author: Meewin, J.:

text:
    ANN E. Barton, Appellant, v. Patrick Lynch and John Moore, Respondents.
    AL deed, absolute inform — degree of proof required to sTiow it to be a mortgage.
    The evidence required to show that a deed, absolute in form, was intended to he a mortgage, must he clear, unequivocal and convincing; and when an oral defeasance is relied upon for this purpose, its existence must he established beyond a reasonable doubt.
    The fact that the grantor in a deed, absolute in form, understood the transaction to be a mortgage, is not alone sufficient to prove it to be so, in the absence of fraud or mistake.
    If a deed, absolute in form, was not, at its execution, intended to be a mortgage, it is not competent for the grantor therein to show by parol that the deed was, in fact, executed in trust for his benefit.
    Appeal by the plaintiff, Ann E. Barton, from a judgment of the Supreme Court, entered in the office of the clerk of Onondaga county on the 6th day of January, 1892, upon a decision of the court, rendered at the Onondaga Special Term, dismissing the complaint upon the merits.

      W. Q. Tracy, for the appellant.

      IscocJc, JDoTieny <& JSiscoch, for the respondents.
   Meewin, J.:

On or about the 9th of May, 18J9, the'plaintiff, then being the owner of certain real estate in the city of Syracuse, executed and delivered to the defendants a conveyance thereof, which was dated May 6,1879, acknowledged May 9, 1879, and recorded May 10, 1879. The husband of the plaintiff, Joseph Barton, joined in this deed as one of the parties of the first part. The consideration therein stated was $37,000, and it purported also to convey all leases and rents from May 1, 1879. The parties of the first part covenanted that the premises were -free and clear of all incumbrances, except two mortgages, one for $25,000 and interest from July 1, 1878, to the Onondaga County Savings Bank, and the other for $10,000 and interest to the Syracuse Savings Bank. The deed also contained the usual covenant of warranty. The present action was commenced May 4, 1889, and its object is "to have the deed above described declared to be a mortgage, and to obtain redemption and an accounting of rents and profits.

The premises in question were situated on Genesee street, with a frontage of about 132 feet, and in or before 1868 Joseph Barton became the owner thereof at the cost of about $29,000. In 1868 or 1»69, at an expense of about $80,000, he built thereon a block, having six stores upon the first floor, and in the upper part there being rooms and offices and a large opera house. In order to obtain in part the means for the erection of this block, Barton and his wife executed the two mortgages above referred to, one being dated February 12, 1868, and the other July 28, 1868, and together they covered the whole block, each being upon a distinct portion. Bonds executed by Joseph Barton accompanied the mortgages. In 1878, and for some years before, insurance was carried on the building of $90,000, and then, and for some time previous, the premises had been assessed at $53,000. On the 7th of June, 1874, Joseph Barton executed and delivered to his wife, the plaintiff, his bond for the payment of the sum of $26,000 in one year, and as security therefor a mortgage upon the said premises for the same amount. This sum was the amount agreed upon as due the wife upon a settlement between her and her husband of certain business transactions. This mortgage was afterwards foreclosed by Mrs. Barton by action. Upon the sale under the judgment, Mrs. Barton became the purchaser at the price of $1,000, and a deed was given to her on July 31, 1875. The plaintiff’s title upon this sale was subject to the lien of the two savings bank mortgages. For the deficiency upon plaintiff’s debt, a judgment was entered against Joseph Barton on the 19th of October, 1815, for $27,191.33. Immediately upon the foreclosure sale the plaintiff toolc possession, and so continued until the deed to defendants, the husband meanwhile managing and controlling the property for her as her agent.

About the time of the foreclosure action Joseph Barton failed in business. On the 19th of November, 1875, a petition in bankruptcy was filed against him upon which he was adjudged a bankrupt and thereafter, on the 5th day of March, 1878, he received in that proceeding a discharge from his debts. Meanwhile, the business of manufacturing and selling cigars and tobacco, which before his failure he had carried on in one of the stores of the block, was carried on at the same place by the firm of J. Barton, Jr., & Co., which was composed of the plaintiff and her oldest son, Joseph Barton, Jr. "When Joseph Barton was discharged in bankruptcy in March, 1878, the plaintiff withdrew from the firm and her husband took her place, the name of the firm then becoming J. Barton & Son, and the business was continued at the same place. The business of J. Barton & Son was not successful, and in March, 1879, the firm was in failing circumstances with debts amounting to about $25,000 and with assets of the value of from $12,000. to $15,000, about one-half of which was the stock and property in the store and the other half was in accounts. The principal creditor was one Crawford whose debt was about $16,000, and who was pressing for payment. At this time and for some years prior thereto the defendant Lynch was and had been a banker in the city of Syracuse, and connected with various banking institutions, at which Joseph Barton and the firms succeeding him had been accustomed to do business and procure discounts irpon the credit to a considerable extent of Lynch. The latter had also assisted Barton on previous occasions in procuring settlements with his creditors, for which assistance he had been paid by Barton. In the spring of 1879 Lynch held or was liable upon a note of J. Barton & Son for $5,000, which was the only indebtedness to him of Joseph Barton or of any member of his family, and it had existed for some time, and was amply secured by a mortgage of $8,000, dated March 4,1874, executed by the plaintiff and her husband to Lynch upon a house and lot in Syracuse, the title of which was in the plaintiff and the value of which exceeded $20,000. The debt of Crawford above referred to was in two notes, one for about $15,000 and tlie other about $1,400. On the 20th of April, 18Y9, the defendant Lynch, at the request of Joseph Barton, and after negotiations between Barton and Crawford and between Lynch and Crawford, which were commenced about the first of April, purchased the larger note for the sum of about $1,500. IJpon this note, Lynch, on the 29th of April, 1879, commenced a suit in the Supreme Court against J. Barton & Son, and on the 26th of May, 1879, recovered a judgment thereon for $15,370.21 damages and costs. Execution was at once issued thereon, and levy made upon the stock of J. Barton & Son, and the same was sold at public sale in the first week of June, and bid in by Mrs. Barton for about ■the sum of $2,100. She paid nothing upon the bid except the fees of the sheriff:. She immediately took possession of the property and continued the business in her own name. Upon the judgment, proceedings supplementary to execution were instituted and a receiver appointed to whom the accounts of the firm were assigned. Joseph Barton was made agent of the receiver for the collection of the accounts, and he with his son, Frank E. Barton, proceeded to the collection of the same. From the proceeds of such collections, Lynch was paid the amount he had paid for the claim and interest, and also the sum of $300 charged by his attorney for the prosecution of the claim. This was all that Lynch received from the proceeds of the judgment, and on the 8th of November, 1886, he assigned the judgment to William E. Barton, a son of plaintiff.

