author: Sedgwick, Ch. J. Ingraham, J.

text:
    ROBERT BAXTER, Appellant, v. GEORGE C. RICHARDSON et al., Respondents.

      Contributory negligence—anticipation of danger a necessary element.

    An act although contributing to the injury will not constitute contributory negligence, unless the facts show that as matter of law, the party doing the act ought to have anticipated danger therefrom.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 14, 1887.
    Appeal from judgment dismissing complaint, entered upon direction of the judge.

      The facts appear in the opinion.

      F. P. Trautman, attorney, and Edward C. James of counsel for appellant, on the questions considered in the opinions argued:
    I.—On a motion for a nonsuit all disputed facts are to be decided in favor of the plaintiff, and all presumptions and inferences, which plaintiff had a right to ask from the jury are to be conceded to him. Meyers v. Dixon, How. Pr. 48 ; 35 N. Y. Super. 390; Fairfax v. Railroad Co., 40 N. Y. Super. 128; Cook v. Railroad Co., 1 Abb. App. Dec. 432.
    II. As to contributory negligence—Munroe v. Third Ave. R. R. Co., 50 Sup’r Ct. 114; Stackus v. Railroad Co., 79 N. Y. 464 ; Wendell v. Railroad Co., 91 N. Y. 420; Thurber v. Railroad Co., 60 N. Y. 326 ; Hogan v. Henderson, 2 N. Y. S. Reporter, 119 ; Whitaker’s Smith on Negligence, p. 419; Daniel v. Met. Ry. Co., L. R. 5 Eng. & W. App., 45; Ernest v. Hudson R. R. Co., 35 N. Y. 9; Newson v. N. Y. &c., Ry. Co., 29 N. Y. 383.
    IH. The rule which exempts a master from liability to his servant for an injury caused by the negligence of a co-servant, has no application to this case.
    A contractor or jobber called in to do a special job is not in any legal sense a fellow servant with those in the service of the employer engaged in his business. They are not engaged in the same common pursuit. Young v. Railroad Co., 30 Barbour, 229; Newson v. Steamship Co., 57 N. Y. 108; Hexamer v. Webb, 101 N. Y. 377; King v. Railroad Co., 66 N. Y. 181, 184; Donalson v. Railroad Co., 18 Iowa, 280; O’Donnell v. Railroad Co., 59 Pa. St., 239.
    It was, therefore, error to dismiss the complaint on this ground.
    IV. The defendants, in this case, owed the duty to plaintiff to furnish him a safe place in which to do his work, and to maintain it in safety while he was at work. Newson v. Railroad Co., 29 N. Y. 383. (See 35 N. Y. 44-5.) Coughtry v. Globe Woolen Co., 56 N. Y. 124; Devlin v. Smith, 89 N. Y. 471, 477; Pontzar v, Mining Co., 99 N. Y. 368; Lanmore v. Iron Co., 101 N. Y. 391; Ackert v. Lansing, 48 How. Pr., 374 ; 59 N. Y. 646 ; Sands v. Edgar, 59 N. Y. 28 ; Leary v. Woodruff, 4 Hun, 99; affirmed 76 N. Y. 117; Barber v. Abendroth, 102 N. Y. 406; Newall v. Bartlett, Superior Court; Hogan v. Hardensen, 2 N. Y. State Rep. 119.
    The rule is that whoever invites another upon his premises to do a job for him is bound to use reasonable care to see to it that he is exposed to no unnecessary dangers while engaged in such work. Scott v. London Dock Co. (3 H. & C. 596); Lyons v. Rosenthal, (11 Hun, 46); Norris v. Kohler (41 N. Y. 42); Roberts v. Johnson, (58 N. Y., 613); Simpson v. Omnibus Co. (L. R. 8 C. P. 390 ; Stokes v. Saltanstall (13 Peters, 181); Toledo, &c., R. Co. v. Baggs, (85 Ill. 80); Wall v. Livezay, (6 Colo., 465); Bryce v. C. Stage Co. (25 Cal., 460); McKinny v. McNeil, (1 McLean, 540), and Christie v. Griggs, (2 Campb., 79); Seyboldt v. Erie R’y Co., (95 N. Y., 562-9); Edgerton v. N. Y. &c. R. Co., (39 N. Y., 227); Curtis v. R. &. S. R. Co., (18 N. Y., 534); Pittsburgh R’y Co. v. Williams, (74 Ind., 462); George v. St. Louis R’y Co., (34 Ark. 613; Dawson v. M. S. &c. R’y Co., (5 Law Times, 682); Bird v. G. N. R’y Co., (28 L. J., Ex. 3); N, O. R. Co. v. Allbritton, (38 Miss. 242); Iron R’y Co. v. Mowery, (36 O. S., 418 ; Skinner v. R’y Co., (5 Exch., 787); Carpue v. R’y Co., (5 Q. B. 751); Caldwell v. N. J. Steamboat Co., (47 N. Y., 282, 291); The Reliance, (4 Woods C. C. 420); Robinson v. N. Y. C. R. Co., (20 Blatchf. C. C. 338); Mullen v. St. John, (57 N. Y. 567); Vincent v. Cook, (6 Th. & C., 562); and Murray v. McShane, (52 Maryland, 212); Clare v. City National Bank, (1 Sweeney, 539); Cummings v. Nat. Furnace Co. (60 Wis., 603); Kaples v. Orth, (61 Wis., 531); M. & O. Packet Co. v. McCool, (83 Ind., 392); Russell Mfg. Co. v. N. H. Steamboat Co., (50 N. Y., 121-7); Gerlach v. Edelmeyer, (47 Superior Court, 292), affirmed, 88 N. Y. 645.

      Francis Reed, attorney, and James M. Smith of counsel for respondents, cited :
    Reardon v. Consolidated Card Co., (51 Superior Court, R. 141); Johnas v. Syracuse and Binghamton R. R. Co., 98 N. Y. 205 ; Wilds v. Hudson River R. R., 54 N. Y. 432; Cordell v. N. Y. C. R. R. Co., 75 N. Y. 332; Gibson v. E. R. Co., 75 N. Y. 454; Johnson v. Hudson River R. R., 20 N. Y., 65; 23 Federal Reporter, 671.
   Sedgwick, Ch. J.

The action was for damages from the negligence of defendants.

The plaintiff had been employed by defendants to do some carpenter work near an • elevator, which was in the use and possession of defendants. For a purpose connected with that work, the plaintiff stood upon the platform of the elevator, and to “ steady himself ” as he testified, he took hold with his hand of a chain which, with other chains, supported the elevator. This chain passed around an iron pulley. When he was thus standing, the elevator began to rise and plaintiff’s hand, while on the chain which he had grasjied, was drawn against the pulley and was injured.

On the trial, the court dismissed the complaint.

The learned counsel for respondents argues that the judgment should be affirmed upon two grounds.

The first is, that on the whole evidence, it appears that the plaintiff himself, started the elevator. The evidence on this point would have justified the jury in finding that the plaintiff was not the cause of the elevator starting, although on the other hand, a verdict to the contrary might be sustained. The jury was the judge of what was the cause of the elevator moving.

The second ground is, that the plaintiff was negligent in taking hold of the chain. There is no doubt that this act contributed to the result, of the hand being hurt. It would only be a negligent act, upon the assumption that the plaintiff ought to have anticipated the likelihood or possibility of the elevator starting and endangering the hand. There are no facts to show that the plaintiff, as matter of law, should have anticipated the danger. This matter was also for the jury.

Judgment reversed, and new trial ordered with costs to abide the event.

Freedman, J. concurred.

Ingraham, J.

The elevator on which the accident happened was under the control of the defendants or their agents. There is no evidence that the elevator was out of order or that it would move unless some one started it.

There was evidence from which the jury could find that the plaintiff did not start the elevator, and on the testimony it would be a question for them to say whether the elevator moved by reason of any negligence of the defendants or their agents.

The plaintiff was lawfully upon the premises and when the owner of lands in the prosecution of his own purposes or business, invites another, either expressly or impliedly, to come upon his premises, he cannot with impunity expose him to unreasonable or concealed dangers ; Larmore v. Crown Point Iron Co., 101 N. Y., 395.

Plaintiff came to work on this elevator by invitation of the defendants. While there, he took the ordinary risks incident to the work he was sent to do; but the defendants were bound not to expose him to unreasonable danger which could not be foreseen, and which the exercise of ordinary care on the part of the defendants or their agents or servants would have prevented.

If then, plaintiff was exposed to such danger by reason of the negligence of the defendants or their servants, and there was no negligence .on his part, and he was injured, I think the defendants are liable.

It was a question therefore for the jury to say whether or not the defendants or their agents negligently started the elevator.

I concur therefore, that the judgment should be reversed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ADOLPH SIMIS, Jr., Appellant, v. A. V. DAVIDSON, Sheriff, etc., Respondent.

      Corporate instrument, sufficiency of proof of authority to execute—Averments in answer, estoppel by.

      A chattel mortgage purporting to be given by “The Homeopathic Manufacturing Company” was executed thus: “ The Homeopathic Manufacturing Co., B. Osann, President,” with a seal. It was acknowledged by Bernard Osann, President of the Homeopathic Manufacturing Company, before a notary public. The mortgage was given for money loaned, which had been used in the business of the corporation. There was evidence from which the jury might have found that the president was the general manager of the company. It was averred in the answer that the property covered by the mortgage had been owned by the company.

      Held, 1st: That it was sufficiently proven that the president had authority to act for the corporation in executing the mortgage to entitle it to be received in evidence; and that its exclusion was error.
    2d: That under the averments in the answer the defendant could not maintain that there was no proof of the incorporation of the company,
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided February 14, 1887.
    Plaintiff’s exceptions ordered to be heard in first instance at General Term after a dismissal of complaint before a jury.
    The facts sufficiently appear in the opinion.

      William J. Gaynor attorney, and A. Simis, Jr. of counsel for appellant on the questions, considered in the opinion, argued.

