text:
    SOPHIA FOELS, Appellant, v. THE TOWN OF TONAWANDA, Respondent.

      Negligence — meamre of damages — proximate came.

    Where the negligence of a corporation is the proximate cause of an injury to a person, it is liable for the actual damages which naturally followed therefrom, if the person injured acts in respect to the treatment of the injury in good faith and without a serious disregard of consequences.
    A young woman sprained her ankle by stepping through a defective walk upon a bridge in a town. The injury was of an obscure character at first, and she was ' advised by a doctor, as she testified, to walk upon the foot. This increased the difficulty and resulted in a probably incurable inflammation of the lining membrane of the ankle joint. It appeared that in using the foot she acted in good faith, and not through carelessness or recklessness. No medical evidence was given tending to show to what extent her conduct had aggravated the difficulty. Held, that a recovery of $4,500 was not excessive.
    Appeal by tbe plaintiff Sopbia Foels from an order made at Special Term, and entered in tbe clerk’s office of tbe county of Erie on the 9th day of January, 1890, setting aside a verdict for .$4,500 rendered at the Erie County Circuit in favor of tbe plaintiff and ordering a new trial.

      Daniel N. Lockwood, for tbe appellant.

      John K. Patten and G. H. Sickmon, for tbe respondent.
   Macombee, J.:

Tbe plaintiff received personal injuries by stepping through a bridge maintained by the defendant across Tonawanda creek in tbe village of Tonawanda, on tbe 6th day of August, 1888. The action was tried at the Erie Circuit and resulted in a verdict in favor of tbe plaintiff of $4,500, which tbe learned justice presiding' at tbe trial has set aside as excessive. The plaintiff was married in June, 1888, and at tbe time of receiving tbe injury was twenty-three years of age. A defect in tbe bridge, being tbe absence of a plank in tbe walk designed for pedestrians, caused the injuries complained of. ' While passing along, exercising the usual care of persons of ordinary prudence under like circumstances, her foot and leg went through this bole down to a beam underneath, resulting in a very serious sprain of tbe ankle. The accident developed into a chronic inflammation of the synovial membrane or lining of the ankle joint, called synovitis. Shortly after the injury a physician was summoned, who prescribed for the injury, and, as the plaintiff testified, advised her to move about and take exercise on her feet. The fact, however, that such advice was given was denied by this physician. The expert medical evidence establishes the fact that exercise upon the foot, under the circumstances, was injurious to the patient and greatly retarded recovery, even if the same did not aggravate the nature of the injury. It is very doubtful, however, if the amount of exercise which the plaintiff took upon her feet after this injury, contributed in any material part, to the serious nature of the trouble which existed up to the time of the trial, and which, under the evidence, is likely to follow her through life.

The learned trial judge instructed the jury very fully upon this branch of the case. He told them that any aggravation of the injury by walking upon the foot, or by not giving to it that degree of care and attention which persons ordinarily do under the same circumstances, could not be charged against the defendant; and that all the defendant was bound to pay, if anything, was for the injury which immediately resulted from the accident itself, and that no recovery could be had for an improper use of the foot and ankle, from time to time, if such use, in any manner, prevented its restoration, or increased or aggravated the extent of the injury itself. These were instructions which the defendant certainly could not complain of. They were probably quite as favorable to the defense as could be demanded in its behalf. They, for aught that appears from the record, were closely observed by the jury.

The learned justice in granting a motion for a new trial has, it seems to us, fallen into an error. He says in his opinion: “Neither party upon the trial gave evidence to prove what would be the probable extent or duration of such an injury with proper treatment of it on the part of the person receiving it. The jury were, therefore, left without substantial facts from which they could determine the probable duration or result of this injury. And in considering the case there is reason to believe, from the amount of their verdict, that they failed to discriminate, as they should be expected to do, between the injury really resulting from the sprain of the ankle and that received by the plaintiff by her subsequent use of it. Its condition, as it finally became, was shown to have been probably incurable. But whether that would result from the mere injury itself, or only from that injury combined with an improper use of the ankle, was not stated by the witnesses. It is reasonable, however, to infer that the physicians did not intend to testify that the injury itself would have been permanent if this use of the ankle had not been made by the plaintiff.”

In our judgment there is nothing in the case which called upon the plaintiff to give evidence of the character indicated by this portion of the opinion of the learned justice by which an attempt should be made, by means of expert testimony, to discriminate between the actual injuries and the natural consequences thereof on the one hand, and such injuries and the consequences resulting from the use which the plaintiff actually made of her foot and ankle ■after receiving such injuries. It would probably be impossible, even in the realm of expert testimony, for a physician accurately to ■describe and apportion that part of the condition of the ankle which resulted necessarily from the injury, and that part of it which followed its injudicious use. The case contains no promise of the production of such evidence upon another trial.

' No question of veracity between the plaintiff and the physician who was first called in her case can' be of any moment in the consideration of the questions here involved. Under the uniform testimony of the physicians it would seem to be the universal opinion of men skilled in the art that the best mode of treatment of any injury of this description would be absolute rest. This certainly would be the case if the nature and extent of the injury had been accurately known, or discernable by any inspection which might have been made of the ankle. But, as one of the doctors testified, it was a blind and obscure injury, giving no outward manifestations of its ■character, and hence difficult of treatment. The plaintiff has evidently given her testimony as to her medical advice in perfect good faith. She may be, and probably is, mistaken in the full scope and meaning of the advice so given. The fact, however, that she was advised to take exercise at this time was undoubtedly true; for it was natural, under the circumstances, that she should be so advised, as she was pregnant, a child being born unto her March 15, 1889.

We cannot, therefore, accede to the proposition made by the learned counsel for the defendant, that there rested upon the plaintiff the absolute necessity of not using her ankle until such times as the same should be fully restored, nor that the defendant is in any position to claim that the bare possibility of such improper use of the ankle should redound to its benefit.

There is no principle of law which supports such contention,, where the good faith of the party is not, but his ignorance alone is impugned. The duty rested upon the plaintiff to take proper care of the injured ankle, and not wantonly, carelessly or needlessly to do any act which would aggravate the injuries to it. Her duty towards that member, however, was not so great and exclusive as to require her, in the absence of competent and positive medical instructions, to ignore and openly disregard the welfare of the rest of her members and of her whole body. So long as she acted in good faith, and according to such lights as she had, the defendant, the party guilty of the wrong, cannot be permitted to complain of her mistake of judgment in the treatment of her ankle; nor successfully to claim that no liability should attach to itself, because the amount of compensation which should be awarded against it for its wrong is difficult or impossible of separation from the aggravations thereof accompanying an honest but mistaken treatment. (Hickinbottom v. D., L. and W. R. R. Co., 15 N. Y. St. Rep., 15.) The negligence of the defendant was the proximate cause of the injury to the plaintiff, and it is liable for the actual damages which naturally followed thereon, where the party injured acted, in respect to the treatment, in good faith and without a conscious disregard of consequences. (Lyons v. Erie Ry. Co., 57 N. Y., 489 ; Sauter v N. Y. C. and H. R. R. R. Co., 66 id., 50; Radman v. Haberstro, 17 N. Y. St. Rep., 497.)

While, therefore, recognizing the power and duty of the court to grant a new trial for excessive damages, as was held in Houghkirk v. President, etc., Delaware and Hudson Canal Company (92 N. Y., 219), we think that the jury in this instance was guided by correct rules of law in the charge of the court; was guilty of no passion, prejudice or other unworthy motive in rendering its verdict, and that its conclusion was justified by the evidence.

It follows, therefore, that the order appealed from should be reversed, with costs, and judgment ordered for the plaintiff upon the verdict.

Dwight, P. J., and Cornett, J., concurred.

Order appealed from reversed, with costs, and judgment ordered for the plaintiff on the verdict.


source: Caselaw Access Project

author: Dwight, P. J.: Macomber, J.

license: Public Domain

text:
    In the Matter of the Probate of the Will of ALMIRA INGERSOLL, Deceased.

      Will — when a bequest, intended for cha/ritable uses, passes absolutely to the devisee^ who is to expend, it in his discretion for such purposes.

    A testatrix, by her will, provided as follows:
    “VIII. I am desirous of leaving some of my estate to aid in carrying on the work of the Christian ministry, and to uphold the doctrine and faith of the Bible and to aid in extending the Christian religion in the world through the instrumentality of the preaching of the Gospel of Christ; and, desirous of promoting these purposes, I do hereby authorize and empower my executor, hereinafter named, to expend, through the agency of the Baptist church and its various societies, missionary and educational, or in such other way, through the said church or its organizations, as shall be deemed best likely to promote these purposes, such sum as he may deem best, not to exceed one thousand dollars; and in order that my executor maybe enabled to do (so) without hindrance, I give and bequeath to him the said sum of one thousand dollars, and the same is to him, and his heirs and assigns, forever, for the uses and purposes before stated; and I rely upon him to carry out the wishes and purposes that I have herein-before indicated, and that those interested in my estate will co-operate in carrying on the work that I, by this bequest, desire to promote.”

