text:
    Jacob Hirshfeld, Suing on His Own Behalf and on Behalf of All Creditors of The Madison Square Bank, Appellant, v. Adolph S. Kalischer, Addison Cammack and William H. Tillinghast, Respondents, Impleaded with John Bopp and Others.

      Action against a receiver, without leame — the court has jurisdiction of it — remedy of the receiver — leave granted nunc pro tunc.

    The commencement of an action against a receiver without leave does not affect ' the jurisdiction of the court; when an action has been so commenced the court acquires jurisdiction of the receiver by the service of the summons upon him, and the remedy of the receiver is either to apply for a stay of proceedings upon the part of the plaintiff or his punishment for contempt of court, or both, and upon an application therefor, if the court believes that the case is a proper one for granting leave, permission to make the receiver a party defendant will' be granted nunc pro tunc.

    Appeal by the plaintiff, Jacob Hirshfeld, suing on his own behalf and on behalf of all other creditors of the Madison Square Bank, from an interlocutory judgment of the Supreme Court in favor of the defendants, Adolph S. Kalischer, Addison Cammack and William H. Tillinghast, entered in the office of the clerk of the county of New York on the 6th day of August, 1894, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the said defendants’ demurrers to the plaintiff’s complaint.

      Xouis Ma/rshall, for the appellant.

      Hoffmcm Miller, for the respondents.
   O’Brien, J.:

In addition to the grounds assigned and discussed in the case of Hirshfeld v. Kursheedt (decided herewith), another question is here presented. It is insisted that there is a defect -of parties defendant, based upon the theory that the complaint fails to show that the plaintiff has obtained leave to make the receivers parties defendant. As matter of fact the receivers are defendants, and the objection is directed to the failure to allege that leave was obtained to make them such defendants.

While it would have been better to have secured permission, and to have alleged it, we think that the appellant is right in his contention that it has never been held in this State that the commencement of an action against a receiver without leave presents a jurisdictional question, the courts never going beyond the proposition that when an action has been commenced against a receiver without leave the court acquires jurisdiction of the receiver by service of the summons, and the remedy applied is either a stay of proceedings upon the part of the plaintiff, or to punish him for contempt of court, or both, and upon such application, if tbé court believes that the case is a proper one for granting leave, such permission will be granted mmo pro time. To avoid this objection we think the plaintiff should be permitted to apply for leave if he avails himself of the permission granted to amend.

Apart from this, however, upon the grounds and for the reasons stated in the Kursheedt case, the judgment appealed from should be affirmed, with costs and disbursements, with leave to plaintiff, on payment of the same, to plead over.

Yan Brunt, P. J., and Parker, J., concurred.

Judgment affirmed, with costs, with leave to plaintiff, on payment of the same, to plead over.

       See ante, page 555.


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    Clinical Instruction Company (Limited), Respondent, v. The New York Elevated Railroad Company and Another, Appellants.

      Blemted railroad — fee damages awarded although past damages are withheld.

    To justify tlie award of fee damages in an action, brought to enjoin the maintenance and operation of the defendants’ elevated railroad in front of the plaintiffs premises, when the award of past damages is denied, a very clear case should be presented, showing that by reason of the character of the occupation of the plaintiff’s premises, a reason is apparent for the failure of the court to award past damages while awarding fee damages.
    Appeal by the defendants, The New York Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of January, 1891, upon the decision of the court rendered after a trial at the New York Special Term, enjoining and restraining the defendants from maintaining or using their elevated railway in front of the plaintiff’s premises, unless they purchase, for the sum of $10,000, the easements appurtenant to such premises and appropriated by them.

      George T. Aldrich,, for the appellants.

      John It. Abney, for the respondent.
   O’Brien, J.:

The judgment restrains defendants from maintaining and operating their railroad in front of plaintiff’s premises, unless they pay the sum of $10,000 for a conveyance and release of plaintiff’s rights and easements acquired by said railroad. No past or rental damages were awarded, and with this circumstance as a basis, the defendants confidently refer to the Hadden Case (75 Hun, 63), which followed the Sutro case in the Court of Appeals, as authority for a reversal of the judgment.

Those cases hold that to justify an award of fee damages, when an award of past damages is denied, a very clear case should be presented.

These premises are situated on East Thirty-fourth street, and have a frontage of fifty-one and a depth of ninety-eight feet. A four-story and basement iron front brick building covers the entire plot. After having been used for office purposes and for public meetings of various kinds, it came into the possession, in 1882 or 1883, of the New York Polyclinic School, who occupied the building for medical and hospital purposes, and continued in such occupation up to the time of the purchase of the property by the plaintiff corporation in 1885. There was expended after such purchase about $25,000 in changing the interior and rendering it suitable for the business of the corporation; and since that time the Polyclinic School has occupied the premises at a nominal rental, as lessee of the plaintiff corporation. The building lias been used for the purposes of a hospital, the rooms therein being divided up for dispensary, reception rooms and other apartments suitable to a hospital. The premises are 180 feet easterly from Third avenue. At that point the railroad structure extends from five and a half to eight feet over the sidewalk, which latter is thirty feet wide. The railroad track is almost entirely over the sidewalk, lacking only eight inches and a fraction of being entirely so. The outside walk of the structure takes up four feet additional over the sidewalk. The engine starts in front of the building, and stands there when it is not in motion. With a column in front and the structure above, affecting to some extent access, there is evidence to show that the easements of light and air, so far as the first and second stories are concerned, are materially impaired. There was sufficient evidence given of a permanent damage to the .fee, to prevent which injunctive relief was granted, but with an alternative permitting the acquirement of a conveyance of the rights and easements of the plaintiff injured and taken by the railroad, upon the payment of $10,000.

The character of the occupation, the fact that the building was not used for ordinary business purposes, or rented out with an idea of securing any proper rental return — it being rented as a school which was controlled and managed by the directors of the plaintiff corporation — made it difficult and impracticable to determine what, if any, past damage had been suffered. The reason appearing, therefore, for a failure to award such past damages, takes the case out of the rule applied in the Sadden and Sutro cases, in which there appeared an inconsistency in refusing past damages and award* ing damages to the fee.

The amount here awarded might seem at first blush to be too large, but the evidence shows that the proximity of this property to the station, and its relative situation to that portion of the structure that is used by the defendant for the purpose of starting and stopping their trains, and allowing their trains to stand while awaiting passengers, affected this property more injuriously than premises where these conditions were not present.

We think the judgment was right and should be affirmed, with costs.

Yan Brunt, P. J., and Follett, J., concurred.

Judgment affirmed, with costs.


text:
    Cochrane Carpet Company, Respondent, v. Henry G. Howells, Jr., and Another, Appellants.

      Sill of particulars ■ — ■ prima/ry purpose thereof — when it will not he ordered.

    ■The primary purpose of a bill of particulars is to give information as to such, details of a claim presented against another as justice requires. When ordered and not given it excludes evidence upon the subject of the claim, and, if given, confines the party upon the trial of the action to the particular items which he is required to give in such bill of particulars. This is done to prevent surprise or injustice upon the trial.
    It is not the office of a bill of particulars to limit the evidence which a party may be able to produce upon the trial of an action to maintain his side of the issue, and where that is the only purpose to be subserved the service of a bill of ' particulars will not be ordered.
    Appeal by the defendants, Henry G. Howells, Jr., and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of September, 1894, as resettled, requiring the defendants to furnish the plaintiff a bill of the items and particulars of two of the defendants’ counterclaims.

      William S. Arnoux, for the appellants.

      M. Megensberger, for the respondent.
   O’Brien, J.:

The appeal is from the entire ■ order and from each and every part thereof, but the appellants, conceding the validity of the order in other respects, complain of that portion which requires the bill of particulars to state the dates upon which the requests or demands mentioned in the eighth and ninth paragraphs of their answer, respectively, were made.

The action is the ordinary one for goods sold and delivered. In addition to a denial, the answer sets up a counterclaim, that the parties entered into a contract for 2,000 pieces of goods, to be delivered within a year, of which the goods sued for were a part; that the goods were to be delivered at the rate of 500 pieces every three months, and in larger quantities if desired; that the plaintiff did not make the deliveries as contracted for, although the defendants requested and desired such delivery, and that plaintiff has wholly failed to deliver the balance, “ although these defendants have many times demanded that the plaintiff should forthwith deliver the same to the defendants.” The reply, after denying that this was a proper construction of the contract, admits that defendants sent orders for some of the goods during the first three months, but after the receipt of said orders continually shifted and changed the order, so that plaintiff was unable to have all of the same ready for sale and delivery to the defendants.

The question presented, therefore, is, whether it was proper to require the defendants to state the dates upon which the requests or demands mentioned in the answer were respectively made. Upon the issue thus raised it is conceded that requests or orders were made, but these are sought to be avoided upon .the ground that they were so changeable and shifting that the plaintiff was unable to get all of the goods ready in time to deliver. It is, therefore, incumbent upon the plaintiff to show that the requests or orders were changeable and shifting, no question arising but that they were given, and the only purpose that could be served by requiring of the defendants a statement of the dates would be to exclude requests and demands at times other than those given in the bill of particulars. The primary purpose of a bill of particulars is fo give information as to such details of a claim presented as justice requires. When ordered and not given, it excludes evidence upon the subject of the claim, and, if given, upon a trial confines the party to the particulars which he is required to give; and this is done to prevent surprise or injustice upon the trial.

