author: By the Court.—Van Vorst, J.

text:
    SAMUEL N. KINGSBURY and others, Plaintiffs and Respondents, v. CHRISTOPHER H. GARDEN, Defendant and Appellant.
    I. Malicious Prosecution.

    1. Probable cause.

      (a) Question of law. Upon a given state of facts, the question as to whether there was probable cause is one of law, to be decided by the court.
    1. Conflict of evidence as to the facts.

    Such conflict must be disposed of by the jury, and therefore the cause must go to the jury under proper instructions from the court as to their duty to find probable cause, or want of probable cause, according as they may determine the facts.

      (b) Probable cause, what not sufficient in itself to establish.

    1. Advice of counsel.
    Merely showing that counsel, after a full and fair statement to him of all the facts, advised the prosecution, without showing the further element that the party in good faith, acted on the advice, is insufficient of itself to show probable cause.
    2. Malice.

      (a) Question for the jury.
    1. Inference from want of probable cause.

    1. Cannot be inferred solely from want of probable cause.
    3. Determination of prosecution.

      (a) Discontinuance by consent.

    1. Semble. Not sufficient to support an action for malicious prosecution.
    II. Trial, conduct of.

    1. Submitting a case to the jury in two aspects, effect of. Where, under a complaint, a case may be submitted in several aspects, and is so submitted, a verdict for plaintiff will be set aside if there are errors against defendant in the ehcn'ge as to one of the aspects.

      Before Sedgwick and Van Vorst, JJ.

      Decided April 7, 1879.
    Appeal from a judgment and an order denying defendant’ s motion for a new trial on the judge’s minutes.
    The facts sufficiently appear in the opinion.

      Wm. W. Goodrich, attorney, and of counsel, for appellant, among other things, urged:
    I. The action, of which malicious prosecution is alleged, must have been determined in the plaintiffs favor. The naked fact of commencing actions and failing to appear and prosecute, is not sufficient evidence of want of probable cause, to sustain the action (Gorton v. De Angeles, 6 Wend. 418; Palmer v. Avery, 41 Barb. 290; affirmed, 41 N. Y. Index, 619). Where it appeared that the prosecution complained of was dropped in consequence of a settlement between the parties, held, that no action for a malicious prosecution would lie (McCormick v. Sisson, 7 Cow. 715).
    II. The plaintiffs failed to show a want of probable cause. 1. ’ This question is a mixed question of law and fact. When the facts are ascertained, it is a question of law, and it is the duty of the court to pronounce the law arising from the facts, and not leave it to the discretion of a jury. Still, when the question of probable cause is submitted to a jury, who find for the plaintiff, and .the testimony leaves the question of probable cause doubtful, there is good ground for reversal (Roberts v. Bayles, 1 Sandf. 49, note; McCormick v. Sisson, 7 Cow. 715; Hall v. Suydam, 6 Barb. 87). The defendants’ counsel requested the court to charge, that if the jury believed that the defendants fully stated to counsel all the facts, and counsel advised the attachment, no want of probable cause was shown, unless shown by other evidence, and that the plaintiff could not recover. The court refused thus to charge, and the defendants excepted. If a party lays the facts of his case fully and fairly before counsel, and acts in good faith upon the opinion given him by such counsel (however erroneous that opinion may be), it is sufficient evidence of a probable cause, and is a good defense to an action for a malicious prosecution (Hall v. Suydam, 6 Barb. 83; Stewart v. Sonneborn, United States Supreme Court, 19 Alb. L. J. 89; Ravenga v. Mackintosh, Barn. & Cres. 691; Laird v. Taylor, 66 Barb. 139). The question of probable cause does not turn on the actual guilt or innocence of the accused, but upon the belief of the prosecutor concerning such guilt or innocence (Hall v. Suydam, ante; Fostray v. Ferguson, 2 Den. 619; 2 Phil. Evidence, 253; Miller v. Milligan, 48 Barb. 30).
    III. The proof of malice is as essential as that of the want of probable cause, and this is a question of fact for the jury. The learned judge withdrew the question of malice by charging the jury that the plaintiff had established malice. The evidence as to malice was at least contradictory, and the withdrawal of this question from the .jury was manifest error (Vanderbilt v. Mathis, ante; Laird v. Taylor, 66 Barb. 139).
    IV. An examination of the complaint will show that the plaintiffs sued, first, for damages occasioned by a malicious prosecution in procuring the issuing of a warrant of attachment upon a debt which the plaintiffs claimed was not then due, and secondly, on a claim that the defendants unlawfully took from the possession of the plaintiffs a large quantity of goods (being, in fact, the same goods which were seized by the sheriff under the warrant of attachment), and converted them to their own use. These two causes of action cannot be united in one complaint. At the close of the plaintiffs’ case, and also again at the close of the defendants’ case, defendants’ counsel moved to dismiss the complaint, on the ground that the proof showed no conversion. The action of conversion will not lie when the goods are returned to the possession of the plaintiffs ; and the proof shows that the plaintiffs filed a petition in bankruptcy on February 5, 1877 ; that they after-wards made a composition with their creditors at thirty cents on the dollar; and also that the sheriff was discharged from the custody of the property on February 27, 1877. In other words, the property had been returned to the possession of the plaintiffs. Conversion' does not lie under such circumstances, and the court should have granted the motion to dismiss the second cause of action. The importance of this refusal will be evident from the fact that, under the charge of the court, the damages arising from malicious prosecution, and the damages for injury to the goods, are inextricably confused, so that the jury rendered their verdict for a round sum covering damages partly real and partly fanciful, partly growing out of the malicious prosecution and partly out of supposed damage to the goods.
    Y. It was claimed by the respondents at the trial that the appellants had ratified the term of credit expressed in the notes, by recovering a judgment thereon, and that this was conclusive against them upon their allegation that the respondents had been guilty of fraud, in obtaining a term of credit upon the note. The answer to this is three-fold : First. The fact of a subsequent suit on the notes does not affect the question of interest at the time when the appellants commenced their action. Many things might have occurred meanwhile to render it proper to sue on the notes ; the question is, what was the intent of the appellants at that time ?—was their prosecution malicious, or simply a prosecution commenced in good faith, under advice of counsel % Second. There is no evidence before the court that any such judgment was obtained. Third. If there be any such evidence, or if it be conceded that such judgment was obtained against Daniel H. Lawrence upon such notes, that judgment is an adjudication that the capital stock subscribed by the special partners was not fully paid in, and that thereby Daniel H. Lawrence had been made liable as a general partner ; the result of which adjudication is, that the partnership was based on perjury and was fraudulently formed, and this is res adjudicaba in the present litigation. Mr. Gardner was asked the question whether he would have sold goods to the respondents, if he had known the manner in which that capital was paid into the concern, the answer to the same being excluded under the objection and exception of the respondent’s counsel.

      B. T. Ludington, attorney, and Geo. W. Lord, of counsel, for respondent, urged:
    I. The cause of action for trespass in seizing the plaintiff’s goods, and the conversion thereof by the defendants, was fully sustained by the law and the evidence, (a) A party who seizes property under an attachment which is subsequently set aside and vacated by an order of the court, is a trespasser ab initio. This was decided by the general term of this court, and that decision was affirmed by the court of appeals (Wehle v. Butler, 12 Abb. Pr. N. S. 139; S. C., 61 N. Y. 245). The evidence upon the trial showed that one object of the defendants in procuring the attachment was to obtain documentary evidence upon which Mr. Lawrence, the special partner, could be made liable' as a general partner of Kingsbury, Abbott & Hulett. This fact alone would have justified the jury in rendering a verdict of $5,000, however slight the actual damage.
    II. The cause of action for an abuse of process of law was also fully sustained, (a) It is well settled, that a party who procures an attachment by concealing facts, which, if disclosed to the court, would have prevented his obtaining the attachment, is guilty of .an abuse of the process of the law (Moulton v. Beecher, 1 Abb. New Cas. 193; Cooper v. Lewis, 2 Phil. 178; Reported in Daily Law Peg., July 6, 1878). (&) If the defendants had disclosed to the court, in their affidavit on which the attachment was obtained, that the goods in question had been purchased on a credit of six months, and that the notes given in payment therefor had never been returned to the purchasers, it is clear that the attachments would never have been granted, because there was no debt then due. (c) The retention of the notes, and the subsequent recovery of judgments thereon, was a clear ratification of the sale on six months’ credit, and the procurement of an attachment before the term of credit had expired, without any allegation in the complaint or affidavit on which the attachment was obtained, of fraudulent representations or concealment, was a clear and manifest abuse of the process of the law. Especially so, when it was shown that the attachments were obtained partly to give the defendants an unjust preference over other creditors, and partly for the purpose of procuring evidence by which to charge Mr. Lawrence as a general partner, in an action which the defendants intended to bring against him upon the notes which had been given in payment of the goods, {d) The rule of damages in an action for an abuse of the process of the law, is the same as an action for a malicious trespass.
    TTT. The fact, that other attachments subsequently came into the hands of the sheriff, is no defense to this action. The defendants were the “ causa causaus ” of all the injuries which followed (Tiffany v. Lord, 65 N. Y. 310).
    IV. The fact, that other attachments subsequently came into the hands of the sheriff, did not even go in mitigation of the damages (Same Case), (a) The attachments in favor of the creditors whose debts were due, did not come into the hands of the sheriff until several hours after the illegal attachments had been served. It was the seizure under the first illegal attachments of the defendants which ruined the credit of the plaintiffs, and which brought down upon them the other creditors. (5) Besides, Gardner, one of the defendants, with full knowledge that plaintiff had made arrangements to procure additional capital, advised the other creditors to sue. He took their claims and placed them in the hands of the attorney of Gardner & Co., who had never acted as attorney for any of the creditors before, except Gardner & Co. So Gardner & Co. were virtually the actors and wrongdoers in all the proceedings. A party cannot cover up his wrongful act by procuring other creditors to act, after he has set the injury afoot by an illegal use of the process of the court (Cases before cited), (c) Besides, it was a matter of no consequence what was the amount of actual damage sustained by the levy of the defendants’ attachment, so long as the jury were authorized to find that the acts of the defendants were malicious.
    Y. In view of the foregoing points, it is hardly worth while to examine the evidence, to see whether it supported the.cause of action for a malicious prosecution, technically so-called, (a) If the cause of action for trespass and conversion, or for abuse of the process of the law was made out, then a new trial should be refused, whether the cause of action for a technical “malicious prosecution” was established or not. (&) But the evidence did sustain the latter cause of action. The attachment suits were ended, and the attachment was set aside before this action was commenced (Moulton v. Beecher, before cited).
    VI. The question of “probable cause” was one of law for the court, there being no ■ dispute about the facts. And the counsel for the defendants, in his motion to dismiss the complaint, rested his motion upon the ground that the question of probable cause was one of law, as to what must be shown to establish cause (Sheriff v. Loucks, 58 Barb. 426; 56 N. Y. 451).
    VII. The defendants, having retained the notes given in payment of the goods, had no probable cause for getting an attachment for a debt not then due, by the concealment of that material fact (Hammond v. Pennock, 61 N. Y. 145; Kennedy v. Thorp, 51 Id. 174).
    VIII. There being no dispute about the fact that the defendants had retained' the notes, and had also recovered judgment upon them, it followed, as a necessary consequence, that they had ratified, as a matter of law, the.contract of sale. Hence, all the evidence offered by the defendants on the trial, to show that the plaintiffs were insolvent at the time of the purchase of the goods, was properly excluded by the court. Knowledge of insolvency and concealment is not a fraud in law (Chaffer v. Fost, 2 Lans. 87; Nichols v. Pinmer, 18 N. Y. 295; 20 Id. 293). The fact that judgments had been recovered by the defendants on the identical note, was assumed throughout the trial.

