author: Truax, J. O’Gorman, J. Sedgwick, Ch. J. By the Court.—Truax, J. Sedgwick, Ch. J.

text:
    MARTIN DELANEY, Appellant, v. HENRY HILTON, et al., Respondents.

      Negligence—falling of elevator—defeats and insufficiency of machinery, notice of through knowledge ,of agent.—Evidence.

    The plaintiff was employed by the defendants to run an elevator in their place of business, and while so engaged the chain by which it was held broke, apparently without cause, and the car fell, whereby plaintiff was severely injured, to recover damages for which injuries this action was brought. The elevator was new, and was made by competent manufacturers, upon an order from defendants for a first-class machine, and there was evidence showing that it was such, and in all respects fitted for the work for which it was made, and that defendants were so informed by said manufacturers, upon an examination made by them at defendant’s request. The evidence showed that defendant’s head-engineer, who had entire charge of the machinery of the house, stated before and after the happening of the accident, that the chain was not strong enough for the work of the house. At the time of the accident the car was descending without freight, and there was no flaw in the broken link of the chain.
    A verdict was directed for defendants.

      Held, error, that though it was not negligence for defendants to rely on the supposition that the elevator had been properly constructed, and to permit their employees to use it without examination, yet the evidence was such as to raise, for the consideration of the jury, questions as to the sufficient strength of the chain, as to notice to defendants, through the knowledge of its agent, the head engineer, as evidenced by his said statements, and as to defendants’ negligence in using the chain after such notice.
    Sedgwick, Oh. J., dissenting, wrote for affirmance, holding that as there was no evidence that the head engineer had seen any signs of weakness, or insufficiency in the chain, unless its size was such a sign, the defendants can only be charged with the fact that1 the head engineer had the opinion that the chain was too light for the work of the house, and as against that, they were justified in relying upon the opinion of the makers of the elevator.
    As bearing on the question of defendants' negligence, plaintiff offered to show that immediately after the accident, the chain which broke was replaced by a larger and stronger one :—Held, that the evidence was properly excluded.
    One of defendant’s witnesses was asked if there was any doubt in his mind as to the capacity of the elevator to carry any weight of a certain kind of iron that could be put on it, which was objected to as irrelevant and immaterial. Reid, that such an objection, not touching the competency of the evidence, furnishes no ground for reversal.

      Decided June 2, 1883.
    Before Sedgwick, Ch. J., Text ax and O’ Gorman, JJ.
    This action was brought to recover damages for injuries sustained by the plaintiff through the negligence of the defendants. It was tried before the court and a jury. A verdict was directed for the defendants. From the judgment entered on this verdict and from the order denying a motion for a new trial the plaintiff appeals to the general term of this court."
    The evidence is, that the plaintiff was employed by the defendants, to run an elevator ; that while he was running this elevator the chain, by which it was held, broke, and the plaintiff and the elevator fell into a cellar; that the chain and elevator were new and had been used but eight days, and that the chain was, what is known as a “ three-eighths ’ ’ chain. At the time of the accident the elevator was going down empty with the plaintiff on it.
    Further facts appear in the opinions.

      O. A. H. Bartlett and Franklin Bartlett, for appellant.

      Henry H Rice, for respondents.
   Truax, J.

The plaintiff endeavored to show that immediately after the accident the broken chain was replaced by a larger and stronger one. This was objected to and excluded. To this ruling the plaintiff duly excepted. This evidence was properly excluded. It did not prove or tend to prove that the defendants were negligent in getting or in using the chain that broke. They had to get another chain of some kind. They may have got a larger chain, because the accident showed them that it would be safer to use a larger chain than to use the one they were using ; but this cannot be held to be an admission by the defendants that they knew before the accident, that the chain was unsafe, or that they had been négligent in selecting the chain, or that they had not used due care in ascertaining whether or not the chain was large enough. Nor is it an admission that they knew that the chain was not strong enough to carry the elevator. The fact in issue was the negligénce of the defendants at or before the accident. This evidence did not tend to prove the existence of that fact. The plaintiff has cited certain authorities for the proposition that the evidence above referred to should have been received as an admission by the defendants that the chain in use was not large enough. Among these cases is Paintor v. Northern Central R. R. Co. (83 N. Y. 7). An examination of the printed case on appeal, shows that the evidence was, that the eye-bolt, the breaking of which caused the accident, had been replaced with a larger one. This evidence was not objected to nor was there any request made in respect to it. It was submitted to the jury, and therefore it must be held that the defendant conceded that it was competent evidence. At any rate, the court of appeals was not called upon to determine whether it was or was not competent evidence. There was other proof of negligence on the part of the defendant and the court of appeals held that although all the proof of negligence on the part of the defendant was slight, it was properly submitted to the jury. The court of appeals have held that evidence of a character similar to the evidence offered in this case was properly excluded (Dougan v. Champlain Transportation Co., 56 N. Y. 1; Baird v. Daly, 68 Id. 547; Dale v. Del. L. & W. R. R. Co., 73 ld. 472).