The facts, thus far stated, are substantially as found at Special Term, and are not disputed. It is also found that the purchase by Lynch from Crawford and the subsequent proceedings thereon were in pursuance of an arrangement between Joseph Barton and Lynch by which Barton, in order to obtain a transfer of the stock and property of J. Barton & Son to the plaintiff, and a continuance of the business in her name, requested Lynch to purchase the Crawford claim as cheaply as possible, put it into judgment, sell upon execution the leviable property of which plaintiff should be the purchaser, and collect the accounts, and that when reimbursed for his disbursements, the balance of the judgment and its avails should belong to Joseph Barton or some member of his family, and that Lynch assented to this proposition. There is abundant evidence to sustain this finding. The existence of such an arrangement in substance is hardly disputed by the plaintiff, but the claim on her part is, there is more of it and that the arrangement in fact made included not only the Crawford claim but the subject of the block, its mortgages and repairs and the deed in controversy.

From the time the plaintiff acquired title to the block in 1875, to the spring of 1879, the rents of the premises were not collected by the plaintiff, but by her husband or her son, Joseph Barton, Jr., and were turned into and used in the business carried on by them, and from the business the plaintiff and her 'family received their support. In the spring of 1879 the interest upon the savings banks mortgages that fell due January 1, 1879, and the taxes for the year 1878 were unpaid, and the opera house needed, considerable and extensive alterations. The plaintiff claims that it was then verbally agreed between Lynch and the plaintiff and her husband, that Lynch should advance the sums necessary to buy up and compromise the debts of Joseph Barton & Son, advance money to pay interest on the mortgages, indorse for the plaintiff when she succeeded to the business of Joseph Barton & Son, as then contemplated, advance what moneys were needed to put the opera house in better shape and make it pay better, and as security for such advances take a deed of the block, and that when his advances were repaid out of the block or by plaintiff, with compensation for his services, he would reconvey the block to the plaintiff, and that in pursuance of this arrangement the Crawford claim was bought and the deed to defendants given.

The court declined to find this arrangement. On the contrary, it was found that in the latter part of 1878, and to Hay, 1879, the receipts from the premises for rents and for the use of the opera house, that occupied the upper stories of the block, were not equal to the expenses of the property for interest on the mortgages, taxes, insurance, water rents and repairs; that rents and the value of real estate in the city were considerably depressed and property difficult of sale at its value ; that by reason of these things and the need of alterations to the opera house and the arrears in interest and taxes, Joseph Barton, the husband of the plaintiff and her managing agent for this property, was of the opinion that it was for the interest of plaintiff to sell the premises at a price not less than the incumbrances, which then, with interest and taxes, amounted to $37,000 ; that in the spring of 1879 Joseph Barton personally, and by others, offered the premises for sale at sums ranging from $40,000 to the amount of the incumbrances, or $37,000, but was unable to find a purchaser, and at last offered the same to the defendant Lynch at the last-named sum, which was accepted by Lynch upon the defendant Moore agreeing to unite with him in the purchase; that in pursuance of this offer and acceptance the deed was given, the defendants verbally agreeing to pay the incumbrances and taxes and save the plaintiff and her husband harmless therefrom, which agreement was performed by defendants; that this deed was executed and delivered with intent to convey thereby to defendants an absolute estate in fee.

Immediately upon the execution and delivery of the deed the ' defendants took possession of the premises and have ever since been in possession, claiming to hold as absolute owners, as the court finds. The plaintiff, in continuing the business after the execution sale, remained at the same store in the block as previously occupied by J. Barton & Son, but at a fixed monthly rent agreed upon between her and the defendants and paid by her to the defendants. This continued for about a year, when, by direction of defendants, she left. She, however, continued the business elsewhere until 1886, when she failed and made a general assignment. A reassignment was made to her under an order of court in March, 1888.

The defendants, about the 1st of July, 1879, wishing, as the court finds, to,improve their title to the premises and cut off any claims that the creditors of Joseph Barton might have, requested the holders of the savings banks mortgages to foreclose the same, as they were past due. This was accordingly done by actions in the Supreme Court, Joseph Barton and his wife being parties defendant with others. Judgments of foreclosure were obtained in each case, and a public sale made by the sheriff on November 1, 1879, and the property in each case was struck off to the defendants at the amount due upon the mortgage, and the costs, that being the highest sum bidden and they being the highest bidders. Heeds were given by the sheriff to the defendants in pursuance of the sales. - Prior to May 1, 1880, the defendants spent, in repairs and improvements upon the opera house and block, about $30,000, and about $45,000 prior to 1888. In. September, 1888, the block was partially-destroyed by fire, and the defendants received for insurance the sum of $17,000, a portion of which was for loss on personal property. The whole amount of insurance on the building was about $35,000. Soon after this, the plaintiff caused a demand to be made upon the defendants for an accounting and a reconveyance, and again, in April, 1889, shortly before the commencement of this suit.