         This should probably be taken with the following qualification: viz.: provided the conceded or undisputed or indisputable facts bearing on the case in the aspect as to which the errors were not committed, do not necessarily, as matter of law, call in that aspect for the verdict that was rendered.

   By the Court.—Van Vorst, J.

The learned judge before whom the action was tried, in the opening portion of his charge to the jury, stated that the action for malicious prosecution could not be maintained, unless there was some proof of malice. He afterwards stated that “ questions of malice and probable cause are questions of law for the decision of the court, and are not questions of fact for the jury, unless there is some conflict of evidence. .

The defendants’ counsel, among other requests, submitted to the court, asked the judge to charge “that if the jury believe that -the defendants fully stated to counsel all the facts, and counsel advised the attachment, there is no want of probable cause shown, unless it is shown by other evidence, and the plaintiffs cannot recover.” The court declined so to charge.

The defendants’ counsel also asked the court to decide “whether there was or was not, probable cause.” To which the court replied: • “I have decided that you had no probable cause.”

The counsel also asked the court to charge “that the plaintiffs have not shown malice on the part of the defendants.” The judge in answer said : “ I have disposed of that by saying that they have shown malice.” To each of these rulings the counsel for the defendant excepted, as he did to the portion of the charge in which it was stated “that malice is a question of law for the court.”

In an action for malicious prosecution, it is incum - bent on the plaintiff to prove that the prosecution, of which complaint is made, was instituted without probable cause, and maliciously (Fagnan v. Knox, 66 N. Y. 525). The question of probable cause .is composed of both law and fact. ‘ ‘ It being the province of the jury to determine whether the circumstances alleged are true or not, and of the court to determine whether they amount to probable cause” (Besson v. Southard, 10 N. Y. 239). And if there be a conflict in the evidence as to the facts which are claimed to constitute probable cause, the question should be passed upon by the jury, under instructions from the judge. If there is no dispute about the facts, it is the duty of the court to decide the question of probable cause (Masten v. Deyo, 2 Wend. 424).

I do not think that there was any substantial conflict in the evidence, with respect to whether the defendants had probable cause for their proceedings by action and attachment. And it was therefore .the duty of the judge to determine, as matter of law, whether such facts and circumstances constituted probable cause. Wo substantial error is discovered in the rulings and decisions of the judge upon that subject.

The request of the learned counsel for the defendant, 11 that if the jury believe that the defendants fully stated to counsel all the facts, and counsel advised the attachment, then there is no want of probable cause, unless,” &c., &c., to be effective, did not go far enough. For although a party lays the facts of his case fully and fairly before counsel, and acts upon the opinion given, that of itself is not proof of probable cause. It must also appear that he acted in good faith upon the opinion given. And the question of good faith is for the jury, and not for the court (Hall v. Suydam, 6 Barb. 83, 88). It is only when he acts in good faith, that the opinion of the counsel will shield him. And that must be affirmatively shown by the party, in the event that the advice proves erroneous.

The learned judge, however, fell into an error with respect to the subject of malice. In order to a recovery in actions of this nature, the plaintiff must establish that the prosecution complained of was conceived and conducted in malice. Malice must be combined with want of probable cause (Goodman v. Stroheim, 36 Super. Ct. [J. & S.] 216. “ The question of malice in this action is for the jury” (Besson v. Southard, supra; Vanderbilt v. Mathis, 5 Duer, 304). For, although there was no justifying probable cause, yet, upon the whole evidence, it is for the jury to determine whether the defendant was moved by malice.

The judge was in error, therefore, when he stated that malice was a question of law for the decision of the court, and when, in regard to the defendants’ request on that subject, he stated to the jury “ that he had disposed of that by saying that they have shown malice.”

Even though the jury may have considered the subject of malice and determined it, yet the rulings of the learned judge must, of necessity, have prejudiced the plaintiff’s case.

The plaintiff’s counsel, however, urges that one of his causes of action was for trespass, and wrongful conversion of the plaintiff’s property, to which the strict rules in relation to actions for malicious prosecution do not apply. But the action was tried as one for malicious prosecution. The defendants’ counsel sought, at the commencement of the trial, to compel an election by the plaintiff’s counsel between his causes of action for conversion and malicious prosecution. The application was denied, and the dase went to the jury under both aspects.

Other grounds of exception were urged by the defendants’ counsel on the argument of the appeal, but it is not necessary to formally consider or pass upon them, in view of the errors to which allusion is above made. The objection, however, that it does not appear that the prosecution complained of had been determined in the plaintiff’s favor, appears to be serious.

It would seem, that the action was discontinued, as the order recites, by “ consent.” It is doubtful whether such a termination, if that is all there is of it, is sufficient to justify an action for malicious prosecution. But we will not, as it is not necessary, pass absolutely upon that question.

Judgment and order reserved, and new trial granted, with costs to the appellants to abide the event.

Sedgwick, J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    PATRICK MAGINN, et al., Plaintiffs and Respondants, v. DANIEL H. LAWRENCE, et al., Defendants and Appellants.
    Before Van Vorst and Sedgwick, JJ.

      Decided April 7, 1879.
    Limited partnership ; failure of special partners to contribute THE CAPITAL, ON THEIR PART, AS SET FORTH IN THE PARTNERSHIP AGREEMENT, AND THE CERTIFICATE FILED IN PURSUANCE OF THE STATUTE.
    The capital furnished by special partners must be cash. Their uncertified checks upon a bank, in which, at the date of the checks, they have not money sufficient to meet and pay their checks, cannot be deemed cash, although, before the checks were presented, they had arranged or provided funds to pay the same, and they were paid.
    Any false statement in the certificate or affidavit filed, makes all the persons interested in said partnership liable, as general partners (1 R. S. 765, § 8; Madison Co. Bank v. Gould, 3 Hill, 309).
    It clearly appearing in this case that the affidavit of one of the general partners, filed with certificate, was false, in regard to the statement that each of the special partners had paid in $30,000 cash, the parties to the partnership were all held liable as general partners.
    Appeal from judgment entered in favor of respondent and others against Daniel H. Lawrence.
    The action, though in form brought upon a promissory note, was in fact an action to charge Daniel H. Lawrence as a general partner in the firm of Kings-bury, Abbott & Hulett.

      George W. Lord, for appellants.

      W. W. Goodrich, for respondents.
   By the Court.—Van Vorst, J.

The defendants in this action, who were members of a limited partnership, are sought to be held liable for its engagements, as general partners. Such liability is claimed to have arisen through a failure on the part of the defendants, Daniel H. Lawrence and John A. Kingsbury, the special partners, to comply with the provisions of the statutes in respect to their contribution of capital, in pursuance of the certificate signed by the parties, and on account of the falsity of the certificate and affidavit made, in relation to the contribution of capital by such special partners.

The statute provides “that if any false statement be made in such certificate, or affidavit, all the persons interested in such partnership shall be liable, for all the engagements thereof as general partners ” (1 R. S. 765, § 8; Madison County Bank v. Gould, 5 Hill, 309).

The partnership, which, according to the terms of the certificate filed, was to go into existence on January 2, 1874, was composed of the two persons above-named as special partners ; the other defendants were the general partners.

By the terms of the partnership agreement, the special pártners were each to contribute in cash $20,000, and the general partners together $10,000. The style of the firm was “ Kingsbury, Abbott & Hulett.”

The certificate states that each special partner “ contributes ” to the common stock $20,000 “in cash.” It is dated January 2. On the same day, an affidavit, required by the statute, was made by one of the general partners, in which it is stated that the sum specified in the certificate to have been contributed by each special partner had been “ actually and in good faith paid in cash.”

The principal question to be determined is, did the certificate or affidavit contain any false statements ?

On January 2, the special partners each delivered to the concern a check on a'bank for the sum of $20,000. On that day neither of the special partners had to his credit in the bank on which his check was drawn, $20,000. The defendant Lawrence had to his credit, on that day, in his bank, $11,440.56, and no more. But on January 3 he deposited in the bank, on which his check was drawn, $12,730.87. This sum was made up by a deposit of his own check on another bank for $5,000, and the check of Kingsbury, Abbott, Gay & Co., for $7,730.87. This last check had been delivered to him in part payment of a debt in his favor, against the firm of Kingsbury, Abbott, Gay & Co. In this connection it should be stated that the property and assets of Kingsbury, Abbott, Gay & Co., which firm was dissolved, had been purchased, and its debts assumed by the new firm of Kingsbury, Abbott & Hulett. These deposits made by Lawrence on January 3, made provision for his check drawn and delivered on thó day previous, for $20,000, and which was presented and paid on the fifth of the month.

