author: MArwin, J .:

text:
    Hotchkiss S. Finch, Respondent, v. Frank A. Skilton and Another, Appellants.

      Oral extension of payment of a demand note — made in consideration for its being then signed by an additional maker — no demand necessan'y as against the maker — payable in a reasonable time — verdict directed upon the uncorroborated testimony of a party.

    An oral extension of the time of payment of a promissory note, although indefinite, followed by actual forbearance for about two years, is a sufficient consideration to sustain the obligation of' an additional maker thereof signing it at the time of such extension.
    Ho demand is necessary as against the maker prior to the commencement of a suit upon a note payable on demand, and where the time for the payment of a promissory note is extended for a reasonable time when that time has elapsed no demand for the payment thereof is necessary before bringing an action thereon.
    Where the time of payment of a loan is not specified in a contract, the law will presume that it was intended by the parties to be paid in a reasonable time, and in such case a demand before suit is not necessary, and when a surety-signs a promissory note as maker, he, in this respect, is in no better position than the principal.

      When, upon the trial oí an action, there is no evidence as to certain facts in issue, except the testimony of a party to the action, it is not error for the court to refuse to submit the case to the jury, and to direct a verdict if there is no evidence upon which the jury has a right to determine that the testimony of such party was untrue.
    Appeal by the defendants, Frank A. Skilton and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 24th day of November, 1890, upon the verdict of a jury rendered after a trial at the Tioga Circuit, and also from an order entered in said clerk’s office on the 17th day of December, 1891, denying the defendants’ motion for a new trial made upon a case containing exceptions.

      E. O. Aihen, for the appellants.

      H. Austin Glarh, for the respondent.
   MArwin, J .:

This action was brought upon a promissory note, a copy of which is as follows:

“ $3,000. Auburn, N. Y., January 2, 1886.
“ Eighteen months after date I promise to pay to the order of Finch & Allen three thousand dollars, at the First National Bank of Auburn, value received, with use.
« FRANK A. SKILTON,
“ HARRY I. SKILTON.”

The execution of the note was admitted. It appeared however, that Harry I. did not sign it until some time after it was executed and delivered to the payees by the other maker. One of the defenses of Harry I. was that he signed for the accommodation of the other maker and without consideration. The plaintiff claimed that Harry signed the note on or about December 17, 1887, in pursuance of an arrangement between the plaintiff and Frank that the plaintiff would give time on the note if Frank would procure his brother ITarry to sign it, and would release a certain privilege he (Frank) had under a mortgage given by him to the payees on the 25th of February, 1886, as collateral security to this and other notes. Whether there was such an arrangement was the main issue of fact at the trial. Hpon it the jury found for the plaintiff, and the evidence is sufficient to sustain that conclusion. The extension, though indefinite, followed as it was by actual forbearance for about two years, was a sufficient consideration for the obligation of the new maker. (Mutual Life Ins. Co. v. Smith, 23 Hun, 535; Traders' Nat. Bank v. Parker, 130 N. Y. 415.)

A release of the privilege referred to was given. This is dated December 17, 1887, and was executed by Frank on IVIarch 9, 1888. The defendant Harry claims that this release operated to change the terms of the mortgage; that it was done without his knowledge or consent, and that, therefore, he, being a surety, was discharged from liability, under the authority of Paine v. Jones (76 N. Y. 274). The mortgage was upon lands in the State of Illinois, and there was in it a provision by which the mortgagees agreed to release one or more of certain lots upon the payment of $200 for each lot. The release signed by Frank was “for the purpose of waiving snch agreement for the releasing of any lot or lots until the actual sale of said lot or lots, and in case any lot is sold, the money for which said lot is sold shall go to the said Finch and Allen, and no lot to be released unless two hundred is paid thereon.”

According to the evidence of the plaintiff, this release -was executed in pursuance of the arrangement for time on the note, and was a part of the consideration for the extension, so that the arrangement was not complete until the release was executed.. If that was so, it cannot well be claimed by Harry that his rights as surety were affected by the release. The case of Paine v. Jones would not apply.

Upon this line it is also suggested by the appellant Harry I. that on the 1st of January, 1888, the plaintiff took from Frank A. Skilton two notes of ninety dollars each for interest due at that date, the notes being payable in seventy-five and ninety days, and the claim is made that this was an extension of time on the interest and operated to release Harry I. from his obligation as surety. One note was paid; the other was not. The time given did not exceed the extension of time to be given on the whole debt under the arrangement then pending. No claim seems to have been made at the trial or in the pleadings that the giving of these notes for the interest affected the surety. It is too late now to raise the question.

It is further claimed that a demand was necessary before suit. This claim is on the theory that the extension of time was unlimited. The plaintiff testifies on this subject as follows : “ Several times I was dunning him (Frank) for the pay on this note and mortgage, and he wanted time and it kept running along; finally I said, I can’t give any more time without I get more security, and said he, what do you want ? I said, I want Harry’s name to this note, and I want a waiver of the $200 clause in the mortgage. He said he would give it. I told him all right, I would extend the time indefinitely, and he wanted I should put it six months or a year ahead, and I told him I wouldn’t do it. I said, you must pay the interest semi-annually if it runs six months; he talked that he could fix it in three or four months. He said Iiarry would; he did not tell me to go anywhere for that purpose. He told me that he had talked with Harry about it, and that Iiarry would sign it. Frank and Harry were partners.” This action was commenced on the 14th of December, 1889. The interest that had accrued since January 1,1888, was not paid. Upon a note payable on demand no demand is necessary prior to the commencement of the suit as against the maker. (Wheeler v. Warner, 47 N. Y. 519 ; Locklin v. Moore, 57 id. 362.) The extension in this case was, in effect, for a reasonable time. (T. N. Bank v. Parker, 130 N. Y. 415, 420.) When that time had elapsed no demand was necessary, any more than upon a demand note. It has been held that where time of payment of a loan is not specified in a contract, the law will presume that it was intended by the parties to be paid in a reasonable time, and, in such cases, a demand before suit is not necessary. (Niemeyer v. Brooks, 44 Ill. 77.) The surety, having signed as maker, has, in this respect, no better position than the principal. (Brandt on Suretyship, § 82.)

It is further claimed that, “ as there was no evidence’ on the part of plaintiff except his own, as to what was realized on foreclosure in Chicago, the court should have submitted the whole case to the jury, instead of directing them to find a verdict against Frank A. Skilton.” There was, however, no evidence upon which the jury had a right to say that the plaintiff realized on the foreclosure any more than he testified he did. It is, therefore, difficult to see how any error in this respect was committed.

Our attention is called to three exceptions on questions of evidence : (1) Oral evidence of the contract or arrangement for extension made between plaintiff and Frank A. Skilton was admissible. Only a part of it was embodied in the release of December 17,1887. (Chapin v. Dobson, 78 N. Y. 74.) The original transaction between plaintiff and Frank under which Harry afterward signed the note could be shown, although Harry was not then present. (2) It is not shown that the court erred in excluding proof of the contents of a letter from Mr. Guest t® the plaintiff. One of the objections 'was that it was immaterial. The letter is not in the case, or any state ment of what the contents are. "We cannot, therefore, say it was material. (3) The defendant Frank A. Skilton being on the stand as a witness for the defendants, the question was asked him : “ Q. Did Mr. Finch state to you that Mrs. Guest was insolvent and wasn’t worth a dollar ? ” This was objected to by plaintiff generally, and the objection was sustained. It is not apparent that this was material. Mrs. Guest, as the grantee of Frank A. of the mortgaged premises, had agreed to pay the mortgage, but there is no allegation in the answer that the plaintiff was ever requested to collect of Mrs. Guest.

No other questions are presented. Ve fail to find any good ground for reversal. The judgment should, therefore, be affirmed.

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

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: Mekwin, J.:

license: Public Domain

text:
    Nelson E. Kelly and Another, Administrators, etc., of Judson H. Barnes, Deceased, and Others, Respondents, v. George E. Jay, Appellant.

      The deposition of a pwrty under Oode of Civil Procedure, § 838 —foreclosure of a mortgage restrained —appointment of an administrator unquestionable — misjoinder of parties plaintiff — objection by demurrer — order made under the Code of Civil Procedure, § 870 et seq. without notice, not appealable.

    Under the provisions of section 838 of the Code of Civil Procedure the testimony of a party to an action, taken at the instance of the adverse party, orally or by deposition, may he rebutted by other evidence, and the party compelling the examination may prove his case by any competent evidence, although such evidence may show the facts to he different from the statements made in the deposition of tlie party examined, and may operate to contradict sncli statements, and the declarations of the party examined may be shown, although they differ from the statements made in his deposition.
    In an action brought by the administrators and heirs at law of a decedent to restrain the foreclosure of a mortgage, the defendant has not the right, in the absence of a charge of fraud or collusion, to contest the jurisdiction of the Surrogate’s Court in its appointment of such administrators, on the ground that the deceased was not a resident of the county in which letters of administration were granted.