Note.— The rest of the cases of this term will he found, in the next volume, 83 Hun.— [Rep.

Here the information sought as to the dates when these demands were made of plaintiff are as much within the latter’s knowledge as that of the defendants, and the object, therefore, cannot be to furnish information, but to limit the defendants in the scope of their proof in meeting the affirmative issue raised by the plaintiff, that the orders were so changeable and shifting that the plaintiff could not get the goods ready so as to complete the whole contract. It is not the office of a bill of particulars to limit the evidence which a party may be able to produce upon the trial to maintain his side of the issue; and where that is the only purpose to be served the particulars should not be ordered.

We think that the order in this respect was too broad, and that it should be modified by striking therefrom that portion requiring a statement of the dates upon which the requests or demands were made.

The appeal, as stated, was from the entire order, and the contention below was against giving any particulars of the counterclaim, all of which it is now conceded the plaintiff was entitled to, except in the particulars above mentioned, about which, upon the moving papers, no special stress was laid, nor does it appear to have been specifically called to the attention of the judge at Special Term. We think, under these circumstances, that while the order should be modified in the respect indicated, it should be without costs.

Nan Brunt, P. J., concurred.

Order modified as directed in opinion, without costs.


author: Yan Brunt, P. J.: Follett, J".

text:
    The People of the State of New York ex rel. John W. Goodwin, Relator, v. James J. Martin and Others, Commissioners, etc., Respondents.

      Discharge from the New York police force, based upon an altered resignation — cannot be justified on the ground that the officer was derelict in his duty — review of the action of the hoard by certiorari — certiorari granted after four months is in time.
    The action of the board of police commissioners of the city of New York in removing a person from the office of roundsman (based upon his resignation, obtained by duress and fraudulently altered) cannot be justified upon the ground that such person would have been removed by such board because of dereliction of duty, even had his so-called resignation not been accepted, in a case in which he has never been tried upon the charge df neglect of duty.
    There is no way in which such a person can review the acceptance by the board of police commissioners of the city of New York of his resignation, obtained by duress and fraudulently altered, except by reviewing the refusal of such board to reconsider their action upon the presentation to it of proof which ought to have satisfied any reasonable man that such resignation was not his free act and had never been completed and delivered by him, and was altered after it came into the possession of his superior officer.
    Such refusal of the board of police commissioners of the city of New York may be reviewed by a writ of certiorari notwithstanding the fact that the writ was. granted and served more than four months after the acceptance of the resignation of the relator by such board. (Follett, J., dissenting.)
    Certiorari issued out of tbe Supreme Court and attested on the-16th day of February, 1893, directed to James J. Martin, John McOlave, Charles F. MacLean and John 0. Sheehan, commissioners ■composing the board of police of the police department of the city of New York, commanding them to certify and return to the clerk of the county of New York all their proceedings under which they denied the relator’s application to rescind their resolution accepting his resignation from the office of roundsman.
    On the 29th of June, 1882, the relator was appointed to the position of roundsman on the jiolice force of the city of New York, and •served in that capacity until August 13, 1889, when he signed a resignation, of which the following is a copy:
    “Police Department of the City of New York,) 4th Preoinct, New York, Aug. 13, 1889. )
    “ To the Board of Police:

    “Gentlemen — I do hereby resign my office of Rdsman in the Police Department of the city of New York. This act is voluntary upon my part and is of my own free will andfcaccord. It has not been caused by any threat of punishment or act of coercion from my superior officer or any other person connected with the police department. Yery respectfully,
    “ JOHN W. GOODWIN,
    “Witness: Bdsmcm 4dh Precinct.

      “ Edward Carpenter, Occptavn.”

    On the 14th of August, 1889, the resignation was accepted by the •commissioners. In December, 1889, the relator obtained a writ of certiorari (the first) to review the proceedings of the board accepting his resignation, but the writ was dismissed on the ground that his resignation appeared to be regular on its face and was voluntary. (32 N. Y. St. Repr. 543.) In August, 1890, the relator obtained an alternative writ of mandamus, alleging that his resignation was obtained by duress. On this allegation issue was joined, which was tried at the May, 1891, Circuit, before a jury, resulting in the following finding, which was submitted by the court to the jury: “ 6. Was the said relator’,s resignation obtained from him by ■coercion, force, fear and duress used and brought to bear upon him by his superior officer, Richard F. Magan, sergeant of police, or by any other person or persons connected with the said police department ? A. Yes.”

      On this verdict the Special Term, July 1, 1891, granted a peremptory writ of mandamus requiring the commissioners forthwith to reinstate the relator to his position as roundsman, which order was reversed and the writ dismissed in November, 1891, the court holding that the action of the board could not be reviewed by mandamus. (.People ex rel. Goodwin v. MaeLean, 62 Hun, 42.) On the 1st of December, 1891, the relator requested the board to reconsider and rescind its action of August 14, 1889, whereby it accepted his resignation, which request the board refused on the 29th of January, 1892. Its action was reviewed on a writ of certiorari (the second) and reversed in November, 1892 (People ex rel. Goodwim, v. Yoorhis, 66 Hun, 88), and an order was entered, from which the following is an extract:

      “ It is ordered that the proceedings of the respondents and their decision denying relator’s said application be, and the same hereby are, in all things, reversed, and the matter sent back to respondents for further action, with instructions to respondents, and said respondents are hereby ordered and directed, to notify the relator within ten days after service upon them of a copy of this order of the time and place at which his application will be heard, and to give relator, upon five days’ notice of such hearing to him or his said attorney, Louis J. Grant, an opportunity to present to the said respondents his testimony upon the matters and questions involved in said application.”
    Hpon notice to the relator, and after taking the evidence offered by him and by the corporation counsel, the board adopted on the Jth of February, 1893, the following resolution:
    “ Besolved, that the board of police, after hearing all the evidence upon the application of John W. Goodwin, and after hearing counsel, and after full deliberation, do hereby refuse to reconsider its action of August 14,1889, in accepting the resignation of Roundsman John W. Goodwin.”
    On the 16th of February, 1893, the relator obtained this (third) writ of certiorari to review the refusal of the board to reconsider its action of August 14, 1889.

      Louis J. Grant, for the relator.

      Charles Bla/ndy, for the respondents.
   Yan Brunt, P. J.:

I cannot concur with Mr. Justice Follett in the conclusion, arrived at by him that the Statute of Limitation has run against the right of the relator to review the action of the police board in refusing to reconsider their action removing him upon his alleged resignation. It was held upon a previous certiorari taken in time, according to the calculation of time by Mr. Justice Follett, that the question as to whether the resignation had been obtained by duress, and had been altered without the consent of the relator, could not be considered upon a certiorari taken to review the act of the police commissioners in removing the relator upon such resignation, for the reason that only the proceedings before the police commissioners could be brought up by such writ, and the question as to the validity of the resignation could not be tried before this court and evidence upon the question not before the police commissioners-could not be considered. From that time on, the relator has been endeavoring to have the wrong which was done him by his removal righted ; and in every tribunal before which the question as to the validity of this resignation has been brought, it has been found that such resignation ivas obtained by duress and fraudulently altered, and was of no effect — except by the.board of police commissioners; and they have sought to justify the wrong which they did in acting upon this resignation, obtained by duress and fraudulently altered, upon the ground that even if they had not acted upon this so-called resignation they would have removed the relator because of dereliction of duty. Upon this latter charge the relator has never been tried; and it is no defense, when it is established beyond question that the resignation of the relator was obtained by duress and fraudulently altered after he had been prevented from stating upon the resignation the facts in reference thereto, for the respondents to say that if he had not resigned they would have removed him anyhow.

The evidence in this case shows that this resignation was obtained from this relator by threats, and, as already stated, before he finished its signature it was taken away from him and completed without his consent, and this is the paper by force of which he has lost his jiosition on the force. It does not seem to require argument to show that action upon the part of the police department based upon so fragile a foundation as tliis can hardly withstand scrutiny. And it is a rather peculiar feature that in the form of resignations which are to be signed by members of the police department when they desire to retire from the force there is printed therein an acknowledgment that the act is voluntary and has not been caused by any threat of punishment or act of coercion from a superior officer, or any other person connected with the police department. It would seem from this that there is a liability that such coercion will be used and resignations procured by threats of punishment, and that in order to anticipate cases of this description the provision ivas printed in the form of resignation. What influence such a declaration in a printed form could possibly have it is difficult to imagine, for if a person was coerced into signing his resignation lie would sign a resignation necessarily in the form prescribed by the department. We might, therefore, consider that we approach a case of this kind with the admission that such a resignation is liable to be the result of coercion upon the part of superior officers.

But it is urged that if the relator is reinstated he gets three and a half years’ pay and has not been doing any work. Is that any consideration which can influence this court ? If such a result follows, is it not because of the persistent determination upon the part -of these commissioners not to do justice to this man, but to deprive him of his office by means of a false paper, and refusing to try him upon any charges over which they had jurisdiction and upon which they so glibly claim that he would have been removed anyhow? If it was so certain that he could have been removed upon those -charges, and that they could have been established, why did they not do so instead’ of insisting upon this fraudulent resignation •obtained by coercion and threats ?