With respect to the other special partner, John A. Kingsbury, on January 2, the date of his check, he had on deposit in the bank on which it was drawn, only the sum of $7,715.19. But on that day he borrowed of Kingsbury, Abbott, Gay & Co.," the old firm, but whose assets belonged to the new firm, the sum of $10,000, for which he gave his note, payable at a future day. For this loan of $10,000 he received a check, which on the following day he deposited in his bank. This check, together with the proceeds of a note, discounted for him by the bank, and passed to his credit, increased his deposit to $20,100.46, out of which his check for $20,000 was, when presented afterwards, paid.

It was in this manner that the special partners increased the amount standing to their respective credits in the banks on which their checks were drawn, and provided for their payments when they should be preserited.. And in this manner was their contribution of capital made.

From this statement, it would appear that the affidavit of the general partner, made on January 2, was not true. The special partners had not, when such affidavit was made, actually contributed in cash the sums specified in the certificate. They did not, in fact, on that day, have the cash on hand to contribute. It had yet to be provided, in part, at least.

■ The objection is not that the payments were made in checks. -But the checks were not drawn against moneys to the credit of the drawers at the time they were received as cash by the partnership. Checks, against existing deposits to meet them, might be regarded as cash, as they could be instantly presented, and the moneys received. But whether these checks would ever be made good depended upon the success of efforts to be put forth in the future to collect or borrow money. ■

Uncertified checks, received in this manner, at most represent the engagement of the drawers that they will be made good when presented, and are subject to contingencies, which might ■ defeat the best intentions of the drawers.

“ The certificate and affidavit speak of the day of their date. They are not promissory, but state what has been done. Unless, therefore, the capital had on that day been actually paid in cash, the statements cannot be said to be true ’ ’ (Durant v. Abendroth, 69 N. Y. 148, 152). “ No engagement or security, however good, can be substituted even temporarily” (lb.) “ Certainly the statute meant cash, which is money in hand, and not credits of the special partner, or other person, however available” (Van Ingen v. Whitman, 62 N. Y. 513, 520).

In no view was Kingsbury’s contribution (and Lawrence’s is also in this regard open to criticism) a compliance with the letter or spirit of the statute.

Ten thousand dollars of his contribution, he in. effect borrowed from the firm, to meet- his check.

The assets of the old firm belonged to the new. His loan depleted their assets to the extent of the sum he ■ borrowed, in place of which he substituted his promise to pay in the future. Lawrence v. Merrifield (42 Super. Ct. 36), gives no support to such a transaction. We are of opinion that the judgment appealed from should be affirmed with costs.

Sedgwick, J., concurred.


text:
    PETER W. GALLAUDET, Plaintiff and Respondent, v. WILLIAM G. STEINMETZ, Defendant and Appellant.
    Before Sedgwick and Van Vorst, JJ.

      Decided April 7, 1879.
    The decision of the judge made at trial term, upon the motion of a party for the postponement of the trial on account of the absence of a material witness, where an exception is taken, is a subject of review by the general term.
    The party aggrieved may, upon a case made, containing his exception, move at special term for a new trial, or he may present the exception for review by appeal from the judgment.
    In either case the affidavits used on the motion properly form a part of the case (Gregg v. Howe, 37 Super. Ct. 420).
    Appeal from order denying defendant’s motion for re-settlement of case.

      F. E. Dana, for appellant.

      W. W. Niles, for respondent.
   By the Court.—Van Vorst, J.

The practice in cases like that involved in this appeal, is settled, in this court. The decision made by the learned judge, upon the motion of the defendant’s counsel, before the impaneling of the jury, upon affidavits, for the postponement of the trial on the ground of the absence of a material witness, and to which decision an exception was taken, is the subject of review. The defendant may, upon a case containing his exceptions to the decision, move for a new trial at special term, or present the exceptions for review by appeal from the judgment. In either case the affidavits used on the motion probably form a part of the case (Gregg v. Howe, 37 Super. Ct. 420). The sufficiency of the affidavits cannot be determined on this appeal. ' The defendant’s case should be re-settled by incorporating therein the affi.davits used on the motion to postpone, and his exceptions. The order appealed from is reversed, with $10 costs, and disbursements.

Sedgwick, J., concurred.


text:
    DAVID H. De LEON, Plaintiff and Respondent, v. MANUEL ECHEVERRIA, et al., Defendants and Appellants.
    Before Sedgwick and Van Vorst, JJ.

      Decided April 7, 1879.
    Exceptions to the judge’s charge to the jury must be taken before the jury have rendered their verdict (Code, § 995).
    It is not within the power of the judge presiding at the trial to allow exceptions to his charge, which were not taken before the verdict.
    Appeal Horn an order denying a motion to re settle a case on appeal, by inserting therein certain matters stricken out on the original settlement.
   By the Court.—Van Vorst, J.

Exceptions to the judge’s charge to the jury must be taken before the jury have rendered their verdict. They must be reduced to writing at the time, or entered on the minutes (Code, § 995). As this is a matter of substance, to obviate errors in the trial, and in which the rights of the other side are materially concerned, it is not in the power of the judge to allow exceptions to the charge which have not been formally taken before the verdict. The affidavits show that the plaintiff s counsel knew of no such large liberty in respect to the taking of exceptions as is claimed by the defendant’s counsel to have been extended by the judge at the close of his charge; that he never consented to the extension of such liberty.

As the exceptions were not taken at the time and in the manner provided by the Code, they could not afterwards be allowed, and the judge properly excluded them from the case.

It would seem, from all the facts before us, that when the judge who presided at the trial gave the defendants’ counsel liberty to draw up his exceptions afterward, that the exceptions he had in mind were not the same as those intended by the defendants’ counsel. We do not see how the misapprehension existing can be now corrected. Exceptions not taken in season, although intended to be, cannot afterwards be allowed, in opposition to the requirements of the Code, and to the manifest injury of the other side.

We cannot interfere with the amendments made to the case by the judge, as he is to determine what transpires before ,him, and may correct and settle the case according to what he determines to be, from his memory, and the facts before him, the truth.

The order appealed from is affirmed.

Sedgwick, J., concurred.


text:
    LOUISA B. COOPER, et al., Plaintiffs, v. JAMES PLATT, REUBEN SMITH, et al., Defendants.
    Before Sedgwick and Van Vorst, JJ.

      Decided April 7, 1879.
    Estoppel, created by former 'judgment.
    By the judgment of the supreme court, in an action in which one Sarah Louisa Hudson was plaintiff, and Isabella Berrand and others were defendants, it was adjudged and decreed that one Mary J. Watson was at the time of her decease lawfully seized and possessed in fee of certain lands and premises described in the said judgment, and that said Isabella Berrand and one Robert Lotta were her heirs at law, and that said lands in question descended to them as such heirs, and it was further adjudged that said lands be sold, in pursuance of the statute, to pay the debts of said Mary J. Watson. Under an execution issued upon said judgment, the said lands were sold, and the title of the plaintiffs in this action was derived from said sale. Held, that this judgment, not having been appealed from, fixed and determined the rights and interests of Isabella Berrand in and to the lands described in the same. It was binding and conclusive upon Isabella Berrand, and all who claim through her (Hudson v. Smith, 39 Super. Ct. 452; Cooper v. Smith, 43 Id. 9).
    If Mrs. Berrand had any other claim to the land in question than that of heir at law, she should have set it up in that action. Her claim to the land, interposed in that action, is inconsistent with an independent and hostile claim or title to the land to herself personally, which is pleaded in this action; and it must be held that the judgment determined her true rights and interest to the land in question.
    Mrs. Berrand, and those who claim through or under her, are estopped by that judgment; as against those who claim title under or through it.
    Exceptions ordered to be heard at general term. Verdict for plaintiffs.

      Henry E. Talmadge, for appellants.

      John Townshend, for respondents.
   By the Court.—Van Vorst, J.

By the judgment of the supreme court, in the action in which Sarah Louisa Hudson was plaintiff, and Isabella Berrand and others were defendants, it was adjudged that Mary J. Watson, at the time of her decease, was seized and possessed in fee of the premises in question, and that Robert Lotta and Isabella Berrand were her heirs at law, and that the lands in question descended to them as such heirs, and was directed to be sold, in pursuance of the statute, to pay the debts of the intestate, Mary J. Watson.

Through a sale, made under this judgment, the title of the plaintiffs is directly derived. This judgment, which determined and fixed her right to the land in question, from which no appeal was taken, and which has never been questioned, was, as has been decided by two general terms of this court, on previous appeals, binding and conclusive upon Isabella Berrand and all who claim through her (Hudson v. Smith, 39 Super. Ct. 452; Cooper v. Smith, 43 Id. 9).

If Mrs. Berrand had in truth any such other claim to the land, as is now interposed by the defendant Platt, who took from her, in virtue of any moneys' paid by her to Yates, Porterfield and Wells, whether she paid such moneys for herself or her mother, she could and should have set up such claim in the action in the supreme court. The claim to the land interposed by her in that action, solely as the devisee of her mother, is inconsistent with an independent and hostile right in herself personally, through a payment made to or promise of Yates, Porterfield and Wells, as it is with the judgment, which must be held to determine her true right.

The silence of Mrs. Berrand at the time she should have spoken affords persuasive evidence that in making the payments to Yates, Porterfield and Wells, she had no idea that she succeeded to any rights in hostility to those in whom the right to redeem the land then"existed, or that any promise made by the mortgagees was for her personal advantage.

