs upon a recovery by plaintiff. Its only effect is to stop interest on the award from the date of the payment to the chamberlain.
    Before Sedgwick, Oh. J., O’Gorman and Ingraham, JJ.

      Decided April 6, 1885.
    Appeal by defendants from judgment entered upon referee’s report.
    The facts appear in the opinion.

      E. Henry Lacombe, counsel to the corporation, and B. H. Smith, of counsel for appellants.

      Vedd&r Van Dyck, attorney, and of counsel for respondent.
   By the Court.—O’Gorman, J.

The plaintiff’s action against the mayor, &c., for recovery of the amount of the award made to unknown owners, was well brought (2 R. L. 1813, 183 ; Fisher v. Mayor, &c., 57 N. Y. 344).

After issue joined, the defendants paid to the city chamberlain the amount of the' award, and served on plaintiff an amended answer, in which the fact of that payment to the city chamberlain was set up as a defense. No tender of payment of this amount was made by the defendants to the plaintiff.

The action was referred to a referee to hear and determine, and the referee found in favor of the plaintiff, with costs.

Defendants claimed that the city was not chargeable with any costs or disbursements accrued since February 3, 1885, the date of the said payment by them into the hands of the city chamberlain. The question here is whether the defendants were right in that contention.

The payment of the amount of the award into the hands of the city chamberlain is not equivalent to payment to the plaintiff, and has only the effect of stopping the running of interest on the amount. It is only the transfer of the amount into the hands of the proper custodian, to be held by him for the benefit of whomsoever should prove himself to be legally entitled to payment. The payment of the award in the case at bar during the pendency of the action, did not terminate the action, or render its continuance to final judgment unnecessary to plaintiff’s assertion of his right to payment. The issue raised by the amended answer still remained to be determined, whether plaintiff was the person entitled to the money, and until that issue was determined in his favor, he could not get it. There is no process of law, other than an action, by which payment could be enforced (Re Hatch, 43 Super. Ct. 89.)

All the defendants gained by payment of the award into the hands of the city chamberlain, was cessation of the running of interest from that time. The right of the successful party to judgment in the action, and to costs of the action, was not affected by it.

Cutter v. Mayor (92 N. Y. 166), is not in point.

The judgment should be affirmed, with costs.

Sedgwick, Oh. J., and Ingraham, J., concurred.