The main claim of the appellant is that, upon the evidence, she was entitled to the finding that the deed was given as security. The agreement, if any to that effect, was verbal, and is sought to be shown from the negotiations between the plaintiff and her husband with Lynch, or from declarations of Lynch, and also divers surrounding circumstances are shown as bearing upon the probability of such an agreement. So far as the evidence rests in proof of negotiations or declarations, it is conflicting. Upon the one side, the plaintiff and her husband give their recollections of what was said at divers interviews between them and Lynch, and they are corroborated, more or less, by the testimony of their three sons, Joseph Barton, Jr., William E. Barton and Frank E. Barton. The defendant Lynch denies all the material portions of their testimony. The manifest interest of the plaintiff and her husband and sons was an element on the question of credibility. Besides, the reputation of Joseph Barton was specially attacked, and it appeared that the sons, William E. and Frank E., were the owners of judgments against their mother to the amount of about $30,000, and, since the commencement of this action, a receiver of the property of the mother had been appointed for their benefit. It is claimed that the plaintiff’s theory is corroborated by a witness, Heyne, who testifies that in 1881 Lynch said to Mrs. Barton that he didn’t see any reason why she shouldn't have the block back in a few years. Circumstances, however, were shown, as to this witness and his evidence, that would make it evidently proper for the trial court, who saw the witness and heard his evidence, to fix the weight to be given to his evidence, and the like may be said as to the evidence of the witness Hamilton. So that, as to all these witnesses, the trial court, having seen them and heard them testify, had better opportunity than we have to determine the weight to be given to their evidence. In view of this, it would not be appropriate for us to interfere with tlie conclusion of that court, unless there exists some decisive circumstance or circumstances in favor of plaintiff’s theory outside of the verbal negotiations or declarations. The plaintiff claims that such circumstance does exist in the value at the time of the block. The consideration of $37,000 stated in the deed was made up of the amount of the mortgages and interest and taxes, so that plaintiff received nothing beyond the incumbrances. Several witnesses are called by her who state that, in their judgment, the block was then worth from $65,000 to $80,000. One of these witnesses was city assessor at the time, and had occasion to then consider the value of the property. In 1878, it was assessed at $53,000. The other witnesses do not seem to have had their attention particularly called to the value in 1878 or 1879. Evidence was also given tending to show that the rents for 1878 were considerably in excess of the exjxenses, including interest and taxes. Upon the other hand, several witnesses are called by the defendants, who place the market value in the spring of 1879, at from $35,000 to $40,000. Five of these witnesses had occasion to examine the property in the spring of 1879, with a view of forming a judgment of its value, and they profess to speak upon the information then obtained. The defendants also gave evidence tending to show that the rents for 1878 and 1879 were not sufficient to pay the expenses, including interest and taxes, so that there was no margin of profit to the owner. It was shown that the block in 1879 was assessed at $35,000; and in 1880, after the defendants had expended $30,000 in impi’ovements upon it, it was assessed at $50,000. It may be assumed that in 1868, when the savings banks mortgages were given, the block was deemed to be worth double the amount of those mortgages. There is, however, some evidence that in the spring of 1879, not only was payment of the interest pressed, but payment of a portion of the principal -was asked for.

The evidence justifies the finding that Barton, in the spring of 1879, made efforts to sell the- block, but was unable to find a purchaser at any sum above the incumbrances. The evidence would justify a finding that the market value did not, in the then state of the market, exceed the amount paid by the defendants. Barton had been managing the property for many years, in connection with his business, but did not seem to make a success of it. He failed in 1875, and was again about to fail. Concededly, the block needed repairs or improvements. One of the plaintiff’s witnesses testifies that in one of the interviews with Lynch, Barton told Lynch that he had tried to raise money by mortgage, but did not succeed. If repairs were needed, and money could not be raised by mortgage, it reflects somewhat not only on the value of the property, but of the rental. IVe think the evidence justifies the finding made by the court below that in tire latter part of the year 1878, and to May, 1879, the receipts for rents and use of the property were not equal to the expenses for interest on mortgages, taxes, insurance, water rents and repairs.

Inadequacy of price in cases of this kind is always a circumstance to be considered (1 Story Eq. §§ 245, 246 ; 1 Jone's on Mort. § 329 ; Holmes v. Grant, 8 Paige, 243), and the weight to be given to it depends upon the degree of inadequacy. If in the present case the market value of the property at the time of the deed did not substantially exceed the consideration, the element of inadequacy ceases to be of any practical importance.

There are some other circumstances that may be briefly adverted to. It will be observed that the transfer by Crawford to Lynch was on 20th of April, 1879, while the deed was not given till May 9, 1879. No other debt of tire firm was purchased by Lynch or compromised by him, The deed was drawn by Lynch and sent to Barton on May 6, 1879. On May 8, 1879, Lynch wrote to Mr. Barton to return the deed and that he didn’t want it executed. Instead of doing this Barton and his wife executed the deed and sent it to Lynch. Barton in his evidence testifies that before the date of the deed propositions as to the block had been exchanged between him or his wife and Lynch, but that nothing definite had been concluded upon. If that be so, it may be argued with some force that the giving of the deed was entirely separate from any agreement for the compromise of debts.

A part of the agreement between plaintiff and Lynch, as claimed by plaintiff, was that Lynch should indorse for 'her, upon her continuing the business. Still, very soon after she commences business, and on the 13th of June, 1879, she gives to Lynch a mortgage of $10,000 upon her house and lot upon which the $8,000 mortgage aboye referred to bad been given, and also upon other real estate owned by her, and this was as collateral security to Lynch for all money he might advance to her and for any notes he had or might have against her or might indorse for her benefit. This mortgage was recorded July 3, 1879. Lynch thereupon indorsed for her benefit in her business or helped her get credit to more or less extent until August, 1885, when he declined to indorse farther and demanded payment of the $5,000 note given by J. Barton & Son, and for which he held the $8,000 mortgage. Upon this note being paid, Lynch upon the 18th of August, 1885, canceled both mortgages. It is claimed that the giving of the $10,000 mortgage was inconsistent with the claim of plaintiff that the deed was given partially for the same purpose. It apparently has some force in that direction.

At the time of the deed there was no debt in existence from plaintiff to Lynch, nor was she liable upon the bonds given with the savings banks mortagages. She did not become liable to pay to Lynch any of the moneys which he might expend upon the buildings. If there was a loss, she was not liable. But, as she claims, she had an option, for an indefinite period in the future, to call for an accounting and redemption. The defendants immediately took full possession, plaintiff becoming for a time a tenant, and after she left friendly relations seemed to have continued between the parties until 1885. In the meantime, the defendants expended largely for improvements, far more, it is claimed, than a mortgagee in possession would be likely to do, and after the fire in 1888 they rebuilt at an expense of $100,000 and upwards.

The circumstance that the defendants, after receiving the deed, procured the foreclosure of the mortgages is not necessarily inconsistent with their claim of absolute ownership. The atmosphere about the mortgage under which plaintiff claimed title was not entirely clear. The plaintiff when she took it knew, as she herself testifies, that her husband had got to fail. The manner in which the block had been managed might give opportunity for a question as to who was the real owner. The withdrawal of the wife from the firm was only about a year previous. It was certainly discreet to perfect title before making costly permanent improvements.

The plaintiff claims-that as upon the giving of the deed she obtained nothing over and above the incumbrances and taxes, she would not be likely to make an absolute conveyance. Upon tlie other hand, it is said that the management hy the plaintiff and her family was not a success; none of them had means or ability to properly carry it or., and, therefore, the only option plaintiff had was either to allow it to be sold on foreclosure of the mortgages, or make the conveyance tO' the defendants, and that the fact that under the circumstances then existing she and her husband chose to convey to defendants is not inconsistent with the absolute conveyance. The defendants were business men, and it is urged that they would not be likely to take a defeasible conveyance, running all the risk of large expenditures and liable to be prevented from enjoying the profits.