It has not been thought necessary to discuss the evidence establishing the facts in connection with this resignation, because that has been done repeatedly already ; and we have only considered briefly the moral considerations which have been urged in support of the immoral act of removing this man upon this false resignation; and the question of law that the statute has run against him and prohibits him from reviewing the act of the commissioners. As already stated, there was no way in which he could review the acceptance of the resignation except by reviewing their refusal to reconsider their action, when he presented to them the proof which ought to have satisfied any reasonable man that such resignation was not the free act of the relator, had never been completed and delivered by him and was altered after it came into the possession of his superior officer.

I think the relator should be reinstated and that he should have costs of this proceeding. t

O’Brien, J"., concurred.

Follett, J".

The determination of an officer or board while exercising judicial or §"ii<m-judicial functions cannot be reviewed on a writ of certiorari unless it is granted and served within four months after the determination is made. (Code Civ. Proc. § 2125.) This section is applicable to a review of the action of the board of police in removing an officer from the force, and the writ should be dismissed when it appears on its face that it was not granted within the time limited by the section. (People ex rel. McNeary v. MacLean, 64 Hun, 205.) However the purpose of this writ may be attempted to-be concealed, the ultimate object which the relator seeks to attain by it is the review and reversal (1) of his own act — his resignation —- and (2) the acceptance of it by the board of commissioners. The relator executed his resignation August 13,1889, and it was accepted by the board the next day. We find no evidence in the record affirmatively showing the date when the relator first complained to the board that his resignation was obtained by duress, but we find none showing that he made any complaint prior to December, 1889, when the first writ of certiorari was issued, and the commissioners state in their opinion that he first questioned his resignation ” in December,. 1889. There is no evidence that' the board did not act in good faith in accejiting the resignation, and without notice of any of the matters by which the relator now seeks to invalidate his act, and the unexplained delay of more than four months before the relator sought to repudiate his resignation, which, at most, was only voidable (62 Hun, 43), is inexcusable laehes.

On the 16th of February, 1893, the writ now before the court was granted, more than three years and a half after the action was-taken or determination (if it can be called such) was made which he seeks to reverse. His present application, by reason of the provision of the section of the Code before cited, is too late. It may be said that the relator does not seek by this writ a review and a reversal of the acceptance of his resignation, but a review and a reversal of the resolution of February Y, 1893. Suppose the board should reconsider its action of August 14, 1889, and refuse to reverse it, it is plain, we think, that the lapse of time would prevent this court from reviewing their determination on a writ of certiorari. To review their action of August 14, 1889, under the form of reviewing their action of February Y, 1893, would be doing indirectly that which the court has no power to do directly. Such a practice would enable persons feeling aggrieved by the determination of boards or officers exercising judicial powers to. remain silent until after the time to review their action had expired, and then present a request to the board or officer that their original determination be reconsidered and revoked, and, if the request were refused, to review both determinations under one writ. This procedure would be in violation of the language and the spirit of the Code and the rules of the common law governing the procedure on such writs. Entertaining this view of the case, it becomes unnecessary to determine whether the adjudication under the first writ of certiorari is a bar to these proceedings instituted by the third one. Singularly enough the judgment entered on the first writ is not pleaded nor proved, and we know nothing of its provisions except as gathered from the opinion reported in the 32d volume of the State Reporter, at page 543. It being apparent that by the relator’s delay the ultimate relief which he seeks cannot be granted, this writ should be quashed, but without costs to either party.

Procecedings revoked and relator reinstated, with costs.


author: Yan Brunt, P. J.:

text:
    The Railway Equipment and Publication Company, Respondent, v. The Lincoln National Bank, Appellant.

      General manager of a corporation — limitation of his autlm'ity to act — right to indorse checks ■ — ■ competency of the by-laws of the corporation on the question.

    A party has a right to assume, in respect to the officers of a corporation, that they possess the authority to act for the corporation in those capacities in which the corporation holds them out to be its representatives or permits them to act.
    The fact that a person is represented to be the manager of the business of a corporation in no way authorizes the conclusion that he has the right to bind the corporation by liis signature to commercial paper, where his. duty is confined • to opening the mail of the corporation, and transferring to the treasurer thereof whatever checks and moneys are found therein, it being the treasurer’s duty to deposit them in the bank designated by its board of directors as the bank of deposit of the corporation, and the general manager being subject, in all that he does, to the executive committee of the corporation — no authority having been conferred upon him to act in reference, to the, financial affairs of the corporation, although the manager may in some cases have acted without the authority of the executive committee.
    Upon the trial of an action brought by a corporation to recover the amount of its checks, fraudulently indorsed by its general manager, and alleged to have been converted by the defendant, the corporation has the right to show what, according to the by-laws which were to govern the officers of the company, their respective duties were.
    Although its by-laws are not, so far as the public are concerned, conclusive evidence as to the duties of its officers, they are properly admitted in evidence as bearing upon the question whether there had been such deviation from the requirements of the by-laws, in respect to the management of the afEairs of the corporation, that the defendant had the right to assume that the officers of the corporation had other powers than those which were committed to them by the by-laws.
    Appeal by the defendant, The Lincoln National Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of August, 1894, upon the report of a referee.

      B. II Tabor, for the appellant.

      De Witt O. Morrell, for the respondent.
   Yan Brunt, P. J.:

The points presented by the counsel for the appellant on this argument contained about eight pages of facts alleged to have been established by the evidence without a single reference to the folios of the evidence which it is claimed established those facts; and we might very well, in the disposition of this appeal, because of his flagrant violation of rule 40 of the General'Rules of Practice, have refused to discuss in any particular the facts.

Aft-er having read the case with great care, it may not be improper to observe that we have been utterly unable to find any evidence to sustain the assertion of the establishment of many of the facts contained in this statement.

This action was brought to reco ver for the conversion of certain checks belonging to the plaintiff. It is conceded that these checks had been the property of the plaintiff, and the question was whether the defendant obtained a ;good title to them because of their indorsement in the name of the plaintiff by a man of the name of Sechrist, who occupied the position in the plaintiff corporation of general manager. '

It is urged upon the part of the appellant that it is shown by the evidence that Sechrist was the general manager of the corporation; received all communications to the corporation; that all moneys collected from debts due or checks received in connection with the business first went into his hands as manager, and as such manager he collected and receipted for such moneys; that he executed contracts generally for the corporation, and that he was, in fact, the corporation so far as the management of the business was concerned. 'What might be the conclusion as to his authority in reference to the indorsement of these checks, had any such condition of affairs been established by the evidence, it is not necessary to discuss here, because the evidence establishes no such general authority upon the part of the manager in reference to the affairs of the corporation. It is not shown that he ever indorsed a check, except those, the proceeds of which he has stolen, or that he ever receipted a bill, or in fact that he ever had anything to do in respect to the financial affairs of this corporation. There is no evidence that he ever paid out any money. It is true that he certified vouchers and the treasurer paid the vouchers upon such certification. It is also true that he executed some contracts, being thereto authorized by the executive committee of the corporation. But he did not execute contracts generally, except perhaps such as might be called for by the ordinary routine business of the corporation. And there is no evidence whatever that he had any authority to sign the name of the corporation to any piece of commercial paper.

It is undoubtedly true that, in respect to officers of corporations, a party has a right to assume that they possess the authority to act for the corporation in those capacities in which the corporation holds them out to be its representatives or permits them so to act. But in the case at bar there is no evidence that the corporation had ever permitted Sechrist to act in reference to the financial affairs of the corporation. Tie was subject to the executive committee in all that he did, and while perhaps he may have acted in some cases without the authority of the committee, there is no instance in which any authority is shown to have been conferred upon him to act in reference to the financial affairs of the company. The fact that he was held out as the manager of the business of the corporation in no' way authorized the conclusion that he had the right to bind the corporation by his signature to commercial paper. This was out of his department. He had nothing to do with the finances of the corporation. All that he did wTas to receive and open the mail, and whatever moneys and checks vere received in the mail, his duty was to transfer over to the treasurer, whose duty it was to deposit them in the bank designated by the board of directors as the bank of deposit of the corporation.

It further appears that these checks which were appropriated by the manager of this corporation were not collected in the ordinary manner in which commercial paper is collected. It appears that the checks which formed the subject of this litigation were given to a saloon keeper, who cashed them and deposited them with the defendant in this action. This saloon keeper cannot say whether he had not cashed fifty or one hundred similar checks for this man and indorsed in this way. Can it be said, when transactions are conducted in this irregular fashion, that the taker of paper under these circumstances is a holder without notice putting him upon inquiry in respect thereto ?

It was endeavored upon the part of the defendant to show that upon two occasions the party who cashed the checks went into the office of the company and, in the presence of the treasurer, had Sechrist in one case put a date upon some paper and in the other amend his indorsement. The treasurer, who was a witness for the defendant, denies ever having been present upon any such occasion, and it is very doubtful if he was. The referee has chosen to believe the treasurer in that regard, and we see no reason to differ from his conclusion. The facts as established upon the trial show an utter want of authority upon the part of this manager to indorse these checks and collect the proceeds so as to bind the plaintiff.