      Semble, that an action may be brought in equity by the heirs at law and administrators of an intestate to restrain the foreclosure of a mortgage, to have it declared paid and satisfied, and to compel its cancellation of record.
    Where the facts which are alleged to show the misjoinder of parties plaintiff appear upon the face of a complaint the objection to the same, if taken at all, must be taken by demurrer and not by answer, and if not taken by demurrer such objection is waived.
    An order made by a county judge under section 870 et seq. of the Code of Civil Procedure, without notice, is not appealable.
    Appeal by tbe defendant, George E. Jay, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Broome on the 26th day of August, 189.3, upon the report of a referee, with notice of an intention to bring up for review on such appeal an order dated the 5th day of January, 1893, made by the Broome county judge, directing the defendant to appear before a referee therein named, to be examined concerning the matters involved in the action.

      John W. Church, for the appellant.

      A. D. Wales, for the respondents.
   Mekwin, J.:

On the 3d day of April, 1876, Judson H. Barnes, then being the owner of a farm of 165 acres situated in the town of Colesyille, in the county of Broome, executed and delivered to "William M. Merrills a mortgage thereon to secure the payment of the sum of $452 in three years from its date, with interest. This mortgage was duly recorded in Broome county clerk’s office April 5, 1876. On the 31st day of December, 1891, the mortgage and the-bond accompanying the same were assigned by Merrills to the defendant, and the assignment was duly recorded on J une 4, 1892. On July 23, 1892, Judson H. Barnes, still being the owner of the farm, died intestate. His lieirs at law are parties plaintiff herein, and the administrators of his estate are also plaintiffs. On or about December 25, 1892, the defendant commenced a foreclosure of the mortgage by advertisement, and in the notice there was claimed to be due $452 of principal and $99.74 interest.

The object of the present action is to restrain the foreclosure of this mortgage, have it declared paid and satisfied and compel its cancellation of record. It is alleged in the complaint that the defendant at the time he obtained the assignment was indebted to the mortgagor Barnes in the sum of several thousand dollars, and had in his possession several thousand dollars, the property of Barnes, and that the defendant procured the assignment with the funds of Barnes and in reality for his benefit; also, that at the time of the death of Barnes the defendant was indebted to him in the sum of several thousand dollars for money which he had received from the sale of lumber and ties and other sources, over and above the amount due on the bond and mortgage, so that at the time of the death of Barnes the bond and mortgage were not existing obligations or securities in favor of defendant. The defendant in his answer claims to hold the bond and mortgage for the full amount, denies that he obtained the assignment with the funds of Barnes or for his benefit, or that he was at the time of the assignment or of the death of Barnes indebted to him. And he alleges that prior to the death of Barnes he had a full settlement of all matters of deal and difference of every name and difference betwéen himself and said Judson H. Barnes, excejrt the mortgage mentioned in the complaint, and a certain mortgage formerly held by the defendant against said Judson H. Barnes, and the same were settled, compromised and mutually released.”

The defendant also alleged in his answer that Barnes, at the time of his death, was a resident and inhabitant of the town of Afton in Chenango county, and that, therefore, the surrogate of Broome county had no jurisdiction to appoint the plaintiffs Kelly and German B. Barnes administrators of the estate of Judson II. Barnes, and that for that reason they as administrator’s have no right to maintain the action ; also, that there is a misjoinder of parties plaintiff in that the plaintiff administrators are improperly joined with the plaintiff heirs of Jndson H. Barnes; also, that plaintiffs have a complete and adequate remedy by action at law.

At the trial it aj>peared that, at the time of the assignment and for some time before and after, the defendant was the agent of Barnes in getting out timber and ties from the said farm of Barnes and in selling the same and receiving the avails. The referee in substance finds that at the time of the assignment the defendant had in his hands of the moneys of Barnes a sum greater than the mortgage, principal and interest, over and above the value of defendant’s services as agent; that the assignment was obtained with the funds of Barnes which the defendant had in his hands; that at the time of the death of Barnes and of the commencement of this action the defendant had in his hands of the moneys received by him as agent, and over and above what he had expended as such and the value of his services, a sum greater than the amount of such mortgage; that Barnes died without ever having any settlement with the defendant of the matters in regard to which the defendant had acted as agent.

As matter of law the referee found that the bond and mortgage and the indebtedness thereon were, on December 31, 1891, by the payment of the principal and interest to Merrills by the defendant, paid and canceled; that the defendant received the assignment in trust for Barnes; that plaintiffs were entitled to judgment directing the defendant to execute and acknowledge a satisfaction, and that the mortgage be canceled and satisfied of record and that the defendant be restrained from foreclosing the same. Judgment was accordingly entered.

The appellant does not find any particular fault with the law which the referee applies to the facts as he finds them to be (see 1 Pom. Eq. Juris. § 422; 1 Perry on Trusts, § 127; 2 Jones on Mort. § 14913; Ferris v. Van Vechten, 73 N. Y. 120), birt it is strenuously urged that the findings on the facts are not sustained by the evidence. The defendant does not claim that the assignment was taken to him with the knowledge or consent of the deceased, but that he, the defendant, paid for it with his own money, and that afterwards, and about a week before the death of Mr. Barnes, he settled with him and accounted for all the moneys he had received without reference to the mortgage, and agreed with Mr. Barnes to pay the balance which he had in his hands upon a claim that the father of defendant had against Mr. Barnes for board.

The main questions of fact were: First, whether the defendant .in obtaining the assignment used the funds of his principal, and, second, whether there had been a settlement between defendant and Barnes on or about July 15, 1892. Upon these subjects a large mass of evidence was presented, and much that was conflicting. The referee had the benefit of the personal presence of the witnesses. A careful consideration of the evidence leads us to the conclusion that the findings of the referee are abundantly sustained.

Before the trial the deposition of the defendant was taken upon the application of the plaintiffs, and on the trial certain portions of this deposition were read in evidence by the iflaintiffs and the balance by the defendant. The appellant claims that the referee erred in thereafter admitting in evidence, on the part of plaintiffs, declarations of the defendant contradictory to some extent of the statements in his deposition. By section 838 of the Code of Civil Procedure it is provided that the testimony of a party taken at the instance of the adverse party, orally or by deposition, may be rebutted by other evidence. This allowed the plaintiffs to prove the facts of their case by any competent evidence, although such evidence might show the facts different from the statements in defendant’s deposition, and so operate to contradict him. This rule would allow the plaintiffs to show declarations of defendant although they differed from the deposition. (See de Meli v. de Meli, 120 N. Y. 490; 2 Rumsey’s Pr. 27 ; 1 Greenl. Ev. § 443.)

The appellant claims that the referee erred in refusing to find that Judson H. Barnes at the time of his death was a resident and inhabitant of Cnenango county. This was immaterial unless the defendant had a right in this action to contest the jurisdiction of the Surrogate’s Court of Broome county in its appointment óf the administrators plaintiffs. It is not claimed that the papers before the surrogate of Broome .county were not regular or did not contain all that was required upon such an application. (Code Civ. .Proc. § 2662.) The record of the proceedings in the Surrogate’s Court resulting in the appointment of the administrators was received in evidence without objection. The papers themselves are not printed in the case. It is found by the referee that the appointment was regularly made and that letters were duly issued. No fraud or collusion is charged. So, that under section 2473 of the Code, the question of jurisdiction of the Surrogate’s Court would not in this case be an open one. (Bolton v. Schriever, 135 N. Y. 65.)

It is also claimed that there is a misjoinder of parties plaintiff, in that the plaintiffs, the administrators, are improperly joined with the plaintiffs, the heirs of Judson H. Barnes, deceased. This is alleged in the answer. The facts raising the question appear on the face of the complaint, so that the objection, if taken at all, should have been taken by demurrer. Not being so taken it was waived. (Code, §§ 498, 499 ; Patchin v. Peck, 38 N. Y. 39; Sullivan v. N. Y. & R. C. Co., 119 id. 348, 356.) It is not entirely clear that the administrators were not proper parties to the action. (2 Barb. Oh. 196; 1 .Beach Modern Eq. Pr. §§ 76, 77.) The heirs wei;e seeking to remove a cloud upon their title. That was the burden of the complaint. In the investigation of the subject the claims of the administrators against the defendant were to some extent involved. They were interested in the question whether the mortgage was to be deemed paid from the property of the deceased, or whether the defendant would have in his hands so much more of the estate of the deceased to be accounted for. There is some ground for saying that if the mortgage was declared to have been paid the administrators should be in a position to be bound by the adjudication. It may be that the deceased' had an option whether or not to consider the mortgage as paid. This he did not exercise in his lifetime, as there was no settlement. It matters not to the defendant whether that option descended to the heirs or to the personal representatives, as in bringing this suit both elect to treat the mortgage as paid.