      Held, that the clause was not void for uncertainty, but was an absolute unconditional bequest of $1,000 to the executor of said will, to be used by him, in his discretion, for the general purposes mentioned in said clause. (Macomber, J., dissenting.)
    Appeal by Norman M. Allen, the executor named in the will of Almira Ingersoll, from a decree of the Surrogate’s Court of Cattaraugus county, entered in the office of that court on the 11th day of December, 1890, adjudging the eighth clause of said will to be null and void; and also from so much of said decree as adjudged that said will, except said eighth clause, be admitted to probate.

      W. 8. Thrasher, for the executor, proponent, appellant.

      F. J. Blackmon, for the contestant, respondent.
   Dwight, P. J.:

The clause of the will held void by the surrogate is in the following terms:

“ Till. I am desirous of leaving some of my estate to aid in ■carrying on the work of the Christian ministry, and to uphold the ■doctrine and faith of the Bible, and to aid in extending the Christian religion in the world through the instrumentality of the preaching •of the Gospel of Christ, and, desirous of promoting these purposes, I do hereby authorize and empower my executor, hereinafter named, to expend, through the agency of the Baptist church and its various societies, missionary and educational, or in such other way through the said church or its organizations as shall be deemed best likely to promote these purposes, such sum as he may deem best, not to exceed one thousand dollars; and, in order that my executor may be enabled to do (so) without hindrance, I give and bequeath to him the said sum of one thousand dollars, and the same is to him and "his heirs and assigns forever, for the uses and purposes before stated, and I rely upon him to carry out the wishes and purposes that I have hereinbefore indicated, and that those interested in my estate will co-operate in carrying on the work that I, by this bequest, desire to promote.”

The findings or conclusions of law of the surrogate, relating to this provision of the will, are as follows :

“ I find, hold and decide as conclusions of law:

First. That the said eighth clause of said will above set forth is ■invalid and void for uncertainty, there being no beneficiary or legatee-named who can enforce payment of the bequest.

Second. That the executor named in said will is not entitled to take such bequest, or any part thereof, as trustee or otherwise, •except in his capacity of executor.”

The correctness of these conclusions alone is challenged on this ■appeal, and the question presented calls for a construction of the provision quoted, with a view, namely, of determining whether its purpose was to create a trust or to make an absolute gift to the person ¡subsequently named as executor. If the former, it was manifestly void for want of beneficiaries designated, or capable of being ascertained ; if tbe latter, it was a valid disposition, notwithstanding that, with the words of gift is associated a clear expression of the general purpose and intention with which the gift is made. We think the latter is the true interpretation of the provision, and that it may be upheld as a valid gift of $1,000 to Norman M. Allen, the person, afterwards named as executor of the will.

The fact that the gift is, in form, absolute, and not in trust, is not decisive of its character; neither is the use of words of inheritance, but both are circumstances which may be considered in determining-what was the intention of the testatrix. It is true that words of inheritance are not necessary to an absolute gift, but they are consistent therewith, and when used in that connection are merely surplusage; whereas, so far as they go, they contradict the theory of a trust. They are words of limitation used to describe the nature and duration of the estate given. (Matter of Wells, 113 N. Y., 396.)-In this case they are part of a formula which is employed in every provision of the will which makes an absolute gift of money to a. legatee named. The formula is, “and the same is to him and his-heirs and assigns forever.”

But the question is not to ^e determined by inquiry of the technical meaning of particular words and phrases, but by a consideration of the provision as a whole, and a deduction therefrom, if possible, of the real intention of the testatrix. (Riker v. Cornwell, 113 N. Y., 115.) So considered, it is plain (1), that the primary object, in the mind of the testatrix when she made this provision was the-promotion of Christianity in the world ; (2) that she desired to contribute to the accomplishment of that object through some one or-more of the agencies or instrumentalities organized within the Baptist church; (3) that she chose not to select the particular agency orageneies to be employed, nor the particular object or objects to be-aided, nor even to determine, except by a maximum limit, the amount of money to be devoted to any one or all of such objects, but (4) chose to substitute for her own the judgment and discretion of another person, and (5) to give to him the means with which to accomplish the purposes which she had in view. Here the confidence reposed in the donee and the discretion given to him are absolute, and the gift itself is absolute in form, while the words indicating the use to be made of the gift are precatory merely. In Phillips v. Phillips (20 N. Y. St. Rep., 301) Finch, J., recognizes the principle that precatory words may, in some instances, create a trust or impose a charge, but he deduces from all the cases the rule that whether such words have that effect or not, depends upon “ whether the alleged bequest is so definite as to amount and subject-matter as to be capable of execution by the court, or whether it so depends upon the discretion of the general devisee as to be incapable of execution without superseding that discretion.” And special reference is made to the case of Lawrence v. Cooke (104 N. Y., 632), where Rapallo, J., says: “ It is not for the courts to repudiate the confidence which the testator chose to repose in the defendant, and to assume a power which was not intended to be exercised by them.” It is true that in both of the cases cited the question was between a valid trust and an absolute gift; but this distinction does not defeat the application of the.reasoning and conclusion in those cases to the case in hand. If the terms of the bequest were not such as to create a valid trust when the beneficiary was clearly designated, a provision similar in other respects would not be construed as an attempt to create a trust, which must be invalid for want of a certain beneficiary. The essential element common to the two cases is the absolute discretion in the use of the gift, vested in, the donee, which equally forbids the construction that a trust was created in one case and that a trust was sought to be created in the other. In Foose v. Whitmore (82 N. Y., 405) it was said by Danforth, J., that “ the tendency of modern decisions is not to extend the rule or practice which, from words of doubtful meaning, deduces or implies a trust; ” and the test prescribed in that case was whether the wish or desire expressed by the testator is meant to control the conduct of the party to whom it is addressed or is merely an indication of a wish leaving it to the legatee to exercise his own discretion; It is difficult to conceive a case in which the discretion given to the legatee could be more full and absolute than in the case at bar; and it is in order to enable him to exercise that discretion “ without hindrance ” that the testatrix declares : “ I give and bequeath to him the said sum of one thousand dollars, and the same is to him and his heirs and assigns forever, for the uses and purposes before stated, and I rely upon him to carry out the wishes and purposes that I Lave hereinbefore indicated.” As was said by Rapallo, J. {supra), “ it is not for the court to repudiate the confidence thus reposed.” We are bound to assume that it was a well-placed confidence and that the legatee will faithfully observe the wishes and make such use of the .fund as will fully satisfy the benevolent intentions of the testatrix.

Upon these principles, we think the learned surrogate was in error in the conclusions of law quoted above ; that the eighth clause of the will is not invalid, but that Norman M. Allen, the person named as executor, takes the sum of $1,000, individually and absolutely, to be used and employed by him, in his discretion, for the general objects and purposes mentioned in the clause in question.

The decree of the surrogate must be reversed and the proceeding remitted to him with directions to enter the decree indicated by this opinion.

Corlett, J., concurred.

Macomber, J.

(dissenting):

1 cannot concur in the conclusion reached by a majority of the court for a reversal of the decree of the surrogate of Cattaraugus county.

The surrogate admitted the will to probate as a will of personal estate, except as to the eighth clause thereof, and adjudged that clause void for uncertainty. The eighth item is as follows:

I am desirous of leaving some of my estate to aid in carrying on the work of the Christian ministry, and to uphold the doctrine and faith of the Bible; and to aid in extending the Christian religion in the world through the instrumentality of the preaching of the Gospel of Christ; and desirous of promoting these purposes, I do hereby authorize and empower my executor, hereinafter named, to expend through the agency of the Baptist church and its various societies, missionary and educational, or in such other way, through the said church or its organizations, as shalkbe deemed best likely to promote these-purposes, such sum-as he may deem best, not to exceed one thousand .dollars; and in order that my executor may be enabled to do (so) without hindrance, I give and bequeath to Mm the said sum of one thousand dollars, and the same is to Mm and Ms heirs and assigns forever, for the uses and purposes before stated, and I rely upon him to carry out the wishes and purposes that I have hereinbefore indicated, and that those interested in my estate will co-operate in carrying on the work that I, by this bequest, desire to promote.”

As was held by the surrogate, it is impossible to determine who' or what is the legatee named in this item of the will. The Baptist church is not a corporation; but the religious and charitable purposes expressed by the testatrix were to be accomplished only through the agency of the Baptist church and its various missionary, charitable and educational societies. This pro vision, in my judgment, falls directly within the condemnation of the decisions given in Levy v. Levy (33 N. Y., 97) and many succeeding cases, particularly in the case of Prichard v. Thompson (95 id., 76).