The only exception to which it is necessary to call attention is that in respect to the admission of the by-laws of the corporation. "We do not think that the referee committed any error in admitting these by-laws in evidence. The corporation had a right to show what, according to the laws which were to govern the officers of the company, their respective duties were. It is true that, as far as the public were concerned, these by-laws were not conclusive evidence. But it became necessary, upon the part of the defendant, to show that there had been such a deviation (if such were the fact) from the requirements of the by-laws in respect to the management of the affairs of the corporation, that the defendant had the right to assume that the officers of the plaintiff had other powers than those which were committed to them by the by-laws.

And, as has already been observed, the defendant has utterly failed to establish any such general authority upon the part.of this manager as would make his indorsement binding upon the plaintiff.

The judgment should be affirmed, with costs.

Follett and Parker, JJ., concurred.

Judgment affirmed, with costs.


author: Van Brunt, P. J.:

text:
    George Storm, Respondent, v. The New York Elevated Railroad Company and Another, Appellants.

      Elevated railroad — stmctures erected by the owner, unremunerative because of the ■road — liability of the company for the damage.

    The character of a neighborhood, so far as it is due to the existence and operation of an elevated railroad, presents no bar which will prevent an owner from improving his property with the best of structures, and the railroad company must compensate him for damage resulting to such structure by reason of its continuing trespasses.

      If the railroad company desires to prevent the application of the rule it must condemn the right which it has seized and appropriated. Until it does so, an owner cannot he prevented from improving his property as he sees fit, and if such improvements do not make the return they would have done had there "been no elevated road in the avenue or street, the elevated road must compensate the owner for such loss..
    Appeal by the defendants, The New York Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of February, 1894, upon the decision of the court, rendered after a trial at the New York Special Term, awarding the plaintiff }3ast damages to his real estate caused by the operation of the defendants’ elevated railroad and enjoining and restraining the defendants from the further maintenance of. their railroad unless they pay to the plaintiff the sum of $12,000 for the easements so taken by them.

      Ii. L. Maynard, for the appellants.

      William G. Perkins, for the respondent.
   Van Brunt, P. J.:

TJpon an examination of the evidence in this case I am of the .opinion that the damages awarded were too high.

This apartment was built long after the elevated railroad- was erected, and long after the effects of its operation upon adjacent property were well known. It is, therefore, difficult to understand how its operation could have caused any falling of the rents in the apartment. It might well be the cause of an inability to procure as advantageous rents as otherwise would have been obtained, but a situation existing before the erection of the building, the effects of which are well known, could not be the cause of a fall in rents once obtained. If any such fall did occur we must look for some other cause.

In the case at bar this cause seems to be apparent. It appears that a fictitious scale of rental was established by the builder of this apartment, undoubtedly to give it an apparent enhanced value by giving to tenants of these apartments agreeing to pay these excessive rents a period of time free from rent. When the apartment changed hands this deceptive practice was discontinued and the scale of rents naturally fell, and it took some time for them to find their level. It is also claimed by the appellants that another reason for the apparent smallness of rent received is because of tbe fact that the apartment is better in its construction than the neighborhood in which it is situated warrants; that if situated at the corner of Lexington avenue (where there is no elevated road) it would rent much better.

The character of the neighborhood, so far as it is affected by the existence and operation of the elevated railroad, affords no bar to an owner from improving his property with the best of structures, and the elevated road must compensate for damage to such structure by its continuing trespasses. If it desires to prevent the application of this rule it must condemn the' right upon which it has seized and which it has appropriated. Until it does this, an owner cannot be prevented from improving his property as he sees fit, and if such improvements do not make the return they would have done had there been no elevated road in the avenue or street, the elevated road must compensate for such loss.

I am of the opinion, therefore, that the damages for lost rentals should be reduced to $7,058, and the fee damages to $9,000, with interest from date of entry of original judgment, the extra allowance to be reduced accordingly, and the judgment, as thus modified, affirmed, without costs.

Barrett and Eollett, JJ., concurred.

Judgment modified as directed in opinion, and affirmed as modified, without costs.


text:
    John S. Keyes and Another, as Executors, etc., of Antoine Ruppaner, Deceased, Respondents, v. Barbara Ellensohn and Another, Appellants, and The Town of Altstaetten and Others, Respondents.

      Failure to make a person interested therein a party to an action — effect of the judgment in the action.

    The mere iact that the necessary parties to an action are not before the court upon the trial thereof does not oust the court of jurisdiction, so far as the persons are concerned who are made parties to the action, nor does it make the judgment rendered void.

      The only effect oí such omission is that the judgment is not binding upon the person who should have been, and was not, made a party to the action.
    Appeal by the defendants, Barbara Ellensohn and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of June, 1894, denying their motion to vacate and set aside the judgment entered in said clerk’s office on the 5th day of May, 1893, or, in the alternative, to open their default therein.

      Isaac H. Miller, for the appellants.

      E. O. Perhims, for the respondents.
   Van Brunt, P. J.:

This action was brought 'to establish the validity of the testator’s will. It was commenced in February, 1893, and an order for service of non-residents by publication was obtained. A guardian ad litem was appointed for the defendants described in the complaint as Johann and Christina Kristof, infants under fourteen years of age. The case was tried on the 20th of April, 1893, and judgment entered on the fifth day of May following. There were no such persons as Johann'and Christina Kristof, children of Katlii Kristof, but she had one child, Anna Kristof, an infant over fourteen years of age. In July, 1893, upon her petition, Samuel B. Sewards was appointed guardian ad litem, and moved to vacate the said judgment as irregular, premature and without jurisdiction, which motion was granted, vacating the judgment as to said Anna Kristof, and giving her leave to answer the complaint. Anna Kristof thereupon answered the complaint. The plaintiff then moved for leave to discontinue the action as to said defendant, which motion was granted, and the action was discontinued accordingly. The defendant appellants then moved to vacate the judgment as irregular, as without jurisdiction, and as having in effect been already vacated, and the action discontinued as to all the parties. This motion was denied, and from the order thereupon entered this appeal is taken.

It is claimed that Anna Kristof was a necessary party to the action, and that the discontinuance as to her deprived the court of jurisdiction, and rendered tbe judgment void. Tliis contention is based upon the language of the section of the Code of Civil Procedure under which this action was commenced.

The mere fact that necessary parties are not before the court upon the trial of an action does not oust the court of jurisdiction so far as such persons are concerned who were made parties to the action. The distinction between necessary and proper parties has been too often discussed, and the validity of judgments where, under the rules of law, other parties were necessary has been too often upheld to need the citation of authorities. The only effect of such omission is that the judgment is not binding upon the party who has been omitted. In the discussion of this question it is not necessary for us to determine whether, within the language of the section referred to, Anna ICristof was or was not a necessary party.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

O’BrieN, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    James E. Lyon, Appellant, v. Warren Hussey, Respondent.

      Oonimot to furnish evidence is against publie poliey.

    A contract to furnish, evidence to establish the claim of one of the parties to an action about to he commenced is against public policy and will not be enforced.
    . Appeal by the plaintiff, James E. Lyon, from a judgment of the 'Supreme Court in favor of the defendant, entered in the office of -the clerk of the county of New York on the 30th day of July, 1894, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the ■complaint and also from the order directing the entry of said judgment on the demurrer.

      Noah Dcuuis, for the appellant.

      E. W. Armstrong, for the respondent.
   Yan Brunt, P. J.:

It may not be necessary to add anything to the opinion which, was handed down upon the decision of the demurrer in the court below. But it may be proper to call attention to the fact that part of the contract, damages for the breach of which this action was brought to recover, was to furnish evidence to establish the claim of the defendant in a litigation to be commenced. It is cleay that such a contract is against public policy. The recognition of contracts of this character would be the introduction of all sorts of fraud and deception in proceedings before courts of justice, in order that parties might receive compensation out of the results of their successful manufacture of proofs to be presented to the court, thus holding out a premium upon subornation. The mere statement of the proposition seems to show that such a contract could never be recognized in any court of justice.

The judgment should be affirmed, with costs.

PARKER, J., concurred.

Judgment affirmed, with costs.


author: Paekee, J.:

text:
    William G. Hackstaff and Another, as Executors, etc., of ANNA G. Hackstaff, Deceased, Plaintiffs, v. Charles L. Hackstaff, Defendant.

      Cross-examination of a party disqualified under section 829 of the Code of Civil Procedure — his redirect examination on the same subject.

    Where testimony, elicited upon the cross-examination of a witness during the trial of an action, refers in part to certain conversations of the witness with the testator of the adverse party, such witness, upon his redirect examination, may testify as to the whole of such conversations, notwithstanding the fact that, such conversations would have been inadmissible in evidence under section 829 of the Code of Civil Procedure, had he been asked to testify as to them upon his direct examination.
    Motion by the defendant, Charles L. Hackstaff, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit on the 15th day of I anuary, 1894.

      O. A. de Gersdorff.for tbe plaintiffs.

      Charles De Hart Brower, for tbe defendant.
   Paekee, J.:

A careful examination of tbe evidence satisfies ns that tbe trial court did not err in directing a verdict for tbe plaintiffs upon tbe evidence as it stood at tbe close of tbe trial. But several exceptions were taken to the refusal of tbe court to allow tbe defendant to testify fully on redirect examination concerning certain conversations bad' with tbe deceased, about which inquiry was made of tbe defendant on cross-examination.

Tbe ground of tbe objection was that tbe evidence was inadmissible under section 829 of tbe Code of Civil Procedure. So it would have been bad not tbe plaintiffs opened tbe door for its admission by inquiries of tbe defendant in respect to it on bis cross-examination.