The appropriate remedy for the heirs was in equity. (Schoener v. Lissauer, 107 N. Y. 111, 117; Smith v. Reid, 134 id. 578; Swarthout v. Ranier, 67 Hun, 250; 1 Story’s Eq. Juris. § 705.) They had a right to bring the action. (4 R. S. [8th ed.] 2461, § 4.)

Our attention is called to a number of exceptions to rulings upon the admission or rejection of evidence. These we have examined, but find no sufficient basis for a reversal.

The order of January 5, 1893, referred to in the notice of appeal, was an order made by tbe county judge under tbe provisions oí the Code (§ 870, et seq.) for the examination of the defendant before trial. It was granted upon the application of the plaintiffs without notice. Under it the deposition ivas taken that was used on the trial. No motion was made to vacate or modify the order. Not being made upon notice it was not appealable. (Code, §§ 1347, 1348, note by Throop to § 1347; People ex rel., etc., Schlehr v. Common Council, 30 Hun, 636.)

It follows, therefore, that the appeal from the order should be dismissed and the judgment be affirmed.

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

Appeal from order dismissed and judgment affirmed, with costs.


author: Mbrwin, J.:

text:
    William Duffus, Respondent, v. Christoph Schwinger and Others, Appellants.

      Agency — not frown by the declarations of the agent— action to recover a chattel— value fixed as of the time of trial.

    The fact of agency cannot be proven by the declarations or acts of the alleged agent, and upon the trial of an action the declarations of an alleged agent are inadmissible in evidence for that purpose.
    In an action brought to recover a chattel or the value thereof, and damages for its unlawful detention, the value of the chattel to be fixed under the provisions of section 1736 of the Code of Civil Procedure is its value at the time of the trial.

      Semble, that the fact that the value of the chattel was fixed by the verdict of the jury as of the time of the demand therefor, instead of being fixed as of the time of the trial, is a good ground for a new trial, although an exception was not taken.
    Appeal by the defendants, Christoph Schwinger and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 16th day of August, 1893, upon the verdict of a jury rendered after a trial at the Onondaga Circuit, and also from an order entered in said clerk’s office on the 5th day of February, 1894, denying the defendants’ motion for a new trial made on a case containing exceptions.

      The action was brought for the recovery of the possession of a canal boat called the Kenyon cmd Newton. The jury found for the plaintiff, and fixed the value of the boat at $800, and $2,500 for the damages sustained by its detention. By the judgment it is adjudged that the plaintiff recover of the defendants “the possession of the personal property described in the complaint, or $800 in case a delivery of said property cannot be had, with $2,500 damages for detention,” besides the costs.

      George W. Cothran, for the appellants.

      Walter 8. McGregor, for the respondent.
   Mbrwin, J.:

This action was commenced on the 25th of November, 1890. It is alleged in the complaint that prior to October, 1890, the plaintiff was the owner of three mortgages upon the boat in question, upon each of which default had been made, by reason whereof the plaintiff was the owner of the property, and had the right to sell the same to make the amount of the mortgages. The mortgages are set out in full. It was also alleged that one Baxter had a prior claim for repairs, upon which, on the 14th of October, 1890, a suit was commenced and the boat taken into the possession of the United States marshal; that on the 16th of October, 1890, the claim of Baxter was transferred to plaintiff, and also the possession of the boat, and that plaintiff then took possession by virtue of said transfer and of his rights under his mortgages; that on the 18th day of October, 1890, at the city of New York, and while the property was owned by and in ¡Dossession of the plaintiff, the defendants wrongfully took and converted it to their own use; that the value ■of the property is $2,000; that before the commencement of the .action the jfiaintiff duly demanded of the defendants the possession and delivery, which were refused. In a second count a wrongful taking and detention is alleged and a demand and refusal to deliver, and that the damages for the detention are $500. Judgment was ■demanded for the recovery of the possession, or for the value thereof in case a delivery could not be had, together with $500 damages for detention. This amount was afterwards by order of court allowed to be increased to $2,500. In the answer all the allegations of the complaint are denied except the demand before suit, and it is averred that the defendants did not have possession at the time of the demand or at any other time. It is also alleged that the boat was sunk or destroyed by reason of a storm while lying in the waters of New York, and without any fault or negligence of the defendants, and while the same was not in their possession or control.

Upon this appeal no question is made by the defendants about the validity of plaintiff’s mortgages. It is for the purposes of the argument conceded by them that there were moneys due on each of the mortgages; that they were all prior to a mortgage given to the defendants on November 1, 1889, and that the plaintiff was entitled to take possession of the boat. It is, however, insisted that the evidence is not sufficient to charge them with the taking or conversion of the boat, or to establish the proposition that Sherman Petrie, by whose act or procurement the conversion, if any, took place, was the' agent of the defendants, and that on this subject incompetent' evidence was received. The main controversy is over the question whether Petrie was the agent of the defendants at the time of the alleged conversion. The claim of the plaintiff is that the defendants sent their mortgage to Petrie with directions to foreclose it, and that in pursuance of this he took possession of the boat for the defendants and refused to deliver it to plaintiff. The claim of the defendants is that on the 9th of October, 1890, they assigned their mortgage to Petrie and had nothing whatever to do with it thereafter, and that Petrie was in no respect" their agent. Tbe boat was at a pier in New York city. The plaintiff lived at Syracuse and the defendants lived at or near Tonawanda.

Upon the trial the plaintiff, after giving proof of his mortgages and the debts as security for which the mortgages were given, and the mortgage given to defendants to secure the sum of $130 and dated November 1, 1889, gave evidence tending to show that on the 16th of October, 1890, Petrie had in his possession the mortgage given to the defendants, and under it claimed to be in possession of the boat in behalf of the defendants, and that on the 18th of October, 1890, Petrie, assuming to act as agent for defendants, was in possession of the boat, and sold or directed its sale at auction on foreclosure of defendants’ mortgage, and stated that it was bid in for the defendants, and that upon that day, as well as on the sixteenth and seventeenth of October, he refused to allow the agent of plaintiff to have possession of the boat. It appeared that nothing occurred between Petrie and the plaintiff or his agent before the sixteenth of October or after the eighteenth. The plaintiff then called as a witness one Carter, who testified, among other things, to a conversation between himself and Petrie on the eleventh or twelfth of October, and also to a conversation on or after the nineteenth of October, in each of which Petrie in substance said that he was the agent of the defendants and authorized to act for them in the foreclosure. These conversations were in due time objected to by the defendants, on the ground that the agency of Petrie could not be proved by the declarations of the assumed agent, and the objection was overruled and exception duly taken.

These declarations were not competent. The fact of agency cannot be proved by the declarations or acts of the alleged agent. (Stringham v. St. Nicholas Ins. Co., 4 Abb. Ct. App. Dec. 320; Marvin v. Wilber, 52 N. Y. 270; Brigham v. Peters, 1 Gray, 139.) In Could v. The Town of Sterling (23 N. Y. 403) it is said that no representation of the agent as to the fact of his agency, or * as to the extent of his power, is of any force to charge the principal. In Scott v. Stevenson (3 Hun., 352) it was held that an authority to transfer a note in behalf of the payee cannot be implied from the fact of its possession by the person assuming to act as agent of the payee in transferring it. • In Howard v. Norton (65 Barb. 161) it was held that representations by a party that he was the agent of another, are incompetent for any purpose, except to prove that he so held himself out to the person with whom he dealt, and that similar representations to third parties were wholly inadmissible, it being said that “ such evidence must have influenced the jury in passing on the question of authority, and for that purpose it was wholly incompetent.” This seems to have been the ground on which in that case a new trial was ordered.

In the present case Garter, with whom the conversations were had, was an outsider. He did not represent the plaintiff. He had then nothing to do with the plaintiff in regard to the matter here in controversy, so that the conversations cannot be properly called a part of the transaction in question. The evidence was not admissible for the purpose of characterizing any acts between plaintiff and. Petrie. Nor, as the case is here presented, is there anything that obviates the error in the ruling or prevents the defendants from receiving the benefit of the exception. Whether without this evidence the plaintiff made a case for the jury is not important here to determine.

Evidence was given on the subject of the value of the boat at the time .of the taking in October, 1890. There was no evidence of the value at the time of the trial in May, 1893, except that some circumstances were shown pointing, perhaps, to the conclusion that the boat was lost or destroyed soon after October, 1890, so that at the time of the trial it might be deemed to be worthless. The course of the trial indicates that the value of $800 fixed by the jury was the value as determined by them to be in October, 1890. The verdict itself does not fix the date. Under the Code of Civil Procedure (§ 1726) the value to be fixed is the value at the time of the trial. No point seems to have been raised at the trial about it, or on the motion for a new trial, except the general grounds were taken that the verdict was contrary to law, and the damages were excessive. If the value as fixed is to be deemed a finding of the value at the time of the trial, as I am inclined to think it should he, then it should be said that the evidence does not sustain it. In Button v. Chapin (7 N. Y. Civ. Proc. Rep. 278), where the value was fixed at the time of the demand instead of at the time of the trial, it was held that this was a good ground for a new trial, notwithstanding an exception was not taken.