The evidence required to show that a deed absolute in form was. intended to be a mortgage, must be clear, unequivocal and convincing. (Cadman v. Peter, 118 U. S. 73 ; Erwin v. Curtis, 43 Hun, 292 ; 112 N. Y. 660.) In Ensign v. Ensign (120 N. Y. 655), it is said that the existence of an oral defeasance must be established beyond a reasonable doubt. In Lance's Appeal (112 Penn. St. 467), it is said that “ to convert a deed, absolute on its face, into a mortgage by parol testimony, such testimony must be clear and specific, of a character such as will leave in the mind of a chancellor no hesitation or doubt, and, failing this, the effort to impeach the legal character of the deed must be regarded -as abortive.” The testimony must be entirely plain and convincing beyond reasonable controversy. Huut, J., in Howland v. Blake (97 U. S. 626). The fact that the grantor may have understood the transaction to be a mortgage is not alone sufficient to prove it to be so, in the absence of fraud or mistake. (1 Jones on IVIort. § 335.)

In view of the strict rule of evidence applicable to such cases, and of the fact that in some features of the case the credibility of witnesses was at issue, which v-as a matter that could be dealt with by the trial court better than by this court, we fail to find any sufficient reason for interfering with the finding that the deed in question was executed and delivered with intent to convey to the defendants an absolute estate in fee. There are no circumstances in the case so decisive in favor of plaintiff’s theory as to require us to overturn the decision of the trial court.

If the deed at its execution was not intended as a mortgage, then, within the authority of Sturtevant v. Sturtevant (20 N. Y. 39), it would not be competent for plaintiff to show by parol that the deed was in fact, in trust for her benefit.

Our attention is called to some exceptions to rulings upon evidence. Error is claimed in the admission of certain declarations of Joseph Barton. There was evidence that the management and control of the block while the plaintiff held the title was left by her entirely with her husband, and that he had full charge and management of her business then and, afterward until she failed, and that he was in fact her general agent. Evidence was received of his declarations as to the block in the negotiations that led up to the deed, and cf the interviews between him and Lynch with reference to indorsements for plaintiff in the business after the deed, and in fixing the rent of. the store to be used in plaintiff’s business, and as to leasing some portion of the block before the deed. The declarations of Barton, in transactions within the scope of his authority, would bind the plaintiff. (Story on Agency, § 134.) Within this principle, no material error is apparent.

There are no other questions that call for special consideration. It follows that the judgment should be affirmed.

Hardin, P. J. and Martin, J., concurred.

Judgment affirmed, with costs.

      The other decisions of this term will be found in 68 Hun.— [Rep.


source: Caselaw Access Project

author: Mervin, J.: Hardin, P. J.:

license: Public Domain

text:
    Eliza Mahaney, Respondent, v. Mutual Reserve Fund Life Association, Appellant.

      Life insurance — age of the insured — weight of evidence.

    A verdict in favor of the plaintiff, in an action brought against an assessment life insurance association to recover upon a certificate of membership issued to the mother of the plaintiff, and in which the plaintiff was named as the beneficiary,

      Held, to be against the weight of evidence upon the material and disputed question of the deceased member’s age, in view of the necessarily uncertain and inconclusive character of opinion evidence given on behalf of the plaintiff on the subject of age, and in view of evidence produced in opposition thereto furnished by statements of the member in applications for United States pensions made by her, by English records of the registry of births of the member’s children, by the date of the marriage of one of the member’s children and the age of the child at the time, and by a declaration of the plaintiff as to her mother’s age in an application made by the plaintiff for membership in a life insurance association, all of which tended to show that the age of the deceased member was from ten to twenty years greater than that stated by her in her application for membership.
    Appeal by tlie defendant, Mutual Reserve Fund Life Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of Oswego county on the 5th day of February, 1892, upon a verdict rendered at the Oswego Circuit, and from an order dated and entered in said clerk’s office on the 27th day of January, 1892, denying the defendant’s motion for a new trial made upon the minutes, and also from an order of like date granting an extra allowance of costs to the plaintiff.
    The action is upon a certificate of membership, issued by the defendant to Catharine Mahaney, the mother of the plaintiff, on the 9th of June, 1885, in and by which it was declared that within ninety days after the receipt of satisfactory evidence of the death of the member, there should be payable to the plaintiff, if she was then alive, otherwise to the legal representatives of the member, the sum of $1,000 from the death fund of the association, or from any moneys that should be realized to that fund from the next assessment to be made as therein stated. Catharine Mahaney died on the 8th of April, 1890, and the proofs of death were furnished to the defendant on the 23d of April, 1890.
    The defenses relied on are, first, that there has been a breach of a warranty in the application for membership, that the applicant was born November 10, 1834, and, second, that there was fraud in making the statement as to the age of the applicant.

      W. H. Kenyon, for the appellant.

      Whitney dh Bulg&r and J. B. Kiggins, for the respondent.
   Mervin, J.:

In the application of Catharine Mahaney for membership in the defendant, it was stated that she was born on the 10th day of November, 1834, in the county of Waterford, Ireland, and that her age at next birthday, being November 10,1885, was fifty-one years. The court charged the jury that if the age of the applicant was more than as stated, the plaintiff could not recover. The jury, therefore, in finding for plaintiff,.in effect found that the age was correctly stated. The main point presented by the appellant upon this appeal is that such finding is against the weight of evidence.

Tbe applicant and her husband, Cain 0. Mahaney, came to this country from England prior to I860.. It was shown, by the testimony of Ellen Delong, a sister of plaintiff, and not denied, that the maiden name of her mother was Catharine Dudley, that she had altogether seven children, three of whom died before she came to' this country, and that the other four who came over with their parents, and are still living, were the witness, the plaintiff, whom she called Lizzie, Cornelius and Mary. In 1862 Cain O. Mahaney enlisted at Oswego as a soldier in the service of the United States, ■and it appears that he died in May, 18Y8. The defendant puts in evidence an affidavit made by Mrs. Mahaney on 14th of August, 18Y8, for the purpose of obtaining a pension. This was made at ■Oswego before a special agent of the pension office and was produced by him from the records of the pension bureau, and he testifies that it was written by him at the dictation of Mrs. Mahaney, and that he then read it over to her and she signed and swore to it. There is nothing in the case to discredit his testimony. In this affidavit Mrs. Mahaney states, among other things, that “ her age is 55 or 60 years ; ” that she was married to Cain in Chelsea, county of Middlesex, England, about in 1842,” and came with her husband to this country in 185Y; that her husband, at his death, was about •sixty-six years old.