Tbe sum in controversy was $4,491.78. The plaintiffs, as executors, of Anna G-. Hackstaff, claimed that these moneys belonged to her estate; defendant, that she bad given them to him in her lifetime. Those moneys with others were collected by tbe defendant from tenants of Mrs. Hackstaff during a period of years with her consent. Apparently for tbe purpose of showing a retention of control over tbe moneys by the decedent, and thus negativing defendant’s claim that be held them as a gift, defendant was asked by the plaintiffs on cross-examination whether bis mother knew of tbe account be bad in trust for her in the Seamen’s Bank, and whether she kept track of tbe deposits made in defendant’s name in trust for her in such bank. Inquiry was also made about conversations between tbe decedent and witness relating to tbe payment of taxes on her property, and tbe saving of money for that purpose. Other subjects of conversation between them, tending in tbe same general direction, were inquired about, but those already referred to will sufficiently present tbe error into which we .think tbe trial court fell.

It should be said that counsel insists that tbe testimony to which we have referred was volunteered by tbe witness. If such were tbe fact, it is not disclosed by the record, -which we must assume to be correct. Tbe inquiries to which we have referred entitled tbe defendant to call out tbe whole of tbe conversations thus referred to. (Nay v. Curley, 113 N. Y. 575.) This defendant attempted to do by the following questions : Q. You were asked on cross-examination in regard to having advised your mother as to the accounts in trust for her. What conversations did you have, if any, with your mother in reference to the accounts in trust ? Q. What conversation, if any, did you have with your mother in reference to saving up money for taxes from the Church street rents ? ”

They, were severally excluded, and the exceptions taken to the rulings require a reversal of the judgment; for the court cannot know but that the answers if given might have had a very important, perhajis a controlling, influence upon the question in issue between the parties.

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

Van Brunt, P. J. and O’Brien, J., concurred.

Judgment reversed, new trial ordered, costs to defendant to abide event.


author: Parker, J.:

text:
    John I.Goodrich, Respondent, v. John Gillies, Appellant, Impleaded with the Mayor, Aldermen and Commonalty of the City of New York and Another.

      Mechanics lien — an error in stating the amount due, if-not fraudulent, does not render it invalid.

    While section 1835 of chapter 410 of the Laws of 1883 provides that the notice therein specified shall give “the amount of the demand after deducting all just credits, offsets,” etc., still if, without fraudulent intent and through mistake, an error he made therein in stating the amount of the demand, the mechanic’s lien may he enforced notwithstanding the error.
    Appeal by the defendant, John Gillies, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of April, 189J, upon the decision of the court, rendered at the New York Special Term, adjudging that the plaintiff has a -lien upon certain money and fixing the amount thereof.

      Thomas F. Magner, for tbe appellant.

      George 8. Hastings, for tbe respondent.
   Parker, J.:

This suit, which has for its purpose the foreclosure of a lien upon moneys in the hands of the comptroller of the city of New York, ■due from the city to the defendant Gillies, upon a contract to build a pier and bulkhead at the foot of Rivington street, East river, has been subjected to some reverses on its way to a final determination.

A judgment rendered in favor of the plaintiff by the Special Term was reversed in this court, because of the absence of a finding that the materials for which plaintiff had recovery were furnished towards the performance or completion of the contract with the city, or that any portion of them were used in the execution and completion of such contract. (Goodrich v. Gillies, 62 Hun, 479.)

The retrial also resulted favorably to the plaintiff, but an appeal being taken to this court, it was reversed on the ground that the plaintiff, with full knowledge of the facts, filed a notice of lien for a larger sum than the agreed price of the materials used by the defendant in the performance of his contract with the city. (Goodrich v. Gillies, 66 Hun, 422.)

The Special Term upon a third trial again rendered a judgment in f^vor of the plaintiff, and it is now the subject of review. The record agrees with the former one in so far as it was made to appear that the hen was filed for a larger amount than was due to the plaintiff for materials which were actually used in the work which was the subject of contract between the contractor and the city.

The findings of fact, however, upon which this judgment is founded are materially different in an important respect, and so is the evidence tending to support them. One finding is to the effect that the “ plaintiff had reason to believe that all of the materials described in said notice of lien had been actually used by the defendant John Gillies in the completion of the said contract of said defendant John Gillies with the defendants the Mayor, Aldermen ■and Commonalty of the City of New York.”

The next finding asserts that plaintiff had been so informed by his agent, and the third, that the plaintiff believed at the time of making and filing the notice that it was in all respects true. These findings bring the case within the authority of Gaskell v. Beard (58 Hun, 101), where it was held that while the statute (Laws of 1882, § 1825, chap. 410) provides that the notice shall give “ the amount of the demand after deducting all just credits, offsets,” etc., still, if without fraudulent intent and- through mistake an error be made in stating the amount of the demand, the lien may be enforced notwithstanding the error. It follows that the judgment must stand, unless it is the duty of the court to reverse the findings of fact to-which we have referred. With that thought in -mind we have attentively examined the evidence, and as a result have reached the conclusion that the rules which should guide this court in reviewing questions of fact protect the findings from reversal.

The judgment should be affirmed, with costs.

Nan Brunt, P. J\, and Follett, J., concurred.

Judgment affirmed, with costs.


author: Parker, J. :

text:
    Rutgers Female College of the City of New York, Appellant, v. Cornelius H. Tallman, as Executor, etc., of Jacob B. Tallman, Deceased, Respondent.

      Possession of real estate by another than the record owner — sufficient to put a purchaser upon inquiry — when such notice will not extend to the consideration of foreclosed mortgages.

    The fact that a person other than the record •owner of real estate is in the possession thereof is sufficient to put a proposed purchaser of the same upon inquiry-touching the rights therein of the person in the possession thereof.
    When a situation is presented which the law declares should put a person of ordinary prudence on inquiry, he is chargeable with constructive notice of everything to which that inquiry would reasonably have led, but with notice of nothing more.
    In the absence of information tending- to arouse suspicion, the proposed purchaser of real estate is not bound to investigate in relation to the consideration of mortgages covering such premises which have been foreclosed.
    Appeal by the plaintiff, Rutgers Female College of tlie City of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of'the county of New York on the 1st day of April, 1893, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint upon the merits.
    The original defendant, Jacob B. Tallman, died in July, 1892, and by an order of September 26, 1892, the action was revived and continued against his executor.

      Albert Stidkney and Wm. L. Swycler, for the appellant.

      James M. Smith, for the respondent.
   Parker, J. :

For a little over two years prior to June 1, 1872, James P. Pierce, of the State of California, had the record title to certain premises known as Nos. 487, 489 and 491 Fifth avenue — premises which for a number of years had been occupied by this plaintiff for college purposes. On that date Pierce conveyed the property to this defendant’s testator for a consideration of $120,000. At the time of the conveyance defendant’s testator was a trustee of the plaintiff, to which position he was elected June 20, 1871. 1

Immediately after the defendant’s testator had acquired title to the premises he leased them to the plaintiff from year to year until 1879, when plaintiff was dispossessed, but by verbal agreement, subsequently entered into, plaintiff occupied the premises as tenant of defendant’s testator until sometime in April, 1882. The last meeting of the board of trustees was held at said premises on the 18th of April, 1882. About two months prior to the last-mentioned date, defendant’s testator conveyed tire property to August Pottier for'the sum of $180,000, and in July following the plaintiff, at the request, of Pottier’s attorneys, and for a nominal consideration, also executed and delivered to said Pottier a quit-claim deed of the premises. Not until 1890, nearly eight years after the conveyance of the property to Pottier, was any claim presented to, or demand made of the defendant’s testator, in respect to such property, or the proceeds of it, when this suit was commenced, in which the plaintiff prayed that defendant’s testator account to it for all the moneys received by him from Pottier, after deducting any money that may have been advanced by him for the benefit of the plaintiff.

The trial at Special Term resulted in a judgment as to which the plaintiff contends that the trial court misapprehended the nature of its contention, and treated tbe case as an ordinary action of fraud brought against a party standing in an ordinary position, thus ignoring what plaintiff characterizes as the fundamental feature of the entire case, to wit, that the defendant’s testator was a trustee.

As we understand plaintiff’s position it is, that prior to the conveyance from Pierce to the defendant’s testator, the plaintiff was entitled in equity to redeem the property on paying to Pierce the-amount actually due to him, and that Tallman, having been elected a trustee prior to his taking the deed from Pierce, was chargeable with knowledge of all the facts which by reasonable diligence he-could have acquired from an investigation and examination of the college records, and further, that such facts were actually brought to his attention as should have put him on inquiry.

Por many years prior to May 31, 1870, the title to the property was in the plaintiff. “ It was incumbered by four mortgages upon, which the principal sums due amounted to $53,000 on June 29,. 1868, at which time the plaintiff executed and delivered to James-P. Pierce another bond and mortgage for the sum of $52,000 payable, with interest, on the 1st of July, 1871. This latter mortgage the plaintiff contends was without consideration, and that the execution of it was procured by Henry M. Pierce, the then president of the college, and a brother of James P. Pierce, the mortgagee, in. pursuance of a fraudulent scheme, having for its purpose the acquisition of the title to the property for very much less than its actual value. The court refused to find as a fact that the mortgage was without consideration, or as a conclusion of law that the mortgage-was as between Pierce and the plaintiff fraudulent and avoidable.