One of the defendants’ witnesses was asked whether there was any doubt whatever in his mind as to the capacity of the elevator to carry up any weight of that kind of iron that could be put upon it. This was objected to as immaterial and irrelevant, the objection was overruled and jhe plaintiff excepted. The objection made was not that the opinion of the witness was incompetent, but merely that the evidence was immaterial. This objection furnishes no ground for reversal (Ward v. Kilpatrick, 85 N. Y. 416).

The defendants did not undertake to build the elevator in question themselves, or by their servants, but they made a contract to construct it with Otis Brothers, by whom it was constructed for a gross sum. The experience of Otis Brothers in constructing elevators was very large. They had been employed by the defendants before. The contract under which this elevator was constructed, provided for the construction of a first-class elevator. There is no evidence upon which to base any allegation of incompetency on the part of Otis Brothers, nor any charge of negligence on the part of defendants in selecting them to construct the elevator, and it was not negligence for the defendants to rely upon the supposition that the elevator had been properly constructed and to permit their employees to use it without examination. All that such examination would have disclosed would have been that the chain appeared light, but even in that event, it would not be negligence for the defendants to rely upon the judgment of Otis Brothers, that the chain was strong enough to carry the weight which it was expected it would be obliged to carry. There was no error committed in directing a verdict for the defendants, unless there is evidence that the defendant knew that the chain was not strong enough to do the work required of it, and that this lack of strength was the cause of the accident. There is no evidence that either of the defendants had personal knowledge that the chain that broke was too light, but there is evidence that Mr. Denning, who was manager of the store where the accident happened, but who had nothing whatever to do with the construction or management of the elevator had been told by Mr. Bond, who was the head engineer, and who had entire charge “ of all the machinery and elevators in the building, that the chain was too light for the work of this house,” a short time before the accident. It was also proved, without objection, that Mr. Bond had said immediately after the accident, “Now, Denning, I knew that chain from the first day was not strong enough for the car,” and “that is the chain I had been repeatedly at Mr. Denning about being too light for its work.” Although this testimony was received without objection, yet I am of the opinion that it was not evidence of the fact that Bond had given the defendants or their superintendent notice of the fact that the chain "was too light for its work. Neither was it admissible as part of the res gestee (Luby v. H. R R. R. Co. 17 N. Y. 131; Whitaker v. Eighth Av. R. R. Co., 51 Ib. 295; Hamilton v. N. Y. C. R. R. Co., 51 Id. 100; First Nat. Bank v. Ocean National Bank, 60 lb. 297; Furst v. Second Ave. R. R. Co., 72 lb. 542). And the omission to object to this testimony was not a concession that it was competent (Hamilton v. N. Y. C. R. R. Co., supra).

It was no part of Denning’s duty to keep the elevator in repair, or to guard against the consequences of any defects or weakness therein. And therefore notice to Denning was not notice to the defendants.

I am of the opinion, however, that the admission of Bond, whose duty it was, as head engineer in charge of all the machinery and elevators, to guard against the injurious consequences of any defects or weakness therein, was competent evidence to prove notice to Bond, and that notice to Bond was notice to the defendants (Thompson Neg. 994, and cases there cited).

It would be competent, to prove that a third person had notified him of the fact and it is more satisfactory to prove that he . admitted that he knew of the fact (Chapman v. Erie Railway Co., 55 N. Y. 584).

If it be the fact that the chain broke because it was too light, this notice to the defendants was sufficient to put a prudent man on inquiry, and as there is no evidence in the case that they made any inquiry, the jury would have been authorized in finding, had the case been left with them, that the defendants were negligent in using the chain as they did use it.