The defendant also puts in evidence another application made by Mrs. Mahaney for a pension on 26th of September, 1889. This was filed in the pension office October 3, 1889, and was signed at •Oswego in the presence of two witnesses and certified to by the county clerk of Oswego county. The deputy clerk who certified to the paper and one of the subscribing witnesses were called as witnesses at the trial and both testified that the paper was at the time read over to Mrs. Mahaney. The evidence of these witnesses was not discredited.' In this application it was recited that Mrs. Mahaney was sixty-six years old, and it stated, among other things, that Cain O. Mahaney, her husband, enlisted at Oswego on the 29th of August, 1862, and that she under the name of Catharine Dudley was married to him “ on the — day of July, 1844, by Rev. Robinson at London, England.”

The defendant also puts in evidence a transcript from the register of marriages of the parish of St. Nicholas, Deptford, of the county of Kent, England, showing that on the 23d of May, 1841, Cain Mahaney and Kittie Dudley, both of full age, were married in the parish church by A. E. Kitchley, vicar; also a transcript from the register of births for the subdistrict of South Chelsea, in the county of Middlesex, England, showing the birth on the 10th of May, 1844, of Ellen, daughter of Cain Mahaney and Kittey Mahaney, formerly Dudley; also another transcript from the register of births of the same district showing the birth on the 24th of September, 1849, of Elizabeth, daughter of Cain Mahaney and Catharine Mahaney, formerly Dudley; also another transcript from the register of births for the subdistrict of Chelsea North East, in the county of Middlesex, showing the birth on the 21st of March, 1852, of Cornelius, son of Cain Mahaney and Catharine Mahaney, formerly Dudley. Transcripts of similar entries of births in the general register office, Somerset House, London, were given in evidence, as well as the law providing for the registering of marriages and births, and in pursuance of which the registers were kept. Photographs were also given of the original entries in the registers, and these were verified by the testimony of the person, under whose supervision they were taken. Resides these records, the defendant intro•duced a large number of witnesses, who had been acquainted with Mrs. Mahaney for different periods of time since her arrival in this country, and who gave their opinions as to her age, based upon her appearance as they had observed it, and some of them had heard her speak in general terms of her age. The testimony of these witnesses was to the effect that she was from ten to twenty years older than she had stated in her application in question.

To rebut this evidence, the plaintiff introduced a large number of witnesses, who had been acquainted with Mrs. Mahaney to more or less extent, and who, in most instances, placed her age at the time of her death at about fifty-six years. One of these witnesses, Mr. Cunningham, whose evidence is particularly relied on by the plaintiff, testified that he had seen Mrs. Mahaney and Cain 0. Mahaney in Bristol, England, before 1850, and that they were not married then, that he knew of. lie does not profess to give the age of either at that time, except that he says he thinks that Mrs. Mahaney was older than he was. Of himself, he says that he was born at Bristol in 1835 or 1831, and made Bristol his home until about 1850, and was seventeen or nineteen wlien he left there. Of Cain O. Mahaney, he says he saw him in the city of Bristol, “ I didn’t know him long, perhaps two or three months, I was quite young.” Of Mrs. Mahaney, he says that he met her after he knew Cain and that she then went by the name of Kittey Gaul. He does not state where she lived, except that he understood she lived with some relations by the name of Gaul in an adjoining parish. He admits testifying upon another occasion that he did not see her at any other place than on the street. He does not say where it was that he first saw Cain or where Cain in fact lived. This witness is very uncertain in his dates, and while his evidence standing alone may throw some doubt as to whether these parties lived in London at the date of the marriage record, it fortifies but very little the proposition that Mrs. Mahaney was born as late as November, 1834.

There appears to be no reason why Mrs. Mahaney, at the time of making the pension applications in 1878 and in 1889, should state her age greater than she thought it was in fact, or place the date of her marriage earlier than it was according to her then understanding. She evidently had no records to guide her. There is in the case no record evidence of her birth. She was a woman of some education, as she wrote her name to the application of 1878. Both of those applications are utterly inconsistent with her age being only fifty-one in November, 1885, and the fact- that those applications, although eleven years apart, and taken under different circumstances, are substantially harmonious in the matter of age, adds materially to the weight that should be given to them in the case.

The four English records are in the same direction,, and, assuming the identity to be established, are entitled to great weight. Ordinarily identity of name is prima faeie evidence of identity of person (Jackson v. Boneham, 15 Johns. 226; Jaohson v. King, 5 Cow. 237), and a middle letter will be deemed no part of the name. (Milk v. Christie, 1 Hill, 102; Van Voorhis v. Budd, 39 Barb. 479 ; Arnold v. Nat., etc., Bank, 3 T. & C. 769.) Each case, however, will depend largely upon its own circumstances. In regard to the parties to the marriage record, there may be some doubt as to the identity, not only by reason of the evidence of Cunningham, but by reason of different dates being given of the marriage in the pension applications, one stating it as about in 1842 and the other as in July, 1844, and before a different clergyman. But as to the birth records a careful consideration of the evidence leaves hardly room for doubt as to the identity. If that be so, and the daughter Ellen •was horn on March 10, 1844, there is scarcelj any ground for believing that her mother was born as late as November 10, 1834.

There is another consideration that has some bearing. There is evidence that the daughter Ellen was married at Oswego in 1862 and that she was then seventeen or eighteen years old. These facts are not disputed, and the plaintiff was apparently in a position to be able to ascertain whether they were true or not. If Ellen was then eighteen, that would place her birth in 1844, as stated in the birth record. It also appears that in a written application by plaintiff for membership in the Elour City Life Association, dated July 29, 1889, and signed by the plaintiff, the age of her mother is stated to be sixty-five. The person who took this application undertakes to say that the age of the mother was not filled in by plaintiff or from her statements, but his evidence on the subject is not very satisfactory. The plaintiff herself does not speak on the subject. She is not sworn as to the age of her mother, nor are either of her two sisters, though they appear to be accessible. No reason appears why they are not called to speak on the subject. The witnesses upon either side who express their opinion as to the age of the deceased do not appear to be her relatives.

In view of the evidence furnished by the pension applications, by the birth records, and as to the marriage and age then of the daughter Ellen and the declaration of the plaintiff, and in view of the necessarily uncertain and inconclusive character of the opinion evidence on the subject of age, we are strongly impressed with the idea that upon the case as it stands before us the verdict is against the weight of the evidence.