It is claimed, however, that the last clauses of this item of the will constitute an absolute gift to the executor, and that, consequéntly, the bequest is valid. In my judgment, an answer to this contention is found in the language of the will itself, by which the pervading purpose of the testatrix was to give the sum of $1,000 to benevolent, charitable and missionary purposes, and that the words of the bequest to the executor and his heirs and assigns were used simply to overcome the otherwise legal objection which could be made to any effort to carry out such illegal intention. The language of the testatrix is, “ and in order that my executor may be enabled to do (so) without hinderance, I give and bequeath to him the said sum of one thousand dollars, and the same is to him and his heirs and assigns forever, for the uses and purposes before stated.” There is, in fact, no absolute gift to the executor; “the uses and purposes before stated ” are the uses and purposes which the law uncompromisingly says are not of practical attainment. The legatee could not take this bequest honestly without making an effort to carry out the intention of the testatrix. As was said by Judge Finch in Matter of O'Hara (95 N. Y., 414), “it does not need that the absolute legatees repudiate their promise, for if ever so honorably willing to perform it, they cannot do so without setting at defiance and secretly evading the law and general policy of the State. The alternative is plain and offers no chance of escape. If the legatees repudiate their obligations, that is a fraud upon the dead woman, who acted upon the faith of their promise. If they are willing to perform they cannot perform, except by a fraud upon the law, to which they and the testatrix are equally parties.” “ If in the one the fraud grows out of a refusal to perform, which would be the voluntary act of the legatee repudiating his promise, and so an actual fraud; in the other it grows out of the impossibility of performance, except in defiance of the public law, which is.legally a fraud. In neither event can the legatee honestly hold. In both either fraud triumphs or equity defeats it through the operation of a trust and protects those justly entitled.” Again the learned judge says at page 420 : “We have thus an important question squarely presented. If equity will not touch this devise by putting a trust for the heirs-at-law and next of kin upon the fund in the hands of these legatees, the road to an evasion of our statutes and to the temptations of necessity or greed will be left wide open.”

Tn my judgment the case before us is much stronger against the validity of this item of the will than was the case arising under the will of O’Hara. In the O'Hara Case the will upon its face was valid, but the testatrix by a separate writing requested that the-legatees should not take in their own right, and she relied upon them to carry out her illegal intentions. In the case before us the illegality of the bequest, the unlawful intention of the testatrix is plainly seen by the terms of the will itself. I think the decree was right and that it should be affirmed.

Treating this part of the will as a gift to benevolent, charitable and missionary purposes, there is another reason why the same must be deemed to be absolutely void, irrespective of the proposition that the beneficiary named therein was not ascertainable; and that is the fact that the will was not executed more than two months before the death of the testatrix. She made the will the 20th day of May, 1890 ; she died in the month of June in. that year, the precise date thereof not appearing anywhere in the case; the surrogate, in his decision, finding that she died at the time named in the petition for letters testamentary, and the petition fails to give the day of the month of June in which she died. But it clearly appears that not two months elapsed between the making of the will and her death. So that under the statute (chap. 319, Laws of 1848 ; 1 Birdseye’s H. S., 262), which invalidates bequests and devises to benevolent, charitable, scientific and missionary societies, made within two months before the death of the testator, the attempted bequest became wholly inoperative.

In my judgment, the decree appealed from should be affirmed.

Decree of the surrogate of Cattaraugus county reversed, with •costs of both parties payable out of the estate, and the case remitted to the surrogate to enter a decree admitting the whole will to probate.


author: Dwight, P. J.:

text:
    JOHN J. P. READ, Respondent, v. THE MARINE BANK OF BUFFALO, Appellant.

      Certificate of deposit — one demanding payment must surrender the certificate.

    In an action brought to recover deposits made with a bank, for which the bank had issued certificates of deposit to the plaintiff, it appeared that such certificates were in the possession of the husband of the plaintiff’s sister, and that the husband claimed title to them as administrator of his wife.

      Held, that as the plaintiff had not the possession of the certificates, and, therefore, could not surrender them for cancellation, he could not recover.
    A party liable upon commercial paper, which is transferable by delivery without indorsement, is entitled to demand that upon its payment the obligation be surrendered to him.
    Appeal by the defendant, tlie Marine Bank of Buffalo, from a judgment, entered in the clerk’s office of Erie county on the 6th daj •of October, 1890, in favor of plaintiff, after a trial at the Erie County Circuit before the court and a jury, at which a verdict was directed by the court in favor of the plaintiff for $2,887.31; and .also from an order, entered in said clerk’s office on the 3d day of ■October, 1890, denying a motion for a new trial made upon a case ¡and exceptions.

      JB. H. Williams, for the appellant.

      >0. O. Oottle, for the respondent.
   Dwight, P. J.:

The action was brought to recover the amount of two deposits made by the plaintiff several years before, for which certificates of •deposit were issued to him, .payable to his order thereon. He demanded payment of his deposits before commencing the action, but without producing the certificates, and representing, in substance, that they were lost. He was informed that in that case he would be paid upon giving a satisfactory bond of indemnity. A bond was tendered, but, pending its acceptance, the defendant was notified by one Rockwell, wlio exhibited the certificates, that lie held them as the executor of the estate of one Elizabeth A. S. Rockwell, deceased, his late wife, and a sister of the plaintiff, who had the certificates in her possession at the time of her death, claiming to own them. Sometime afterwards the plaintiff commenced this action, alleging the deposit of the several sums and the defendant’s promise to repay the same on demand, hut making no mention •of the certificates. The defendant’s answer admitted the fact of the deposits; averred the issuance of the certificates and the terms thereof; that the plaintiff had not presented the certificates, and that the same were not in his possession, but in that of George W. Rockwell, executor of Elizabeth A. S Rockwell, deceased, who •claimed that as such he was the owner and holder of the certificates and entitled to the moneys secured thereby. The answer further averred that the plaintiff transferred the certificates to' Mrs. Rockwell in her lifetime, and, also, that' the sums of money so deposited were, at the time of the several deposits, the property of' Mrs. Rockwell ; and that the plaintiff in making such deposits acted as her •agent and afterwards delivered the certificates to her; that she died the owner and holder of the same, and that they are now assets of her estate.

On the trial Rockwell was called as a witness for the plaintiff, and under a subpoena duces tecum produced the two certificates. They were found to be payable to the order of the plaintiff thereon, and not to have been indorsed by him. Rockwell testified that he received the •certificates from his wife in her lifetime. He was not permitted to answer the question whether she claimed them as her property, but he testified that in an action brought against her by the plaintiff (which the latter testified was an action to recover possession of the certificates) she produced them, under a subpoena, before a referee .and took them away with her again. He also testified that he was the executor named in the will of his wife, which had been admitted to probate, but that the issuance of letters testamentary was suspended pending an appeal from the decree of the surrogate, and that no administrator of her estate had been appointed in the meantime.

The plaintiff testified that he and his sister lived together before her marriage ; that during that time he had the certificates in his possession, in a desk in the house, from which they were taken without his knowledge or consent; that after his sister went away he missed them, and on application to her she admitted having taken them and promised to restore them to him, but that she never did so; that the action which he commenced against her to recover possession of the certificates was never prosecuted to judgment, and that when, after her death, he asked Rockwell for the certificates the latter deuied that he had them or knew where they were.

This was, substantially, all the evidence given on the trial. There was no evidence, or offer of evidence, to show that the .plaintiff ever transferred the certificates to his sister, nor that the moneys deposited belonged to her. On the contrary, the evidence, as far as it went, tended to show that she obtained possession of the certificates surreptitiously and without claim of right. But it is needless to say that this evidence is not evidence against Mrs. Rockwell’s estate. That estate has had no day in court, nor had Mrs. Rockwell in her lifetime, to establish her right, if any, to the certificates, and the claim of her estate is necessarily unaffected by any judgment which might be rendered in this action.

The defendant, therefore, relies, on this appeal,, upon the contention that there can be no recovery in this action, whatever the plaintiff’s evidence tending to establish his title to the certificates, when it appears that the certificates themselves are in the hands of a third person claiming title thereto. The contention is based upon sound general principles and is sustained by very definite authority. The case of Crandall v. Schroeppel (1 Hun, 557) was one very similar to the present. The negotiable paper there in suit was a promissory note, payable to the plaintiff in that action, or bearer, and was held by the administrators of an estate, who claimed to own it, as such, and who produced it on the trial under protest. This court (in the former fourth' department) affirmed the judgment of a County Court, which reversed that of a justice, on the precise ground mentioned, citing as authority Bank of Utica v. Smith (18 Johns., 240); Freeman v. Boynton (7 Mass., 486); and especially Van Alstyne v. The National Commercial Bank of Albany (7 Trans. App., 241; S. C., 4 Abb. Ct. of App. Dec., 449). In the latter case Judge "Woodruff, writing the opinion of the court, maintains that there is no reported case nor statement of the text-books to the contrary ; and the case then in hand was a very strong one. The plaintiffs had bought a draft from the defendant, for their own account, payable to their correspondent in West Yirginia, who had no interest in it, but was to use it as directed by the plaintiffs. The evidence showed that the draft had fallen into the hands of a brother of the payee, who indorsed it in the name of the latter, obtained the money and absconded. So that the plaintiffs’ draft, as the evidence tended to show, was in the hands of a transferree by a forged indorsement and in a foreign state. And yet the court held that not even these circumstances were sufficient to excuse the non-production of the draft itself; that, satisfactory as the evidence seemed to be that the plaintiffs had never parted with their title to the draft, it was no evidence against the actual holder of the paper, who might make a very different case when he had his day in court; that the draft was not lost paper, though in another jurisdiction, and that the plaintiffs could not recover without the actual production of the draft, with power to cancel or surrender the same.