      The answer admits that “ The Homeopathic Manufacturing Co.” was in existence, and that one Hodge obtained a judgment against it June 23, 1885, that an execution was issued against its property, by virtue of which the sheriff took the property into his custody.
    It also admits that the goods so taken were the property of said Homeopathic Manufacturing Company.
    It was admitted at the trial that the Homeopathic Manufacturing Company mentioned in the execution is the same that is mentioned in the mortgage. It was error to exclude the chattel mortgage. Castle v. Lewis, et al. 78 N. Y. 131; Coats v. Donnald, 94 N. Y. 168; Phillips v. Campbell, 43 N. Y. 271; Scott v. Middletown R. R. Co. 86 N. Y. 201; 2 Morawetz on Corporations, §§ 597 to 599, 715.

      Cochran & Clark, attorneys and of counsel for respondent.
   Per Curiam.

The controlling question is as to the plaintiff’s exception to the refusal of the court to permit a chattel mortgage to be given in evidence. The ground of the refusal was, that it had not been shown that the person who executed it in behalf of the corporation by which it purported to be made, had authority to act for the corporation in that behalf.

Under the facts the mortgage should have been admitted. It was signed by the president of the corporation. The money loaned by plaintiff had been used in the business of the corporation. The jury might have found that the president was the general manager of the company. If he were, he had power to borrow money for the corporation, and as an incident of that power to give security.

The defendant could not maintain that there was no proof of a corporation, for part of the answer was that the property in question had been owned by The Horneopathic Manufacturing Company. This company was the corporation that made the mortgage in question.

Plaintiff’s exceptions are sustained, and a new trial is ordered with costs to abide the event.


author: By the Court.—Freedman, J.

text:
    FRANCIS D. BAILEY, Appellant, v. THE COUNTY OF BUCHANAN in the State of Missouri, Respondent.

      Goupon-Bonds—Interest coupon, when independent obligation, negotiability of—Tender accompanied by conditions, when it does not stop interest—Deposit, when equivalent to tender.

    Interest coupons attached to a bond as they mature, and are not paid on demand, ripen into new and independent obligations of the obligor in the hands of the holder of the bond. This independence does not rest on their negotiable character.
    When negotiated, such coupons may, in the hands of third parties, become to some extent independent obligations by virtue of their negotiable quality.
    A tender to stop the running of interest on an instrument for the payment of money, must not be accompanied by a condition not authorized by it.
    A tender of the principal sum due on a coupon-bond and of the interest due thereon, accompanied by the condition that all the interests coupon then due be presented with the bond for payment, imposes a condition not authorized by the bond.
    Where a negotiable instrument (a coupon-bond in this case) is payable at
    ■ a particular time and place, the timely deposit by the party liable thereon of funds for making the payment at the time and place named, is equivalent to a tender of the sum payable, and is a bar to the recovery of interest subsequent thereto, provided such deposit is not accompanied by a condition not authorized by the instrument.
    A deposit for the payment of coupon-bonds accompanied by the condition that all coupons for accrued interest must accompany the bonds and be presented with them for payment, imposes a condition not authorized by the bonds, and will not stop the running of interest.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided February 14, 1887.

      Appeal from judgment entered on the decision of a judge at Special Term.
    The facts sufficiently appear in the opinion.

      Henry Parsons, attorney and of counsel for appellant, on the questions considered in the opinion, argued.
    I. Coupons attached to corporation bonds, when payable to bearer, are negotiable promises to pay, and are subject to the same rules as other negotiable instruments. When due they bear interest from demand, can be sued upon independent of the bonds to which they were attached, and the right of action thereon is barred by the statute of limitations, by lapse of time, after such maturity, and not after the maturity of the bond. Field on Corporations § 256; Clark v. Iowa City, 20 Wall. 583; Murray v. Lardner, 2 Wall. 110; Kenosha v. Lamson, 9 Wall. 477; City of Lexington v. Butler, 14 Wall. 298; Spooner v. Holmes, 102 Mass. 507; Eversion v. National Bank of Newport, 66 N. Y. 14; National Exchange Bank v. Hartford and Fishkill R. R. Co., 8 R. I. 375.
    H. A matured coupon, severed from its bond and payment demanded, becomes by operation of law a several and independent obligation of the maker, earning interest, and against which the statute of limitations is running. While partaking of the nature of the bond, making it equally high as a security, and secured by the same Hen as the bond, it has ceased to be an incident of the bond, and is no more a part of the same debt as the bond, than is another bond of the same issue. Cases cited supra.

    In Clark v. Iowa City, 20 Wall, 583 the court distinguishes and explains the decisions in City of Kenosha v. Lamson, 9 Wall. 477, and City of Lexington v. Butler, 14 Wall. 582.
    III. It was necessary for the defendants, in order to avail themselves of the option reserved in said bonds, and to stop the running of interest thereon, to tender payment of the fuH amount due on each bond.

      This proposition involves the inquiry as to what is a good tender, and we claim that a conditional tender is not good.
    The instructions for payment were: “ And that said Bank of America be, and it is hereby authorized and instructed to pay out of the money so to be deposited as aforesaid on presentation any bonds of this county having date the 1st day of July, a. d. 1869, as aforesaid, with the coupons annexed for accrued interest thereon, but not to'pay any coupons detached from said bonds unless the bonds to which the same were originally annexed are also presented for payment.”
    By the above conditions neither bond nor its past due coupons would be paid unless they accompany each other, and payment of both be made at the same time.
    At no time prior to the order of February 6, 1884, could payment be obtained on the bonds except on arbitrary conditions, in no way provided for by the bond, or by waiving a part of amount due, and the plaintiff contends that the interest on the bonds did not cease to run prior to January 1, 1884,.this then was a conditional tender and not good. Bouvier's Law Dictionary, p. 575 ; Greenleaf on Evidence, § 696 ; Phillips on Evidence, Vol. 2,p. 445 ; Tuthill v. Morris, 81 N. Y. 94; Abb. Dig. Vol. 5, p. 706 14.,

      Knevals & Ransom, attorneys, and Rastus S. Ransom, of counsel for respondent, on the questions considered in the opinion, argued.
    I. The principal and interest became one debt, due to the holders of the bonds and coupons, so long as both remained in the possession of the same person. The coupons represented such interest, and were a part of the bonds. Union Trust Co. v. Monticello R. R., 63 N. Y. 313 ; McClure v. Oxford, 94 U. S. 429 ; Dillon on Municipal Cor., § 486, and cases cited; Ketcham v. Duncan, 96 U. S. 659; Morgan v. The United States, 113 U. S. Reports, p. 497.

      II. Where a negotiable instrument is made payable at a particular time and place, and funds were provided by the maker to make the payment at the time and place named, the law is well settled that it is equivalent to a tender of the sum payable, and is a bar to the recovery of interest subsequent to the tender. Hills v. Place, 48 N. Y. 523; Locklin v. Moore, 57 N. Y. 362.
    The defendant obligated itself to pay the principal and interest on the presentation of the bond and coupons at the Bank of America in the city of New York. By the terms of the order the principal became due August 1, 1883, and the defendants were only bound to pay on presentation of the instrument, and while the failure to present the bonds and coupons did not discharge the obligation on proof that the money was at the place named, it discharged the obligation to pay interest that accrued subsequently. Hills v. Place, supra ; Caldwell v. Cassidy, 8 Gowen, 271; Walcott v. Van Sanvoort, 17 Johns., 248.
    A creditor cannot insist upon the payment of a portion of the indebtedness without the surrender of the obligation requiring its payment.
   By the Court.—Freedman, J.

This action was brought to recover the amount of ten coupons of $50 each, representing the semi-annual interest claimed to be due January 1, 1884, on ten bonds issued by the defendant, dated July 1, 1869, and payable July 1,1889, both coupons and bonds having been made payable at the Bank of America in the city of New York.

Each bond contained the following provision : This bond is redeemable by the said county at its option, at any time after ten years from the date thereof.”

The defense is that the defendant exercised said option by taking certain proceedings on July 7,1883, to pay said bonds at the Bank of America on the 1st of August, 1883 ; that the money required to pay said bonds and coupons was furnished to said bank on the 20th of July, 1883; and that plaintiff’s assignor had full and timely notice of the exercise of said option.

On said 7th day of July, 1883, plaintiff’s assignor was the owner of the ten bonds referred to, and of the coupons in suit which were then attached to the said bonds. At the same time he was also the owner of certain other coupons which had been detached from the said bonds, but which were similar in terms and had matured on and prior to the 1st day of July 1883, and which represented respectively semi-annual interest on said bonds which had accrued on and prior to said 1st day of July, 1883. These detached coupons had not been paid by the defendant, although they had been presented and demand for their payment had theretofore been made.

After August 1, 1883, plaintiff’s assignor presented the said ten bonds to the Bank of America for payment, but did not present or demand payment for the coupons matured for interest accrued on and before July 1,1883. The bank, under instructions from the defendant, refused to pay the bonds presented for the reason that the coupons for accrued interest upon which the defendant was in default, did not accompany the said bonds and were not at the same time presented for payment.

On December 18, 1883, the defendant authorized the bank to pay coupons for accrued interest although not accompanied by the respective bonds, but at the same time the bank was instructed not to allow interest on such coupons after August 1, 1883.

After January 1, 1884, the coupons in suit, representing the semi-annual interest between July 1, 1883, and January 1, 1884, were detached from the bonds and presented for payment, and payment was refused as to five sixths thereof.

On the 7th of February, 1884, the ten bonds were naid pursuant to a special order of the defendant, without being accompanied by any coupons, and subsequently the coupons for interest accrued on and prior to July 1, 1883, were paid, with interest thereon, by defendant’s special direction.

Upon these facts it is clear that if the ten bonds had been paid when presented for payment in August, 1883, the coupons in suit would never have become due and payable.

The question presented by the appeal therefore is, whether the defendant could in August, 1883, refuse payment of the ten bonds on the ground that the coupons of said bonds for interest accrued prior to July 1, 1883, were not presented for payment at the same time, and yet can claim that, in the exercise of its option, it had made a sufficient lawful tender to stop the running of interest from August 1, 1883.