It is suggested by the respondent that the statements of the assured were not competent evidence against the plaintiff, and that, therefore, they should not be considered on this appeal. On the contrary, we must assume that they were competent, and. if the respondent took any exception to their admission it is not now before us. (Bridgford v. Crooker, 3 T. & C. 273.) As to such evidence see Steinhausen v. M. A. Assn. (59 Hun, 336).

It follows that a new trial should, be granted upon the ground that the verdict is against the weight of evidence. This will be upon the usual terms in such cases.

Hardin, P. J.:

Although as a rule we do not disturb a verdict founded upon conflicting evidence (50 N. Y. St. Repr. 519, Clemans v. The Supreme Assembly Royal Society of Good Fellows), still in a case where so much doubt exists as to the correctness of the finding as is clearly shown by the foregoing opinion, I am disposed to favor another trial when the parties may if possible present more satisfactory evidence upon the vital questions. I, therefore, vote for a new trial.

Judgment and order reversed and a new trial ordered upon the payment by the appellant of the costs of the trial, and without costs of this appeal to either party. In case such costs are not paid within twenty days, then judgment and order affirmed, with costs.


author: Merwin, J.:

text:
    James H. Phelps, Respondent, v. William H. Delmore, Appellant.

      Agreement to work a fa/rm for one yewr — ownership of an unharvested crop — . attachment — plaintiff Hable for conversion — requests to find, not acted on.

    Phelps, the owner of a farm, and one Owens, entered into an agreement to the effect, as was found, among other things, that Owens should work and carry-on the farm for one year from March first; that the produce should be divided equally at the end of the year, and that each should furnish one-half the seed. Under this agreement Owens worked the farm until about the middle of August, when he absconded, leaving wheat and oats thereon partially unharvested; a third party thereafter sued out an attachment against Owens’ property, and caused a levy to be made upon all the wheat and oats, in the straw, and sold the same .thereunder.

      Held, that the effect of the agreement was to make Phelps the owner of an undivided half of the wheat and oats, and that he was, therefore, entitled to maintain an action for the conversion of that one-half, against the plaintiff in the attachment.
    One who sues out an attachment, indemnifies the officer who executes it, and procures the property of a person other than the defendant in the attachment to be levied upon and sold thereunder, renders himself liable to an action for conversion.

      No question for review on appeal is presented upon alleged refusals of a referee to find certain requests, where the record contains a paper headed “requests to find,” hut does not show any action hy the referee thereon.
    Appeal by the defendant, William H. Delmore, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Jefferson county on the 25th day of March, 1889, upon the report of a referee.
    Action for the conversion of a quantity of wheat and oats, in the straw, raised by one Owens upon the farm of plaintiff in the year 1886; also of a half interest in two milk wagons and some other chattels; also of a third interest in a quantity of oats, in the straw, raised upon the farm of one Pierce. The defendant claimed under an attachment and execution in his favor against Owens. The referee decided that the plaintiff was the owner of a half interest in the wheat and oats raised upon his farm, and of a third interest in the oats raised on the Pierce farm, and ordered judgment against defendant for the value of such interests.

      Kilby da Kellogg, for the appellant.

      H. G. Gooh and John Lansing, for the respondent.
   Merwin, J.:

The main controversy here is over the ownership of the wheat and oats raised upon the farm of plaintiff in the year 1886. The farm consisted of about 220 acres and had thereon about forty cows, together with farming tools and teams. On March 1, 1885, the plaintiff and Owens entered into a written agreement to the effect, among other things, that Owens should work and carry on the farm for one year from that date, and the produce of the dairy for the term should be divided in the proportion of three-fifths thereof to plaintiff and two-fifths to Owens; that the produce of the farm should be divided equally at the end of the year, and each should furnish one-half the seed ; that the hay raised on the farm should be fed to the stock, and if there should be a surplus the same should be left on the farm, and if a deficiency it should be supplied by the plaintiff. Owens went into possession and carried on the farm under the agreement until March 1,1886. In February, 1886, the plaintiff and Owens entered verbally into another, agreement to the effect, as the referee finds, that Owens should carry on the farm for one year, commencing March 1, 1886, under the same agreement as in 1885, except that Owens was to pay plaintiff for his said three-fifths interest in the produce of the dairy $700, in twelve equal monthly installments. Under this agreement Owens worked the farm until about August 17, 1886, when he absconded, leaving the wheat and oats partially unharvested. Under the finding of the referee as to the character of the agreement for 1886, it would follow that the plaintiff was the owner of an undivided half of the wheat and oats. (Reynolds v. Reynolds, 48 Hun, 144.) It is, however, claimed by the defendant that the finding of the referee is not sustained by the evidence; that the agreement was simply that Owens should pay $700 for the rent of the farm for the year, and that under this Owens became the entire owner of the crops. There was, however, direct evidence in substance that the agreement was as found by the referee. There was other evidence from which a different conclusion might have been reached. It was for the referee to consider and pass upon the whole, and his conclusion should not, I think, be disturbed. Under the attachment procured by defendant against Owens, the whole of the wheat and oats was sold as the property of Owens. This was by the procurement of the defendant, and he indemnified the officer for so doing. The defendant cannot, therefore, complain if he is charged as having converted the one-half belonging to plaintiff. (Pool v. Ellison, 56 Hun, 108.)

As to the oats raised upon the Pierce place, there seems to be no particular question as ta the right of the plaintiff to one-third thereof. It was not error to exclude evidence of what happened to some portion of the oats the year after the sale under defendant’s attachment. „

The defendant claims that the referee erred in refusing to find certain requests. The record before us does not show any such refusal, or that the referee acted thereon at all. There is a paper headed “ defendant’s requests to find,” but there is nothing indicating what action, if any, the referee took in regard to the requests referred to. In such a case there is nothing reviewable, according to the rule laid down in Harris v. Van Wart (96 N. Y. 642); McCulloch v. Dobson (133 id. 114). Assuming, however, that the referee refused to find tlie requests, it is not made to appear that any error was committed that would affect the judgment.

The defendant further claims that the referee erred in allowing the plaintiff to amend his bill of items. The case, however, does not show any bill of items. Proof of the matters concerning which an amendment was allowed was admissible under the complaint.

Our attention is called to some exceptions to rulings upon evidence, but we find no error that calls for a reversal.

It follows that the judgment should be affirmed.

Hardin, P. J., and Martin, J., concurred.

Judgment affirmed, with costs.


author: Hardin, P. J.:

text:
    Mary Ann Burke, as Administratrix, etc., of Michael J. Burke, Deceased, Appellant, v. The Syracuse, Binghamton and New York Railroad Company, Respondent.