The damages for detention from October, 1890, to May, 1893, were fixed at $2,500. There was evidence on part of the plain tiff tending to show that the use of the boat during the boating season was worth from five to ten dollars a day, so that the figure of the amount for detention might possibly be reached. If, as the, jury probably thought, the value of the boat in October, 1890, was $800, it would seem quite remarkable that the value of its use for two years would reach the sum of $2,500.

The amount of the claims of the plaintiff at the time of the trial was the sum of $1,732.93. The recovery is for $3,300. Whether in any event the plaintiff can recover, more that the amount of his claims is a question that is not discussed by counsel and need not be here determined. (See Townsend v. Bargy, 57 N. Y. 665.)

By reason of the admission of the declarations referred to, and the finding as to the value of the property, there should be a new trial ordered.

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

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


author: Merwin, J.:

text:
    Charles A. Pitts, as Administrator, etc., of Margaret Pitts, Deceased, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

      jNegligent hilling — action for damages — absence of contributory negligence — may be shown from circumstances in the absence of direct proof.

    In an action brought to recover the damages resulting from the death of the plaintiffs intestate, caused by the alleged negligence of a railroad company, absence of contributory negligence may be shown from circumstances.
    The fact that no one can testify that he saw the deceased look both ways and listen, before attempting to cross the railroad tracks on which she was killed, does not necessarily show that she did not do her duty in that regard, and if the facts and surrounding circumstances shown are such as to reasonably indicate or tend to establish that the accident might have occurred without negligence on the part of the deceased, the question of contributory negligence is to he determined by the jury, although there were no eye witnesses to the accident.
    It cannot be said, as a matter of law, at what particular point before reaching the railroad tracks the deceased should have looked for an approaching train.
    Appeal by tbe defendant, The New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 23d day of May, 1893, upon the verdict of a jury rendered after a trial at the Chemung Circuit, and also from an order made at the Chemung Special Term commencing on the 8th day of May, 1893, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

      JD. O. Robinson, for the appellant.

      Bacon ds Aldridge, for the respondent.-
   Merwin, J.:

This action is brought for the recovery of damages for the death of Margaret Pitts, the wife of the plaintiff, Charles A. Pitts, by a collision between a passenger train of defendant and the carriage in which the deceased was riding at about eleven o’clock in the evening of November 30, 1892, at a railroad crossing on Pennsylvania avenue in the city of Elmira. The claim of the plaintiff is that the collision and death were occasioned by the negligence of the defendant in the management of its train. The evidence is, we think, sufficient to support the conclusion of the jury in' this respect.

The main question here is whether the evidence justified the submission to the jury of the question of contributory negligence. The deceased lived with her husband a short distance outside of the city, and upon the evening in question they, with some of their friends, had been in attendance at a play at the opera house in the city. Shortly after eleven o’clock they started for home. One William Conklin, who was a nephew of the deceased, asked her to ride with him, and she did so, her husband riding with another party. Conklin had an ordinary platform spring wagon with two seats and drawn by one horse. There were five in his party. Conklin was the driver, and he, with another man, occupied the front seat, and the deceased, with two other ladies, were on the back seat, the deceased sitting between the other two. They drove along Pennsylvania avenue in a southerly direction, and the train with which they collided came from the easterly direction and was on the northerly or west-bound track. TJpon the easterly side of the street, as they approached the crossing, there were some obstructions to an easterly view. There was a building occupied as a lumber office, there were a number of lumber piles and there were a box car and some flat cars on a switch or side track that was laid for the benefit of the lumber yard and reached to the street. There is evidence that the box car was close to the street. This switch or side track was about thirty-three feet from the west-bound track in a direction at right angles with it, but, by reason of the railroad running at an oblique angle with the street, the distance one would travel in driving on the street from the line of the switch to the same track was about forty-five feet, and there was a rise of about two feet as the main track was there higher than the ordinary line of the street. The view easterly between the switch and the main track was somewhat interfered with by several telegraph poles a foot in diameter, some of them having braces, and also by a semaphore, and in the night there were also switch lights and a semaphore light. There were gates at the crossing, but they were not operated after^six o’clock in the evening, and there was then there no gateman or flag-man. At the collision all the persons in the carriage were killed except the driver. lie was called as a witness and testified that as he approached the crossing and when he got far enough by the cars on the switch so he could see easterly he stopped his horse and looked and listened, looked both ways, up the track and down the track, looked eastward as far as he could and could see nothing except some switch lights down the track; that he then drove on, on a walk, and was on the track when he first saw the light of the engine and was not able to get across in time to avoid the collision. He also testified that as they approached the crossing Mrs. Pitts asked him to stop and listen for a train and see if I could see any, and I did so.” The horse was a gentle one, not afraid of the cars, and Conklin was accustomed to driving. All the parties were familiar with the crossing. There was evidence tending to show that no bell was rung or whistle blown within hearing distance of the crossing, and that the train was going at the rate of about forty miles an hour. Quite a strong wind was blowing from the northwest. There was evidence on the part of the defendant that at a point foi’ty-two feet on the street from the crossing a traveler could see easterly an engine on the track 1,800 feet distant. This, however, was disputed by the plaintiff so far as applicable to the night in question.

The absence of contributory negligence may be shown from circumstances. (Hoag v. N. Y. C. & H. R. R. R. Co., 111 N. Y. 199; Chisholm v. State, 141 id. 249; Johnson v. Hudson R. R. R. Co., 20 id. 65.) The fact that no one can testify that he saw the deceased look both ways and listen does not necessarily show that she did not do her duty in that regard. (Massoth v. Del. & Hud. Canal Co., 64 N. Y. 524; Beckwith, Administrator, v. N. Y. C. & H. R. R. R. Co., 54 Hun, 446; affd., 125 N. Y. 759; Sherry v. N. Y. C. & H. R. R. R. Co., 104 id. 652.) In Tolman v. Syr., Bing. & N. Y. R. R. Co. (98 id. 198) it is said that if such facts and surrounding circumstances are shown as reasonably indicate or tend to establish that the accident might have occurred without negligence on the part of the deceased, the question of contributory negligence is for the jury, although there were no eye witnesses of the accident. Nor can it be said as matter of law at what particular point the person should have looked. (Greany v. L. I. R. R. Co., 101 N. Y. 419, 427; Petrie v. N. Y. C. & H. R. R. R. Co., 66 Hun, 284.) In Shaw v. Jewett (86 N. Y. 617) it is said: “ The plaintiff is not bound to see; he is bound to make all reasonable effort to see that a careful, prudent man would make in like circumstances. He is not to provide against any certain result; he is to make an effort for a result that will give safety; such effort as caution, care and prudence will dictate.”

The distance at which the deceased or the driver could see the headlight of an approaching engine, under the circumstances then existing, was indefinite. There were other lights in the vicinity. If no signals were heard or given, and the wind blew briskly from the other direction, and the train came on silently, so far as they were concerned, at forty miles an hour, it should not be said as matter of law that they could have seen it when they stopped or should have seen it in time to have avoided the collision. In the Massoth case it is said that “ it does not necessarily follow from the fact that a skilled engineer can demonstrate that, from a . given point in a highway, the track of a railroad is visible for any distance, that an individual in charge of a team approaching the track is negligent because he does not from the same point see a train approaching at great speed in time to avoid a collision.” (See, also, Puff v. Lehigh Valley R. R. Co., 71 Hun, 577; Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y. 364.)

We think that the question of contributory negligence was properly left to the jury. It follows that the judgment should be affirmed.

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

Judgment and order affirmed, with costs.


text:
    Sherman Petrie, Respondent, v. Elverton C. Stark and Another, Appellants.

      Direction of a verdict — vendors lien on personal property — enforcement and collection of purchase price not obtained on the sale — action in trover.