In approaching the determination of this question two propositions may be at once conceded. The first is that the plaintiff as assignee, has no greater or better rights than his assignor would have had, if he had brought the action. The second is, that where a negotiable instrument is payable at a particular time and place, the timely deposit by the party hable thereon of funds for making the payment at the time and place named, is equivalent to a tender of the sum payable, and is a bar to a recovery of interest subsequent to the tender.

But a deposit of this kind and for the purpose named, must not be accompanied by a condition not authorized by the instrument.

This brings up at once the question as to the nature and character of the coupons which had been detached from the bonds, and whether such coupons, by reason of their maturity and the default in the payment thereof, were obligations independent of the bonds in the hands of the holders of the bonds.

• True, the obligation created by each bond was to pay the principal sum and interest thereon, and the coupons represented such interest and were a part of the bond, and they therefore partook of the nature of the bond and were governed by its terms.

But the fact which must never be lost sight of is, that the coupons represented a special mode agreed on by and between the parties for the convenience of any holder of a bond in collecting the interest as it might become due for many years to come. On this subject the Supreme Court of the United States recently held in Clark v. Iowa City, 20 Wall. 583, as follows :

“ Most of the bonds of municipal bodies and private corporations in this country are issued in order to raise funds for works of large extent and cost, and their payment is therefore made at distant periods, not unfrequently beyond a quarter of a century.

“ Coupons for the different instalments of interest are usually attached to these bonds in the expectation that they will be paid as they mature, however distant the period fixed for the payment of the principal. These coupons, when severed from the bonds, are negotiable and pass by delivery. They then cease to be incidents of the bonds, and become in fact independent claims; they do not lose their validity, if for any cause the bonds are cancelled or paid before maturity ; nor their negotiable character, nor their ability to support separate actions, and the amount for which they are issued draws interest from their maturity. They then possess the essential attributes of commercial paper as has been held by this court in repeated instances.

“ Every consideration, therefore, which gives efficacy to the statute of limitations, Avhen applied to actions on bonds after their maturity, equally requires that their limitations should be applied in actions upon the coupons after their maturity. Coupons when severed from the bonds to which they were originally attached are, in legal effect, equivalent to separate bonds for the different instalments of interest. The like action may be brought upon each of them, when they respectively become due, as upon the bond itself, when the principal matures; and to each action—to that upon the bond and to each of those upon the coupons, the same limitations must upon principle apply. All statutes of limitations begin to run when the right of action is complete; and it would be exceptional and illogical to hold that the statute sleeps with respect to claims upon detached coupons, while a complete right of action upon such claims exists in the holder.”

If, therefore, from the nature of the contract between the parties, each coupon, as it matures and is not paid upon demand, ripens into a new and independent obligation of the maker, its independence as a distinct obligation does not rest upon its negotiable character.

True, a coupon may to some extent become an inde.pendent obligation even before maturity when negotiated, by virtue of its negotiable quality, but from this it does not follow that a coupon, the payment of which was refused at maturity, is not an independent obligation in the hands of the holder of the bond who detached it from the bond to which it belongs.

There is nothing in the decisions of City &c. v. Lamsen, 9 Wall. 477, and The Union Trust Co. v. Monticello R. R. Co., 63 N. Y. 311, which conflicts with these views.

In as much therefore as in the case at bar it was part of the original contract that each coupon, as it matured and was not paid on demand, should ripen into a new and distinct obligation, it was the duty of the defendant, in order to reap the benefit of the option reserved in the bonds and to stop the running of interest thereon, to tender payment of the full amount due on each bond irrespective of the question whether coupons detached therefrom for accrued interest, were or were not presented for payment at the same time. Under the circumstances of this case it was none of the business of the defendant to inquire whether the holder of a bond who demanded payment, was not also the owner of another cause of action. The consequence is that, in annexing to the deposit of the funds the condition that no bond should be paid unless it was accompanied by all the coupons for accrued interest, the defendant did not make a sufficient lawful tender to stop the running of interest from August 1, 1883.

For the reasons stated the learned judge below erred in holding that the plaintiff was entitled to recover only the one sixth part of the amount of the coupons sued upon. The plaintiff is entitled to recover the full amount of said coupons.

The judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Sedgwick, Ch. J., concurred.


author: By the Court.—Freedman, J. Ingraham, J., (dissenting)

text:
    WILLIAM MOORES v. JOHN TOWNSHEND and CHARLES LEHMAN.

      Partition judgment, who not affected by—Ejectment, possession under an assessment sale, when a defence.

    One in possession of premises claiming a right for a term of years is not affected by the judgment in an action brought after the commencement of such possession for a partition of such premises, to which he is not a party.
    Possession of premises founded on a sale by the corporation of the City of New York for an unpaid assessment, which possession under some authority derived from that corporation commenced before the plaintiff in ejectment acquired title, constitutes a good defence to.the ejectment action, where there is no proof showing the invalidity of the proceedings under which such possessor claims the right of possession, or otherwise showing that he took possession unlawfully, and no proof that the plaintiff in ejectment or anyone of his predecessors in title ever was in possession.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 14, 1887.

      Application for judgment on a verdict for the defendants, directed by the court below subject to the opinion of the court at General Term.
    The facts sufficiently appear in the opinion.

      L. A. Gould, attorney, and Robert L. Wansley of counsel for plaintiff on the question considered in the opinion, argued :
    Plaintiff proved a complete record title; defendants neither proved, nor attempted to prove any title whatever ; the record does not show that they make any claim of title adverse to that of plaintiff, or that their possession is hostile to plaintiff’s title.
    The law presumes that they hold or occupy in subordination to the record title of plaintiff, and plaintiff therefore is entitled to judgment. Code of Civil Procedure, § 368; Wood v. Squires, 1 Hun, 481; Stevens v. Hauser, 39 N. Y. 304; Greenleaf v. Brooklyn, &c., R. R. Co., 37 Hun, 435; Sinclair v. Field, 8 Cowen, 543, 577; 3 Wait's Actions and Defences, p. 13.

      John Townshend, attorney, and of counsel for defendants, on the questions considered in the opinion, argued :
    I. The direction of the verdict was right. The plaintiff had to recover upon the strength of his own title. He showed no title, (a) No possession was shown in Stansberry, nor in anyone claiming through him. Gardner v. Heart, 1 N. Y. 528; Price v. Brown, 2 Cent. Rep. 446.
    n. Any presumption of title arising from the decree in partition was entirely rebutted by the defendants, (a) The giving a lease by Townshend and the entry by his lessee was an assertion of title. Northrop v. Wright, 7 Pill, 470; Wilklow v. Lane, 37 Barb. 244. (b) Possession of land under a deed [lease] given without right in the grantor [lessor], is adverse to the rightful owner. Sands v. Hughes, 53 N. Y. 295. (c) Where no superior title is shown, possession of land is evidence of title in fee in the one in possession. Hill v. Draper, 10.Barb. 455. (d) If Townshend had not possession, his giving a lease to Breen would have been an unlawful act—a misdemeanor (2 R. S., 691, § 6); but it must be presumed he acted lawfully—that is, that he had a right to give the lease; because “no man is presumed without evidence to have done or intended to do an unlawful act.” Culver v. Rhodes, 87 N. Y. 353. (e) The deed by the Referee to Dayton was not any evidence of title. Moores v. Townshend, 102 N. Y. 392.
    III. The decree in partition was not binding upon the defendants in this action. Before the partition suit was commenced Townshend had given a lease to Breen, and Breen had gone into possession. Whether that possession was rightful or wrongful, it was a claim by the defendants of which they could not be deprived without being heard. People v. Walter, 68 N. Y. 408; Wright v. Cabot, 89 N. Y. 577; Schrauth v. Dry Dock Bk., 86 N. Y. 390; Culver v. Rhodes, 87 N. Y. 350; Moores v. Townshend, 102 N. Y. 391. Defendants could not have been removed by writ of assistance. Meigs v. Willis, 8 Civ. Pro. R. 125.
   By the Court.—Freedman, J.

The plaintiff, in order to maintain ejectment, relies upon a record title resting upon a judgment in partition. Such a judgment is conclusive upon all persons specified in §§ 1577 and 1557 of the Code of Civ. Proc., but the defendants in the action, wbt> were not made parties to that suit, are not among the persons so specified.

Before the partition suit was commenced, Townshend had given a lease to Breen, and Breen had gone into possession. Breen also had built a house on the lot in question and he, and his successors in interest, have been in possession of said lot ever since as tenants of Townshend. Whether that possession was rightful or wrongful- as against the plaintiff, it was a claim by the defendants of which they could not be deprived without a hearing. The present action furnished to them the first opportunity of being heard.

The case shows that Townshend is, and since April 22, 1879 has been, in possession of the lot by his tenants, and that his possession is founded upon a sale of the premises for an unpaid assessment, which sale was made to him in September 1871, for the period of ninety years.

From another litigation between the same plaintiff and Townshend, reported in 102 N. Y. 387, it appears that the sale for the assessment was actually followed up by a conveyance by the comptroller to Townshend dated September 19, 1873. This conveyance, if it had been given in proof here, would establish prima facie the regularity of the proceedings which led up to it, and the rightfulness of Townshend’s possession. But this was not done. The case is therefore to be treated as without direct proof of the existence of a conveyance. Nevertheless, as the law never presumes a wrong, it may, under the exceptional circumstances of this case, be inferred that Townshend did take possession under a lease from the corporation.

The case then comes down to this: The plaintiff at the trial showed an apparently good record title, but no possession in himself or in some one of his predecessors in title, while the defendant Townshend showed actual possession founded upon a sale by the corporation of the City of New York for an unpaid assessment, and that his possession under, some authority derived from said corporation commenced before the plaintiff acquired title.

Now it was held by the Court of Appeals in Bedell v. Shaw, 59 N. Y. 46, that possession and claim for over twenty years, under a lease for a term of years executed by a municipal corporation upon a sale for unpaid assessments, are not adverse to, but consistent with the title of the owner in fee, and that they are not in hostility to such title, but in accord with it.

Under this doctrine, reaffirmed by the Court of Appeals in 62 N. Y. 632, Townshend, even if he had made full proof of a lease to himself, could not insist that his possession was adverse to plaintiff’s title.