If these findings were well founded, it necessarily follows that the judgment of the Special Term was right. But if it be assumed,, for the purposes of further discussion, that as between plaintiff and Pierce, the mortgagee, the mortgage was voidable, we are unable-to discover a basis upon which a recovery in favor of the plaintiff could have been predicated.

The court refused to find, as requested by the plaintiff, that the- “ Defendant was expressly notified that there was an irregularity or illegality in the execution and delivery of said mortgage of $52,000.” Its refusal is justified by the record.

The question of actual notice is, therefore, Out of the case, and •whether defendant’s testator had constructive notice remains only for consideration.

Defendant’s testator was elected a trustee June 20, 1871, and thereafter was informed that Homer, Morgan & Co., real estate brokers, were offering the property for sale in behalf of Pierce. Ascertaining the price at which the property could be purchased, he caused his attorney to search the.title. We have not the result of that search before us, but the fact is, that the records contained nothing indicating that the $52,000 mortgage was voidable, or that the plaintiff had any equity whatever in the property.

They disclosed that on the 23d day of October, 1869, a judgment of foreclosure and sale of the fourth mortgage was regularly entered at a Special Term of the Supreme Court. Thereafter a sale was duly had thereunder, resulting in the purchase of the property by James P. Pierce for the sum of $117,000. Out of the purchase money the referee paid the amounts due for principal and interest on the four mortgages which were prior to the $52,000 mortgage, and deposited the sum remaining in his hands, viz., $57,270.18, with the chamberlain of the city of New York, as by the decree he was directed. In surplus money proceedings subsequently had, and in which plaintiff appeared hy attorney, an order was made that said surplus moneys be paid to James P. Pierce in satisfaction of the principal and interest due on said $52,000 mortgage. No appeal was taken from that order, and payment was subsequently made by the chamberlain in pursuance of it.

As the plaintiff was a party to the suit, and appeared in the surplus money proceedings, there was certainly nothing in the record to suggest that the plaintiff had any equity in the property.

It is urged that the fact that plaintiff was in possession of the property was sufficient to put defendant’s testator on inquiry touching plaintiff’s rights therein. (Seymour v. McKinstry, 106 N. Y. 230.)

True, but when a situation is presented which the law declares should put a person of ordinary prudence on inquiry, he is chargeable with constructive notice of everything to which that inquiry would reasonably have led, but nothing more. (Hanover Nat. Bank v. Am. Dock Co., 75 Hun, 55.)

Such inquiry would have disclosed that at the time when he was elected a trustee, plaintiff’s possession was that of a tenant of James P. Pierce. A little later, and on July 14,18T1, at a meeting of the board of trustees of the plaintiff, it was recommended that plaintiff secure the college premises owned by'Pierce for another year, and subsequently the premises were rented by plaintiff from Pierce from August 1, 1811, to June 1, 18T2, at a rental of $800 per month.

These facts appeared upon the minute book of the plaintiff and were sufficient to satisfy the inquiry which the law put upon defendant’s testator by reason of plaintiff’s possession. The position of defendant’s testator was quite different than it would have been had the suit to foreclose the mortgage been commenced and the subsequent proceedings had while he was a member of the board of 'trustees. He did not become a member until after the title to the property, through judicial proceedings, had become vested in one who was a stranger to him, and who had never been officially connected with the plaintiff — one whose title the plaintiff recognized by renting the property from him at a stipulated rent, the lease being in pursuance of resolutions passed by the board of trustees. In the presence of such facts and in the absence of other information tending to arouse suspicion, he was not bound to investigate in relation to the consideration of the several mortgages, which were the subject either of foreclosure, or of disposition in the surplus money proceedings.

Judgment should bo affirmed, with costs.

YaN BruNt, P. J., and Follett, J., concurred.

Judgment affirmed, with costs.


author: O’Brien, J.;

text:
    George W. Montgomery, Respondent, v. Vincent R. Schenck, Appellant.

      Indorser of a note — test of Ms liability to the payee —defense of payment by realizing on collateral.

    Where a note is made payable to the order of one person, and before it is delivered to the payee it is indorsed by a third person, such indorser is not to be considered liable as indorser to the payee, unless the note was given and the indorsement made for the specific purpose of the maker’s obtaining credit with the payee, and there was an agreement to that effect. The intention of the indorser and not that of the holder is the test of the liability of the indorser, which liability is to be determined by a consideration of the question as to whether the indorser intended to create a credit for the maker.
    In an action upon a promissory note, where the indorser thereof sets up the defense of payment, he has the right to prove such payment by showing that at the time the note was given there was an arrangement under which the maker was to furnish additional security in the shape of collateral; that this was subsequently done by the delivery to the payee of a certificate of deposit in an amount exceeding the amount of the note; that the payee of the note upon obtaining possession of the certificate surrendered the same, and obtained a certificate of deposit, representing such amount, in his own name.
    The indorser may also show such payment by proving the terms of an agreement between the holder and maker of the note, in pursuance of which the indorser claims that the reduction of the collateral by the former to his possession constituted a payment of the note.
    Appeal by the defendant, Yincent R. Schenck, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of May, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit.

      William G. Beecher, for the appellant.

      Fdwcvrd F. Brown,' for the respondent.
   O’Brien, J.;

No motion was made for a new trial, and consequently no appeal is taken from an order denying the same, and we are left to consider merely the exceptions. The action was brought to recover on two promissory notes, liability upon one of which was conceded, the controversy turning upon the question of defendant’s liability upon the other. This note was made by one Midgley to the order of the plaintiff and indorsed by defendant. The evidence showed that these notes were renewals of two former notes which were inddrsed in-the same way and delivered to the plaintiff as the outcome of an arrangement for an extension. The defendant’s contentions are, that there was no evidence to show that his indorsement was for the purpose of enabling the maker to obtain a credit of the payee, and that the maker had paid the note.

The plaintiff presented his testimony in a rather confused way, so that it is somewhat difficult upon the record to determine whether the arrangements made at the time of the giving of the notes related to the oi’iginal or these renewal notes, but giving, as the jury did, the most favorable inference to plaintiff’s testimony, this was met by the defendant’s to the effect that he indorsed the note in question because the plaintiff so wanted it, and because he wanted to handle it, and not for the purpose of giving credit to Mr. Midgley. -If true, this tended to show that the indorsement was to benefit Montgomery, and not to give credit to the maker.

In this condition of the record it was important that the law bearing upon the question should be clearly stated, and the court at the outset of its charge correctly stated the rule as laid down in Coulter v. Richmond (59 N. Y. 418), “that where a note is made payable to the order of one person, and before it is delivered to the payee it is indorsed by a third person, that that person is not to be considered as liable as indorser to the payee, unless the note was given for the specific purpose of obtaining credit with the payee and there was an agreement to that effect.” In the application, however, of this rule the court said that if plaintiff determined “ that he would not take a new note unless it was indorsed by Schenck, and that he consented to the renewal, and took the note under those circumstances, then he (Schenck) is liable as an indorser to the plaintiff.” This seemingly would make the intention of the holder the test of liability, instead of the intention of the indoi’ser; but the indorser’s liability is to be determined by a consideration of the question as to whether he intended to create a credit for the maker. ¥e think, also, that the court was inexact in its further charge, referring to the testimony of the defendant that the indorsement was to enable the plaintiff to u handle ” the paper, in saying: “ If you believe he meant by that expression that he could get the note more readily discounted upon the ground that this defendant had agreed to become the indorser to him (the payee), then I charge you you may render a verdict for the plaintiff.”

Apart, however, from this, we think that for another reason the judgment must be reversed. The defendant alleged payment by the maker of the note, and attempted to prove such payment by showing that at the time the note was given there was an arrangement about furnishing additional security in the shape of collateral, which was subsequently done by the delivery to the plaintiff of a certificate of membership in the Assurance Lloyds of America, and that there was to the credit of this certificate $5,000, the amount originally deposited by Midgley, together with $2,000 surplus, thus giving to plaintiff a certificate representing $7,000, which was indorsed to Mm and surrendered, and for which he received a new one in his own name, thereby constituting him a member entitled to all of Mr. Midgley’s rights in the Lloyds. As the note was for but $5,000, we think it was competent to prove the delivery to plaintiff of the certificate entitling him to the $5,000 deposited by Mr. Midgley, together with the profits upon the certificate, and which lie took-possession of by surrendering and obtaining a certificate in his own name. The court struck out all the testimony offered upon this point, and would not permit Mr. Midgley to testify to the agreement between himself and the plaintiff regarding the certificate, nor permit the certificate itself to be put in evidence; and thus all the proof offered by the defendant tending to support, his defense of payment was excluded. We think he should have been allowed to show, if he could, that the plaintiff had obtained payment on the note by reducing the collateral pursuant to his agreement with the maker.

Judgment accordingly' reversed, and a new trial ordered, with costs to the appellant to abide the event.

YaN BruNT, P. J., and Follett, J., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.


author: Pee CuRiAM:

text:
    Archibald W. Berks, Plaintiff, v. Horace L. Hotchkiss and Another, Defendants.

      Attorney and, client — when the General Term loill interfere between them.