    Upon the review of a judgment, entered upon the verdict of a jury directed by the court, that view of the evidence must be taken which is most favorable ■ to the party against whom the verdict was directed.
    The vendor of personal property has a lien, and something more than a lien, upon it for the purchase price while it remains in his possession awaiting delivery, although the right of property has passed to the vendee. Upon default in the payment therefor, the vendor, so long as the property remains undelivered, has the right, upon notice to the vendee, to sell the property and recover from the vendee any balance of the contract price not realized upon such sale.
    To entitle the plaintiff to recover in an action in trover there must have been possession of the property in question by the plaintiff, or there must be an existing right to take immediate and actual possession thereof.
    Appeal by tbe defendants, Elverton C. Stark and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 24th day of October, 1892, upon the verdict of a jury directed by the court after a trial at the Oneida Circuit, and also from an order made on the 6th day of October, 1892, and entered in said clerk’s office denying the defendants’ motion for a new trial made upon the minutes, with notice of an intention to bring up for review on such appeal all the objections and exceptions taken in the case and the motion to set aside the verdict and for a new trial.
    In the complaint it is alleged that on or about August 9, 1890, the defendants unlawfully took possession of and unlawfully converted and disposed of to their own use, about 3,000 tons of ice situated or contained in an icehouse at North Beach (so called) of Oneida lake, N. Y., such ice being then in the lawful possession of the plaintiff and his property and of the value of $18,000, and that afterwards, and before the commencement of this action, the plaintiff demanded of the defendants the return of the property, which was refused.
    In the answer, after a denial of all the allegations of the complaint, except the allegation that defendants were partners, it is alleged that in or about March, 1890, the plaintiff entered into an executory contract with Gr. W. Mareellus & Co. for the pui’chase of the ice in question; that on and prior to the first day of August the plaintiff wholly defaulted in performance of this contract and forfeited his right and interest in the ice; that the plaintiff never had possession of the ice, but the same was always in possession of the vendors, Mareellus & Co.; that on the .9th of August, 1890, Mareellus & Co., after plaintiff’s default and on due notice to him and the public, sold the ice at public auction to the highest bidder, there being about },200 tons; that at said sale the defendants purchased the ice in good faith for the gross sum of $3,100.
    The action was commenced October 11, 1890.

      Tuttle <& Hansom, for the appellants.

      Hyland <& ZabrisMe, for the respondent.
   Merwin, J.:

The plaintiff bases his claim in this case on a written contract between himself and Mareellus & Co., bearing date March 27,1890. In this contract it is provided as follows:

“ The parties of the first part (Mareellus & Co.) hereby sell and . convey unto the party of the second part (Petrie) all of the ice now being in their icehouse situated and located on the lot purchased by said Gr. ~W. Mareellus & Co., of Spencer, at Sylvan Beach, New York (said icehouse being located on North Beach, so called, of Oneida lake), for two dollars per ton, forty-five cubic feet to the ton, house measurement, the same to be measured by the parties hereto on or before March 31st, 1890 ; the parties of the first part hereby agree to complete the icehouse containing said ice at once, the same to be double sided and filled between boards with straw, or tan bark, and the roof to be tight, so as to shed water, and the ice to be properly covered with hay, to be paid for upon the following terms and conditions, viz.: The said party of the second part is to pay to the parties of the first part two thousand dollars, cash down, to be applied and be a payment for the last ice taken from said icehouse, and the said party of the second part is to pay parties of the first part for the balance of said ice as fast as same is taken out of said icehouse, all of said ice to be taken out of said icehouse and paid for by the party of the second part, on or before August 1, 1890.”

At the time of the execution of the contract the plaintiff paid $2,000 in cash, as required by the contract. The measurement was not made .by the parties at the date specified, but a measurement was made by Marcellus & Co. at about that time, and the amount was found to be 3,422 tons. This measurement was submitted to plaintiff, and he, on May 6, 1890, in writing, assented to its correctness. In this writing he also stated as follows: “And I do hereby, in consideration of the premises, agree to allow them, and pay for said ice under said contract at such measurement. Measurement from bottom of sills; if not so to be made so.”

At the trial the plaintiff claimed that he went into possession of the ice, and that prior to August first Marcellus & Co. extended his time in which to take away the ice to September 1, 1890. The defendants, however, gave evidence tending to show the contrary of both these propositions. The plaintiff did not take the ice away, and made no further payments. On the 5th of August, 1890, Marcellus & Co. served on plaintiff a written notice, stating that, as he had failed to take and pay for the ice on or before August 1, 1890, as he had agreed to do in the contract, they would advertise the same for sale and sell it at public auction to the highest bidder, at the ice-house, on the 9th of August, 1890, at two r. m., and would hold him responsible for all losses, whether caused from shrinkage of quantity or the depreciation of prices. Accordingly, at the time and place stated, Marcellus & Co. sold the ice at auction to the highest bidder, and the same was purchased by defendants at the price of $3,100. It is conceded that the amount of the ice was then 1,607 tons. At the sale, and before it took place, the agent of the plaintiff forbade the sale, stating that the plaintiff owned the ice, and that Marcellus & Go. had no right to sell it. A day or two after the sale the plaintiff called on Mr. Stark, one of the defendants, and demanded the ice, stating that he had come prepared to pay anything there was against the ice, and Stark replied that he had resold the ice to other parties, and couldn’t go back on that sale. The ice was then being shipped.

At the close of the evidence it was held by the court that the plaintiff was entitled to recover for the value of the ice, and that the ■only question for the jury was as to the value, and this was the only question submitted to the jury. The theory adopted seems to have' been that under tlie contract of March 27, 1890, the title of the ice passed to the plaintiff upon the delivery of the contract, and that, therefore, he could here recover for the full amount.

In considering this question we must, as to all the facts except the value of the ice, take that view of the evidence which is most favorable to the defendants. We must, therefore, assume that the plaintiff never had possession of the ice, and that there was no extension of the time within which he could take and pay for it. The plaintiff, therefore, was in default at the time Marcellus & Co. assumed the right to sell.

In Van Brocklen v. Smeallie (140 N. Y. 70, 76) the doctrine is laid down that the vendor of personal property has a lien, or something more than a lien upon it, for the purchase price while it remains in his possession awaiting delivery, although the right of property has passed to the vendee. And it is said : The right of the unpaid vendor is deemed sometimes analogous to the pawnee’s right of sale and sometimes to the right of stoppage in transitu. Whatever it be, it is at least a lien upon the property sold for the purchase price so long as it remains undelivered, which lien the vendor may enforce by a sale, and then recover any balance of the contract price unrealized.” In Crooks v. Moore (1 Sandf. 297) it is said by the court of a sale of iron: “ At the day appointed for the payment it was the defendant’s (the buyer’s) duty to call upon the seller for a delivery of the iron, pay its price, and take it away. On his default the seller had a right to sell it upon notice to him, and to look to him for the deficiency, if any, by way of damages for the breach of his contract.” In such a case the vendor in possession is said to be the agent of the vendee for the purposes of the resale. (Lewis v. Greider, 49 Barb. 606; affd., 51 N. Y. 231. See, also, Sands v. Taylor, 5 Johns. 395; Gilly v. Henry, 13 Am. Dec. 291; 8 Mart. 402.) In 3 Parsons on Contracts (8th ed. 257) it is said: A vendor of chattels has, as we have seen, a lien upon them by common law as long as they continue in his possession and the vendee neglects to pay or tender the price. By the sale, the general property vests in the vendee, but a lien or special property remains in the vendor, and, therefore, this special property will be a good defense in an action of trover. A part payment will not divest this lien.” The same view is taken in Story on Sales (§ 282), where it is said that a partial payment will not operate to destroy the lien on all the goods, as every single portion of the property sold is covered by a lien for the smallest fraction of the price. (See 21 Am. & Eng. Ency. of Law, 605.) So, in 1 Jones on Liens (§ 840) it is said that the vendor may retain the goods still in his hands, not only for the price of such goods, but also for the price of any part of the goods already delivered, citing Ex parte Chalmers (L. R. [8 Ch.] 289). (See, also, McFarland v. Wheeler, 26 Wend. 467.) In Benjamin on Sales (pt. 1, book 5, chap. 3, p. 654 of 2d ed.) it is stated, as one of the rules to be deduced from the authorities, that in the case of resale a buyer in default cannot maintain trover against the vendor, being deprived by his default of that right of possession without which trover will not lie.

This reference to authorities makes it reasonably clear that at the time of the auction sale, upon the facts, as we must assume them to be, the plaintiff was not entitled to the possession of the ice. The plaintiff was in default. Marcellus & Co. had a lien at least upon all except the last 1,000 tons, and plaintiff’s claim on that, if he had any superior to the claim of Marcellus & Co. for the balance of the purchase money, could not be made effectual until all the other ice there was taken and pdid for. To recover in trover there must have been possession of the property by the plaintiff, or there must be an existing right to take immediate actual possession of it. (Clements v. Yturria, 81 N. Y. 285, 290.)

Of the 1,607 tons sold it is clear that Marcellus & Co. had the right to sell 607 tons. Therefore, the ruling at the trial that the plaintiff could recover for the whole was not correct and a reversal would follow. Whether the lien of Marcellus & Co. extended to the balance of the ice and for the whole balance of the purchase money, or whether the plaintiff, by failing to make at or before the auction sale any specific claim for the last 1,000 tons, lost any claim which he might have had for that against the purchasers at the sale, and was remitted upon that subject to an action against Marcellus & Co., are questions that need not be here decided. -Upon another trial they may be developed more fully than they seem to have been at the trial under consideration.

The case of Hudson v. Swan (83 N. Y. 552) is cited on the subject of a waiver by defendants of any benefit under any lien that Marcellus & Co. had. I do not think that case is applicable. The right of Marcellus & Co. to sell was put in issue by the answer, and I find nothing in the pleadings or in the course of the trial that would amount to a waiver of any claim under a lien, The contract and the attendant circumstances which indicated a lien were put in evidence without objection as to the pleadings. Besides the general denial put at issue the ownership of plaintiff and also his right to the possession.