But on the other hand, the application of the said doctrine does not, upon the meagre state of facts disclosed by the record, entitle the plaintiff to a judgment in ejectment.

To recover in this action the plaintiff, although his record title is good, must establish an immediate right of possession, and as the defendant Townshend is in actual possession, under at least a claim of right for a term of years, and under circumstances which do not of themselves show that his claim is unfounded, the plaintiff must show a right to immediate possession superior to Townshend’s claim.

There being no proof showing the invalidity of the proceedings under which Townshend claims the right of possession, or otherwise showing that Townshend took possession unlawfully, and no proof that the plaintiff or one of his predecessors in title ever was in possession, the plaintiff has not established a right to immediate possession superior to Townshend’s claim.

The defendants are entitled to final judgment upon the verdict ordered with costs.

Sedgwick, Ch. J., concurred.

Ingraham, J., (dissenting)

I am unable to agree that defendant is entitled to judgment on the verdict. The record shows that plaintiff proved a deed from one Stansbury to William H. DeGroot, dated May, 1855, conveying the premises described in the complaint; a deed from William H. DeGroot to Theodore R. B. DeGroot, purporting to ednvey certain premises; the judgment roll in an action to partition the property to which all the heirs at law of William. H. DeGroot and Theodore E. B. DeGroot were parties; a judgment in that action adjudging that the parties to that action were the owners, seized of the property in question, and directing that the said premises be sold by the referee therein appointed; a sale by said referee ; the referee’s deed conveying the property described in the complaint to Dayton, and a deed from Dayton to the plaintiff conveying the said property.

The proofs given on the trial of the conveyance of the property to William H. DeGroot, the record in the partition suit to partition DeGroot property, and of the finding of the court in that suit that the property in question belonged to the parties thereto, and that it should be sold by the referee, were sufficient prima facie evidence of title. Greenleaf v. Brooklyn, &c., R. R. Co., 37 Hun. 436.

And the deed of the referee under that judgment to Dayton, and the deed by Dayton to the plaintiff conveyed the premises described in the complaint to the plaintiff in this action.

It is entirely immaterial whether the conveyance from William H. DeGroot to Theodore E. B. DeGroot covered the premises in question. The action for partition in which the heirs at law of William H. DeGroot and Theodore E. B. DeGroot were parties, made the conveyance under the judgment in that action effectual to convey all the interests of either William H. DeGroot or Theodore E. B. DeGroot.

The fact that the defendant Townshend was in possession of the premises at the time of the trial, or that he on April 22d, 1879, gave a lease of these premises to John Breen who then went into possession, is not sufficient to overcome this presumption.

It is not stated that Townshend made that lease claiming title to the property. As possession is presumed to follow the legal title unless the contrary is shown, Townshend’ s possession would not be presumed to be adverse to the real owner.

The mere finding of the referee in the partition suit that the premises had been sold for taxes does not imply that a lease had been executed, or that Townshend at that time had any right to the possession of the premises under that sale. The tax lease was not proved on the trial. It was, however, held in Bedell v. Shaw, 59 N. Y. p. 46, and in 62 N. Y. 632, that possession and claim under a municipal tax lease is not adverse to, but consistent with the title of the owner in fee, and is not in hostility to the title but in accord with it and in consequence of it, and that the law adjudges the possession of the lessee to be no greater than that of tenant for a term of years.

The finding therefore in the partition case if it amounts to anything, would show that Townshend at that time did not hold as the owner of the property, and is not therefore inconsistent with the finding that the parties in that action were the owners in fee.

I think, therefore, that plaintiff is entitled to judg ment.


author: By the Court.—Ingraham, J.

text:
    JAMES M. SELOVER, Respondent, v. ASBURY HARPENDING, Appellant.

      Contract to indemnify, or to guarantee, against loss—Measure of damages, the amount which was obliged to be and was in fact paid.

    By the agreement between the plaintiff and defendant, defendant guaranteed and was to indemnify and keep harmless the plaintiff against all losses which might arise on account of any depreciation in the market value of stocks which plaintiff should buy and sell in his own name for account of defendant under the agreement.
    There were losses on such stocks arising from depreciation in their market value, but with a single exception, plaintiff had not paid such losses to the brokers who made the purchases.

      Held, that the contract was strictly one to indemnify and save harmless; and that the measure of damages was the sum which plaintiff was obliged to, and actually did pay by reason of the losses arising from such depreciation.
    Before Freedman and Ingraham, JJ.

      Decided February 14, 1887.
    Appeal from judgment entered upon a verdict.
    The facts sufficiently appear in the opinion.

      Abbott Brothers, attorneys, Robert G. Ingersoll, Albert Alen Abbott and Victor Morawetz, of counsel for appellant, on the questions considered in the opinion cited:
    Gilbert v. Wiman, 1 N. Y. 550; Aberdeen v. Blackmar, 6 Hill, 324; California Dry Dock Co. v. Armstrong, 8 Sawyer, 523; Crippen v. Thompson, 6 Barb. 532; Belloni v. Freeborn, 63 N. Y. 390; Kohler v. Mattlage, 72 N. Y. 259; Rector, etc., Trinity Ch. v. Higgins, 48 N. Y. 532; National Bank of New York v. Bigter, 83 N. Y. 51; Wright v. Whitney, 40 Barb. 255; Churchill v. Hunt, 3 Davis, 321; Weller v. Eames, 15 Minn. 461; Ewing v. Reilly, 34 Mo. 113; Cutter v. Southern, 1 William Saunders, 133; Wicks v. Hoppock, 6 Wall. 84; Carson Opera House v. Miller, 16 Nev. 327, 332; Van Slyck v. Kimball, 8 Johns. 197; Matter of Negus, 7 Wend. 499; Jackson v. Toot, 17 Johns. 482; Gennings v. Norton, 35 Me. 308; Hay v. Buckner, 1 Freem. Ch. (Miss.), 533; Taliaferro v. Brown, 11 Ala. 702; St. Albans v. Curtis, 1 D. Chip. (Verm.) 164.

      E. H. Grandin, attorney, and Ira Shafer of counsel for respondent, on the question considered in the opinion cited:
    2 Sedgwick on Damages, 10, n. 2; Gries v. Zeck, 24 Ohio St. 329; Noble v. Arnold, 23 Ohio St. 264; Churchill v. Hunt, 3 Denio, 321; Rockfeller v. Donnelly, 8 Cow. 623; Bellini v. Freeburn, 63 N. Y. 383, 390; Crocker on Sheriffs, § 845, 847; Wright v. Whiting, 40 Barb. 235; Jarvis v. Sewall, 40 Barb. 235; Seligman v. Dudley, 19 Hun, 186, 187; 2 Sedgwick on Damages, pp. 3 and 7; Johnson v. Gilbert, 9 Hun, 469, and cases cited; Bancroft v. Mispear, 44 Barb. 209; Chace v. Hinman, 8 Wend. 452; 8 Cow. 628; Gilbert v. Wiman, 1 Comst. 550; Story v. Lyon, 63 N. Y. 172, 383.
   By the Court.—Ingraham, J.

The plaintiff alleges in his complaint “ That in and by said contract between said plaintiff and the defendant, it was agreed that plaintiff should buy the said stock in his own name, pay the commissions for buying and selling the same and pay the interest which might arise for holding and carrying the said stock, and said defendant guaranteed and was to indemnify and keep harmless the said plaintiff against all losses which might arise on account of any depreciation in the market value of said stock, and all commissions for purchasing and selling said stock and interest made or incurred in holding and carrying the said stock, and in case of an advance in the value of the said stock, that after deducting commissions and interest the gain or profit arising from such advance should be equally divided between said plaintiff and the said defendant.

The plaintiff, to sustain this allegation, gave evidence on the trial tending to show that the defendant made the contract alleged in the complaint, and that question was submitted to the jury, and they, having found for the plaintiff, it must be assumed that the contract alleged in the complaint was made by the defendant.

The defendant asked the court to charge “That there is no evidence that the plaintiff in this case has sustained any damages unless for the sum of $3,000, claimed by him to have been paid by him to Dillingham & Co., or Parkes & Co., February 13, 1883.” The court refused to charge as requested and the defendant excepted. The court then charged the jury “If you believe the evidence to be true, the loss he sustained was the difference between the price at which the stock was purchased and its price at the time it was sold, with commissions and interest.” To that charge the defendant excepted.

It appeared by the evidence that with the exception of $3,000 paid to Parkes & Co., none of the losses on the stock had been paid by the plaintiff to the brokers who purchased the stock, but that the loss still remained due and owing by him to such brokers, and the question is whether on the contract as alleged and proved, the plaintiff was entitled to recover for the amount of the loss not paid by him on the stock purchased under the agreement and which remains unpaid.

To determine defendant’s liability, it is first necessary to ascertain what the defendant agreed to do. If the guarantee was against liability, or the obligee becoming .liable, there is a breach of the covenant, and as soon as the obligee became liable to ¡Day, a cause of action existed, and although this principle has been questioned it is now firmly established in this state.

VVhere, however, the contract is a guaranty against damage or a guaranty against loss, before there can be a breach the obligee must suffer loss or sustain damage, and in that case before a cause of action exists actual loss or damage must be shown.

In Belloni v. Freeborn, 63 N. Y. 390, Allen, J. said: “ Had the bond been conditional solely to indemnify and save harmless from damage by reason of the liability, the obligee, the recovery would necessarily have been limited to the actual damages sustained by him. He could only have recovered to the amount of actual damnification.”

In Aberdeen v. Blackmar, 6 Hill, 324, the covenant was to indemnify and save harmless the plaintiff from any claim or demand that one Fuller might then have or might thereafter have against the plaintiff. It was held that this was strictly a contract to indemnify and save harmless and nothing more, and that the plaintiff showed no breach, although judgment had been recovered against him, the court saying, “It is not an agreement to indemnify against liability; but it is a common case to indemnify against the claim of a third person, and before plaintiff can recover he must show he has been damnified.” In the case of Kohler v. Matlage, 72 N. Y. 267, the court say “ The distinction is clearly defined between such an obligation and an indemnity against loss or damage by reason of a liability. In the former case the covenantee is to be saved from the thing specified, and in the latter from the consequence of it.” And in the case of Sinsheimer v. Tobias, 53 Super. Court 508, the rule is stated “If the contract made by Tobias was only to indemnify the plaintiff and save him harmless against claims of the creditors of the firm, payment of the claims or some of them by plaintiff would have been necessary to sustain an action for damages.”