    It is not the province of the General Term to interfere in quarrels between a client and his attorney, except where the latter has been guilty of such unprofessional and dishonest conduct as requires his disbarment or discipline in other ways.
    MotioN by the, plaintiff in person for an order requiring his attorney to carry out a stipulation.
   Pee CuRiAM:

"We do not think that this proceeding calls for any summary action on our part. It is true there are charges of duplicity and deception, but the real grievance which the client seems to have, results from the alleged neglect of his attorney to appeal in time, whereby such right was lost to his client. This, the client understood, gave him a right of action against the attorney, and he claims that it was in consideration of his agreement to defer such action that the stipulations set forth in the papers were made, under one of which it is claimed the attorney agreed to devise other legal actions and to move to vacate the judgment, and also to employ another lawyer in that connection, without cost to the client.

If the attorney has been guilty of a breach of the stipulation the ■client is remitted to his original position, and has his right of action .against his attorney for damages. It is not our province to interfere ;in quarrels between client and attorney, except where the latter has been guilty of such unprofessional and dishonest conduct as would require us to disbar or in other ways discipline him. Here, however, it would appear that the attorney, through neglect, failed to serve his notice of appeal in time, and thus lost such right to his client; and the most serious misrepresentations claimed to have been made by the attorney were subsequent to this event, and were made, as alleged, in endeavoring to explain such defaults, or were the cause of the attorney’s entering into stipulations which it is insisted he has not fulfilled, and which it was the purpose of this motion, among other things, to compel him to do. It is not very dear how wre could compel the attorney to proceed with the actions or proceedings with a view to remedying the omission to appeal in time, or how we could compel him to pay other lawyers, so that the plaintiff might have his rights restored at the cost and expense of the attorney. We think that the client should .be remitted to his action at law, when, if he proves the facts that are here alleged against the attorney, he can recover such damages as he is shown to have suffered by reason of such attorney’s neglect.

The application is accordingly denied.

Present — YaN Bbunt, P. J., O’BeieN and Follett, JJ.

Application denied.


author: Patterson, J.:

text:
    Henry A. Buck and Another, as Administrators, etc., of Elisha A. Buck, Respondents, v. William S. Alley, Respondent; Ferdinand T. Hopkins and Another, Appellants.

      Limited partnership — me of & Go. in the firm name — when special pan'tners are liable as general partners.

    The provisions oí section 18 of the Limited Partnership Act of New York, contained in the Kevised Statutes, as amended by section 1 of chapter 661 of the Laws of 1866, make the special partners of a limited partnership liable as general partners where the partnership uses as its firm name the name of its one general partner, with the addition “& Co.” to the name of such general partner, if such use is with the knowledge and consent, and in accordance with the intention of the special partners.

      Semble, that it is otherwise where there are or two or more general partners.
    Appeal by tbe defendants, Ferdinand T. Hopkins and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 26th day of June, 1894, upon the decision of the court rendered after a trial at the New York Circuit before the court without a jury.

      Austin Abbott and James MacGregor Smith, for the defendants, . appellants.

      Waldo W. Willard, for the plaintiffs, respondents.
    Present — Yan Brunt, P. J., O’Brien and Follett, JJ.
    Judgment affirmed on opinion of court below.
   The opinion of the Special Term was as follows:

Patterson, J.:

The cases in this State and in other jurisdictions in which interpretation has been given to section 13 of the Limited Partnership Act of New York, as it reads in the Revised Statutes, or to enactments similarly worded of other Statps, hold that the use of the words “ and Company ” or “ & Co.” in the firm name and style of a limited or special partnership, makes the special partners liable as general partners, if such use has been with their knowledge, consent and intent (Ward v. Newell, 42 Barb. 482; Bradbury v. Smith, 21 Maine, 117; Andrews v. Schott, 10 Penn. St. 47), thus giving-full enforcement to the liability declared by such enactments as a consequence of such use. It has also been held by the General Term of this court that the use of the words contrary to law would work the same result even if the statute were silent as to the imposition of a penalty. (Ward v. Newell, supra.) I do not understand the effect of these decisions to be disputed by the learned counsel for the defendants; but it is claimed that legislation contained in various amendments of section 13 has radically altered the rule of liability, whatever may theretofore have been the reason of the decisions made by the courts under provisions similar to those of the Revised Statutes. In 1862 (Chap. 476), 1864 (Chap. 43) and 1866 (Chap. 661, § 1) changes were made in the New York law respecting the firm name of this class of partnerships, and in the last of those acts it is provided that “the business of the partnership shall be conducted under a firm in which the names of the .general partners only shall be inserted, except that where there ane two or more general partners the firm name may consist of either one or more of such general partners, with or without the addition of the words “ and Company” or & Co.,” etc. This statute was in force when the limited partnership, in which the defendants Hopkins and Thomas were the special partners, and Alley the only general partner, was formed, the firm designation of which in the papers filed, and under which business was transacted,-.was “W. S. Alley & Co.” The privity and intent of the special partners in this use are established by their signing and filing the certificate containing the firm name. The subject before the court is the proper construction of section 13 as it now reads, and as applied to a limited partnership having but one general partner and using as its firm name that of the only general partner with the addition “ & Co.” to the name of that general partner.

I think the construction must be that the nominal special partners are liable as general partners. The change in the law was permissive only and restricted to special circumstances. It is true that from 1862 the complete interdiction of the use of the addition at all has been removed, but the limitation of the permission to use it, to the one prescribed and defined set of circumstances, seems to show an undoubted legislative intent to confine the use altogether to that one particular set of circumstances. This is not clinging too closely to the letter of the law, ignoring its spirit, but is rather recognizing the legislative purpose of adhering to what was theretofore inhibited in ioto, except as such adherence was specifically abandoned. This intent is clearly expressed in the very terms of the statute by the employment of specific words of restricted allowance. Judge Edmonds, in liis formulation of the rules for the interpretation of statutes, says the intention of a statute is not to be presumed, but is to gathered from its language, and, if that can be done, the policy of the enactment is not to be regarded. But, if we do consider the policy of the law upon the subject, it seems to justify the interpretation given. An act of 1833 (Chap. 281) provides that where in a firm designation the words “ and Company ” or & Co.” are used, they shall represent an actual partner or partners. That means a general partner or partners, for the use of the addition in special partnerships was then prohibited by the Bevised Statutes. So that when the change as to special partnerships was authorized, there was in force a specific statute regulating the use of the words referred to, and the authorized change in limited partnership designations must have been made in view of the other legislation which existed at that time and still exists. The general policy of the law was, therefore, to confine the use of the words to general partnerships, each member of which would be liable in that relation, the special exception being in the case provided for by the amended section 13 of the Limited Partnership Law. Such being the state of the law, the exception must be strictly construed. It is urged that there can be no good reason why the privilege of using the addition should be granted where there are two or more general partners, and denied where there is but one such partner, but there is a substantial reason why it should be so, and that is that the use of the addition, as authorized by law, would be conclusive evidence to those dealing with the concern that more than one person was liable as a general partner. But, even if the criticism were sound, it is not the only seemingly arbitrary part of the statute. Construction was given to the Pennsylvania statute on the same point in the same way in 1883 (Met. Nat. Bank v. Gruber, 11 W. N. C. 12), and it is said (Thatbe, J.): “ This act, therefore, removes the prohibition relative to the use of the words ‘ and Company ’ only in cases where there are more than two general partners (our act says two or more ’), and requires, as a condition, that the names of all the partners shall appear upon a sign” as ours does. Beference is made by the learned counsel for the defendants to an earlier case in Pennsylvania, decided in 1875 (Vilas Bank v. Bullock et al., 10 Phila. 309), as sustaining his view of the proper construction of section 13 of our statute. I cannot adopt all the reasoning of that case; it may be said, however, that the Pennsylvania supplementary act of February, 1868, differs from ours, in that it is there provided that the firm name of any limited partnership may consist of the name of my general jya/rim&r, with the addition, etc. That may indicate that in Pennsylvania the firm name • has ceased to be of much importance, but I cannot conclude that under our law the firm name has ceased to have any significance, or that the displayed sign with the' names of the general and special partners upon it, is to take the place of the firm style. Holding these views,. I am of the opinion that the plaintiffs are entitled to judgment.


author: Martin, J.:

text:
    Mary Ann Thuringer, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Personal injuries on a city street — questions of negligence properly submitted to the jury — action maintainable against a railroad corporation as well as the city.

    Upon the trial of an action brought to recover damages for personal injuries alleged to have been sustained by reason of the wrongful and negligent acts of the defendant, a railroad corporation, in permitting the water from its water column, used in supplying its engines, to escape and flow upon the sidewalk and to accumulate and freeze thereon so that it became icy, dangerous and an obstruction to the public travel, the evidence on the part of the plaintiff tended to show that the water, which dripped from such column while being shut off, ran upon or was carried by the wind on to the sidewalk of a street; that the drain which usually carried off the water was allowed to become blocked by ice and snow and the water allowed to continue to flow upon the sidewalk which became icy and dangerous, and that the plaintiff walking on such sidewalk slipped upon the ice which had accumulated thereon and received the inj nries complained of.
    The evidence of the defendant tended to show that the condition at the water column and of the sidewalk at the point where the accident occurred was not as testified to by the plaintiff’s witnesses.