There seems to be no material distinction between that case and this arising out of the different character of the paper in. the two cases. The essential fact in both is, that the paper was negotiable by delivery and without the indorsement of the payee. Such was the case with the certificates in question, so far as to pass all the title which the payee had at the time of the transfer (Briggs v. Dorr, 19 Johns., 95; Freund v. Importers' Bank, 76 N. Y., 352), and this is all the negotiability,which is necessary to constitute a reason for the application of the rule under consideration. The reason is that the defendant is entitled to be insured against liability to pay the certificates a second time. And the reason exists whenever the paper is shown to be in the hands of a third person claiming title thereto. In the case of a lost bill the statute provides for a bond of indemnity. But when it appears that the bill is not lost, and it is traced to the hands of one who claims to be the owner, the maker or party liable to pay it cannot be required to accept a bond of indemnity. He lias a right to insist that the question of ownership shall be first determined between the rival claimants, and that the-right of the party to whom he pays the debt shall be evidenced by possession of the paper with the power to surrender the same on payment being made; otherwise, as was said in the case of Yan Alstyne,, the party liable on the paper “ may be subjected to the hazard of proving such holding by the third person to be wrongful in any future -claim which may be made U}ion him; in othei- words,, -x- -x- * may pg reqUired to settle the plaintiff’s dispute with an alleged wrong-doer.”

In this case, as the record shows, the court, in directing a verdict, for the plaintiff, ordered the certificates, which had been produced in evidence by Rockwell, to be impounded with the clerk, and an indorsement to be made upon them showing that the same were in judgment in this action. This was done, evidently, to desfroy their future negotiability by the plaintiff, to whose order they were-payable, and this effect it undoubtedly had. But it is clear that it had no effect upon any previous negotiation of the paper, if such had been made. It did not affect in any degree the right or claim of Mrs. Rockwell’s estate to retain possession of the certificates or to-maintain an action for their collection.

The remedy of the plaintiff, as clearly indicated by the opinion in the Yan Alstyne case, was to bring his action to recover possession of the paper from the alleged wrongful holder; and the particular facts of that case afforded ground of dissent by one member of the court; Grover, J., being of the opinion that, as the draft was held in a foreign jurisdiction, it might be treated as a lost bill. The court held, on the contrary, that the courts of the sister State (and equally, it would seem, of the United States) being open to the plaintiffs’ suit, they were not excused from taking the remedy before attempting to collect the draft from the drawer.

"We are unable to see why the .case at bar is not within the reason and the rule in the case of Yan Alstyne, which seems to be of unquestioned authority, and which has already been implicitly followed by our own court in the case of Crandall v. Schroeppel (supra).

The learned justice at the circuit regarded this case as controlled by the decision of Read v. Bank of Attica (55 Hun, 154), but we-are not aware that the question here -considered was raised at all in that case. It was certainly not considered in the opinion of the court, nor involved in its decision.

For the reason, and on the authority, here discussed, we think the judgment and order in this case must be reversed.

Macomber and Corlett, JJ., concurred.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the event.-


text:
    MARY BIRMINGHAM, by JOHN C. BIRMINGHAM, her Guardian Ad Litem, Plaintiff, v. THE ROCHESTER CITY AND BRIGHTON RAILROAD COMPANY, Defendant.

      Negligence — a railroad corporation using a State bridge is Háble to a passenger injured because of defects therein — the safe construction of such bridge is a question for the jury.

      A horse railroad company obtained and exercised the privilege of laying its tracks over a bridge crossing the.Erie canal, which was owned and constructed by the State. This bridge, which was a ‘ ‘ lift-bridge ” operated by hydraulic machinery, had been imperfectly balanced when originally constructed. The defect was remedied by the State by the construction of counter-weights in the form of iron troughs loaded with pig-iron, and suspended at the top of the bridge over the carriage-way and railroad track. While a passenger of the railroad company was passing over the bridge a stirrup supporting the trough broke and she was injured'by the falling iron.

      Held, that as the railroad had adopted the bridge as one of the appliances for carrying on its business, it was liable for defects therein, whether original or resulting from wear and tear, whether latent or patent, to the same extent as if the railroad corporation had constructed the bridge, or had owned and controlled it.
    That the question of negligence involved in the method of suspending the counter-weights was one for the jury.
    Exceptions directed to be heard in the first instance at General . Term, after a trial at the Monroe County Circuit on March 1J, 1890, at which a nonsuit was directed by the court.

      E. Van Voorhis, for the plaintiff.

      A. Benedict, for the defendant.
   Dwight, P. J.:

The plaintiff, a young girl of fourteen years of age, was a passenger by one of the cars of the defendant on its street railway in the ■city of Rochester. The route pursued by the car was along West Main street, crossing the Erie canal by a “ lift-bridge ” constructed and owned by the State, and which formed a part of the highway.

' The bridge was raised and lowered by hydraulic machinery, but it seems tliat, as originally constructed, it was imperfectly balanced, and that counter-weights had been added in the form of iron troughs loaded with pig-iron and suspended at the top of the bridge, some eighteen feet from the floor, and directly above the carriageway and railroad track. The mode of suspension is not very clearly described in the record, but it is sufficient to say that it depended for its security upon the strength of the welding of certain iron “ stirrups ” through which the troughs passed. On the occasion of the passage of the car in which the plaintiff was seated the stirrup supporting the end of one of these troughs gave way and the end of the trough fell from its horizontal position. Its entire load of loose pigs of iron slid out and were precipitated upon and through the roof of the car, and one or more of them struck the plaintiff on the head and shoulder, inflicting the serious injuries of which she complains.

The only question in the case is whether the defendant is chargeable with these results of the imperfect and unsafe construction of the bridge. The defendant’s contention to the contrary is based upon the fact that the bridge was not one of its own structures, being neither built nor controlled by it; that it had no authority to reconstruct or repair it; and that even if it had such authority the defect from which the accident resulted was one which would not have been disclosed upon reasonable inspection.

We think this contention cannot be maintained, but that it is opposed to elementary principles which determine the liability of common carriers of passengers. The fact that the structure was not built or controlled by the defendant is immaterial. It was adopted and employed by the defendant as one of the appliances by means ■of which its business of transporting passengers was carried on. Such being the case, the .defendant was chargeable with all the defects of the structure, whether original or resulting from wear and tear, whether latent or patent, to the same extent as if it had been constructed by the defendant itself, or owned and controlled by it. This conclusion results from the nature of the contract between the carrier and the passenger. That contract is to carry safely, barring accidents against which the utmost human skill and foresight are powerless to provide. This contract includes not merely an assurance that the utmost skill and foresight .shall be employed to secure the safety of the passenger during the act of transportation, but a guaranty that the same degree of skill and foresight has been employed in'the selection and construction of all the machinery and appliances used for the purpose of such transportation. In other words, the carrier of passengers contracts not only for his own skill and care in the conduct of the business, but for the skill and care of all those who have made or furnished ■ any of the instrumentalities or appliances by means of which the business is conducted. (Palmer v. D. and H. Canal Co., 120 N. Y., 170, and the cases cited; Carroll v. Staten Island Co., 58 id., 126, 138; Hegeman v. Western R. R. Co., 13 id., 9.)

These principles would apply to the case at bar even if it were to be conceded that the imperfect welding of the iron stirrup were the only defect in the construction of the bridge of which the plaintiff could complain, because, even though that defect was not discoverable after the bridge was erected and in operation, it is in evidence, and not questioned by the defendant, that the defect in welding was easily discoverable-by the maker of the stirrup on the application of a well-known test. But the concession, supposed, cannot be required of the plaintiff. The whole question of negligence in the application of counterweights to the bridge — whether the exercise of even ordinary prudence was evinced in the suspension of loose masses of iron, in troughs, over the heads of passengers, liable to be precipitated upon them whenever a defect should develop itself in the means of suspension, was clearly a question for the jury. This mode of construction was open and apparent to ordinary observation, and against the dangers incident to it, whatever they were, the defendant was bound by its contract to protect its passengers.