In the case of Gilbert v. Wiman, 1 Coms., 550, the distinction is said to be between an affirmative covenant for a specified thing and one of indemnity against damage by reason of the non-performance of the thing specified.

In the case last cited the condition of the obligation was “ That the said sheriff shall not sustain any damage or molestation whatsoever by reason of any act from this day done or any liability incurred by or through .said deputy. The court held that plaintiff could only recover the amount of damage actually shown to have been incurred by the obligee; that by that obligation the defendant agreed that the plaintiff should not sustain any damage, which means actual damage, by reason of any liability incurred by the act of the deputy.

It was held by the commission of appeals in the case of Trinity Church v. Higgins, 48 N. Y. 537, “ the rule may be definitely drawn from numerous cases, that where indemnity only is expressed, damage must be sustained before a recovery can be had,” and this rule is approved in the case of National Bank of Newburg v. Bigler, 83 N. Y. 61, where the court say “ where the indemnity provided is against a charge or fixed legal liability, the obligee is to be saved from the thing specified and the right of action becomes complete upon the defendant’s failure to do the particular thing he agreed to perform, while on the other hand where the covenant is for indemnity only and against resultant damages, these must be actually suffered before an action can be maintained.

The contract alleged in this case was to indemnify and keep harmless the plaintiff against all loss which might arise on account of any depreciation in the market value of the stock. The contract proved was that the defendant would guarantee the plaintiff against loss. By the agreement it was the plaintiff who was to be indemnified^ and the loss was to be the loss of the plaintiff, not of the brokers. Until therefore the plaintiff was actually damnified by having actually paid something, he sustained no loss.

There is a marked conflict between many of the cases on this subject, and it is difficult to reconcile them. The later authorities however maintain the distinction above referred to, and I think it clear that the covenant in this case is for an indemnity against the loss only, and that such loss must be actually suffered before an action can be maintained.

I think therefore, the trial judge erred in charging that the measure of damage was the difference between the price, at which the stock was purchased, and its price at the time it was sold, and the judgment should therefore be reversed, and a new trial ordered with costs to appellant to abide the event of the action.

Freedman, J., concurred.


author: By the Court.— Ingraham, J.

text:
    JAMES SCOTT and others, Respondents v. PERCY KENT, impleaded, Appellant.

      Application by the creditor of both an old and new firm, the latter being formed by the advent of a new partner on the dissolution of the former and the retirement of one of its partners, of payments made by the new firm to a debt of the old one, when not justified.—Estoppel.—Promises by a member of the new, in relation to an indebtedness of the old firm, effect of.

    A firm dissolved, and one of the partners retired; a new firm was formed, a new member coming in (viz: the above appellant). The new firm undertook to pay the indebtedness of the old firm as it appeared on the boohs of that firm. The firm name of the new firm was the same as that of the old one. At the time of its dissolution the old firm was indebted to the plaintiff in a large sum of money, including therein a certain item of $2,978.07 which did not appear on its books. The new firm continued dealing with plaintiffs, and made purchases from and payments to them. The payments so made were sufficient to pay for all goods purchased by the new firm. The plaintiffs, however, applied such payments to the old indebtedness of $2,978.07 and sued the members of the new firm for the price of the goods sold to that firm. Before any payments made by the new firm plaintiffs knew of the change in the firm. The appellant Kent had no knowledge of the existence of this item of indebtedness until after the application of the payments to it, and when he discovered its existence he refused to pay it or to allow the money paid by him to be applied to it. It did not appear that the new firm had sufficient assets of the old one to pay the indebtedness; nor that Kent had acquiesced in the application after he had notice of such application; nor that plaintiff’s opportunity of collecting from the old firm had been lost; nor that they were in any worse position than they were at the time of the dissolution of the old firm.

      Held, 1st: That the plaintiffs were not justified in making the application. 2d: That Kent was not estopped from claiming that such application was not justifiable. 3d : That applying the payments on the purchases made by the new firm, there was nothing due thereon.
    A naked promise by a member of a new firm in relation to an indebtedness of an old firm of which he was also a member, will not bind the new firm.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 14, 1887.

      Appeal from judgment entered on report of referee.
    The facts sufficiently appear in the opinion.

      Lowrey, Stone and Auerbach attorneys and Gh. Francis Stone of counsel for appellant, reviewed the evidence, and on the legal aspects argued.
    1. The judgment compels the appellant who is found to have made no agreement to assume the liabilities of the old firm, to pay $3,000 more than if he had so agreed. Cranford v. Cocks, 6 Exchequer R. 87. This result is only arrived at by treating the appellant as having “entrusted” Bayard with checks drawn directly to plaintiff’s order, some of- which Bayard was authorized to use in paying the old firm’s debts, but as to the rest of which he had no such authority.
    2. The judgment allows the plaintiffs, who have not been misled to their prejudice, to adopt and then to profit by the wrong of Bayard, merely because the first checks were not drawn payable to Bayard and then endorsed by him to the plaintiffs. It sacrifices justice to the merest form. Piano v. Bernard, 2 Lea Tenn. R. 367.

      L. H. Arnold attorney and of counsel for respondents, reviewed the evidence, and on its legal aspects argued.
    1. If Bayard had no authority to pay the debts of the old firm, excepting such as appeared on its books, and exceeded his authority in paying the item of $2,978.07 above mentioned, the new firm and the appellant are nevertheless liable for his acts. He had the apparent authority to do it. The appellant was negligent in failing, to notify the respondents of the extent of Bayard’s authority, and of its termination, and on familiar principles, the appellant as one of two innocent parties, should bear the loss, because he put it in Bayard’s power to do the acts complained of. Marsh v. Gilbert, 2 Hun, 58. Apparent authority operates by way of estoppel. Peopie v. Bank of North America, 75 N. Y. 547; Nash v. Hartford Fire Ins. Co., 73 N. Y. 5.
   By the Court.— Ingraham, J.

This action was brought to recover a balance due plaintiffs for goods sold and delivered to the firm of C. H. Bayard & Co. The defendant Kent answered alleging payment. It appeared that defendants made payment to the plaintiffs sufficient to pay for all goods purchased by them. The plaintiffs, however, applied a portion of the moneys paid to the liquidation of an account due to them by the firm, of which the defendants were the successors, and the right to make such application is the question involved on this appeal.

The referee found that prior to the 18th day of April, 1884, there existed a partnership firm of C. H. Bayard & Co., which was composed of the defendant Bayard and one Jackson; that said firm was dissolved on or about the 18th of April, 1884, and the defendant firm of C. H. Bayard & Co. was formed on that day ; that plaintiff between April 18th and April 30th, 1884, knew that Kent had joined the firm ; that on said April 18th, 1884, there was a large balance of money due from the old firm to the plaintiffs, and that said balance included one item of $2,978.07, which did not appear upon the books of the old firm; that on the organization of the new firm an arrangement was made between the new firm and the old firm by which the new firm undertook to pay by checks upon its bank account the indebtedness of the old firm of C. H. Bayard & Co., as that indebtedness appeared upon the books of the said old firm ; and that to carry out said agreement the. new firm did pay all of the indebtedness of the old firm to the plaintiffs excepting the said item of $2,978.07.

It appeared that the new firm went on dealing with the plaintiffs, and made purchases of goods from them, and made payments to them on account of such purchases sufficient to pay in full for such goods purchased, such payments commencing April 30th. The plaintiffs however applied the money so paid by the new firm to the payment of the said sum of $2,978.07, and the referee found as a conclusion of law that the plaintiffs were justified in appropriating to the indebtedness of the old firm all the payments that were made upon the accounts of the plaintiffs with the two firms of C. H. Bayard & Co. prior to the month of September, 1884, and that by making such application the indebtedness of the old firm of C. H. Bayard & Co. to the plaintiffs was extinguished. There was no promise made by the new firm or the defendant Kent to pay all the debts of the old firm orto pay the item of $2,978.07, as that item did not appear upon the books of the old firm as an indebtedness. The new firm was therefore under no obligation to pay this indebtedness.

Nor was the new firm, nor the defendant Kent liable for the debts of the old firm contracted before he became a member of the new firm. Fuller v. Rowe, 59 Barbour, 344; principle affirmed in Court of Appeals, 57 N. Y. 27.

The referee justified the appropriation of the money paid by the new firm to the liquidation of the amount due by the old firm by reason of the course of dealing between the new firm and the plaintiff.

The difficulty with this view is that the money which it is sought to apply to the indebtedness of the old firm, was not the money of the old firm but was the money of the new firm.

The referee found as a fact that the defendant Kent had no knowledge of the existence of their indebtedness to which the payment by the defendant was applied until after the payments which were applied to such indebtedness were made, and it appeared by the evidence that when he discovered that such indebtedness existed he refused to pay it or to allow the money paid by him to be applied to its payment.

It was held in the Supreme Court in the case of Fuller v. Rowe (supra), “ after that (viz. the formation of the co-partnership) the money paid was the money of the partnership as then existing and could not be applied to the payment of the debts of a different co-partnership without the express agreement that it might be so applied, or unless the defendant had made himself jointly liable with the others for the payment of an older debt, and on appeal the commission of appeals held that defendant was not liable without a new agreement upon a consideration.” See 57 N. Y. 27.

The fact that when some money was paid by the new firm to the plaintiffs the indebtedness of the new firm had not matured, was explained by the testimony of the appellant that at the time the payment was made he pointed out to plaintiff’s book-keeper that there was nothing due from the new firm, to which the book-keeper answered, “ Well, according to that ” (referring to the ledger account of the new .firm) it seems you do not owe us anything; but they told me at our office that you owed us this money, and we would like to have some money. We want to make a remittance, and even if you do not owe us this money, you will owe us some money which will soon become due, and if you will pay it you will get credit for it on your account,” on which statement the payment was made.