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

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


author: Hardin, P. J. :

text:
    Edward F. Byrne, Respondent, v. The City of Syracuse, Appellant.

      (Commissioner of public works of Syracuse — duty as to removing obstructions from the streets — when the city is chargeable with notice of the obstruction — ■map of the place of an accident — when properly received in evidence.

    The law imposes upon the commissioner of public works of the city of Syracuse the duty of inspecting from time to time the streets of such city and of seeing that the same are kept free from obstruction and in good condition and repair.
    The fact that an obstruction upon the street of a city was placed there by a surface railroad company, which had a franchise to operate its road along such street, does not exonerate such city from liability in an action brought to recover damages for personal injuries sustained by reason of such obstruction, if the obstruction had been on such street a sufficient length of time to arrest the attention of the proper city officials; it is the duty of such city either to require such railroad company to restore the street to a reasonably safe con- , dition or to make such restoration itself.
    Upon the trial of an action brought to recover damages for personal injuries, alleged to have been sustained by reason of the negligence of a city in leaving an obstruction upon one of its streets, it appeared that such street had been left at the place of the accident in substantially the same condition for nearly eight months.

      Held, that the city had had ample time to make repairs to the same and was chargeable with notice of the defective condition of such street.
    In such action a map of the premises in the immediate vicinity of the place of accident, made by a surveyor, was produced upon the trial, evidence was given as to the surrounding facts and circumstances in connection with the same, showing the situation of the street with a cross section thereof, and testimony was allowed, over the defendant’s objection, as to the condition of the street for a rod or twenty feet either way; the witness also testified: “ This cross section that I give here, 377 feet, is the point that was pointed out to me by Mr. Byrne (the plaintiff) as the place of the accident. This is about 22 feet south of the tree, that oak tree, and about 23 or 24 feet south of the telegraph pole. This point where I made my measurements was about 50 or, 60 feet north of house number 1312, the first house south on the west side of the street. For 20 feet either way it is very much the same as that cross section shown. I observed this particularly.”
    Thereupon the map was offered and received in evidence over the defendant’s objection, “ That it is a profile not of the point of the accident as stated by the plaintiff.”

      Held, that under the evidence relating to the measurements made by the engineer and upon his testimony as to the circumstances under which the map was made, which had noted upon it the measurements which he had testified to, the trial judge committed no error in allowing the map to be received and used in connection with that testimony.
    Appeal by tlie defendant, The City of Syracuse, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 14th day of November, 1893, upon the verdict of a jury rendered after a trial at the Onondaga Circuit, and also from an order entered in said clerk’s office on the 12th day of December, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Charles E. Ide, for the appellant.

      Cook, Knottingham <& Pierce, for the respondent.
   Hardin, P. J. :

In June, 1890, the common council of the city of Syracuse granted a franchise to the Syracuse and Onondaga Railroad Company to build a double track road over the center of Salina street, from the swing bridge south to Brighton Corners. The tracks were laid under a grade fixed by the city engineer, and at a point near where the accident occurred the grade was raised some two feet above the original roadbed. The center of the street was filled in by the railroad company and its tracks Avere then laid upon the filling, which extended some tAvo feet outside of the center rails. The work was commenced in the beginning of October, 1891. An embankment or elevation Avas formed in the center of the street with the driveways below on either side. The descent from the west rail was abrupt, being nearly two feet in a distance of four feet.' On the evening of the 21st of June, 1892, the plaintiff, with a friend, drove along South Salina street towards Brighton on the west side, and when about returning to his home in the fifth ward of the city, he was driving on the east side of South Salina street, and when he reached a point near No. 1312 of South Salina street, between Colvin street and Beard avenue, he found the road rough and made an attempt to cross from the east side of the tracks, and while doing so, and as the wagon was going down the embankment on the westerly slope, it. was overturned and broken and the plaintiff thrown to the ground, sustaining quite extensive injuries to his shoulders and spine. At the time of the accident it was dark and rainy — a cloudy night. Plaintiff had not been on the street prior to the night of the-occasion of the accident after the double tracks had been laid. The charter of the defendant confers upon its officers the powers of commissioners of highways in towns, with authority to make, regulate and repair the highways and streets within its corporate limits. (Chap. 475 of the Laws of 1889.) And the law casts a duty upon the commissioner of public works to inspect from time to time the streets of the city and see that the same are kept free from obstruction and in good condition and repair. Considerable evidence was given upon the trial in relation to the obstruction, the unevenness and rough condition in which the street was left at the point where the accident occurred. Ujmn the evidence given upon the trial we think it was a question of fact for the jury to determine whether the defendant had been guilty of negligence in leaving the street in the condition in which it was at the time of the accident, and that it would have been error for the court to have granted the defendant’s motion for a nonsuit, and held as matter of law that the defendant was not guilty of negligence in leaving the street in the condition in which it was found on the occasion of' the accident. The fact that the obstruction was placed there by the railroad company does not exonerate the defendant; it had been there a sufficient length of time to arrest the attention of the defendant, and it was its duty either to require the railroad company to restore the street to a reasonably safe condition or to make such restoration itself. (Sherman v. The Village of Oneonta, 49 N. Y. St. Repr. 271; S. C. affd. by the Court of Appeals April 10, 1894; Horey v. The Village of Haverstraw, 47 Hun, 356; Pettengill v. The City of Yonkers, 116 N. Y. 558.) It appears by tbe evidence that the road had been left at the point of the accident in substantially the same condition for nearly eight months, and, therefore, the defendant had ample time to make the repair and was chargeable with notice of its defective condition. (Pettengill v. City of Yonkers, 116 N. Y. 558.)

(2) After a description of the situation of the street as it was found' the next morning after the accident, and after presenting the facts and circumstances disclosed by the testimony of the surveyor who made a map of the premises in the immediate vicinity of where the accident occurred, the plaintiff testified to the circumstances attending his efforts to cross the tracks and reach the other side of the street, giving his recollection of all the incidents that occurred on the occasion when he was overturned. From such evidence it was a question of fact for a jury to determine whether the plaintiff used reasonable care and caution, or whether he was guilty of contributory negligence; and we think the trial judge committed no error in refusing to hold that he was guilty of contributory negligence as a matter of law and in submitting the question of fact in that regard to the jury. (Atwater v. Veteran, 26 N. Y. St. Repr. 945; Campbell v. The N. Y. C. R. R. Co., 19 id. 659.)

The case of Cleveland v. Town of Pittsford (72 Hun, 552) differs from the one before us. In that case the plaintiff was familiar with the surroundings; “ he knew the uneven condition of the highway, .and was aware of the ease with which his top-heavy load might be upset, and should have known that an attempt to drive over the place he did must almost inevitably result in overturning his load. He could as well have driven into a ditch upon the side of the road •and expect his load to remain intact.”

In Pettengill v. The City of Yonkers (supra) it was said that a person using a public street “ is not required to be vigilant to dis■cover dangerous obstructions, but he may walk or drive in the daytime or night-time relying upon the assumption that the corporation whose duty it is to keep the streets in a safe condition for travel have performed that duty and that he is exposed to no danger from' its neglect.”

Appellant calls our attention to Cummins v. The City of Syracuse (100 N. Y. 637). The facts of that case are quite unlike those found in the case at bar. In that case the plaintiff' knew of his proximity to a bridge and he disregarded the warning that was given to him and neglected to employ the light and guide which were ready at his hand, and the court laid stress upon those circumstances in reaching the conclusion that he was guilty of contributory negligence.

Appellant calls our attention to Durkin v. The City of Troy (61 Barb. 437). The facts of that case are quite unlike those here. There there was danger in walking over a piece of ice which the plaintiff voluntarily and unnecessarily undertook to walk over when he could plainly see and easily avoid it, and he had been warned of it. We think the case does not aid the contention of the appellant.

(3) It appeared by the evidence that a map was made by Surveyor Mather of the road at a point between Beard avenue and Colvin street. The witness produced it upon the trial and gave evidence as to the surrounding facts and circumstances in connection with the map which he had presented, showing the situation of the street with a cross section thereof, and, after stating the condition in which he found the street, he was allowed to state, against the defendant’s objection, “ the condition of the street for say a rod either way, twenty feet either way,” and then he added : “ This cross section that I give here, 377 feet, is the point that was pointed out to me by Mr. Byrne as the place of the accident. This is about 22 feet south of the tree, that oak tree, and about 23 or 21 feet south of the telegraph pole; ” adding : “ This point where I made my measurements was about 50 or 60 feet north of house number 1312, the first house south on the west side of the street; ” and he stated: “For 20 feet either way it is very much the same as that cross section shown. I observed this pai-ticularly.” Thereupon the map was offered in evidence, which was objected to, “ That it is a profile not of the point of the accident as stated by the plaintiff.” The objection was overruled and the defendant took an exception. We think, upon the evidence relating to the measurements made by the engineer, and upon the evidence disclosed by him as to the. circumstances under which the map was made, which had noted upon it the measurements which he had testified to, as well as the measurements given by him in giving his testimony as to the cross section, which had also been mentioned by him in his testimony, that the trial judge committed no error in allowing the map to be received and used in connection with his testimony. No other grounds of error are alleged by the appellant, and we find, upon reading the charge, that the case was very carefully presented to the jury by the trial judge in a charge to which no exceptions were taken, and we are of the opinion that the verdict should stand.