By its use of the bridge the defendant made it a part of the superstructure of its road, and was as much responsible for its safe condition as for that of any portion of its track. So it lias always-been beld in respect to railroads employing leased lines, or the right of trackage on the lines of other roads. It is to the company contracting for his transportation, and not the company upon whose line the cars of the former are run, to which the passenger may look for compensation for an. injury resulting from a defective road. (Phil. and Read. R. R. Co. v. Anderson, 94 Penn., 351; Murch v. Concord R. R. Co., 29 N. H., 9; John v. Bacon, L. R., 5 C. P., 437.)

In this case the defendant — under what arrangement does not-appear — acquired or assumed the privilege of laying its track over a bridge belonging to the State. It was no less resjionsible to its passengers for the safe condition of the structure than if it had been of its own construction. We think the question of the negligence, if any, for which the defendant was responsible, was a question for the jury, and that the motion for a nonsuit was improperly granted.

The plaintiff’s exception to that ruling should be allowed and a new trial granted.

Macombeb and Corlett, JIT., concurred.

Motion for a new. trial granted, with costs to abide the event.


author: P.er Curiam:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWARD ROSSNEY v. JULIUS ARMBRUSTER and Others, Comprising the Executive Board of the City of Rochester.

      Summa/ry removal from his position, of an honoi'dbly discha/rged soldier — when, justified — Lanas of 1888, chapter 119, as a/mended by Laws of 1890, cha/pter 67.
    Chapter 119, Laws of 1888, as amended by chapter 67, Laws of 1890, provides that, no person holding office by appointment, and who is an honorably discharged ■ soldier of the war of the rebellion, shall be removed from his position, “ except for cause shown after a hearing had, but this provision shall not be construed, to apply to the position of * * * deputy of any official or department.”
    By the charter of the city of Rochester (chap. 14, Laws of 1880) an executive board is created which has general power to let all contracts made by the city, except as otherwise provided, and to have control of all matters relating to streets; in connection with which it is further provided that it “may appoint, and at pleasure remove, a superintendent of the streets.”

      This board summarily removed from such position of superintendent an honorably discharged soldier of the war of the rebellion.

      Held, that, within the meaning of the act first-above cited, the executive board w'as a “department” of the city of Kochester, and the relator a “deputy” thereof, and that, therefore, the action of said executive board fell within the exception of the statute.
    ■Exceptions ordered to be heard in the first instance at General Term, after a trial at the Monroe Circuit, at which a verdict was directed by the court in favor of the relator, judgment thereon being siispended pending the hearing of said exceptions.

      -Eugene Van Voorhns, for the relator.

      Fra/neis J. Hone, for the defendants.
   P.er Curiam:

. The relator, being an honorably discharged soldier of the late •war, was superintendent of streets of the city of Rochester, under the appointment of the defendants who constitute the executive board of the city. The relator was removed from that post on the 30th day of April, 1890, without any charges against him and without a hearing, and his place filled by another person. It is now contended by counsel for him, that his removal was unlawful and in violation of chapter 119 of the Laws of 1888, as amended by chapter 67 of the Laws of 1890, entitled “An act relating to employees of the various cities and counties of the State.” That provision is as. follows: “No person holding a position by appointment in any city or county of this State, receiving a salary from such city or county (unless he has been appointed for a definite term), who is an honorably discharged soldier, sailor or marine, having served as such in the Union army or navy during the war of the rebellion or the Mexican war, and who shall not have served in the Confederate army or navy, shall be removed from such position, except for cause shown after a hearing had, but this provision shall not be construed to apply to the position of private secretary or chief clerk or deputy of any official or department, or to any other person holding a confidential relation to the appointing officer.” Unless the relator comas within the exceptions mentioned in the statute his removal was unlawful, and he should be reinstated.

The executive board is a department of the city government of the city of Rochester, as expressed in section 142 of chapter 14 of the Laws of 1880, which constitute the city charter. That section ■creates a board, consisting of three members, who shall be electors .and freeholders of the city, and chosen by the electors of the city, each to hold office for the term of three years.

By section 149 of that act this board has power to let all contracts made by the city, except as otherwise provided, to superintend and ■control all work or improvements ordered by the common council, to have control of the construction, improvement, repair aud cleaning of streets. This section concludes as follows: “ The executive board may appoint, and at pleasure remove, a superintendent of •streets, fix his compensation and prescribe his duties.” By the sixty-first section of the same act, the superintendent of streets is required to act under the direction of the executive board, and in case of a vacancy in that office all powers and duties imposed upon him must ■be performed by the executive board.

Under these statutes it is plain to be seen that the relator is not included within the general provisions/of the act relating to appointment and removal of officers, but comes within the exception thereto contained in the last clause of the act. As has been stated above, the defendants constitute a “department” of the city oE Rochester. The relator is a “ deputy ” of that department, and hence by the 'terms of the statute is not included within the class of persons who ■cannot be removed, except for cause shown and after a hearing had.

It follows that the exceptions taken at the trial must be allowed ■and a new trial granted, with costs to abide the event.

Present — Dwight, P. J.; Macomber and Corlett, JJ.

Exceptions allowed, verdict set aside and a new trial granted, with ■costs to abide the event.


author: Macomber, J. :

text:
    In the Matter of the Petition of SARAH KERWIN, in Behalf of WILLIAM KERWIN and Others, Infants, to Compel an Accounting of CORNELIUS KERWIN, Guardian of such Infants.

      Guardian and ward — upon an application for the payment of the board of infante, contested by the gua/rdian, a surrogate has jurisdiction to act — Gods of Giuil Procedure, secs. 2846, 2472, sub. 7.
    Under section 2846 of tlie Oode of Civil Procedure, authorizing a surrogate to make an order directing the application by the guardian of the property of' an infant, for its support and education, in such amount as to the surrogate-seems proper, out of the income of the property or, where that is inadequate, out of the principal, and under subdivision 7 of section 2472 of said Code, giving a surrogate power to direct and control the conduct of guardians and to settle-'their accounts, the surrogate is not ousted of jurisdiction to direct payment of a claim, made for an infant’s hoard, hy the fact that the guardian contests such claim.
    The rule, obtaining in certain accountings by executors and administrators, under which a surrogate cannot pass upon a disputed claim, has no application to the case of a guardian.
    Appeal by Sarah Kerwin, petitioner, in behalf of William, Mary and Philip Kerwin, infants, from an order of the surrogate of Niagara county, entered in his office on the 5th day of December, 1890, dismissing said petition solely because of the want of jurisdiction either in said surrogate, or in his court, to hear, try and. determine the issue raised in said proceeding.
    IF. W. Storrs, for the petitioner, appellant.

      Wheadon <& Ryan, for the respondent, Cornelius Kerwin,, guardian.
   Macomber, J. :

The petition of Sarah Kerwin, which was duly verified and filed wifh the surrogate, alleged that on December 11,1888, the respondent, Joseph E. Butler, was appointed by the surrogate of Niagara county general guardian of the person of William Kerwin, an infant, then ten years of age; of Mary Kerwin, an infant of eight years of age, and Philip Kerwin an infant of five years of age; and the respondent, Cornelius Kerwin, was duly appointed by such .surrogate the guardian of the property of such infants; that the respondents, respectively, qualified as such guardians and entered upon the discharge of their duties. These infants are shown to be the children of the petitioner’s late husband by a former wife, such husband dying on the 30th day of September, 1888.

It is further alleged that on December 19, 1888, an agreement was made between Joseph F. Butler, the guardian of the person of the infants and the petitioner,-that the petitioner should take care of and board and clothe the infants at her home for one year at the rate of one dollar and fifty cents per week for each child, which sum the said Butler, as guardian aforesaid, agreed to pay to the petitioner; that the petitioner fulfilled, on her part, and continued to provide for the children until December 19, 1889; that the guardian of the person gave the petitioner an order in writing upon the guardian of the property of the infants for the payment of $■234, the amount so agreed upon, and that shortly thereafter the petitioner presented such order to the guardian of the property for payment, but the latter failed and refused to pay the same, or any part thereof. It is alleged that this contract for compensation for the care and maintenance of the infants was reasonable and just.

It is further shown by the petition that the respondent, Cornelius Kerwin, had sufficient means in his possession and control to pay to the petitioner the amount so agreed upon between the guardian of the person of the infants and the petitioner; that the guardian of the person, Mr. Butler, has been requested by the petitioner to apply to the surrogate for such sum and for an order requiring payment thereof, but he has refused to do so; that no question was made by him that the- sum of money so claimed by'the petitioner was justly due her for such support, care and services.

The prayer of the petitioner was that an order might be made directing such payment. Upon filing such petition an order was made and citation issued, in due form of law, requiring the guardians of the person and of the property to appear at the time named and show cause why the prayer of the petitioner should not be granted. Upon the return day, or prior thereto, Cornelius Kerwin, guardian of the property, filed his answer to such petition, in which all the material portions thereof were substantially admitted to be true. Such answer specifically admitted that such guardian had money of the infants to the'amount of more than $234, and that he refused to apply the same for their support; that the infants resided with their stepmother, as stated in the petition, and concluded as follows: “ But said Cornelius Kerwin denies that he lias knowledge or information sufficient to form a belief as to the truth of each and every other allegation in said petition contained.”