There was no evidence that at the time of such payment the new firm had sufficient assets of the old firm in its possession to pay the indebtedness in question. Nor is appellant estopped from claiming that the payment made by the new firm should be applied to the indebtedness of the new firm and not to the indebtedness of the old firm. There is no finding by the referee that the appellant acquiesced in the application of the payments to the indebtedness of the old firm after he had had notice of such application, nor that plaintiff was injured in any way by the failure of the appellant to object. It does not appear that plaintiff’s opportunity of collecting its indebtedness from the old firm has been lost, or that they are in any worse position now than they were at the time of the dissolution of the old firm. So far as Bayard acted in relation to the matter of the indebtedness of the old firm, he was acting in his individual interest, and a promise in the name of the new firm in relation to such indebtedness without consideration, could not bind the new firm.

Upon the facts as found by the referee I think therefore that the defendants have paid the plaintiff for the goods purchased by them.

If there is any property of the old firm in the hands of the defendant, plaintiff can reach such property in a proper action, but this action being to recover for the goods sold and delivered to the new firm, and it appearing that the goods sold and delivered had been paid for, plaintiff cannot recover.

The judgment must therefore be reversed, and a new trial ordered, with costs to abide the event.

Sedgwick, Ch. J., and Freedman, J., concurred.


author: By the Court.—Ingraham, J. Sedgwick, Ch. J. (concurring.)

text:
    ANN CRAWFORD, Appellant, v. THE DELAWARE, LACKAWANNA and WESTERN RAILROAD COMPANY, Respondent.

      Negligence case—Crossings—Warning, obligation of not necessarily satisfied by ringing bell—Siifficiency of—in general a question for the jury under the circumstances of each case—Effect of obstructions—Contributory negligence, facts raising a question for the jury.

    The accident occurred at a point where the railroad of the defendant crossed a highway. There were three tracks, two used for the passage of trains, and the third being the most easterly one, a side track on which there, were twenty empty cars. The highway had a rise of eight feet in the one hundred feet next easterly of the track. The vehicle in which plaintiff was seated was coming from the east and proceeding westerly along the highway. The driver listened and looked but neither saw nor heard anything indicating the approach of a train. The engineer of the train testified that the bell was rung for some time before they reached the crossing, but that he could not see the carriage until it appeared on the track, and he was beyond the empty cars. Other persons in other positions saw and heard the train. .

      Held, 1st, That the mere ringing of the bell was not of itself under the circumstances such a sufficient warning to travelers on the highway, although it could be heard and the train seen by persons in a different position, as that a finding by the jury that the defendant was negligentin the performance of its duty to give warning, would not be sustained.
    2. That under the circumstances of this case it could not be said that as a question of law the defendant was not guilty of negligence, but it was for the jury to say whether as matter of fact it was negligent in the use and management of its railway'.
    3. That tiio question of negligence on the part of defendant should have been left to the jury.
    The plaintiff was not the driver of the vehicle. She was the servant of the driver and was on_ the back seat of the carriage taking care of a child. She neither looked nor listened, for any indication of an approaching train. It did not appear that any act of hers would have avoided the accident.

      Held, that the question as to whether there was contributory negligence on her part should have been left to the jury.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided February 14, 1887.
    Appeal from judgment entered upon the verdict of the jury directed by the court.
    The facts sufficiently appear in the opinion.

      Holmes and Adams, attorneys, and Artemus H. Holmes, of counsel for appellant, on the question considered, in the opinion, argued:
    I. The court erred in determining that there was no evidence sufficient to go to the jury upon the question of defendant’s negligence. Weber v. Railroad Co., 58 N. Y. 451; Dyer v. Erie R. R. Co., 71 N. Y. 228.

      Hamilton Odell, attorney, and of counsel for respondent, argued.
    I. This is a case where injury befell a highway traveler through the traveler’s negligence. The undisputed facts show this.
    II. In an action of this character there can be no recovery unless the injury complained of was caused wholly by the negligence of the defendants. Weber v. N. Y. Cent., 58 N. Y. 455. It is for a plaintiff to show that he exercised due care and was free from fault which contributed to his hurt. Hale v. Smith, 78 N. Y. 483; Hart v. Bridge. Co., 84 N. Y. 57; Riceman v. Hayermeyer, 84 N. Y. 647. Reasonable care is such as prudent persons exercise when contemplating the danger that may be encountered.” It must be governed in all cases by the extent of the peril to be encountered and the consequences attending the exposure.” Barker v. Savage, 45 N. Y. 193; Davis v. N. Y. Cent., 47 N. Y. 400; Unger v. 42d St. Co., 51 N. Y. 497; Terry v. Jewett, 78. N. Y. 344; Nitro Glycerine Case, 15 Wall. 536. Time, place, all surrounding or attending conditions and circumstances, must be considered in determining the degree of vigilance to be observed. Warner v. N. Y. Cent., 44 N. Y. 470; Wilds v. Hudson River R. R., 24 N. Y. 440; Illinois Central v. Baches, 55 Ills. 379; Penn. R. R. v. Beal, 73 Pa. 504; Stubley v. L. & N. W., 1 Exch. (L. R.) 13; Harris v. Uebelhoer, 75 N. Y. 175; Tolman v. Syracuse & Binghamton, 98 N. Y. 204; Penn. R. R. v. McTighe, 46 Pa. 320; Gonzales v. N. Y. & Harlem, 1 Jones & S. 62; Cayzer v. Taylor, 10 Gray, 274. Wherever there is exposure to possible danger there must be the exercise of some care to avoid it. If there is no care there is negligence.

    HI. It is not claimed that the plaintiff’s action should be defeated because Mrs. Irving Brown, the driver, was at fault. The first ground upon which the right to recover is resisted is—that the plaintiff herself was negligent, and that her negligence contributed to her injury. The law on the facts of this case is settled by a multitude of authorities. Davis v. N. Y. Cent., 47 N. Y. 400; Weber v. N. Y. Cent., 58 N. Y. 451; Salter v. Utica & Black River, 75 N. Y. 273; Adolph v. Central Park Co., 76 N. Y. 530, 535; Smedis v. Brooklyn & Rockaway, 88 N. Y. 13 ; Tolman v. Syr. & Binghamton, 98 N. Y. 202; Bunn v. D. L. & Western, 6 Hun, 303; Hamm v. N. Y. Cent., 50 Superior, 78. In the case of travelers by wagon this duty is not limited to the one who drives. It rests alike upon all travelers. The carelessness of the driver is not imputable to the one who rides with him, but the one who rides with him is responsible for the consequences of his own neglect; and if he fails to use reasonable and diligent care to discover approaching danger, and to give warning to the driver, who may be heedless, it is negligence which deprives him of a right of action. Hoag v. N. Y. Cent., 21 W. Dig. 506.
    IV. There was no proof of negligence on the part of the defendants. 1. The. train was not moving at an unreasonable speed, and gave ample notice of its coming. The bell was rung and was distinctly heard by the plaintiff’s witness, Miss Bonnell. 2. A view of the train was not obstructed by the freight cars, as the plaintiff contends. 3. As soon as the defendants’ engineer discovered the horse nearing the track and being urged forward with a whip he put on the air-braites and did what he could to stop the train. Even if defendants had been guilty of negligence in the management of the train it would not have excused the plaintiff’s negligence in omitting to look and listen. Havens v. Erie Railway, 41 N. Y. 296; Cosgrove v. N. Y. Cent., 87 N. Y. 88.
    V. Whether a plaintiff is chargeable with contributory negligence is not always for a jury to determine. Where there is no conflict of evidence, and the negligence is plainly shown or fairly inferable from uncontroverted facts, or where the plaintiff fails to show absence of fault on her part, or circumstances from which such absence of fault may reasonably be inferred, it becomes a question of law to be decided by the court. McCall v. N. Y. Cent., 54 N. Y. 642; Morrison v. Erie Co., 56 N. Y. 307; Reynolds v. N. Y. Cent., 58 N. Y. 252; Burrows v. Erie Co., 63 N. Y. 556 ; Cordell v. N. Y. Cent., 75 N. Y. 332; Hale v. Smith, 78 N. Y. 483; Phillips v. R. & S. Co., 49 N. Y. 177; Connelly v. N. Y. Cent., 88 N. Y. 346; Becht v. Corbin, 92 N. Y. 658; Tolman v. S. & B. Co., 98 N. Y. 198; Wendell v. N. Y. Cent., 91 N. Y. 427.
   By the Court.—Ingraham, J.

This action was brought to recover the damages sustained by the plaintiff in consequence of a railroad accident in the state of New Jersey. There was no evidence of any law of that state requiring railroad corporations to give any signals when crossing highways. The question of negligence must therefore be determined by the duty that the common law requires of such corporations.

Plaintiff was in charge of an infant on the back seat of a wagon. The wagon was driven by Mrs. Brown, her employer, and there were two other persons in the carriage ; one on the seat occupied by Mrs. Brown, and one on the seat occupied by the plaintiff.

The highway upon which the carriage was driving approached the railroad track from the east by a considerable ascent. In the last one hundred feet of the road before reaching the track it rises about eight feet. The railroad at the crossing was composed of three tracks; two of the tracks were used for the passage of trains, and the third track, being the easterly of the three, was a side track upon which, at the time of the accident, twenty empty freight cars of the defendant’s road were placed.

Mrs. Brown the driver of the carriage testified that as she approached the track she looked both ways and listened for an approaching train; that she could see no train and could hear nothing; that she then drove on and did not see the train until the horse was upon the track. She then urged the horse forward. The engine struck the carriage, severely injuring the plaintiff.

The nearest empty car was about eighty-five feet from the crossing. The plaintiff testified that there was no talking in the carriage at the time. She did not hear or see the engine until they were on the track, when some one .exclaimed, Here comes a locomotive.” She then looked up; saw the freight cars and the i: engine was right on us.”

The evidence of others who saw the accident was to the effect that they saw the engine coming and heard the bell ring.