But Mrs. Berrand, and those who claim through or under her, are estopped by the judgment, as against the plaintiffs, who claim through it (Freeman on Judgments, § 249; Broom Legal Max. 681).

When the case was here, on the appeal from the result of the second trial, it was stated in the opinion of the court, with respect to the claim of the defendant Platt, that he was not estopped, for the reason that he claimed through a deed from Mrs. Berrand to him, dated September 7, 1868, while the action in favor of Sarah Louisa Hudson, in the supreme court, was not commenced until the year 1869. Neither Platt, nor Tates, Porterfield and Wells, were parties to the action in the supreme court.

The last trial, however, shows that a mistake occurred on the previous one, with respect to the time of the commencement of that action. It was begun in October, 1867. This was anterior to the time that Platt acquired any supposed right through Mrs. Berrand. As she was estopped, he is also, by the judgment.

But to remove any question, as to whether or not there is or was any outstanding right in Yates, Porter-field and Wells, after the payments were made to them of the moneys loaned to Mary J. Watson, or whether the same was by such payments extinguished, before the suit'in the supreme court was instituted, that question was submitted to the jury. The verdict of the jury, under the instructions of the judge, must be construed as establishing that the title of Yates, Porter-field and Wells was extinguished by the payments.

The defendants’ exceptions are overruled, and judgment is ordered tor the plaintiffs, on the verdict, with costs.

Sedgwick, J., concurred.


text:
    PHILIP A. MADAN, Plaintiff and Respondent, v. JEROME COVERT, et al., Defendants and Appellants.
    Before Sedgwick and Van Vorst, JJ.

      Decided April 7, 1879.
    Warehousemen.—Their duties and obligations.
    Must maintain that degree of care over the property intrusted to their care, that men of prudence would exercise under like circumstances in regard to their own property.
    Are not liable for a return, or for the value of the goods, where the same have been stolen from their possession, without negligence on their part.
    Theft of the goods may be proven by the proof of facts and circumstances that reasonably establish the conclusion that the goods were stolen.
    Where the theft of the goods has been established or proven, the burden of proof rests upon the owner of the goods, to establish that the loss or the theft was owing to the negligence or want of care of the warehousemen in respect to the same.
    Where the testimony as to the negligence of the warehousemen is conflicting, it is the province of the jury and not of the judge to determine, whether or not the loss or theft was occasioned by negligence or want of care on the part of the warehousemen.
    Appeal from an order denying the defendants’ motion to set asicle the verdict of the jury, and for a new-trial on the judge’s minutes, and also from the judgment entered in favor of the plaintiff.

      Van Winkle, Candler & Jay, attorneys, and Flamen B. Candler, of counsel, for appellants.

      S. C. Campbell, attorney, and of counsel, for respondent.
   By the Court.—Van Vorst, J.

This action was brought to recover the value of merchandise left by the plaintiff with the defendants, who are warehouse-men, on storage. ■

The plaintiff, in his complaint, alleges a demand, and that the defendants have neglected and refused to comply therewith, and that they have converted the merchandise to their own use, or have so disposed of the same as that it is wholly lost to the plaintiff.

The defendants in their answer alleges that their warehouse was feloniously entered, and the merchandise stolen and carried away by some unknown person or persons, without any fault or negligence on their part.

If the goods in question were in this manner stolen and carried away from' the defendants’ possession the plaintiff could not recover (Schmidt v. Blood, 9 Wend. 268; Platt v. Hibbard, 7 Cow. 497).

The learned counsel for the plaintiff contends there is no satisfactory evidence that the goods were stolen, and that the default in delivering, or accounting for the goods, renders his claim for their value complete.

The felonious act of taking the goods from the warehouse is indeed not directly proven. But it is so clearly established by circumstances and conditions, as to leave no reasonable doubt but that the offense was committed. On October 23, 1872, the merchandise was contained in cases standing on the second floor of the defendants’ warehouse, where they had been for some time previous.

On the evening of that day the warehouse, after being examined and searched in the accustomed manner, as to its safety, its windows and shutters being found secured, its doors were locked, and the premises were left for the night, from all that appeared in a condition of safety against burglary. On the morning of October 24 the cases were found opened, rifled of their contents. The sash of a window opening upon a narrow and dark alley-way, in the rear of the building, which was left closed the previous night, was found raised, the hook of an iron shutter which inclosed the window, was unfastened, although the iron bar which ran across it was substantially in its place. As there were no marks of violence on the outside of the shutter, and as the iron bar was neither broken nor wrenched, the presumption is that the window was raised and the shutter opened by some person within the building.

The night had been rainy. There were muddy tracks of foot-prints on the floor, near the cases, and leading to the window, and upon bags of nuts lying upon the floor, near the window, over which the felons must have passed during the removal of the goods, going out and in. These facts and conditions, with reasonable certainty, establish that the goods were stolen.

Crimes of this character, perpetrated during the night, have rarely any witnesses beyond those aiding the guilty perpetrators, and must needs be proved by facts and circumstances. And when these are found, which reasonably point and lead to the crime, its fact must be considered as established.

There is no evidence in the case to break the force of these facts and circumstances, or defeat the conclusion reached through them.

How entrance was obtained is not so clear. Upon examination of the buildings on the morning when the loss was first discovered, no means of access during the night was discovered besides the window; and the shutters exhibiting no signs of external force, the statement of one of the witnesses that a “sneak thief” must have gotten in during the previous day and concealed himself in the building, seems probable. -

The conclusion being reached that the evidence justifies a finding that the goods were stolen, the defendants would be exempt from liability, unless the loss was occasioned by their negligence and want of care.

• The manner in which the cause was tried seems to indicate that the parties attached no great importance as to the order of proof upon the subject of negligence, or as to upon whom the burden in the first instance rested. For the defendant’s counsel, when they took the case, not' only proved the felony by the facts and circumstances above related, but also went beyond that, and gave evidence tending to.show the safe and secure manner in which their warehouses were constructed and maintained. They gave evidence of the manner in which it was kept and guarded, of the num - ber of men employed, and their duties, of the manner in which access to the building could only be had, of the guard kept over entrances, and of the searching the building in the evening, and the securing of windows and doors. This evidence shows the care of the defendants, and tends to negative any presumption that the goods were lost through their negligence.

But afterwards, and when the • defendants closed their case, the plaintiff introduced evidence tending to show the absence of such care, diligence and watchfulness in the conduct of the defendants’ business, and over their warehouse, and the property committed to their care, as prudence required.

The burden of proving that the theft was owing to the defendants’ negligence' or want of care rested upon the plaintiff. Before he could recover, the jury must be satisfied that the loss was in that manner occasioned. Many reported cases have decided that the onus is upon the plaintiff to furnish such evidence.

The case of Claflin v. Meyer, in the court of appeals, not yet reported, but a manuscript opinion in which has been handed up with the papers, is exceedingly clear and emphatic on this subject, and is valuable as the latest expression of the court of appeals upon this interesting question.

Hand, J., who delivered the opinion of the court in that case, says, “ The plaintiff must in all cases, suing for the loss of goods, allege negligence, and prove negligence. This burden is never shifted from him. If he prove the demand upon the warehouseman, and his refusal to deliver, these facts, unexplained, are treated by the court as prima facie evidence of negligence ; but if either in the course of his proof or that of the defendant it appears that the goods have been lost by theft, the evidence must show that the loss arose from the negligence of the warehouseman.” And this negligence or want of care, as the learned judge above clearly stated, and as is afterwards reiterated by him, the plaintiff must show.

The charge of1 the learned judge, before whom the trial in the case under consideration was had, in the end, expresses this as his view of the law. For -he said to the jury, , “If you believe the defendants have answered the non-delivery, then the onus is thrown upon the plaintiff to show that the defendants have not taken this care, and it is incumbent upon him to point out in some particular how the defendants have not done so.”

Whether, therefore, the plaintiff had shown such negligence or the want of such care as prudent men take under similar circumstances and conditions, was under the evidence, submitted to and has been decided by the jury. The counsel for the defendants holding that no such evidence of negligence' or want of care on the defendant’s part had been adduced, asked the judge to direct a verdict for the defendants, which was refused, and an exception was taken.

There was a conflict in the evidence upon this subject, and the ruling of the judge was unquestionably correct. From the condition of the evidence the judge would not have been justified in taking the case from the jury, under the opinion of the general" term, which set aside the direction of the judge, on the previous trial. It cannot be said that there was not sufficient evidence on this subject for the consideration of the jury. Hand, J., in Claflin v. Meyer, supra, quotes with approval the language of Maule, J. (13 C. B. 916), as indicating the condition of a case which should not be submitted to a jury: “ When we say that there is no evidence to go to a jury, we do not mean literally none, but that there is none that ought reasonably to satisfy a jury that the fact sought to be proved is established.”

That, under the evidence, is not this case. It is quite true that the defendants had given evidence, at considerable length, with regard to the safe character of their warehouses, and as to the manner in which they were managed, as to the number of men employed,' and their duties. How the entrances were watched, and how the buildings were searched, the evening previous to the robbery, and as to, how the windows were examined and the entrances secured. And looking at the case as the defendants left it with their proof, one could see no reasonable ground of "complaint.

But there was evidence introduced by the plaintiff in the direction of showing that the number of men employed were not sufficient for the discharge of their duties, and for the maintenance of a proper watch and guard over the entrance of the defendants’ warehouses during the day. That at times the doors were unguarded, and facilities for entrance unobserved was afforded. That persons had entered on several occasions, without being seen, or seeing any person on guard at the entrances, and had gone up to the second floor before meeting an employee ; that a door in the rear of the building, opening on the narrow and unfrequented alleyway, was not, in fact, as defendants claimed, always kept locked or properly guarded. That it was on several occasions found unsecured, and that through it access could readily and without observation have been had by a thief, on the watch for an opportunity to enter, and conceal himself. That the search accustomed tobe made, and made the night of the robbery, was insufficient. The evidence also showed that no private night watch out • side the building was maintained, although it appeared that many merchants and warehousemen do keep such watchmen. I am not certain that the judge could say that, in law, none of these facts afforded any evidence of the want of that care in the management of the defendant’s business which ordinary prudence required, and which their relation to the persons who had stored their property with them for safe keeping, enjoined.