Martin and Merwin, J J., concurred.

Judgment and order affirmed, with costs.


author: Hardin, P. J.:

text:
    Peter J. Lally, Appellant, v. Jonas A. Emery, Respondent.

      Slcmder — when privileged, malice or want of probable cause must be shown — proof by defendant of whom he learned the matter, and his belief in its truth — proof of part of a conversation admits statements explanatory thereof.

    When, in an action brought to recover damages for an alleged slander, it is determined that the subject of the communication complained of was privileged, and that the occasion on which the language in question was used was also privileged, the defendant will be protected in making the statements complained of, provided he had probable cause to make the same, and acted without malice in so doing.
    Upon the trial of an action brought to recover damages for slander, it is proper for the defendant to show when and by whom he had been told the facts which he had stated in regard to the plaintiff (to recover damages for the uttering of which the action was brought) and to testify whether or not he believed such statements, provided the statements, shown to have been made to the defendant in regard to the plaintiff, were made prior to the time of the uttering of the alleged slander, and the answer alleged such communication to the defendant, that it was made prior to the time of the uttering of the alleged slander, and the defendant’s belief in the truth of such communication.
    When a statement forming a part of a conversation is given in evidence upon the trial of an action, whatever was said by the same person in the same conversation, which would in any way qualify or explain such statement, is also admissible in evidence.
    Appeal by the plaintiff, Peter J. Lally, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 1st day of March, 1894, upon the verdict of a jury rendered after a trial at the Jefferson Circuit, and also from an order entered in said clerk’s office on the 19th day of March, 1891, denying the plaintiff’s motion for a new trial made upon the minutes.
    The action was brought to recover the damages sustained by rear-son of an alleged slander. The complaint set out two counts. The answer contained denials and averments that the words actually spoken were not slanderous, and that they were privileged.

      Hannibal Smith, for the appellant.

      Watson M. Rogers, for the respondent.
   Hardin, P. J.:

Upon a former appeal in this case (54 Hun, 511) it was assumed by this court that a charge to the effect that it was for the jury to determine whether the words used amounted to a charge of crime was proper, and .also that the ¡words in the charge which left it to the jury to say “ whether or not the defendant in good faith, in the line of his duty, without malice, said what he did believing it to be true,” were proper; and the judgment there under review was reversed on account of rulings rejecting some evidence offered. The charge to which reference has been made in respect to the matters quoted therefrom was approved by this court when the case was here upon a second1 appeal (59 Hun, 237), and on that occasion it was held in effect that if “ the words spoken were privileged, still the privilege, if any, was a qualified one; and if they were not. spoken in good faith, or were uttered with actual malice, it would constitute no defense to the action,” and a nonsuit was set aside on the ground “ that the case should have been submitted to the jury and that the court erred in dismissing the complaint.”

Upon the trial now brought here for review the trial judge properly submitted the questions to the jury: (1) As to “ whether the language used imputed to or charged the defendant with the commission of a crime,” and in doing so he quoted from the charge delivered by the learned justice who presided at the first trial. (2) In the charge before us the court also submitted to the jury “ whether the occasions and the subject of these conversations were privileged occasions and privileged subjects.” He also said : “Youwill determine whether this subject was a privileged subject for him to talk to the sergeant about. And the occasion, I do not understand there is any dispute about that, it was at his daily visit to the company and the occasion does not seem to be claimed public. I do not understand it to be claimed on either side that anybody else was present except these two men, the commanding officer of the company, who happened to be a lieutenant instead of the captain, and the first sergeant.” (3) The trial judge then submitted to the jury the further question, using the following language : “ If you find the subject was a privileged subject, and the occasion was a privileged occasion, then the commanding officer was protected in making the statements he did, provided he had probable cause and acted -without malice.’5 lie then instructed the jury very carefully in respect to probable cause and as to malice. Upon the evidence before the court we are of the opinion that the charge was correct. The attention of the jury was carefully directed to the principles of law which were applicable to the case as presented by the evidence. (Hemmens v. Nelson, 36 N. Y. St. Repr. 905, and cases there cited; S. C. affd., 138 N. Y. 517.)

(2) When the defendant was upon the stand as a witness he testified that on an occasion of a game of base ball at Fort Bennet in July, 1887, a week or so,before he started east, he had a conversation with Lieutenant Lloyd, who then belonged to the Fifteenth infantry, and had served with his regiment in New Mexico. He was then asked to state what took place between him and Lieutenant Lloyd in reference' to Lally. Objection was made and overruled and an exception • taken, and the witness proceeded to state what Lieutenant Lloyd informed him of in respect to Lally ; and in the course of the evidence so given the witness stated that Lieutenant Lloyd remarked, viz.: The last dealings I had with that man I was on a court martial that tried him for rape, or attempt to commit rape. ” The witness was then asked: Did you believe the words spoken by Lloyd in regard to Lally?” This was objected to as incompetent and the objection overruled, and the witness answered, “I, did.” We think no error was committed in receiving the evidence objected to. The answer of the defendant alleged the communication by Lloyd to the defendant of the words in substance as stated, and that the communication of them was before the occasion of the uttering of the words named in the complaint; and the answer also contained an averment that “ when said words were so spoken by said Lloyd this defendant believed them to be true.” (Code Civ. Proc. § 536.)

In Bush v. Prosser (11 N. Y. 347) it was held that facts and circumstances which disprove malice may be received in evidence. That case was followed in Gorton v. Keeler (51 Barb. 481) and in the course of the opinion there it was said: “ Mitigating circumstances are those which tend to disprove malice.”

In Willover v. Hill (72 N. Y. 36) it was held that mitigating circumstances must be set up in the answer, and that reports or information relied upon must be such as had come to the knowledge of the defendant before uttering the words charged in the complaint. In speaking of the interview had witli the defendant relied upon in mitigation, it was said : “ To render it proper for any purpose, it should have been confined to a period preceding the slander.”

In Hatfield v. Lasher (81 N. Y. 246), in the course of the opinion, it is said that certain evidence that was rejected was properly rejected because “ It did not tend to prove that the charge was true ; nor did it tend to prove that defendant had information, or had heard reports which should have per se led him to believe that-it was true.” Not so in the case before us. The very object of the evidence in respect to the interview with Lieutenant Lloyd was to show that the defendant received the information prior to the uttering of the words and to lay the foundation for the statement made by him in respect thereto that when he uttered the words proved against him in this case, he believed them to be true. (See, also, the opinion of the court delivered in this case on the first appeal, 54 Hun, 517.)

(3) Appellant’s learned counsel complains of certain rulings made by the court during, the re-examination of the defendant as a witness in respect to conversations held with his wife in regard to Mary Stuart. Hpon looking at the cross-examination made by the appellant’s counsel, it appears that he asked defendant as to conversations he had held with his wife with regard to Mary Stuart, and in response to those questions the witness stated that the subject of the relations “between Mary Stuart and Lally was a subject of conversation between ” the witness and his wife. It seems that in the redirect examination the court allowed the conversations that had been, inquired into by the appellant’s counsel to be stated with a view of explaining the circumstances that had been disclosed in the course of the cross-examination. In doing so we think the court did not violate the rules of evidence.

In Blumenthal v. Bloomingdale (100 N. Y. 561) the defendant, in the course of the cross-examination, drew out a negotiation, and in the redirect examination the witness was allowed to give the whole of the negotiation; and in the course of the opinion upon that ruling Finch, J., says: If they were entitled to part of it, plaintiff might prove the whole to prevent or,rebut any adverse or damaging inferences.” A somewhat similar ruling was under review in Simmons v. Havens (101 N. Y. 433), and Rapallo, J., says that the explanation was properly allowed after the developments made in the cross-examination.

Our .attention is called to The People v. Cox (21 Hun, 47; S. C. affd., 83 N. Y. 610) by the counsel for the appellant. In the course of the opinion delivered 'by Smith, J., in that case he said: Undoubtedly, when a statement forming part of a conversation is given in evidence, whatever was said by the same person in the same 'conversation that would in any way qualify or explain that statement is also admissible.” He then proceeded to show that the rule was inapplicable to the case before the court, as no statement had been made which required any qualification or explanation. Not so in the case before us. The cross-examination had been by the counsel for the plaintiff in respect to a conversation held by the witness as to Mary Stuart, and as to whether he had not made a declaration in connection with her that he would see that Tally was court-martialed ; ” also in respect to “ alleged relations between Mary Stuart and Tally.” If the declarations called out in the course of the cross-examination had been unexplained, they might have warranted inferences against the witness which his explanation in the course of his re-examination tended to relieve him from.