The engineer testified that the bell was rung for some time before they reached the crossing, but that he did not see, or could not see the carriage until it appeared on the track, and he was beyond the empty freight cars. The grade of the railroad track prior to reaching the crossing was a down grade, and the train was run by gravity.

The trial judge held that the warning that was given was under the circumstances sufficient, and the defendant was absolved from negligence.

The liability of railroad companies for accidents of this description has been much discussed in this state. In most of the cases, however, there was evidence that the warnings required by the statute were not given.

The general rules regulating such liability, however, are well settled. In Beisiegel v. The N. Y. Central R. R. Co., 40 N. Y. p. 13, there were five tracks at the crossing, and upon two of the tracks empty box cars were standing. Grover, J., in delivering the opinion of the court said: “ The judge was right in refusing to charge that if they (the jury) found that the bell upon the engine was ringing as required by the statute there was no proof of defendant’s negligence. This ignored the question whether it was negligence to have the box cars standing where they were.” And James, J., says at page 25, The common law imposes upon railroad corporations when running their engines and trains over crossings, the exercise of reasonable care and diligence, to prevent injury therefrom to travelers on the road. Cases may arise where the corporation will not be exonerated from liability by the mere compliance with the statutory requirements. These requirements are merely cumulative, and companies are bound to use such other reasonable care and precaution as the circumstances of each case may require. And this question of reasonable precaution is always a question for the jury; and the fitness of any particular expediency suggested must depend upon the particular circumstances and exigency of each particular case.”

In Weber v. The N. Y. C. & H. R. R. R. Co., 58 N. Y. 458, Allen, J. in delivering the opinion of the court said, “ It is not enough in all cases to absolve a railroad company from the charge of negligence that the statutory signals are given. The circumstances may be such as to require other precautions in the running of trains, or in the use or occupation of the tracks. There may be negligence which will charge the company, other than the bare omission to sound the whistle or ringing the bell;” andón page 459 he says, “ a railroad company must so operate its trains and use and occupy its railroad in the enjoyment of the right of way which it has in common with an ordinary traveler, as not to injure others in the exercise of their right of way provided that the latter, are not guilty of any want of care on their part.” And in Dyer v. Erie R. R. Co., 71 N. Y 230, Miller, J. says, “ there can be no serious question that an obligation devolves upon railroad corporations to warn persons who may be passing, whether on foot or in a team, of the approach of trains, so that such persons may use the necessary caution to avoid the danger and keep out of the way of the train.” See also Barry v. N. Y. C., & H. R. R. Co., 92 N. Y. 289; Finkelstein v. N. Y. C., & H. R. R. Co., 2 N. Y. State Rep. 680.

The question therefore is whether, under the circumstances in this case, where there was evidence tending to show that in consequence of the use by the defendant of its road, the plaintiff could not see the approaching train from the highway and could not hear the warning given, the defendant is absolved from liability on its appearing that the bell was rung; or in other words, was the ringing of the bell so clearly a performance of the obligation of the defendant to warn persons passing along the road, that a verdict of the jury that the defendant was guilty of negligence in the performance of that obligation would not be sustained.

The highway was below the level of the track. The freight cars were placed in such a position that they were between the approaching train and the carriage. The engineer could not see the carriage until it had passed the empty cars and was upon the track. The driver listened and looked for the train but could not see or hear it. Under such circumstances the court can not say as a question of law that the defendant was not negligent ; but it was for the jury to say whether taking into consideration the position of the track, the highway and the cars on the side track, the defendant was negligent in the use and management of its railway.

The law does not require that any particular signal shall be given so long as the obligation to warn persons who may be passing of the approach of the train is performed in a reasonable manner; but'if that obligation to warn persons approaching is not performed,, or if the corporation is negligent in the performance of that duty, there can be no doubt as to its liability, and in this case under the circumstances that question was for the jury.

The fact that other persons in a different position could hear the bell and see the train is not conclusive. The duty was to warn persons approaching on the highway, and the fact that a person there listened and looked and was unable .to hear or see the train, is some evidence at least that the necessary warning was not given.

We are also of the opinion that it did not appear as a matter of law that plaintiff was guilty of contributory negligence. Under the case of Dyer v. Erie R. R. Co. (supra) the negligence of the driver of the carriage could not be imputed to the plaintiff. Plaintiff was on the back seat of the carriage taking care of a child, and it cannot be said under the circumstances that she was so clearly guilty of a want of care as would justify the court in holding as a matter of law that her negligence contributed to the injury. Nor does it appear that any act of hers would have avoided the accident. Those in the carriage who did look and listen did not see or hear the train.

On the whole case we think there was evidence which required that the questions of the negligence of the defendant and the plaintiff’s negligence should have been left to the jury. The judgment must therefore be reversed and a new trial ordered with costs to abide the event.

Sedgwick, Ch. J. (concurring.)

I concur with Judge Ingraham, but wish to say, that on the appeal it was not argued that contributory negligence on the part of the driver, would prevent the plaintiff having a cause of action.


text:
    JAMES A. GILBERT, Appellant, v. THE THIRD AVENUE RAILWAY COMPANY, Respondent.

      A refusal to charge a principle having no application to any possible state of facts proved, is not error—Boarding a ear about to stop is not, as matter of law, either contributory or non-contributory negligence—Experimental evidence, competency of—General objection, matters not to bo urged in support of on appeal.

      The plaintiff testified that the car had stopped when he attempted to get on; that he had one foot on the platform and one on the steps, when the conductor rang the bell, the car started and he was thrown off. Defendant introduced testimony to the effect that plaintiff was first seen being dragged after the car, and that before that time the car did not stop or slow up.
    Plaintiff requested the court to charge in substance, that it is not negligence for a person to get on a street car while in motion. The court refused so to charge.

      Held not error (1st) because the evidence presented no possible state of facts to which the principle requested to be charged could have any application; (2d) because the attempt to get on a streetcar about to stop is not, as matter of law, either contributory or non-contributory negligence. It is for the jury to say whether under the circumstances of the case the act was one of contributory negligence or not.
    The defendant called a witness who had made an experiment to see how a person placed on the step of the car, as the plaintiff in his testimony described himself to have been placed, would fall upon the car being suddenly started, and that witness testified that the falling was in a direction different from that testified to by the plaintiff.

      Held, competent evidence for the jury to consider in determining on the conflict of evidence as to the manner in which the accident happened.
    The evidence as to the experiment and its result was received under a general objection.

      Held, that on appeal it could not be objected that the questions to the witness called for an opinion, or that the witness was not shown to be an expert, or that it was not shown that the identical circumstances and conditions which existed at the time of the accident, also existed at the time of the experiment.
    Before Sedgwick, Ch. J. and Ikgeaham, J.

      Decided February 14, 1887.
    Appeal from judgment in favor of defendant entered on verdict of the jury.
    The facts sufficiently appear in the opinion.

      Newland & Van Volkenburgh attorneys, and John Cochrane of counsel for appellant on the questions considered in the opinion, argued:

      I. For a person to step upon a horse car that is in moderate motion, is not inconsistent with caution and care, and is not a negligent act. Redfield & Shearman on Negligence, 337, and authorities there cited; Eppendorf v. Brooklyn City and Newtown R. R. Co., 69 N. Y. 195.
    II. This is not a case in which the opinion of an expert was admissible. Ferguson v. Hubbell, 97 N. Y. 507, and authorities cited.
    The matter inquired for, from the witness Robertson, was such as is within the experience of men moving in the ordinary walks of life with a common education derived from customary employment and observation, and admitted no room for the evidence of opinion. It was for the jury to draw their own inference. De Witt v. Barley, 9 N. Y. at page 386, Judge Mason’s Opinion; Pullman v. Corning, 5 Selden, 93; Ferguson v. Hubbell, supra, 7 Hun, 571.

      Lauterbach & Spingarn and William N. Cohen of counsel for respondent, on the questions considered in the opinion, argued:
    The evidence of Robertson was competent under both exceptions:

      (a.) He was shown to be a proper expert. Nelson v. Ins. Co. per Folger, J., 71 N. Y. 444 ; Jones v. Tucker, 41 N. H. 546.
    The witness had been for eighteen years superintend-ant upon the railroad, and must be presumed to have known the laws of motion and inertia as applied to a car suddenly stopped. Further, he had especial knowledge, having experimented purposely for the trial of this case by starting a car suddenly to see if the jerk would affect a workman standing thereon in the same place and posture as the plaintiff claimed to have stood, and when the car was started in the manner plaintiff described. Whatever may be the qualification of the witness to be an expert, it is well settled that the point cannot now be raised because it was a question of law for the judge at the trial, and is not reviewable upon appeal. This was held in Jones v. Tucker, 41 N. H. 546, and approved by Judge Folger, in 71 N. Y. 444.
    (b.) The testimony of Robertson was relevant m character, and did not relate to facts within the ordinary range of knowledge. People v. Augsbury, 97 N. Y. 501, 506 ; Ferguson v. Hubbell, Id. 507, 513.
    II. The objection to the evidence was fatally defective in that no reasons or grounds were stated, so that it falls within the rule of Levin v. Russell, 45 N. Y. 256 ; Williams v. Sargeant, 46 Id. 481, 483 ; Tooley v. Bacon, 70 Id. 34, 37 ; Quimby v. Strauss, 90 Id. 664.
    III. The exception to the refusal to charge cannot be sustained.
    There is no evidence in the case to the effect that the car slowed up, for the plaintiff swore that the car had stopped completely. And the defendant’s witnesses denied that it had slowed up at all.
   By the Court.—Ingraham, J.

Plaintiff presents two rulings of the trial court upon which he asks that the judgment be reversed.

The first to be considered is the refusal to charge in substance that it is not negligence for a person to get on a street car while in motion. The court based its refusal to charge as requested on the ground that there was no proof to justify the jury in finding that the car slowed up for the plaintiff to get on ; the court saying, “ It is not worth while, gentlemen, that I should instruct you under what circumstances some other plaintiff in some other case might make an attempt to board a car. before it has fully stopped.”

The plaintiff on the trial testified that the car stopped when he attempted to get on; that he had one foot on the platform and one foot on the step, when the conductor rang the bell, the car started, and he was thrown off.