It was for the jury to determine, and not the judge, whether, under the evidence, the defendants exercised and maintained that care and diligence, with respect to their engagements and duties as warehousemen, as men of prudence would exercise, and whether the loss was occasioned by negligence or want of care (Schwerin v. McKie, 51 N. Y. 180).

Upon consideration of the defendants’ exceptions we find nothing upon which we would be justified in disturbing the verdict of the jury or the result reached.

As it was a case for the jury, it went to them under a charge from the court, so clear, express and considerate, that there was no room to doubt that unless negligence was shown, through which the loss occurred, the verdict would have been given for the defendants.

The charge of the learned judge amply guarded the defendants’ rights, and the jury’s attention was distinctly called, and firmly held, to the sole ground upon which a verdict for the plaintiff could rest.

The judgment and order is affirmed, with costs.

Sedgwick, J., concurred.


author: By the Court.—Speir, J.

text:
    ISIDOR ARNOLD, Plaintiff, v. RICHARD S. CLARK, Defendant.
    Before Van Vorst and Speir, JJ.

      Decided April 7, 1879.
    Landlord and tenant.
    An agreement to repair in no way contemplates, as damages for a breach of the same, such as might result from destruction to life, or injuries to the person or property, that might result from the omission to repair, as provided in the agreement.
    A landlord is not liable to his tenant as in tort, for his refusal or neglect to repair the premises as provided in his agreement to repair, &e.
    This case comes up on exceptions ordered to be heard, in the first instance, at general term, the court having at the trial dismissed the complaint.
    The action was brought against the defendant as landlord of a store in New York, an upper loft of which the plaintiff had hired for a year, the rent payable monthly from May, 1872, to recover damages for his having fallen upon the floor in December, 1872, several months after he had gone into possession.

      Hewett & Newell, attorneys for plaintiffs; William Wirt Hewett, of counsel.

      David Thurston, attorney for defendants; Stephen P. Nash, of counsel.
   By the Court.—Speir, J.

The representations alleged to be false were made by defendant’s agent with intent to deceive and defraud the plaintiff, and that the loft hired by him was tenantable and suitable for his business, and that no oil had ever been stored in it, and that it had been used only for light mechanical work. Before the plaintiff went into possession under the lease, he had access to the premises during April for alterations, and expended several hundred dollars in partitions and fitting up the premises. About the first of May the plaintiff received a consignment of tobacco, and one of his men called Hangan, in moving the cases, slipped on the floor, and the plaintiff complained to the defendant’s agent, who suggested that the floor should be scrubbed. After this was done, he showed the agent the floor, and threatened to go out on account of its condition. The agent told him he should hold him to his lease, but added, “ I will lay you a new floor, and you have to stay.” Thereupon plaintiff paid his monthly rent each month, upon the renewed promises of the agent to lay a new floor, but the floor was not laid. This continued up to November following, when the plaintiff refused to pay further rent.

The accident occurred in the next December. The plaintiff, in trying to pull a case of tobacco from the wall into the room nearer the light, with a truckman’s hook, slipped and struck his elbow, and his arm was permanently injured. Afterwards the plaintiff saw the defendant himself, and said to him “thatthis happened through the promise of his agent, promising me from time to time to laya new floor and didn’t do it. He said if he promised me a new floor he ought to lay it for me; he was authorized by him to do all necessary repairs, and had plenty of money to do it with.”

The testimony was wholly that of the plaintiff and his witnesses. There are no contradictions, and the proof is clear and ample to show that it was false. With the facts proven that the plaintiff made particular inquiry of the defendant’s agent of the oil having been stored in the loft, and the repeated promises to lay a new floor, and that the value of the premises for his business was greatly lessened by reason of the storage of oil, if not wholly unfit for the plaintiff’s business, it is difficult to believe that the agent did not intend to induce the plaintiff to believe the statement made to him, and that he did deceive the plaintiff until the tenancy was secured.

A motion was made to dismiss the complaint on two grounds. First, that the action was on contract, and there being no allegations in the complaint for any repairs it would be changing the cause of action to recover for personal injuries. Second, if the action is to be maintained as one of tort the plaintiff was guilty of contributory negligence.

The judge held that there could be no recovery on the part of the plaintiff if the cause of action set up in the complaint be held, to be one of negligence, and he therefore dismissed the complaint so far as a recovery was sought on this ground. The court gave the plaintiff the option to treat the action for a breach of contract to repair, and that in that case, as no actual damage properly recoverable for such a breach had been shown, to direct a verdict for nominal damages.

The plaintiff decided to consider his action ex delictu. According to his own testimony he had before him the experience of his servant Hangar when he threatened to cancel his lease and go-out. His own injury occurred after this by slipping on and using the same floor. After the actual experience of the dangerous condition of the floor this was contributory negligence on the part of the plaintiff.

Although the plaintiff relied upon the positive false representations of the defendant’s agent that the premises were tenantable and suitable for his business, and that no oil had been stored therein, which, if so stored rendered the occupation injurious to his business or even uncomfortable, he would probably on this account have been justified in abandoning them as untenantable. But he continued to occupy, complaining of their condition, and he must be deemed, to have remained there on reliance upon the defendant’s repeated promises to lay a new floor. When he discovered that these' representations were false and that he had been deceived as to their condition, he could claim the right to abandon the premises and rescind the lease. In such case he would be entitled to recover the value of the improvements, if any, by him made, his expenses in moving, and possibly damages for loss of business, if any had been sustained. It was also optional for him to remain and put the premises in the condition the representation or agreement entitled him to have them in.

But he could not remain, after full knowledge of the deception practiced upon him, and of the unfit condition of the premises for his use, and still claim the right to rely upon the false representation as an item of damages, when, by his own subsequent acts, he had deprived himself of any such right. If the floor was in a dangerous condition for use he could not take the risk of continuing its use, and look to the landlord to indemnify him for any loss he might sustain in using it. The plaintiff, therefore, had the same right of action, and no greater, than he would have had when he made the lease, if no misrepresentations had been made and he had gone into possession relying on an agreement to repair. If there be no agreement to repair, the landlord is not answerable for the condition of the building. In order to create an obligation on the part of the landlord, to repair, in whole or in part, .the premises demised, a positive stipulation, an express covenant or promise, is necessary to be proved. The duty which arises from the relation' between landlord and tenant, or which can be implied from the nature of their contract, creates no obligation to repair. Even where the building is let for a special purpose, or its occupation for any other purpose is in terms prohibited, there is no implied contract or warranty on the part of the landlord that the tenement shall be or continue fit for the purpose for which alone it is demised (Jaffe v. Harteau, 56 N. Y. 398; O’Brien v. Capwell, 59 Barb. 497).

As to the damages for neglect to repair, the true rule of damages recoverable are only what the repairs would have cost if made by the tenant, or the loss of the use of the premises during the period required for the purpose of making such repairs, or the difference in value of the use of the premises as they are and as the lessor agreed to put them in. If the repairs are not made the damages would be merely nominal (Darwin v. Potter, 5 Den. 306; Cook v. Soule, 56 N. Y. 420; Hexter v. Knox, 7 J. & S. 109; 63 N. Y. 561).

The plaintiff claims that, under the circumstances, the defendant is liable for the accident, for the natural and proximate consequence of the breach of the covenant which creates a duty, and that the neglect to perform that duty is a ground of actiomin tort.

The argument, as I understand it, is that the parties knew there was an element of danger if the floor should remain in that condition, and that each contemplated that when the contract was made to lay a new floor ; it was a special agreement; and that the injury sustained by the plaintiff was on account of the neglect of the defendant to lay the floor, and was proximate, not remote or consequential.

As before stated, unless there be an express agreement to repair, the landlord is not answerable for the condition of the building. Here there was no such agreement. The case rested upon the subsequent parol promise to lay the floor, after being notified of its defective condition. It is not founded on a new consideration, and can add nothing to the original obligation, and furnishes no ground for awarding additional damages.

Had there been an agreement of the landlord to repair, it could only have reference to the condition of the building or premises demised, for the purpose of the profitable use and the pecuniary benefit to be derived from the engagement, or loss from being deprived of their use in such state of repair as the agreement intended. The mere agreement to repair in no way contemplates any destruction of life, or injuries to the person or property of any one which might accidentally result from an omission to fulfill the agreement in every respect. The only case which holds a different doctrine is found in Johnson v. Dixon (1 Daily Reg. 178), which was overruled in the later case, in the same court, of Flynn v. Hattan (43 How. Pr. 333). I find no warrant in principle or authority for the proposition that a landlord, under a contract to keep the premises in repair, is for breach, is also further liable to his tenant as in tort for willful refusal or neglect to perform his obligation.

There must be judgment dismissing the complaint, with costs.

Van Vorst, J., concurred.


author: By the Court.—Sedgwick, J.

text:
    THE INDIA RUBBER COMPANY, Plaintiff and Respondent, v. THE RUBBER COMB AND JEWELRY COMPANY, et al., Defendants and Appellants.
    Fraudulent simulation of labels.—Injunction.
    In this case the following facts appeared:
    The labels used by defendants in their business were in undoubted imitation of those used by plaintiff, and the greater part of the details were so like the corresponding details of plaintiff’s labels, that it was plainly defendants’ intention to represent that the goods upon which the same were to be placed were made by plaintiff. Held, that the plaintiff was entitled to protection against this.
    The manner in which defendants printed their name upon the labels in question was likely to draw attention, from the difference between it and plaintiff’s name, and lead the ordinary reader to believe it to be plaintiff’s name. Held, that in such case the intent being evident, the plaintiff is responsible for the effect produced, though the name used was its proper cmpoi'ate name.