The second answer denied the authority of the guardian of the person to enter into the contract' with the plaintiff. The third defense was that the petitioner was appointed by the surrogate of the county as administratrix of Michael Kerwhrs estate, the latter being the father of the infants; that she filed an inventory containing, among other things, a list of the articles which were set apart for the use of herself, as widow, and for the said children, pursuant to law, of the value of $275, not including personal apparel, etc.; that the petitioner has had full possession of the property since that time; that the petitioner elected to care for the infants and furnish them with care, board and clothing ; that by so doing she is estopped to controvert the same or. to claim or make any charge whatever, in any form, for such -care, board or clothes as she alleges that she has furnished. The fourth defense was what is termed a counter-claim, but is of no particular importance, so far as the legal questions presented by this appeal are involved. The guardian of the person of the infants made no answer to the petition. 1

The surrogate, on the filing of this answer, dismissed the proceedings on the ’ground that he ‘ had no jurisdiction to grant the prayer of the petition. No opinion was written by him, but it is probable that such supposed want of jurisdiction is based upon the allegation that the claim here presented was a disputed claim, and that, consequently, the rule applicable to surrogates, of want of jurisdiction in preliminary accountings where the claim is disputed, .would prevail. It is true that in certain proceedings under the statute (2 R. S.. 220, § 1) for special accountings of an executor, at the instance of the legatee, to enforce the payment of a legacy, the surrogate has only jurisdiction to decree payment where the legacy is undisputed. (Riggs v. Cragg, 89 N. Y., 479; see, also, Hyland v. Baxter, 98 id., 610.) But we are of the opinion that section 2846 of the Code of Civil Procedure was designed to give the surrogate jurisdiction in cases where the facts are as disclosed by this petition and this answer. That section reads as follows: “ Upon the petition of the general guardian of an infant’s person or property; or of the infant; or of any relative or other person in his behalf; the surrogate, upon notice to such persons, if any, as he thinks proper to notify may make an order, directing the' application, by the guardian of the infant’s property, to the support and education of the infant, of such a sum as to the surrogate seems proper, out of the income of the infant’s property; or, where the income is inadequate for that purpose, out of the principal.”

By subdivision 7 of section 2172 of the Code of Civil Procedure ■the surrogate has power “to appoint and remove guardians for infants ; to compel the payment and delivery by them of money or other property belonging to their wards; and, in the cases specially prescribed by law, to direct and control their conduct and settle their accounts. This jurisdiction must be exercised in the cases and in the manner prescribed by statute.”

From these provisions it will be observed that there is no limitation of the power of the surrogate to direct the guardian of the property of an infant to make a suitable and proper application of the income or of the property itself to the support of the infant.

We know of no authority which restricts the jurisdiction of the surrogate to cases where the demand for the support is undisputed. Indeed, the very nature of the claim, as contemplated by section 2816 above quoted, implies that there may be a controversy or dispute over the application. It was the duty of the surrogate, in our judgment, in this particular instance, to examine into the petition and into those portions of the answer that were material to the petitioner’s application, and to grant or refuse the petitioner’s application upon the merits.

__ The order appealed from should be • reversed, with costs to the appellant.

Dwight, P. J., and Coblett, concurred .

The order or decree of the surrogate of Niagara county reversed,, with costs, and the proceedings remitted with directions to proceed thereon.


author: Oorlett, J.:

text:
    DANIEL ENGEL, as Administrator, etc., of FREDERICA ENGEL, Deceased, Appellant, v. THE EUREKA CLUB, Respondent.

      Negligence — private nuisance— the owner of a dangerous building cannot escape liability for injuries ca/used by its fall, by contracting with another for its removal.

    An-incorporated social club purchased an old building which was situated immediately south of the lot of one Engel, and a few months thereafter made an. agreement with a contractor to remove'it, including the old walls, and to erect a-new building. The north wall of the old building, fourteen feet in height, thirty-three feet in length, and located wholly on the club property, was in art unsafe condition at the time of the purchase by the club. The contractor . removed the roof and floors of the building, and thereby left, standing alone and unsupported by braces or shoring, the north wall, which, upon the next day,fell northwardly and killed the wife of Engel, who was in the yard of her husband’s premises.

      Held, that the wall, in view of its age, construction and condition, amounted to a private nuisance.
    That as the injury to Engel’s wife resulted from the wall itself, and not from the methods of the contractor in its removal, the club was liable for the damage resulting from its fall.
    That it could not, by contracting with another for such removal, relieve itself from liability to a person injured by such fall.
    Appeal by the plaintiff Daniel Engel, as administrator of Frederica Engel, deceased, from a judgment, entered in the clerk’s office of the county of Monroe on the 17th day of February, 1885, in favor of the defendant, after a trial at the Monroe Circuit before the court and a jury, at which a verdict was rendered in favor of the defendant.

      Martin W. Cooke, for the appellant.

      Raimes Bros., for the respondent.
   Oorlett, J.:

The plaintiff’s intestate, who lived in Rochester, was killed by the falling of a wall which belonged to the defendant, on the 16th day of June, 1882. The intestate’s husband was appointed administrator and brought this action in February, 1884. Issue was joined, the case was tried at the Monroe October Circuit before a justice and jury. It resulted in a verdict for the defendant. Judgment was entered and the plaintiff appealed to this court.

The defendant is a corporation and a social club. At the time of the accident, and for some months before, it was the owner of the premises south of and adjoining those occupied by the intestate. The defendant purchased the property for the purpose of using the same as a club-house after it should be reconstructed. Just before the accident the defendant entered into an agreement with one "Wagner, a contractor and builder, for the tearing down of the old Building and the erection of a new one on the site. This contract included the removal of the old walls.

The plaintiff and the deceased occupied the premises adjoining the defendant’s property. The defendant’s wall on the south, next the premises of the intestate, extended east and west along the line of the north side of the defendant’s premises; it was fourteen feet high and thirty-three feet long. The Building occupied by the deceased and the plaintiff was about ten feet from the part of the -defendant’s building which fronted the street.

On the day of the accident the intestate, accompanied by the plaintiff, went out and hung up clothes in their yard at a place about six feet from the wall. It fell and killed her and also her child. The deceased was twenty-six years of age.

The contractor, Wagner, had entirely removed the roof which connected the top of the wall with the main building about four o’clock the day before, and when it fell, it stood without any connection with or support from the main building, wliich was several feet ■further south. No one was working on the wall at the time of the .■accident. It was an eight-inch wall made of brick, resting on a ¡stone foundation which did not come above the surface of the .ground. It was necessary to remove the roof before taking down ■-the wall.

The evidence showed that this wall was very old, and unless kept in position by the roof, unsafe and liable to fall. The contractor Bad been at work several days on the premises in tearing down and ¡removing the building. The evidence shows that Wagner made no -examination of the condition of the wall before removing the roof, jrafters and joists which held the same in place. It was not a party-wall, but stood on tbe defendant’s premises. The aboye fact's appeared on the trial.

At the close of the evidence the trial justice charged, among other things, as follows:

“ There is evidence here, gentlemen, from which you would have a right to draw the conclusion that Mrs. Engel met her death on the day named, the 16th of June, 1882, without fault on her part, by reason of the carelessness of some other person or the omission of some other body of persons to extend towards her, as well as to other neighbors, that care and prudence which every owner of property owes to his neighbor.

The question to be determined in this trial is, who is the responsible party ? The plaintiff made out a prima facie case when he showed that, without fault on the part of the deceased, this wall tumbled over upon her and crushed her, if he did show that as matter of proof. Showing that fact, there devolves immediately upon the defendant the duty of discharging itself from liability if it can do so by any evidence. If the defendant, by its officers and agents, had been in possession and occupation of the old Barton premises and had full control of these buildings at that time, and the wall had thus fallen upon the neighboring premises and crushed this woman, that corporation would be liable, provided the deceased committed no act of carelessness on her part which contributed to the injm-y.

The defendant, however, seeks to avoid liability here, seeks to discharge itself from the responsibility„which the law puts upon it as the owner of the property, by alleging and attempting to prove that, at the time of the injury, it, as a corporation, had not the custody and control of that property, but that by a contract it had turned the property over to a contractor, Mr. Wagner, who had obligated himself to remove the old building and in its place erect a new one for the benefit and advantage of this corporation.

“ If- that be true, if the defendant had, prior to this injury, made a contract, in good faith, with Mr. Wagner, by which the officers of the corporation surrendered to Mr. Wagner the exclusive control of that building for the purposes of demolishing it and putting another in its place, and after making the contract did no act and exercised no control over the progress of the work, the corporation is not liable for this injury, however serious in its effects the accident may have been to the plaintiff and to the next of kin of the deceased.”