From his story there was no evidence that the car had slowed up, and nothing upon which to base such a request. The plaintiff’s testimony was uncorroborated. The defendant called the driver and the conductor of the car and a passenger who helped plaintiff off the car after the accident. From their testimony it would appear that plaintiff was first seen being dragged after the car, and that before that time the car did- not stop or slow up. If this story were true, then there was no evidence to show that defendant was guilty of any negligence, and it did affirmatively appear that plaintiff was guilty of contributory negligence.

The court left it to the jury to say which story they believed, under a charge to which no exception was taken, and the jury having found for the defendant, it must be presumed that they did not believe plaintiff’s testimony.

The court was not requested to leave it to the j ury to say whether under the circumstances of the case, plaintiff was or was not guilty of contributory negligence, but theo plaintiff in substance requested the court to charge that certain acts of the plaintiff were not, as a matter of law, contributory negligence. It cannot be said as a matter of law that a person getting upon a car about to stop is not negligent on his part, but the rule is that such an act is not as a matter of law contributory negligence. It is for the jury to say in each case whether under the circumstances of the case the plaintiff was or was not guilty of contributory negligence.

As was said in Eppendorf v. The B. C. & N. R. R. Co., 69 N. Y. 195, “ The sole question to be determined here so far as relates to plaintiff’s alleged contributory negligence, was the character of the plaintiff’s acts under the circumstances existing at the time.”

What would be contributory negligence under circumstances not proved, could not assist the jury in passing on this question then presented.

The second and more serious question was the-exception to the decision of the court in overruling the objection to the testimony of an experiment made upon the car after the accident. The objection was general. No ground was stated why the testimony should be excluded, and in such a case the decision of the trial judge will be sustained, unless there be some ground which could not have been obviated if it had been specified or unless the evidence in its essential nature is incompetent. Quimby v. Strauss, 90 N. Y. 664. And a general objection is insufficient to make an objection that the answer called for an opinion of the witness, available. Merritt v. Briggs, 57 N. Y. 651.

Under this ruling the evidence will not be held to be erroneously admitted because the witness was not shown to be an expert or because it did not appear that the identical circumstances which surrounded the plaintiff and the identical conditions which influenced him and under which he acted, existed at the time the experiment was made.

The witness was asked as to, and testified to the existence of a fact, viz, what had happened on the car the day before. No opinion was asked, but he was requested to state what he had seen when a person placed upon the step of the car as plaintiff describes himself to have been placed at the time of the accident, and when the car suddenly started.

This evidence was not in its nature incompetent. The plaintiff testified that he stood on the steps and platform of the car, and by a sudden jerk of the car in starting was thrown off. Testimony of competent witnesses to show that a person standing in the same position was thrown in a different direction when the car was suddenly started, would certainly be competent evidence for the jury in determining on the conflict of evidence as to the manner in which the accident happened.

No case is cited by the plaintiff which holds such evidence incompetent, and we do not think that it was error in the court to overrule the objection taken. The weight of evidence was largely in favor of the defendant. The question was fairly submitted to the jury by the charge to which no exception was taken, and we are satisfied that no error was committed that calls for a reversal of the judgment. Judgment should therefore be affirmed with costs.

Sedgwick, Ch. J., concurred.


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    SAMUEL VON WIEN, Appellant, v. THE SCOTTISH UNION AND NATIONAL INSURANCE COMPANY, Respondent.

      Insurance policies—Authority to cancel, evidence of insufficient—Ratification, insufficiency of evidence of-—Option to cancel on giving notice—notice must be personal.

    Five insurance policies were issued to plaintiff, one being issued by the defendant, the others by three other companies. The policies were procured to be issued by one Rieger who was employed by one Spitzer, who was employed by plaintiff. The premiums on the five policies amounted to $166, of which plaintiff paid to Spitzer $100. In this state of affairs the five policies being in plaintiff’s possession Spitzer demanded payment of the balance for premiums; plaintiff said, “I don’t want your policies ” went to the safe, said he had enough insurance and did not want any more, and gave Spitzer two policies issued by companies other than defendant. Rieger had paid the premium on these two policies out of the $100. Spitzer delivered these two policies to Rieger and afterwards by an agreement between Rieger and the defendant, the policy issued by defendant was cancelled.

      Held, that no authority was given to cancel the policy issued by the defendant.
    After this, Rieger called on plaintiff and had a conversation on the subject, with the result that plaintiff said to Rieger, “that on the following Saturday, if I gave him these two policies he would bring down the other two and give them to me, and eleven dollars.” Rieger did not accept this offer. There was no evidence that Rieger expressly informed the plaintiff that he had cancelled defendant’s policy.

      Held, no ratification of Rieger’s act of cancellation.
    The policies gave the company the option at any time to cancel it on giving a certain notice and making a certain refund.

      Held, that the notice must be given personally to the assured, or his agent authorized to receive it, and that such personal notice not having been given, the policy was not cancelled under the option reserved in it.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 14, 1887.
    Appeal from judgment in favor of the defendant entered on the direction of the court without a jury.
    The facts sufficiently appear in the opinion.

      Benno Loewy, attorney and of counsel for appellant.

      Wetmore & Jenner attorneys, and Wm. A. Jmner of counsel for respondent.
   By the Court.—Ingraham, J.

The only question in this case is whether the policy of insurance sued on was cancelled. It was held by this court on a former appeal, 52 Super. Ct. 490, that as the policy of insurance was delivered to the plaintiff without requiring the payment of a premium, a presumption was raised that a credit was intended, and the prepayment of the premium waived; that Rieger’s authority to act for the plaintiff ceased on procuring the policies, and that he had no authority to cancel the policy or to receive notice of said cancellation from the insurance company.

The court found the execution and delivery of the policy; that the same remained in plaintiff’s possession up to the time of the trial; that the plaintiff employed one Spitzer to procure $5,500 insurance on his property, that said Spitzer employed Rieger to procure such insurance ; that said Rieger did procure five policies in the sum of $1,100 each; that two of the said policies were in the Germania Insurance Co., one in the defendant company, one with the Transatlantic Company, and one with the Mechanics and Traders Ins. Co.; that all the policies were delivered to the plaintiff and retained by him; that the premiums due on all of said policies amounted to $166, of which plaintiff paid said Spitzer $100, and that the balance of the premiums remained unpaid; that by an agreement between defendant and Rieger acting for plaintiff, duly authorized, the said policy with the defendant was cancelled, and the said insurance ceased.

The question presented is whether there is any evidence to sustain the finding of fact that Rieger was authorized by the plaintiff to cancel the policy for him. Plaintiff’s evidence tended to show that the five policies being in plaintiff’s possession Spitzer demanded payment of the balance due for premiums. Plaintiff then said, “ I don’t want your policies,” went to the safe and then said he had enough insurance and didn’t want any more, and gave Spitzer two policies, one in the Transatlantic Co., and one in the Mechanics and Traders Co. Spitzer took these two policies and delivered them to Rieger and ordered them cancelled. Rieger out of the $100 paid by plaintiff, had paid the premiums on these two policies but had not paid the premiums on the policy in suit.

It is very clear that this transaction gave no authority to Spitzer or Rieger to cancel the policy in suit. Plaintiff said he had enough insurance and did not want any more. He had paid for three of the five policies, and the delivery of two of the five would be an authority to cancel the two delivered, certainly not the three retained.

The contracts of insurance were separate, with different companies, and if two were to be cancelled it was for the plaintiff to say which of the policies he wished can-celled, and which retained.

It appears that neither the plaintiff nor Spitzer knew at the time that the premium on the defendant’s policy had not been paid by Rieger, and there is nothing to justify the court in. holding that plaintiff conferred any authority, at that interview, on Spitzer to cancel any policies except the two delivered.

I think, therefore, the cancellation of the policy with the defendant, by Eieger and the company, was unauthorized by the plaintiff, and that the finding that plaintiff authorized Eieger to cancel the policy is without evidence to sustain it.

Defendant claims however that plaintiff ratified the cancellation of the policy. There is no finding as to such ratification or as to any interview between Eieger and the plaintiff after the policy was cancelled, and plaintiff denies the testimony of Eieger in which such' conversation is related.

Taking Eieger’s testimony as true, however, I do not think there is any evidence of such a ratification. Eieger stated that in the afternoon of the day or the morning after the attempted cancellation, he went to plaintiff’s store and took the íavo policies delivered to Spitzer, and said to plaintiff, “ I understood he said he did not Avant this insurance, and I asked him if that was so. He said yes, he did not want it.” Eieger further testified that in the same interview plaintiff said, that on the following Saturday if I gave him these two policies he would bring doAAm the other two and give them to me, and eleven dollars. I did not want a scene in the saloon. I put on my hat and left. That was on Tuesday before the fire.”

Eieger was not the agent of the defendant, nor Avas he acting on its behalf. He had assumed to act for the plaintiff without authority, and there was no evidence that he expressly informed the plaintiff what he had done. There could be no ratification of his acts without full knowledge by the principal of the act done by Eieger and of his right to repudiate that act as unauthorized.. The only thing that plaintiff did was to make a proposal for the settlement of the dispute, and that Eieger did not accept.

It is clear that the evidence would not have justified the court in finding that there was such a ratification. Nor did the company cancel the policy under the right therein reserved. The policy provides that “ it (the policy) may also be cancelled at any time by the company on giving a written or verbal notice to that effect and refunding a ratable proportion of the premium. Under such a provision the policy could only be cancelled by a personal notice to the plaintiff, or to his agent authorized to receive it. Herman v. Niagara Ins. Co., 100 N. Y. 415.

The company attempted to cancel the policy by agreement with a person who assumed to act for the plaintiff, but who was without authority, and without notice to the assured, and such cancellation was, I think, ineffectual, and the policy remained in full force.

Applying this rule as settled by this court on a former appeal, I do not think there is any evidence to show that plaintiff had ever authorized Spitzer or Rieger to cancel the policy or ratify such cancellation.

The judgment must therefore be reversed, and a new trial ordered, with costs to abide the event.

Freedman J., concurred.