    As to that part of the judgment herein against the use of portions of the labels, the cowrt held: Whether a name can be a trademark or not, there is no doubt that a defendant may be enjoined from using a plaintiff’s name. It was contended that plaintiff’s name really expressed a kind of trade, and that, as the trade is open to all, there can be no exclusive right to words that intelligibly designate the same. But it appeared that there had been a purpose to use a name, in imitation of plaintiff’s, on a label, and the case made it proper to consider whether there was not danger of a use of it apart from the same. No closeness of reasoning, based on the fact that it has never been used by itself, is called for in a case which discloses a meditated general wrong. Nor is it material that the name is described in the pleadings and findings as a trademark.
    As to the use of the numbers “ 3,101 ” and “ 33,” the principles of Gillott v. Esterbrook (48 N. Y. 375) apply. In that-case and this, the numbers were selected arbitrarily, and were used to distinguish one pattern or character of goods from another, and the plaintiff is entitled to protection in his use of the same.

      Before Sedgwick and Van Vorst, JJ.

      Decided May 16, 1879.

      The court further held, as to the continuance of the injunction: Such an actual use, and danger or threat of further use, appeared, that the plaintiff, if otherwise entitled, would not be deprived of his remedy by injunction, though shortly before the service of summons, &c., the defendant had stopped Using the labels in question.
    So far as the right to an injunction is concerned, there is no need of proof that any one has been or is likely to be deceived by the simulated label. If a court cannot judge, from the resemblance, the effect likely to be produced, it certainly may infer, from a fraudulent intent in circumstances which would permit its consummation, that it is likely that the intent will be successful.
    This is an appeal from an interlocutory judgment entered upon the decision of the special term of this court, perpetually enjoining the defendants from using any and all of the plaintiff’s labels and trademarks set forth in the complaint, and ordering a reference to ascertain the amount of the plaintiff’s damages sustained thereby.
    The action was for an injunction against the defendants using plaintiff’s labels and trademarks, and for damages.

      Jacob & Koch, attorneys, and Yeaman & Curtis, of counsel, for appellants, urged:
    I. The words “ The India Rubber Comb Company,” the only trademark claimed or described in the complaint, are not and cannot become or be made a trademark (Browne on Tradem. §§ 138, 161, 162, 164, 350, and cases cited). The complaint has not been amended, to claim that anything else enters into the composition of the trademark (see also In re Simpson, 10 Off. Gaz. Pat). The numerals cannot of themselves be a trademark, such as 101, 2 and 32 (Browne on Tradem. §§ 225-233, 442. If the engraving or picture of plaintiff’s factory may be used as a trademark, so may the engraving or picture of the defendant’s factory, especially as they are so unlike as never to deceive or mislead. If the trademark claimed be valid, then the defendants have not used it. The plaintiffs use the words “ India” and “N. Y.,” the defendants do not. The defendants use the word “Jewelry,” which the plaintiffs do not. The defendants use the monogram, while the plaintiffs do not. The plaintiff uses the words (expressing a fraud and falsehood) “ Sole manufacturers of Goodyear’s India Rubber and Gutta Percha Combs,” which the defendants do not. The defendant company has the right to use its own corporate name, and has done so. The plaintiffs never had any trademark or property in the numerals 101, 2 and 32, as claimed. It was not the first or only one who used them, and if it ever acquired any such right, it has been abandoned to the public by acquiescence in their long use by other traders and manufacturers. Fifteen years’ public, open and notorious use by others, is an insurmountable obstacle to the present assertion of exclusive right.'
    II. If a liberal construction of the complaint would make it a cause of action for fraudulent simulation of labels as distinguished from trademarks, what some writers call unfair and immoral competition (a case not claimed in the complaint), then the plaintiff cannot recover, for the reasons above expressed, especially the differences pointed out under figure 4 of Point I., and also for the following reasons : 1. No intent to defraud has been shown, which must be done to entitle plaintiff to injunction. 2. No actual or successful fraud or deceit has been shown by a single instance of sale of defendants’ goods as and for plaintiff’s, nor of any one calling for or ordering plaintiff’s goods and getting defendants’ instead, which is necessary to entitle plaintiff to judgment for damages or for an accounting. 3. No attempt was made to show either such fraudulent intent, or such actual fraudulent sales. 4. It has not been shown, nor has any attempt been made to show, that any ordinary purchaser looking at either the goods or the labels would mistake the defendants’ for the plaintiff’s. 5. Neither the plaintiff nor the defendants retail goods. They both sell to jobbers, who supply retail dealers, who supply consumers. They each sell at wholesale, in large, paper-wrapped packages, as exhibited in court, the plaintiff putting on these large packages a green label with black letters, and the defendant a white label with blue letters. Nothing could be more distinctly and even glaringly different. If any witness had come into court and said he had been deceived or could be deceived by mistaking one of these labels for the other, the court would simply not have believed him.
    III. The case of Gillott v. Esterbrook (48 N. Y. 374), does not hold that numbers by themselves may be a trademark, but only that they can be used in connection with other things. The plaintiff’s trademark is described as “ The India Rubber Comb Co.,” without numbers. When this was offered for registration at Washington, and rejected, as stated by plaintiff’s counsel, the engraving of the factory was added, and it was then registered. The trademark and specifications as registered not claiming the right to the use of numbers 101, 3, 33, nor in any way alluding to them, is conclusive evidence that they had never been relied upon as a trademark, or, if so relied on, had been abandoned. The claim and sworn application state, “Our trademark” consists of the words “India Rubber Comb Company, arranged in connection with a representation of our factory at College Point, Long Island.” The document further states that this trademark may be accompanied by a border, but proceeds to allege that the essential features are the words “ India Rubber Comb Company, arranged in connection with a representation of the' India Rubber Comb Company’s factory at College Point, Long Island.” Thus the numbers 101, 2 and 32 are expressly excluded in two ways; by stating what may accompany the trademark, and by stating the essential features of the trademark. They further say “This trademark we have used in our business for three years last past.” The plaintiff cannot have two trademarks, nor dozens or hundreds of them, as it ivould have if each label with a' different number on it be a different trademark. In its complaint it describes one without number, sues the defendant on that description, and to sustain the cause of action puts in evidence a certificate of registration making no claim to numbers as a part of its trademark, and containing a specimen label wdth numbers not mentioned in the complaint or the evidence, to wit, 1 doz.,-No. 4 -7% inch. The plaintiff must abide by its own description and registration. It cannot register one thing and claim another.
    IY. There was an element, a finding of fact, in Gillott v. Esterbrook, that broadly distinguishes it from this case. The trial judge found, and the court of appeals expressly rely upon the finding, “that the said use by the defendants of said numerals 303, was with a knowledge by them of the rights of the plaintiff to the same, and wdth the intent to obtain for themselves the profits and advantages to which the plaintiff was exclusively entitled in the use of his said trademark, and to mislead the public, and to defraud the plaintiff in that respect.” In this case we have not the knowledge by defendants, of plaintiff’s rights, if it had any, and any such knowledge, as well as the right, is negatived by the long and general use by others. Neither have we the intent to obtain plaintiff’s profits ; nor the intent to mislead the public and defraud the plaintiff, all which are found in the case of Grillott; and none of which are proved in this case.
    Y. Particular attention is called to the case of Singer Manufacturing Co. v. Wilson (2 Ch. Div. App. 434), a late English case, which perhaps, more nearly than any other case, contains the whole law of trademarks and fraudulent imitations of labels. The case of Boardman v. Meriden Britannia Co. (Cox Tradem. Cas. 490), is not similar in its facts. The case, like Grillott’s IsTo. 303, holds that a number can only be a part of a trademark in connection with other things. When any mark, symbol or device is used merely to indicate the ■ name, quality, style, or size of an article, it cannot be protected as a trademark (see also Coddington's Digest of Tradem. 265).
    YI. Although, by the long-continued use of certain letters, figures, words, marks or symbols, which do not of themselves and were not designed to indicate the origin or ownership of the goods to which they are attached, but, only to designate the nature, kind, or quality of the different varieties of the article, and because so marked the goods have become known as those of the manufacturer who first used them, such fact cannot alter the original meaning of the words or symbols, or the intent with which they were first used as denoting the name of the thing or its general or relative quality, or take from others the right to employ them in the same sense (Candee v. Deere, 54 Ill. 439).
    YII. There is no case to be found in which a plaintiff has been allowed to sell the same goods under more than one trademark. The idea of identity, oneness, is necessary to and so embraced in the conception of a trademark, as applicable to a certain kind or line of goods, that divisibility or plurality at once destroys both the conception and the thing. The same trader or manufacturer may have one trademark for his woolen goods, another for his cotton goods, another for his silk goods, and another for his combs, if he makes so many articles. But he cannot have three trademarks for the same comb. In this case the plaintiff has declared on one trademark, its corporate name : “ The India Rubber Comb Companyit has put in evidence eight, all differing in some respects from each other, and has recovered on five, three being always annexed to one article.
    VIII. The motions to dismiss plaintiff’s complaint, arid again, at conclusion of plaintiff’s testimony, should have been granted. And even if there had been any grounds for retaining the complaint as to the defendant company, the motion to dismiss as to the individual defendants, Sonneborn, Dittenhoefer and Cohn, should have been granted. There was no evidence whatever upon which to base a judgment against them. It is proved, and no attempt made to contradict it, that they were not in the business, individually or personally. That they were officers of the defendant, the Rubber Comb and Jewelry Company, can in no way make them personally responsible. If they had been manufacturers, on their own account, they could not be joined.' It would be a case of alleged wrongs by different parties. Therefore the objection of improper joinder of parties should have been sustained, and all these three defendants should have had judgment for costs.