      Baib'oads — negligence in moving a safety switch — fellow-servants—competency of a switchman — non-existence of rules.

    A railroad company employed in charge of a telegraph station at a single-track siding and highway crossing one Clark, a robust boy of seventeen, who was familiar with railroad tracks and switches, whose duty it was to report trains, receive and carry out telegraphic instructions, flag the crossing and operate a “ safety Wharton switch,” which connected the main track with the siding. He had become familiar with the operating of this switch, which was simple, the switch, of itself, keeping the main track closed, and requiring the lifting of a heavy iron ball on a lever to open the siding. Clark had managed the switch properly until, on a certain occasion, on the approach of a train which should have been kept on the main track, he was suddenly seized with the thought that the switch was set wrong, and impulsively, and with a view of preventing a catastrophe, rushed to the switch and raised the lever, sending the train upon the siding, where it collided with a waiting train, causing the death of the engineer of the moving train, whose legal representative sued the company for damages.
    On appeal from a judgment of nonsuit,

      Held, that the nonsuit was proper; that, as the evidence failed to show a want of competency on the part of Clark to perform the duties required of him, there was no question for the jury as to whether the railroad company was negligent in employing him at the place of the accident, or as to whether it exercised due care in the selection of the fellow-servants of the deceased;

      That, as it appeared that Clark had sufficient time to do all the work required of him, and that at the time of the accident he was under no obligation to do anything with the switch, there was no question for the jury as to whether the company employed a sufficient number of men at the point in question, or as to whether it was negligent in failing to employ a sufficient number of men;
    That, as it did not appear that the company, in the exercise of reasonable care, could have foreseen the necessity of a rule to prevent an employee from opening the switch on an improper occasion, the evidence was insufficient to carry the case to the jury upon the ground that the company had been negligent in omitting to adopt a rule or rules to guard against the accident in question.
    Appeal by the plaintiff, Mary Ann Burke, as administratrix, etc., of Michael J. Burke, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of Onondaga county on the 24th day of May, 1892, upon a nonsuit granted at the Onondaga Circuit, dismissing the plaintiff’s complaint upon a trial before the court and a jury.
    The action was brought to recover damages for an alleged negligent killing of plaintiff’s intestate, who was an engineer in defendant’s employ, on the 3d day of November, 1890. Rock Cut is a Station some three miles south of Syracuse, on defendant’s single-track road, running from Syracuse to Binghamton. It is a telegraph station, and there is a siding there so arranged that trains may pass each other. The highway from Syracuse to Jamesvüle crossed the track near the station where there was a cabin of two rooms, in one of which was telegraphic instruments, and the other room was sometimes used for a post-office. The siding leaves the main track some half a mile to the north of the cabin, and joins it again a few rods to the south. _ At this point a safety Wharton switch was in use at the time of the accident, which has a lever with a heavy iron ball at the end which lies upon the ground when the main track is closed. To connect the main track and the siding this lever is raised to a perpendicular position and held, otherwise the weight of the ball drags it to the ground and closes the main track. Martin Clark was in charge of the station at the time of the injuries, and it was his duty to report trains, and to receive and carry out telegraphic instructions from the train dispatcher at Syracuse, and to flag the crossing, and to attend to some other duties. ITis time of service was from seven o’clock in the morning until six o’clock in the evening, and during that period some ten trains passed the station. About six o’clock ?. m., on the 3d of November, 1890, a coal train going southward halted on the side track about twenty-five feet from the switch, and awaited the passage of the regular passenger train from the south upon which the deceased was the engineer going northward. The trainmen visited the shanty of the operator and chatted with him until he saw the passenger train approaching from the south when he left the shanty with his lantern to signal the train in accordance with his custom; having reached the crossing he suddenly was seized with the thought that the switch was set wrong for the passenger train, and impulsively, with a view of preventing a catastrophe, he rushed up to the switch and lifted the lever thereof and held it in position long enough to divert the train from the main track into the stationary locomotive of the coal train, thereby causing the death of the plaintiff’s intestate. As soon as Clark saw the locomotive take the side track he realized what he had done; recovered his presence of mind and dropped the lev.er, thus saving the coaches containing the passengers on the main track. Clark was seventeen years of age on the 18th of August, 1890; was tall, large and robust, and appeared to be nineteen years of age. He came from Auburn where he had lived with his father within 200 feet of a railroad, and had for eight years, and “ was familiar with the railroad tracks, and had frequently seen side tracks and switches operating.” He attended the public schools until he was sixteen years of age, and having decided to become a telegraph operator studied for a year and a half under the tuition of the train dispatcher at Auburn, and became familiar with receiving and sending dispatches, and for a month or more worked at a railroad station at Auburn familiarizing himself with practical railroad work, when he applied to the defendant for employment. Mr. Ferris, defendant’s agent, made some examination of him and employed him and sent him to Tully where he remained for a month performing active service, sending and receiving railroad and commercial telegrams; signalling trains, reporting cars and doing other work incident to the station duties. From there he was detailed for duty at Rock Cut to take the place of one Fisher, a young man nineteen years of age, who had for a considerable time conducted the business of the station successfully. Upon arrival at Rock Cut Clark was informed by Fisher as to the several duties devolving upon him and among others the duty of operating the switch was explained to him and all its workings, and that it was to be opened in the morning to permit a north-bound coal train to be side-tracked in order to allow a passenger train, which awaited its arrival on the main track, to pass south. He informed Mr. Ferris, his superior, that Fisher had fully informed him as to the duties and that he well understood them; and he successfully operated the switch each morning prior to the accident, locked it each night; and he testified that “At the time of the accident the main track was unbroken before I lifted the ball, and if I had left it alone the express train would have gone right by as usual; * * * when I got there I knew as a matter of fact that the main track was unbroken, and that lifting the ball would break the main track, and send the express train on to the branch. That I didn’t think of at the moment. * * * I fully understood its operation. There was nothing difficult to understand about it.” Hoyt, who had previously been employed by defendant at Rock Cut, and who had been engaged in railroad business for ten years at different stations, testified that he was familiar with the operation of Wharton switches and other switches, and also that “ a man of ordinary intelligence ought to learn to open and shut the switch after it was shown him a few times ought to be. able to attend to it m short order. If he did operate it, and operate it right, that would show that he had sufficient experience in that line.” At the close of the evidence the defendant moved for a nonsuit on the grounds:

      First. “ That the plaintiff has not established sufficient facts to constitute a cause of action.”