Numerous other exceptions are found in the record which have received attention, but they present no error that requires us to disturb the verdict or to require comments upon.

Some criticism and complaint of the charge of the learned trial judge is indulged in by the plaintiff’s learned counsel. The charge seems to' us to have been clear, explicit and ample. We cannot review the tone or voice, or the emphabis,” used by the learned judge in delivering the same to the jury; nor from a perusal of the charge are we able to say that he “ minimized ” the plaintiff’s case, or “ supplied with refined palliatives and excuses ” the defendant’s case as presented by the evidence.

The judgment and order must be affirmed, with costs.

Martin and Mekwin, JJ., concurred.

Judgment and order affirmed, with costs.


author: Hardin, P. J :

text:
    Israel P. Grant, as Surviving Partner, etc., Respondent, v. William D. Lawrence, as Surviving Partner, etc., Appellant.

      Oase on a/ppeal — no certificate that it contains all the evidence — surrounding circumstances considered in the construction of a contract — construed against the party preparing it —damages for the breach of a contract to defend a vendee from infringement suits — defense — items of damage.

    Where, in a case on appeal, there is no certificate that the case contains all the evidence given upon the trial, the General Term is not called upon to review the evidence or the findings of fact made by the trial court.
    In construing a provision in a contract for the sale of merchandise, consisting of patented articles, that the vendees are “to be defended from trouble about patents,” it is the duty of the court to look at the surrounding circumstances, and the situation and relation of the parties to the transaction as evidenced by the contract entered into between them.
    Where a provision in a contract of sale was( prepared and inserted therein by the vendor, such provision must be construed most strongly against him.
    It is not a defense to an action, brought against a vendor of patented articles by the vendee, to recover damages for the breach of the vendor’s undertaking to defend him “from trouble about patents,” to show that an action brought against the vendee for the infringement of a patent, in selling the articles (the subject of the sale to him by such vendor) was not resisted by means of a protracted litigation ending in the Supreme Court of the United States, but in such an action it is competent for the defendant to introduce evidence by way of defense showing that a complete’defense existed to the suit in the United States court.
    In such action the costs in the infringement suits brought against the vendee, as well as the amount paid for the services of an attorney rendered necessary to extricate the vendee from the trouble he was in, by reason of the vendor’s failure to perform his covenant to defend the vendee “from trouble about patents,” are legitimate items of damage to be assessed therein.

      Appeal by the defendant, "William D. Lawrence, as surviving partner of the firm of Lawrence & Chapin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 19th day of October, 1892, upon the decision of the court rendered after a trial at the Chemung Circuit before the court without a jury. *
    In March, 1885, Israel P. Grant, surviving partner of the firm of Grant & De Water, purchased certain patented articles from Lawrence & Chapin for the purpose of selling the same to retail dealers. Lawrence & Chapin made an agreement that if there should be any claim made against Grant as surviving partner, on account of any patents involved in the construction of the implements sold, they would save him harmless therefrom. Thereafter, Israel P. Grant sold such implements at retail to various persons, agreeing to defend them from any damage to which they might be subjected on account of the purchase of the implements in question, by reason of there existing an infringement of any letters patent in the construction thereof. An action was commenced against Grant, as surviving partner, and against certain of his vendees, by the firm of G. B. Olin & Co., for the infringement of certain letters patent on account of the sale of such implements, and for an injunction against the use and sale thereof, and for damages. Grant gave notice to Lawrence & Chapin at the commencement of such action, and requested such firm to defend the same, which it did not.
    The actions brought by Olin & Co. were thereafter settled by Grant, and this action was thereupon brought by Grant against William D. Lawrence, as surviving partner of the firm of Lawrence & Chapin, to recover damages for the alleged breach of contract made by the defendant to save the plaintiff harmless from trouble about patents in regard to such implements.

      Risley c& Robinson, for the appellant.

      James A. Douglass and Frederick Oolli/n, for the respondent.
   Hardin, P. J :

Inasmuch as there is no certificate that the case contains all the evidence given upon the trial, this court is not called upon to review the evidence or the findings of fact made by the trial court. (Ald ridge v. Aldridge, 120 N. Y. 614; Murphy v. The Board of Education, 53 Hun, 171; Davis Sewing Machine Co. v. Best, 50 id. 76; Koehler v. Hughes, 73 id. 167; Hyman v. Friedman, 45 N. Y. St. Repr. 636; Koehler v. Hughes, 57 id. 131.)

(2) When the plaintiff’s firm became a purchaser from the defendant’s firm both parties understood that the articles to be sold were patented articles, and that such articles were manufactured in such a mode and manner as to be protected by the patents under which the defendant’s firm was operating. Some hesitation was evinced by the plaintiff’s firm at the time of the negotiations in respect to the sufficiency of the defendant’s patent to cover the harrows in question, and there -were inserted in the contract the following words: “Grant & He Water to be defended from trouble about patents.” In construing those words it is the duty of the court to look at the surrounding circumstances, the situation and relation of the parties to the transaction then in hand, evidenced by the contract entered into by them.

In Griffiths v. Hardenbergh (41 N. Y. 464) it was held that the court is to be assisted in the interpretation of a written contract by proof of surrounding facts as they existed at the time of its execution and delivery. That case is approved and the doctrine thereof reaffirmed in Dodge v. Zimmer (110 N. Y. 48). Evidently the purchasers, by soliciting and receiving the words we have quoted, desired to be entirely indemnified, protected and saved from all “ trouble ” which might come to them by reason of purchasing and selling the harrows that the defendant’s firm then contracted to sell and deliver to the plaintiff’s firm. The words were prepared by the seller, and ought to be construed most strongly against the defendant’s firm. (Noonan v. Bradley, 9 Wall. 394; Dodge v. Zimmer, 110 N. Y. 43.)

In Brewster v. Countryman (12 Wend. 446), where the vendor of property, in connection with the terms of sale, said to the vendee “ that he would see him out with it,” it was held that these expressions were equivalent to an agreement to indemnify, and near the close of the opinion in that case Savage, Ch. J., said: “ That the words c see him oxit with it,’ in the connection in which they stand, can mean nothing else than to indemnify or save harmless, seems to me quite clear; if it was a cant phrase or provincialism, meaning something else, evidence should have been offered to prove it, but then the matter must have been submitted to the jury.”

(3) We think it is not a defense to the action for a breach of the defendant’s undertaking that the action brought by Olin & Co. against plaintiff was not resisted by means of a protracted litigation ending in the Supreme Court of the United States. Decisions had been made prior to the 21st of August, 1886, adverse to the position of the defendant in respect to the matter involved in Olin & Co.’s suit. It would have been competent for the defendant in this case to have introduced evidence by way of defense, showing that a complete defense existed to the suit. Such evidence was not produced by the defendant.

In Bridgeport Ins. Co. v. Wilson (34 N. Y. 275), where the parties had entered into a general covenant of indemnity, and it was insisted that they had not had an opportunity to defend suits, it was said, in the course of the opinion of Smith, J., at page 279, viz.: “ Although they liad no opportunity to defend the Barnum suit during its progress, yet, if they are allowed in this action to avail themselves of any defense that might have been interposed successfully in that suit, thejr are not prejudiced by the want of notice. Such opportunity is given them by holding that the judgment in the Barnum suit, although prima faeie evidence of the validity of the claim thereby established, is not conclusive against them, and they may be let in to show that it was obtained by collusion, or that a valid defense existed to the claim, which the insurance company neglected to set up.” The costs in the suits brought against the plaintiff’s firm and purchasers from plaintiff, as well as the amount paid for the services of an attorney, rendered necessary to extricate them from the trouble they were in, by reason of the failure of the defendant to perform its covenant, seem to be legitimate items of damage to be assessed against the defendant.

In Kip v. Brigham, (7 Johns. 171) it was said by Kent, Ch. J.: “ It is enough for a party, in order to maintain his action on a bond of indemnity, to show that he ivas liable and had paid the debt, or that he was sued, or that he was even exposed to a suit. * * * The costs were part of the loss and damage which the plaintiff had sustained by means of the default of the defendants in not satisfying the creditor.” (Hastie v. De Peyster, 3 Caines, 190.)

(4) Ve have looked at the numerous exceptions taken during the progress of the trial, and are of the opinion that none of them present any error requiring us to interfere with the conclusion reached at the Circuit. The foregoing views, as well as those expressed in the opinion delivered by the learned trial judge, lead us to the conclusion that 'the recovery should be sustained.

Martin and Merwin, JJ"., concurred.

Judgment affirmed, with costs.