      Abbett & Fuller, attorneys, and Messrs. Fuller & Gilhooly, of counsel, for respondent, urged:
    I. The plaintiff’s name, “ The India Rubber Comb Company,” used on or in connection with its manufactures, is a valid trademark, of which the plaintiff is entitled to the exclusive use (Newby v. Oregon Central Rw. Co., 1 Deady, 609). In the matter of the India Rubber Comb Company (Off. Gaz. Pat., November 30, 1875), the opinion of the commissioner contains a citation and discussion of the cases on this point, and he holds that said words constitute a valid trademark (see, also, Colman v. Crump, 70 N. Y. 578). This particular trademark, to wit: the words “The India Rubber Comb Company,” has been 'sustained by the superior court in the case of India Rubber Co. v. Meyer.
    II. The plaintiff is entitled to the exclusive use of the numbers “101” and “32,” as applied to combs, and the number “2,” as applied to hair-pins (see Gillott v. Esterbrook, 48 N. Y. 374, 377).
    III. The plaintiff is entitled to the exclusive use of the cut or representation of a building, as shown in the exhibits annexed to the complaint, in connection with combs, and any simulation of such cut should be enjoined. Such a device is a good trademark (Smith v. Reynolds, 10 Blatchf. 100; Kinney v. Basch [unreported]; Coddington Dig. Tradem. 85; Faber v. Hovey, Id. 242; Colman v. Crump, 70 N. Y. 573).
    IV. The defendants are joint tort feasors, and as such may be sued jointly. The defendant, Dittenhoeffer, is the president of the Rubber Comb and Jewelry Company; the defendant, Sonneborn, is secretary and treasurer; and the defendant, Cohn, is a salesman and corporator (see Goodyear v. Phelps, 3 Blatchf. 91; Poppenhusen v. Falke, 4 Id. 493).
    V. “ Where the imitation of plaintiff’s trademark is close, and the manner in which defendants’ articles are put up nearly resembles the plaintiff’s, the law must presume it to have been resorted to for the purpose of inducing the public to believe the article is that of the plaintiff, whose trademark is imitated, and for the purpose of supplanting him in the good-will of his business (Curtis v. Bryan, 2 Daly, 312; Taylor v. Carpenter, 11 Paige, 292; Brahan v. Bustard, 9 Law Times, N. S. 199; S. C., 2 New R. 572; Amoskeag Manuf’g Co. v. Spear, 2 Sandf. 599-608; Edelsten v. Edelsten, 9 Jur. N. S. 479; Colman v. Crump, 70 N. Y. 573) And in order to entitle plaintiff to relief, it is not necessary that the imitation should be so close as to deceive persons seeing the two. trademarks side by side (Seixo v. Provezende, Law R., 1 Ch. 192). In a recent case in the house of lords (Worthersspoon v. Currie, 42 Law J. R. N. S. Ch. 130), Lord Chelmsford lays down the rule, that, to establish a case of infringement, it is sufficient if the resemblance is such as to be likely to make unwary purchasers suppose they are purchasing plaintiff’s articles. See, also, in the case of Blackwell v. Armistead (5 Amer. Law Times, 85), decided in 1872.
    VI. In the case of Gillott v. Esterbrook (48 N. Y. 374), the court of appeals held that the use and advertisement of a trademark by others for a period of fifteen years, where plaintiff had no knowledge of such practice, or acquiesced in the same, did not preclude the owner from enforcing his sole right. And in a suit to enjoin defendants from selling “ Charter Oak” stoves bearing a certain trademark, the fact that parties in other localities manufactured “Charter Oak” stoves, and sent them into the market to compete with plaintiff’s manufactures, in no way aids the defense, unless it appears that the plaintiff assented to or acquiesced in such infringement of his rights (Supreme Ct. of Mo., Filley v. Fassett, 44 Mo. 168). So, in the case of Kinahan v. Bolton (15 Irish Ch. 75), the lord chancellor held that in order to prove acquiescence by a firm in the piratical use of their trademark, knowledge of such use must be proved, and that is not accomplished by the proof of publication of advertisements, which could have been an invasion of the rights of the firm if those advertisements have been issued, not steadily or uniformly,- but interchangeably with other ¡advertisements in some respects similar, but not infringing the rights of the firm.

      VII. In the case of Dale v. Smithson (12 Abb. Pr. 237), the general term of the common pleas expressly hold that the plaintiff is entitled to protection in the exclusive use of his trademark, although it contains a fictitious name as the name of the manufacturers of the article, provided it does not misrepresent the quality and substance of the manufactured article, and it is not used with fraudulent intent. In the case of Curtis v. Bryan (36 How. Pr. 33) the general term of the common pleas held that false and exaggerated statements in advertisements of the manufactured article, not contained in the label sued on, do not deprive the owner of his right to protection in his exclusive use of his trademark.
    VIII. The main inquiry in such cases is,- are the ultimate customers deceived ? (Coats v. Holbrook, 2 Sandf. Ch. 586; 3 Barn. & Cress. 541; 5 Dowl. & R. 292).
    IX. A reference was properly ordered to ascertain the amount of damages sustained by the plaintiff (Blackwell v. Armistead, 5 Amer. Law Times, 85, decided in 1872; Taylor v. Carpenter, Cox Amer. Tradem. Cases, 32; Blofield v. Payne, 4 Barn. & A. 410; 3 Mylne & Cr. 338; Bailey v. Taylor, 1 Russ. & M. 73; Whittington v. Wooler, 2 Swanst. 428). See also a decision of the general term, supreme court, first department, Dec. 30, 1875, in the case of Faber v. Hovey [unreported]; Coddington Dig. Tradem. 242).
    X. The well-known case of Boardman v. Meriden Britannia Co. (35 Conn. 402, and Cox Amer. Tradem. Cas. 490) resembles in almost every particular the one at bar.
   By the Court.—Sedgwick, J.

The answer of the defendant corporation admits that it is, and since its organization, has been, engaged in the sale of combs and hairpins, “ and that it has affixed thereto labels similar to those shown in plaintiff’s Exhibit A 1, and. used Exhibits Bl, 0 1 and D 1, for only a short time, and but few of them; but denies that the same were fraudulent imitations of plaintiff’s labels.” This answer was sworn to December 14, 1877. The corporation defendant was- incorporated January 16, 1877. The testimony bearing on the time through which the defendant used the labels, and the admissions of the answer, sufficiently showed such an actual use, and danger or threat of further use., that the plaintiff, if otherwise entitled, would not be deprived of his remedy by injunction, even if the court were satisfied that shortly before the service of summons the defendant had stopped using them.

The labels, Exhibits C1 and D 1, seem to have been those not used by the defendant corporation. The defendant Sonneborn, in his answer, alleges that these - labels were devised and used before, but not after, the incorporation of defendant. His evidence did not clearly show that these labels had not been used after the incorporation, and on the whole case it appeared that the admission of the answer of the defendant corporation was correct. These labels were in undoubted and designed imitation of plaintiff’s labels, Exhibits C and D. The defendants used as their name, which it was not, the words, “ The India Rubber Comb and Jewelry Co.,” and the greatest part of the other details were so nearly like the corresponding details of plaintiffs’ labels that there could be no doubt that defendant’s intention was to represent by their labels that the goods on which they were to be in some fashion placed were goods made by the plaintiff, and in the nature of things it was likely that the intention would be successfully carried out.

With these facts in their minds the defendants proceeded to devise or use for combs the labels, Exhibit A 1, and Exhibit B 1, and made as much of an imitation as the first, excepting the word “India” is left out. The ' right to use their name, as changed into “ The Rubber Comb and Jewelry Co.,” is maintained, on the ground that the defendant, having been incorporated by the latter name, there was a clear legal right to use it upon their goods. Without adverting to an important consideration that they, under the statutes of this State, took and composed that name according to their pleasure, with perhaps a view to the future, which may lead to different rights to those that refer to a name involuntarily bestowed upon a natural person, it is certain that there is some limitation of the usé of a lawful name. If. a right name is used intentionally in a manner that draws attention from a difference between it and another name, so that the effect produced is that of the other name, there is a responsibility for the effect. It is, as to the effect, not the use of the right name. In the present case the way in which the defendants printed their name: The Rubber Comb and Jewelry Co.,” viz., upon pieces of paper like those used by the plaintiff, in ink of a like color, and at the top of several colorable imitations of a picture of factory, of description of goods, and of the words, “ warranted not to warp or split, and can be cleaned in warm water,” was likely to draw the attention from the difference of name, and to lead the ordinary reader not to perceive it, but to think that it was plaintiff’s name. The labels themselves, and the testimony in the case, keeping in mind that the labels were made shortly after what was beyond doubt an intentional imitation, prove that the use of defendant’s name on the later ones was intended to produce an impression that it was the plaintiff’s name. A little fact is very significant to show that the defendants had in mind the character of plaintiff’s labels when they made theirs. On plaintiff’s labels was ‘ ‘ warranted not to warp or split, and can be cleaned in warm water.” The defendants, on their first labels, copied this in its very words. On their later, they placed, ‘1 warranted not to warp or split, and can be cleaned in hot water,” It would seem as if the change of'“warm” to “hot” was a preparation of evidence.

In such case it is so easy to give a distinguishing mark that shall have no doubt about it, that it can almost be said that merely the failure to do it shows an actual purpose not to do it. The sum of this part of’ the case is, that the plaintiff proved that the labels of defendant, when placed upon goods, were a representation that the goods were the manufacture of plaintiff. The law gives protection against this. .

Here may be noticed the allegation that plaintiffs had abandoned any exclusive right they may have had by acquiescing in the use of this kind of labels by others, for years. The facts did not sustain the allegation. If there were proof (which was not clear) that there was such a use by others, there was no proof of acquiescence by plaintiffs in it.

As to the sale of goods by the plaintiffs, under the name of the United States Company, the defendants’ requests to the court do not claim that the labels or marks in question were used. I cannot ascertain from the evidence that the defendants attempted to prove it.

Another allegation is that the label of plaintiff should not be protected, because it had on its face the words “Sole manufacturers of Goodyear’s India Rubber and Gutta Percha Combs,” and that this was false and fraudulent to purchasers. Whether it was or was not false was a question of fact. The court could not take judicial cognizance of what Goodyear’s India Rubber and Gutta Percha Combs were. It was possible that a party should be the only manufacturer of such combs, and that, at least a claim to be so was not fraudulent. .• The burden was upon defendant to show the falsity and fraudulent intent, but no testimony as to them was given.