At another place the learned trial justice charged: “Ifyou. shall find that Mr. Wagner agreed, either expressly or by necessary implication, to remove the old building, and he took exclusive possession for that purpose, and the officers of the corporation exercised no control over him and attempted none, there can be no-recovery by the plaintiff in this action, unless you find another fact in the case, which I shall shortly bring to your attention.

“ The defendant, as I have said to you, if you shall find that it had made the contract that I have named, would not be liable for any negligence on the. part of Mr. Wagner, or of his employees, in the removal of the structure, during the existence of any such agreement, if Mr. Wagner, by contract clearly defined, took possession of ■the premises under an obligation to remove the old building and put up a new one in its place, and under circumstances that the club-had not the right to interfere and control his actions, the club is not responsible for his acts of negligence or those of his employees. * * * I charge you further, gentlemen, that if you shall find that Wagner was not guilty of negligence in failing to secure this wall so that it would not fall, but that it, in fact, fell by reason of those defects, and shall say that Wagner did not know of them and could not, by the exercise of reasonable diligence, have found them out, the defendant is liable in this action. * * * I will say to you that, in the absence of any» contract, that is, in the absence of any contract between the club and Wagner, such as I have named to you, the owners of the building would be responsible for the falling of the wall without regard to their knowledge of the defects-which existed.”

The learned counsel for the plaintiff excepted to that part of the charge which was to the effect that if the defendant had made a-contract with Wagner by which defendant surrendered exclusive control for the purpose of removing the building and erecting another, that the corporation is not liable in this action. Also to the portion of the charge which was: “If you find Wagner agreed, express or implied, to take down the building, that there can be no recovery in this case.”

The counsel also requested the court to charge: If the jury find that the fall of this wall resulted from the performance of whatever Wagner agreed to do, the defendant is liable.” The court refused and an exception was taken.

The counsel also asked the court to charge that: “ If the jury find that the wall fell by reason of defects which existed when Wagner •commenced work, the responsibility was on the owner therefor, and not on Wagner, even if he is found to have contracted as claimed, he having notice of such defects.” The court refused and an exception was taken.

A request was also made to charge that: “ There was no evidence from which the jury can find that Wagner was obligated to shore up the wall in question.” Refused. Also,. “ If the jury find that the wall fell from the neglect to shore up the wall in this case, they must find the defendant liable.” Also, that “ in this case, one of these parties, defendant or Wagner, is liable in any event; if it was both Wagner and defendant, jury may find under the evidence that it was the fault of both, and, if so, plaintiff may recover.” These were refused and exceptions taken.- There were some other exceptions to the charge and requests to charge involving, substantially, the same propositions.

In the case at bar, the defendant’s contract included the taking down of the wall by the, contractor,, and it must be assumed that it knew the steps which it would be necessary to take to accomplish that result, such as taking off the roof, etc., and that the job would be performed in the ordinary way.

The question presented is, whether where the owner of a structure, which is so defective that it may fall by removal or tearing down, nan relieve himself from liability by making a contract with another to do the work. This question is squarely presented by the charge, •exceptions and requests to charge.

It is conceded that there was an existing duty resting upon the owner to prevent injury by the falling of the walls of this building. The learned trial justice so charged. ' ■

The question at bar is near the border. The charge of the learned trial justice was correct, in the absence of an existing duty or obligation. If the contract had been td build a wall or erect a building, there being no existing duty or obligation, ordinarily the owner would not be liable for damages resulting from the negligence of the contractor or his employees. The cases cited on the part of the ■learned counsel' for the defendant all proceed upon that theory. But, upon the conceded facts and the charge of the trial justice, the defendant would be liable, except for the contract. The question is sharply presented whether the owner of property may make an agreement, and thus relieve himself from liability, when the execution of the contract involves danger to travelers or adjoining owners.

In Pettengill v. City of Yonkers (116 N. Y., 558) it was decided that it is the duty of a municipal corporation to keep its streets in a safe condition for public travel, and it is bound to exercise reasonable, diligence to accomplish that end. This is-so as well where an obstruction rendering travel unsafe is caused by a third person as where it is the act of the corporation. Where, therefore, public or private improvements are being made in a city street causing an obstruction, it is the duty of the city to guard them so as to protect travelers on the street from receiving injuries therefrom. The municipality is not absolved from liability by the fact that the obstruction was caused by a contractor with the city, who by his contract is bound to properly guard it or to place warning lights. All the cases are to the same effect. (Brusso v. City of Buffalo, 90 N. Y., 679; Storrs v. City of Utica, 17 id., 104; Turner v. City of Newburgh, 109 id., 301; Nelson v. Village of Camsteo, 100 id., 89; Russell v. Village of Canistota, 98 id., 496; Nims v. Mayor, etc., of Troy, 59 id., 500; Bauer v. City of Rochester, 12 N. Y. Supp., 418.)

In Heeg v. Licht (80 N. Y., 579-582) it was held that the rule is of universal application that while a man may prosecute such business as he chooses on his own premises, he has no right to erect and maintain a nuisance to the injury of an adjoining proprietor or of his neighbors, even in the pursuit of a lawful trade.” In Jarvis v. Baxter (52 Supr. Ct. R., 109) it was held that an unsafe building was a private nuisance.

In the case at bar the wall without supports, in view of its age and mode of construction, would be confessedly unsafe and dangerous to adjoining occupants to such an extent as to amount to a private nuisance. In the condition it was when it fell it was one. It was not contended on the trial that the contractor was guilty of any negligence in his mode of proceeding- to remove the wall. In other words, it was not claimed or shown that any, except ordinary methods, were resorted to by the contractor in the removal. Under such, circumstances the defendant would be liable.

The case of McCafferty v. Spuyten Duyvil and Port Morris Railroad Company (61 N. Y., 178-186) recognizes this rule. The judge writing the prevailing opinion quotes with approval the following extract from the opinion in Butler v. Hunter (7 Hurl. & N., 826): “ No doubt, where the act is in itself a nuisance, the party who employs another to do it is responsible for all the consequences, for there the maxim £ qui faeit per alium faeit per se ’ applies. But where the mischief arises not from the act itself, tut the-'improper mode in which it is done, the person who ordered it is not responsible unless the relation of master and servant exists.”

This question is fully discussed in the dissenting opinion of Commissioner Dwight (pp. 185, 186), and there is no difference of opinion between the prevailing and dissenting opinions upon the soundness of the doctrine in the above quotation.

The defendant’s position was that it was the contractor’s duty to ascertain the danger, if possible, and .shore up the wall. "When, therefore, the owner made a contract which involved the putting of the wall in the shape it was when it fell, he expressly provided for the creation of a private nuisance, and it occupied the same position as if it built the wall and allowed it to stand in the way it was at the time of falling.

If the owner or anybody else removed all the braces and fastenings, leaving the wall as it was when it fell, and the owner allowed it to stand in that condition and it fell, and an accident occurred, it would hardly be claimed that the owner was not liable. "When it made a contract that the wall might be put in the condition it was in when it fell, it is difficult to see how he could protect himself from liability by the claim that the work was performed by a contractor instead of himself.

Applying the doctrine of the above cases to the one at bar, the defendant would be liable for omitting reasonable diligence in keeping the wall safe after letting the contract. It could not relieve itself from liability by devolving the duty of taking down the wall upon the contractor, when it knew that its removal involved danger to others. It is not claimed in this case that the contractor was guilty of any affirmative act of negligence. The only ground upon which he is charged with negligence is in omitting to ascertain the ■defects in the wall and protect it while' it was being removed. It is not alleged that it was negligence to remove the roof or take away the braces. The ground of the decisions in the street cases above cited is that a duty rested upon the city, and that it cannot relieve itself by making a contract. The application of that doctrine to the case at bar would require the exercise of reasonable care on the part of the owner in the taking down of the wall. This being so, it was not relieved from its exercise and the care incident to it by making a contract. This is precisely the position of this defendant. There was resting upon it a duty ; repairs and changes were needful; it contracted with another to make them, and when the plaintiffs intestate was killed by reason of the inherent weakness of the wall, it cannot relieve itself from obligation by throwing the whole responsibility upon the contractor, insisting that when it made the contract in good faith, it was relieved from all further duty or obligation to travelers or adjoining owners.

In principle, there is no distinction between the case at bar and the city cases. The liability in both rests upon the existence of a duty which neither can relieve itself from by a contract. When ■one contemplates building a house or erecting some other structure, he ordinarily owes no duty to the public or individuals, except to employ a competent contractor. When, therefore, he lets the job to such contractor, he is not ordinarily liable for his negligence or that of his employees. Where, on the other hand, as in the case of public streets, an existing building or wall, a duty already exists, the party cannot relieve himself from liability by making a contract. Great mischief would flow from the adoption of such a rule.