      Held, that it was proper to submit to the jury the questions whether the defendant was negligent in permitting the water to flow upon the sidewalk and freeze so as to render it dangerous for persons passing over it, and also the question whether the plaintiff was guilty of contributory negligence;
    That the action, if negligence be proved, was maintainable against the railroad corporation, and that the city in which the accident happened was not alone liable for the damages occasioned by reason thereof.

      Appeal by tbe defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 8th day of February, 1894, upon the verdict of a jury rendered after a trial at the Oneida Circuit, and also from an order entered in said clerk’s office on the 5th day of February, 1894, denying the defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review on such appeal said order.

      G. D. Prescott, for the appellant.

      Timothy Owbm, for the respondent.
   Martin, J.:

This action was brought to recover damages alleged to have been sustained through the wrongful or negligent acts of the defendant, in permitting the water from its water column used in supplying its engines, to escape and flow upon the sidewalk and to accumulate and freeze thereon so that it became icy, dangerous and an obstruction to the public travel, by reason of which the plaintiff fell and was injured.

The evidence of the plaintiff tended to show that the water, which dripped from this column while being shut off, ran upon or was carried by the wind on to the sidewalk of James street in the city of Rome; that the drain which usually carried off the water was allowed to become blocked by ice and snow and the water allowed to continue to flow upon the sidewalk, which became icy and dangerous, and that on the 10th of January, 1892, the plaintiff, walking on such sidewalk, slipped upon the ice which had accumulated thereon, and received the injuries complained of. The evidence of the defendant tended to show that the condition at the water column and of the sidewalk at the point where the accident occurred was not as testified to by the plaintiff’s witnesses. Upon the whole evidence the court submitted to the jury the question whether the defendant was negligent in permitting the water to flow upon the sidewalk and freeze, so as to render it dangerous for persons passing over it, and also the question whether the plaintiff was guilty of contributory negligence. The jury found in favor of the plaintiff on both.

On a former appeal in this case, where the evidence was substantially like that now before us, it was held that the questions of the defendant’s negligence, and the plaintiff’s freedom from contributory negligence, were questions of fact. (71 Hun, 526.) "We think that decision should be followed, and that both of those questions were properly submitted to the jury. (McGoldrick v. N. Y. C. & H. R. R. R. Co., 49 N. Y. St. Repr. 566; affd., 142 N. Y. 640; Chisholm v. State, 141 id. 246.)

The defendant also claims that the city of Rome was alone liable, and that this action cannot be maintained against the defendant. The McGoldrick case (supra) arose at the same place under circumstances quite similar to those proved on the trial of the case at bar. On an appeal to this court in that case the question here presented was raised and decided adversely to the defendant. As that case was affirmed by the Court of Appeals, we think it is decisive of the question under consideration, and requires us to hold adversely to the defendant’s claim.

Under the evidence, the question whether the defendant fell upon the sidewalk, and whether the sidewalk was made icy and dangerous by water from the defendant’s water column, were clearly for the jury.

On the trial the defendant asked the court to charge as follows: “I ask your Honor to charge that if the ice upon which she fell is found by the jury to have been formed after two o’clock in the afternoon, that the plaintiff cannot recover.” The court replied : “Well, I decline to charge that, for some of your own witnesses swear to the accustomed formation of ice there to a certain extent.” To this the defendant excepted. We find in this ruling no error that would justify a reversal of the judgment.

As no other questions are raised by the appellant, we are of the opinion that the judgment should be affirmed.

Hardin, P. J., and Merwin, J., concurred.

Judgment and order affirmed, with costs.


author: Martin, <T.:

text:
    Alexander Myers, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Personal injuries — proof of freedom from, contributory negligence — boa/rding a moving train.

    Upon tlie Hal of an action brought to recover damages for personal injuries, the burden rests upon the plaintiff of showing that he was free from contributory negligence. If there is evidence given upon the Hal of such action, direct or inferential, of care or caution on the part of the person injured, the question of contributory negligence is for a jury; but if there is no such evidence, and it clearly appears that the injured person was negligent, and that such negligence caused or contributed to the injury of which he complains, it is the duty of the court to nonsuit the plaintiff, and it is error if it refuses to do so.
    A person who is injured while attempting to board a moving train propelled by steam, is presumptively guilty of contributory negligence.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 26th day of May, 1894, upon the verdict of a jury rendered after a trial at the Oswego Circuit, and also from an order made at the Oswego Special Term on the 2d day of April, 1894, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

      JD. G. Griffin, for -the appellant.

      JD. P. Morehouse, for the respondent.
   Martin, <T.:

The plaintiff was injured while attempting to board a moving train on the defendant’s road.. The train was in motion when he left the depot, which was about thirty feet from the track. He was then seventy-three years of age, and, as he testified, in full possession of his faculties, and could get on a car as well as he could twenty years before.

The testimony introduced by the defendant tended to show that the plaintiff often rode upon its trains, and had been previously accustomed to board them while in motion to an extent that induced its employees to admonish and remonstrate with him, and to charge him that he should not do so, as it was dangereus and he would sometime get hurt. This the plaintiff did not deny, but only said he did not remember; it might have been. On the morning of the accident, when he left the depot, he saw that the train was in motion. He immediately picked up a potato scoop that stood near, and started upon a run to overtake and board the train. He and one witness called by him testified that the conductor and brakeman who saw him coming called to him to hurry up, and that no effort was made to stop the train until he had reached it and taken hold of the rail, when the accident occurred. On the other hand, both the conductor and the brakeman testified that they did not call to the plaintiff to hurry up, but, on the contrary, that the conductor in effect called to him not to attempt to get upon the train as he was going to stop, and that the conductor had already given the signal to the engineer to stop the train. This testimony, so far as it tended to show that neither the conductor nor the brakeman called to the plaintiff to hurry up, but that the conductor called to him not to get upon the train and that he would stop, was corroborated by the evidence of at least five disinterested and credible witnesses who were present at the time, and who testified to that effect. It may be that the question whether the conductor said, “ Hurry up! ” or whether what he said was, Ho not try to get upon the train! ” was one of fact for the jury, yet, its finding in favor of the plaintiff upon that question was against the weight of the evidence.

The burden of showing that he was free from contributory negligence rested upon the plaintiff. While, when there is evidence, direct or inferential, of care or caution on the part of the person injured, the question of contributory negligence is for a jury, but where there is no such evidence, and the evidence shows clearly that the injured person was negligent, and that such negligence caused or contributed to the injury of which he complained, it is the duty of the court to nonsuit, and it is error to refuse. (Weston v. City of Troy, 139 N. Y. 281.)

The question whether it is negligence per se to board or alight from a moving train propelled by steam has been considerably discussed, and several times decided by the courts of this State. In Solomon v. Manhattan R. Co. (103 N. Y. 437) it was held that the boarding or alighting from a moving train is presumably and generally a negligent act per se, and that to rebut this presumption, and justify a recovery in case an injury results, it must appear that the passenger was by the act of the railroad company put to an election between alternate dangers, or some situation created which interfered, to some extent, with his free agency and was calculated to divert his attention from the danger. Andrews, J., after stating the law as above, added: Negligence no doubt is usually a question of fact of which the jury must inquire, but the inference of negligence in a given case may be so clear and convincing that the judge may direct a verdict. The conclusion that it is prima facie dangerous to alight from a moving train is founded on our general knowledge and common experience, and it is akin to the conclusion, now generally accepted, that it is in law a dangerous, and, therefore, a negligent act, unless explained and justified by special circumstances, to attempt to cross a railroad track without looking for approaching trains. In boarding a moving train there is generally less excuse than in alighting from one. The-party attempting it is not often under the same stress of circumstances as frequently happens in the former case. He may be compelled to wait for another train, but this is an inconvenience merely, which does not justify exposing himself to hazard.”

In Hunter v. C. & S. V. R. R. Co. (112 N. Y. 371), which was a case very similar to the case at bar, it was held that a man who was stoi juris, and in full possession of his faculties, with nothing to disturb his judgment, who attempted to board a train moving at the rate of from four to six miles an hour, was chargeable, as a matter of law, with negligence, and that the question in such a case is not made one of fact by proof that the man was directed by the conductor of the train, if he was going on the train, to jump on. In that case the judgment was reversed and a new trial ordered. The case was retried, and upon a subsequent appeal, where the evidence in the appeal book was substantially as upon the first appeal, except that the train was shown to have been going from one to two miles an hour instead of from four to six, the Court of Appeals again held that the plaintiffs intestate was guilty of negligence in getting upon the moving train ; that the submission to the jury of the question of contributory negligence was error, and the judgment was again reversed. (126 N. Y. 18.)

The case of Distler v. The Long Island Railroad Co. (78 Hun, 252) was also similar to tlie one at bar, and tbe doctrine of tlie foregoing cases was there re-asserted, and it was held that the fact that the conductor called to the plaintiff to get on the train when in motion was not sufficient 'to relieve him from the charge of contributory negligence, and that he was properly nonsuited. (See, also, Lewis v. D. & H. C. Co., 80 Hun, 192; Scully v. N. Y., L. E. & W. R. R. Co., Id. 197.)

Without examining the other cases, of which there are many, bearing upon this question, we are of the opinion that the plaintiff was guilty of contributory negligence, that the court erred in denying the defendant’s motion for a nonsuit, and that the judgment should be reversed.

Hardin, P. J., and Merwin, J., concurred.

Judgment and order reversed on the law and facts and a new trial granted, with costs to abide the event.