It is also claimed that there was no proof that any one in the market had been, or, by an expert, that any one was likely to be deceived into the belief that goods having defendants’ labels were made by plaintiff. So far as a right to a preventive remedy by injunction is concerned, I do not think that such proof was necessary.

If a court could not judge from a resemblance that it was likely to produce the effect that the original or true one would produce, and which, 1 think, it can, certainly it may infer from a fraudulent intent of a person in circumstances which would permit the consummation of it, that it is likely that the intent will be successful, and others will be deceived.

For these reasons, the judgment against the use of the labels must be sustained, and I proceed to that part against the use of portions' of it.

Whether a name can be a trademark, technically, is doubted by the learned counsel; but I do not understand them to doubt that a defendant may be enjoined from using the plaintiff’s name. The position was not taken, if it be sound ; and as to this, impression is given that what the words of plaintiff’s name really expressed is a kind of trade, and that, as the trade is open to all, the plaintiff can have no exclusive right to words that intelligibly designate the trade. On the facts, I think it was shown that there had been a purpose to use a name in imitation of plaintiff's on a label, and the case made it proper to consider whether there ivas not danger of a use of it apart from the labels. Ho closeness of reasoning, based on the fact that it has never been used by itself, is called for in a case which discloses a meditated general wrong. It does not seem to be material that the name is said, in the pleadings and findings, to be a trademark. The material thing is stopping its use by defendants.

As to the use of the numbers, “2,” “101,” and 1 ‘ 32, ’ ’ I am not able to see that the principles of Gillott v. Esterbrook (48 N. Y. 375), should not be applied. In that case and in this, the numbers were used to distinguish one pattern or character of goods from other patterns. In this case, the defendant’s labels prove that the numbers were useful in the market to designate these patterns. The numbers were selected arbitrarily, and of themselves expressed no size or quality. The findings as to defendants’ knowledge of the plaintiff’s use of the numbers to designate their goods, and of the fraudulent intent as to plaintiffs and third. persons, were substantially the same in the ■ two cases. It was not shown in this case that the plaintiffs had acquiesced in the use of these numbers by others. I am of opinion, however, that the terms of the judgment were too broad in restraining the defendants from using in any way the cut or representation of a factory, on their goods. The plaintiff had never used that as a trademark by itself, in the same sense that the numbers were used. The defendants are still at liberty to use a picture of a factory in a proper manner. The judgment should have been confined to the use of an imitation, colorable or other, of the picture of. a factory, used by plaintiffs. This is, however, hardly more than a matter of form, which could have been corrected upon suggestion, on the settlement of the judgment. The judgment should be modified by striking out the absolute prohibition of the use of a picture of a factory, and confining the imitation to a picture like that used by the plaintiffs.

The case disclosed individual acts by the defendants other than corporation, jointly with the corporation, and there was a joint liability to the plaintiff.

The judgment, after being modified in the manner that has been stated, is affirmed, with costs.

Van Vorst, J., concurred.


text:
    MARY A. RYAN, Plaintiff and Appellant, v. PETER M. WILSON, Defendant and Respondent.
    Before Sedgwick and Van Vorst, JJ.

      Decided May 16, 1879.
    Negligence.—Landlobd and tenant.
    In this'case, the plaintiff, in the course of her employment, was injured by a revolving upright shaft upon defendant’s premises, in a portion of the same not under his control, but leased, with the steam power which drove said shaft, to a tenant, at a specified rent, by which said tenant the plaintiff was at the time employed. For the damages resulting from said injuries the plaintiff sought to charge defendant, upon the ground that he did “ negligently and wrongfully leave said revolving shaft uncovered, uninclosed, and unprotected.”

      Held, that the shaft in question was not dangerous in itself or in its working; the opportunity for damage would arise only in case a person should come in contact with, and be caught by it (Loop v. Litchfield, 42 N. Y. 358).
    The defendant took no part, actually or by legal construction, in the tenant’s omission to guard the shaft, he having parted with the possession and control of the floor upon which the accident occurred, without stipulating for a continuance of the conditions which would render the occurrence of the accident possible or probable; nor was it negligence on his part to leave the placing of the guard to the tenant, a person as competent to attend to it as himself, and whose interest and duty would impel him to do it.
    Appeal from judgment that plaintiff’s complaint be dismissed.
    The action was for damages from defendant’s negligence. The complaint alleged that defendant was the owner of a certain building ; that the fourth floor of the building was occupied as a laundry by one George Little, as tenant of defendant; that the defendant was in possession of the other parts of the building ; that the said building was “negligently provided by said defendant with steam power, inasmuch as a certain revolving shaft, which was incidental to the supply of the said steam power in said building, ran through all the floors thereof, and extended through the fourth floor as aforesaid; that the defendant, well knowing the premises, and while the owner and occupant of said building as aforesaid, did, on the first day of December, 1875, negligently and wrongfully leave said revolving shaft uncovered, uninclosed, and .unprotected, of which the defendant had due notice, whereby the plaintiff, who was then lawfully in said building, being in the employ of said George Little, on said fourth floor, and in the pursuit of her occupation in said employment, then and there necessarily and carefully passing along said fourth story, was caught up, entangled and drawn round by said revolving shaft, whereby she was maimed, bruised, wounded, and received great bodily damage.”
    On the trial the judge stopped the giving of evidence, when, by the plaintiff’s case, it appeared that the fourth floor, on which the accident occurred, was in possession of the tenant of defendant, as stated in the complaint, and held that the defendant was not liable for the consequences of leaving the upright shaft uninclosed.

      Tremaine & Tyler, for appellant.

      Ira D. Warren, for respondent.
   By the Court.—Sedgwick, J.

The revolving upright shaft was not dangerous in itself or in its working. (Loop v. Litchfield, 42 N. Y. 358). The opportunity for damage would arise only if a person should come in contact with it, and be caught by it. And the complaint states the negligence, which caused the damage, to have been that the defendant did ‘ ‘ negligently and wrongfully leave said revolving shaft uncovered, uninclosed and unprotected.” Such being the omission and the cause of action, was the defendant responsible for it %

At the time of the accident the defendant had not any control of the floor on which must be placed any fence or guard about the shaft. He received rent for the premises, and for the power which moved the shaft, and at the time was furnishing that power. For so much he was responsible. As has been said, this was not dangerous in itself. His leasing and receiving rent did not involve a request by him, or a claim or an affirmance, that his tenant should not guard the shaft. The tenant had the right and actual power to guard it. The landlord, after parting with the possession and control of the premises, did not stipulate for or agree to continue or affirm that condition of things which constituted the alleged negligence. It is not the case of a landlord receiving rent for a thing which is a nuisance, e. g., a wall obstructing an ancient light, and which the tenant’s obligation prevents his taking down; nor the case of a defendant, who, in his conveyance of land, covenants that the grantee shall have the enjoyment of a right to set back water on another’s land. In both these cases there is an actual complicity in the wrong. In the present case, the landlord has not, by his lease, or by any act, claimed that the tenant should omit to make sufficient- guard, or promised to maintain the tenant’s omission. The tenant’s power is the same in this regard as if there had been an absolute conveyance of the property without covenants. It cannot be justly said that he took any part, actually or by legal construction, in the tenant’s omission to guard the shaft, he having parted with possession and control of the premises.

Ñor do I think that the defendant was negligent in renting and parting with the floor, without having placed a fence around the shaft. The negligence, if any, would consist in not supposing or not entertaining the notion that the tenant might not, or would not, sufficiently protect his servants. The fence would be a slight and inexpensive matter, and should properly be devised to meet the exigencies of the defendant’s business. His arrangements might dispense safely with the guard. - It was not negligence to leave the placing of the guard to a person as competent as the landlord to do it, and whose interest and duty would impel him to do it. The judgment should be affirmed, with costs.

Van Vorst, J., concurred.


text:
    JAMES COSTELLO, Plaintiff and Respondent, v. THOMAS LAWLESS, et al., Defendants and Appellants.
    Evidence.—Trial.
    The defendants, on the trial, propose to read, and did offer in evidence certain parts of answers made by a witness (examined under commission for plaintiff), to cross-interrogatories put by defendants; the parts offered being the answers, “so far as the same were responsive to such interrogatories.” Thereupon defendant moved to strike from the answers other parts, as immaterial, irrelevant, and not responsive to the interrogatories; which motion was denied.

      Reld, that upon the record the conclusion is, that the referee denied a motion to strike out of the deposition certain things which had not been put in evidence or proposed as such, which was not an error for which the judgment can be reversed.
    Before Sedgwick and Van Vorst, JJ.

      Decided May 16, 1879.
    Appeal from judgment for plaintiff, entered upon report of referee.

      William Stone, for appellants.

      Sidney S. Harris, for respondent.
   By the Court.—Sedgwick, J.

The exceptions, taken for the defendants, in the action below, relate to objections made upon, the trial in regard to testimony. The defendants on the trial proposed to read, and did. offer in evidence, certain parts of answers, made by a witness (examined under commission for plaintiffs), to cross-interrogatories put by defendants; the parts offered being the answers, “so far as the same were responsive to such interrogatories.” Thereupon the defendants moved to strike from the answers other parts as immaterial, irrelevant, and not responsive to the interrogatories. It does not appear that the plaintiffs objected to the reading of what defendants claimed to be responsive, or that plaintiffs offered to read the other parts, or that plaintiff required that defendants should read the other parts, or that the referee required it, or even that defendants did read in evidence the parts they moved to strike out. It is not stated that the plaintiffs opposed the motion to strike out. The conclusion is that the referee denied a motion to strike out of the deposition certain things which had not been put in evidence or proposed as such. Of course, that did not affect the determination by the referee, who passed only upon what was in evidence, and he probably was correct in refusing to suppress any part of the deposition, although that is immaterial. The record does not show any error on which the judgment can be reversed.

Judgment affirmed, with costs.

Van Vorst, J., concurred.