      Second. “ That the evidence fails to show any actionable negligence on the part of the defendant.”

      Third. “ That the evidence shows that the death of the plaintiff’s intestate was occasioned through the negligence of a fellow-servant of the deceased.”

      Fourth. “ That the plaintiff’s intestate by accepting employment from the defendant assumed the risk of any negligence of which a fellow-servant might prove guilty.”

      Fifth. “ That the evidence fails to show that the wrongful act of the boy, Clark, could in any way have been foreseen by the defendant, or that there was anything from which the defendant could have anticipated that this accident -would have occurred or could have arisen.” Thereupon the court intimated that there was no case for the jury. Whereupon the plaintiff asked “ To go the jury upon the question whether the railroad company was negligent in the employment of this man Clark at that place; whether it exercised due care in the selection of fellow-servants of the deceased.”

      Second. “ Upon the question as to whether the railroad company employed a sufficient number of men at this point; whether it was not negligent in failing to employ a sufficient number of men.”

      Third. “ Whether it was negligent in failing to adopt and notify Clark of the existence of the rule requiring the switch to be locked, and the requiring a switchman to be at his post upon the passage of trains on the main track.” The requests were refused and thereupon the court directed a nonsuit, and judgment thereon has been entered in favor of the defendant.

      W. S. Andrews, for the appellant.

      Louis Marshall, for the respondent.
   Hardin, P. J.:

Upon the occasion of the injuries no duty rested upon Clark to open the switch. His act in raising the ball and breaking the main track was voluntary, thoughtless and mistaken. Nothing appears in the case showing that lie had not physical power to perform all the acts and duties required of him at the station, or that he was not mentally fit for the position assigned to him by the defendant. Judged by the rule laid down in Coppins v. N. Y. C. & H. R. R. R. Co. (122 N. Y. 557), the evidence fails to show a want of competency on the part of Clark to perform the duties required at the station. .The observations made by the learned counsel for the respondent seem appropriate and pertinent where he says: “ The defendant could not make a psychological examination of Clark, or delve into the secret recesses of his brain to ascertain whether, at some future period, he would for an instant become the prey of a delusion and work destruction. It was no more bound to anticipate this unnatural occurrence than it would have been the act of Clark, had he in a moment of temporary abberation drawn a pistol and killed the plaintiff’s intestate.” In Harvey v. N. Y. C. & R. R. R. R. Co. (88 N. Y. 486), it was said: “ The duties of a switchman are not complicated or difficult, and there can be no doubt that on the day in question Baldwin was entirely competent to perform the duties imposed on him. It appears from his own evidence that his failure to close the switch on the day in question did not arise from any inability on bis part to perform the work he was set to do, but that such failure was the result of sheer inattention and carelessness on his part.” “ He was a man of; but fifty-six years of age, and there is no,suggestion that he was not possessed of’ ordinary intelligence.” After further commenting on the’ circumstances of that case the court observed: “ There is no evidence in this case which warranted the jury in finding that any act of neglect on the part of the defendant contributed in any manner to produce the injury which resulted in the death of plaintiff’s intestate.” We think the rule there laid down is applicable to the facts before us, and we are of the opinion that the evidence was insufficient to warrant the jury in finding that t]ie defendant had been negligent in employing Clark or leaving him in charge of the station at the time of the accident.

In Sutherland v. The Troy & Boston Railroad Co. (125 N. Y. 739), it was said: “ We think, under the circumstances, the jury could not be permitted to infer that Johnson was incompetent in fact from his age only, or that the company was negligent in employing him, or to speculate whether, if the operator had been a man of mature years or judgment, he would have been less likely to have committed the mistake which Johnson did.”

We think Mann v. The President, etc., of D. & H. C. Co. (91 N. Y. 500), differs from the case before us, as in that case there was no reasonable doubt of the fact that Townsend was an incompetent and unsuitable person to discharge the important and responsible duty of flagman.” And it appeared he had not been informed of and did not know of the rule requiring the use of torpedoes and that he had never flagged a train in the night, except the second night before, when he was acting as flagman on a train, on which occasion he failed to obey orders, and it was, therefore, held: That the evidence justified the submission to the jury of the question as to the negligent performance, by defendant, of the duty it owed to its servants, to use due care in the selection of competent co-servants.”

Nor do we think the absence of more men at the station “ contributed in any manner to produce the injury ” complained of. (Harvey v. Central Road, supra.) It appears that Clark had sufficient time to do all the work that was required of him at the station, and that at the time of the accident he was under no obligation to do. anything with the switch. He was at leisure as the train approached and if he had remained chatting with the trainmen on the coal train no accident would have taken place.

Nor do we think the defendant was negligent in not having-adopted a rule as to the switch in question, as it did not appear that the defendant, in the exercise of reasonable care, could have foreseen the necessity of such a rule. (Morgan v. The Hudson River Ore & Iron Co., 133 N. Y. 666 ; Berrigan v. N. Y., L. E. & W. R. R. Co., 131 id. 582.) In the latter case it was held: It cannot be assumed that it can by rule guard against and prevent every injury to them (employees).” No evidence was given tending to show that such a rule was necessary to prevent an employee from opening the switch on an improper occasion. Clark had a key to the switch, and if it had been locked it is mere conjecture to say that he would not have reached the switch in time to make use of the key, even in the event he had found that the switch was locked. We think the evidence was insufficient to carry the case to the jury upon the ground that the defendant had been negligent in omitting to adopt a rule or rules to guard against such an. accident as the one that occurred.

It was said by this court in Forey v. S. B. & N. Y. R. R. Co., (12 N. Y. St. Repr. 201), that “ it is the duty of an employer engaged in a complex business, to establish rules for the protection of employees. But the business in which this plaintiff was engaged was not complex, and it is difficult to see how any rule could have, given him more information than he might easily have obtained by ordinary attention to the operations in which he was engaged.” That case was affirmed in 122 N. Y. 667. We may add that it is. difficult in the case in hand to discover any solid ground upon which it may be averred that the defendant was negligent in not having promulgated a rule requiring the switch to be locked on each and every occasion when the same was used. It appears by the evidence that Clark was accustomed to lock it on leaving it nights, and that ■custom was apparently to prevent tlie switch being interfered with by outsiders when no one was present to detect the interference.

We are of the opinion that the trial judge properly refused to ■submit any of the questions to the jury mentioned by the plaintiff at the close of the evidence, and that no error was committed in directing a nonsuit.

Merwin, J., concurred; Martin, J., not sitting.

Judgment affirmed, with costs.