There is no contradiction or confusion in the cases when reference is had to proper distinctions. In the case at bar the defendant owned the building and the wall. The learned trial justice states that it owed a duty, when the building was up, to travelers and adjoining owners; it lets a contract to remove the building and wall for the purpose of erecting a new structure, and then, when the wall falls, seeks to absolve itself from liability by claiming that its •contract was a perfect protection. No ease has been cited going this.length.

The question presented by the facts in the case at bar is novel. Attention has not been called to an exact adjudication upon the precise point, but the rule in analogous cases must control'.

It follows that the judgment and order must be reversed and a new trial granted.

Dwight, P. J., concurred; Macombeb, J., not sitting.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the event.


author: Corlett, J. :

text:
    CHARLES W. WHITNEY and MALVINA WHITNEY, Respondents, v. HARVEY W. RICHARDSON and Others, Appellants.

      Basement — when it is not personal to the grantee, although there a/re no words of inheritance in the grant.

    In an action brought to recover compensation for the use of the waters of a spring used in carrying on a cheese factory, it appeared that the plaintiffs’ grantor, by an instrument under seal, duly acknowledged and recorded, let to the defendants” grantor the right to take aDd use sufficient water to run his cheese factory, and “to have the use of said water so long as the same shall be used for the purpose of running a cheese factory.”

      .Held,, that the instrument created an easement which was not personal to defendants' grantor. .
    That its purpose was to secure water for the factory, and that, notwithstanding the absence of words of inheritance, and of the fact that its form was that of a lease, the defendants, upon performance of the conditions of the grant, were entitled to enjoy the easement.
    Appeal by the defendants, Harvey W. Richardson, Wellington C. Beebe and De Witt C. Beebe, from a judgment, entered in the office of the clerk of Erie county on the 23d day of February, 1889, in favor, of the plaintiffs, after a trial at the Erie Circuit before the court and a jury, at which a verdict was rendered in favor <of the plaintiffs for $100; and from an order, entered in said clerk’s office on the 6th day of August, 1890, denying the motion of said defendants for a new trial made upon a case and exceptions.

      Chwrles W. Siclcmon, for the appellants.

      Charles F. Whitcher, for the respondents.
   Corlett, J. :

At the time stated in the instrument a paper was executed, of which the following is a copy:

“ This indenture, made this second day of December, 1873, between Abner Orr, of the town of Holland, and county of Erie, and State of New York, of the first part, and William A. Johnson, of the towm of Collins, county and State aforesaid, of the second part, witnesseth: That for and in consideration of the sum of one dollar, paid by the party of the second part to the party of the first part, has letten and by these presents does let, grant and demise unto the •said party of the second part the right to take and use sufficient water to run his cheese factory in Holland from a spring on the premises of the party of the first part, situate about thirty rods east of said cheese factory, and being the same spring by which the water is now conveyed to said cheese factory; to have the use of said water so long as the same shall be used for the purpose of running a cheese factory, provided the said party of the second part shall, in digging for the purpose of laying and repairing pipes for the purpose of conveying water from said spring to said cheese factory, fill up and keep the surface level.
“ In witness whereof, the party of the first part has hereunto set his hand and seal the year and day first above mentioned.
“ABNER ORR. [l. s.]
“ On the fifth day of December, 1873, came before me Abner Orr, to me known, and acknowledged that he executed the within instrument for the purpose therein mentioned.-
“JOHN O. RILEY,
aFotary Public for Frie County.”

The above instrument was acknowledged and recorded in Erie county clerk’s office on the 16th day of December, 1873. Johnson died in 1877 and Orr in 1880. The plaintiffs became the owners of the land upon which the spring stood in 1884, and the defendants became the owners of the cheese factory, which continues to be operated.

In July, 1888, this action was brought to recover rent from the defendants for using the waters of the spring in their business of manufacturing cheese. Issue was joined and a trial was had before a justice and jury, which resulted in a verdict of $100 in favor of the plaintiffs. A motion for a new trial was denied, and the defendants appealed to this court from the judgment and order.

The sole question on this appeal is whether the right or interest created by the above instrument was simply personal,-terminating with the death of Johnson, or whether it enured to the benefit of the cheese factory while it continued to be used as such. The trial court held that it terminated with the life of Johnson, and that after that the plaintiffs were entitled to the value of the use of the water taken for cheese manufacturing purposes. Upon that ground the plaintiffs recovered. It appears from the instrument and case that water from the spring had been used for the purposes of this factory before the writing was executed. The word “ indenture,” which ■ the instrument is called, imports in its broadest sense a conveyance.

The term “grant” is defined as the passing of real estate from one to another. While the instrument in this case was in form executed to Johnson, yet it provides in terms for the use of such water “ so-long as the same shall be used for the purpose of running a cheese factory ” on complying with certain conditions therein mentioned. 1 Revised Statutes (748, § 1) is as follows: “The term f heirs,’ or other words of inheritance, shall not be requisite to create or convey an estate in fee, and every grant or devise of real estate, or any interest therein, hereafter to be executed, shall pass all the estate, or interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms or be necessarily implied in the terms of such grant.”

In Nellis v. Munson et al. (108 N. Y., 453) it was adjudged that an easement to carry water across the lands of another for the benefit of the dominant estate is an interest in fee or of the freehold within the meaning of the statute. In that case the instrument was not acknowledged or recorded. It was, therefore, held to be void as against the purchaser.

In the case at bar the instrument was both acknowledged and .recorded. The omission of the words “ heirs or assigns ” did not .limit the extent of the grant. (Nicoll v. N. Y. and E. R. R. Co., 12 N. Y., 121; Cole v. Lake Co., 54 N. H., 242, 243-278; Matter of Kirk v. Richardson, 32 Hun, 434, 435.) A cheese factory in a neighborhood or locality may be of great value and convenience to the surrounding country. The purpose of making the instrument was manifestly to insure the continued use of the factory. The consideration named in the instrument was entirely immaterial. (Bliss v. Greeley, 45 N. Y., 671; Johnstown Cheese Mfg. Co. v. Veghte, 69 id., 16.)

The Special Term, in denying the motion for a new trial, construed the .instrument as personal to Johnson. A careful reading shows no such limitation; it was manifestly intended to enable the factory to be kept in use. The fact that Johnson was then its •owner caused the instrument to be drawn to him. The words heirs or assigns ” were not used, nor was it necessary that they .should have been. The value of the cheese factory might be practically destroyed if the right to use the water from the spring should be confined to the lifetime of the owner, which might be of short •duration.

The whole instrument clearly implies that its central purpose was to secure water for the use of the factory upon the conditions being complied with. There were no words of limitation confining such use to the lifetime of Johnson. It is not alleged or claimed that any of the conditions contained in the instrument were not fully performed and Kept by J ohnson and his successors. The form of the .indenture shows that it never entered into the contemplation of either party that rent should accrue or be collected.

Importance was attached by the Special Term to the words indicating that the instrument was a lease.

In Genet v. Delaware and Hudson Canal Company (122 N. Y., 505) it was held that a contract which stated that the plaintiff and her husband, as parties of the first part, for certain considerations specified, “ hath leased and doth hereby lease ” to defendant certain lands, vested an estate in fee in the coal, etc., which shows that calling the instrument a lease does not limit its construction.

Numerous cases have been decided upon a great variety of facts which would throw no particular light upon the questions involved in this controversy. The learned justice at Special Term states, in substance, that- the defendant’s contention would be correct if the' instrument could be construed as one executed for the benefit of the factory. But he limits its construction to the use of Johnson personally. Having reference to the terms of the grant, and circumstances surrounding the making of the- instrument, including the conditions existing at the time, a construction should be adopted, if the language used will admit of it, which secures the benefit of the water for the manufacture of cheese so long as the building is used for that purpose.

It is a fundamental principle of construction that when the terms, of the grant are doubtful, they will be taken most strongly against the grantor. (Kilmer v. Wilson, 49 Barb., 86-88; Herman v. Roberts, 119 N. Y., 37.)

Coleman v. Beach (97 N. Y., 545), cited by the learned justice at Special Term, is not in conflict with this rule. The learned judge delivering the opinion in that case says, on page 553 : The rule governing controversies between grantor and grantee, by which the language of a conveyance is required to be taken most strongly against the grantor, has no application when the dispute occurs between par ties claiming under the same conveyance, and who are each entitled to the benefit of the same rule of construction.”

In the case at bar the grantor invokes one rule of construction which would benefit him, and the grantee a different one which would secure a different result. In this case the exact question is, whether the grantee shall have the benefit of the general rule of construction. The case cited at Special Term has no application.

The learned counsel for the respondent cites Jackson v. Van Hoesen (4 Cow., 325) in support'of his position. It has no application, as that case was decided before the Revised Statutes, when the words “ heirs and assigns ” were material.

It follows that the judgment and order must be reversed and a. new trial granted.

Dwight, R. J., and Maoomber, J., concurred.

Judgment and order appealed from reversed and new trial granted, with costs to abide the event.