It therefore remains to be considered whether the chain did or did not break because it was too light for the work of the house. There is no evidence that it did any more than the work of the house and the inference to be drawn from the evidence is, that it did only the work of the house, for the plaintiff testified that he carried such loads as Bond, who knew of the defect, told him to carry. An examination of the link which broke, showed that it was a sound link. The plaintiff testified that he had carried only such loads as he had been told by Bond to carry, and that he had never known the elevator to catch except once when it had on a large bag of waste paper, when he lowered the elevator and changed the position of the bags, and that afterwards it ran smoothly and without any hitch or interruption. This evidence would warrant the jury in finding that there was no defect, or flaw, in the chain, and that it broke because it was to light for its work.

The court should have left it to the jury to determine the following questions:

First. Did the defendants have notice before the accident of any defect or weakness in the chains ?

Second. Did the chain break because of this weakness ?

Third. Were the defendants negligent in using the chain, under all the circumstances of the case, after such notice?

The judgment and order appealed from are reversed, and a new trial is ordered with costs to the appellant to abide the event.

O’Gorman, J.

[Concurring.]—The validity of plaintiff’s claim to recover damages in this action depends on the question whether or not the defendants were guilty of negligence which caused the injuries complained of. The gist of the action is negligence, and the burden of proving the negligence of the defendants rests on the plaintiff.

At the-'close of the plaintiff’s case," a motion was made on behalf of the defendants for the dismissal of the complaint. This motion was denied. At the close of the whole case, a motion was made on behalf of the defendants that the court should instruct the jury to render a verdict for the defendants. This application was granted and the jury rendered a verdict for the defense, The plaintiff’s counsel excepted and moved.for a new trial which motion was denied.

The inquiry now is whether, to use the language of the learned trial judge, on the whole case and considering the evidence in the light most favorable to the plaintiff, and giving him all the inferences which might be reasonably drawn to his advantage, a jury would be justified in rendering a verdict in his favor. The evidence thus considered showed this state of facts. The defendants, proprietors of a well-known dry-goods house on Broadway, had for many years before September, 1876, employed the plaintiff in operating their elevators. Some time in August, 1876, they had cause to be constructed and put up in their store, an elevator, for the purpose of carrying their goods from the cellar to the sidewalk, a distance of about twenty feet. This elevator was constructed and put in,its place by competent manufacturers, and was considered by witnesses for the defendants, who had sufficient acquaintance with elevators of the kind, to be remarkably strong and sufficient to carry any weight that the defendants had reason to put on it and could not be loaded sufficiently to suffer injury in carrying the goods in which the defendants dealt. Witnesses were not agreed in opinion as to the precise weight which the elevator was capable of carrying—one witness stating it as one ton, while others placed its capacity as high as five or six tons. The plaintiff was employed to operate this elevator by Mr. Denning, who was the general superintendent of the defendants, with power to employ and discharge the defendant’s servants and to assign to them their duties. The duty assigned by him to the plaintiff was to stand on the elevator car to manage and guide it and to load it in the cellar and to help to unload it on the sidewalk. He had to be on the elevator, going up and down. For eight days, the plaintiff had thus operated this elevator, without any mishap; during that time, it ran smoothly without hitch or interruption in the machinery, and nothing attracted his attention or gave warning that there was any danger to be ayiprehended. On the morning of the eighth of September, 1876, at about twenty minutes to eight, the plaintiff had brought up in the car of the elevator, two loads of flannel and one case of linen, and was descending in the car, which then carried no other freight, when one of the chains sustaining the elevator broke, the elevator fell into the cellar and serious injury to the plaintiff was the result. On one occasion, before the elevator had begun to run, Mr. Denning was near the eleva tor, in company with Mr. Bond, who was the chief engineer of the defendants and had entire charge of all the machinery and elevators in their store and in speaking of this elevator to Denning, Bond said “ that chain is too light for the work of this house.” The chain was three-eighths of an inch in diameter at the time of the accident. Immediately after the accident, while the chains were still vibrating, Bond came up and was heard to say, “ That is the chain that I have been repeatedly at Mr. Denning for.being too light for its work.” Bond was not living at the time of the trial. It is in evidence that Bond then also said to Denning, who came to the scene of the accident at nearly the same time as himself : “ I knew that chain, from the first day, was not strong enough for the car. I cautioned you about it, and now you see the consequence.” Some old iron was in the cellar, which the defendants desired to sell. This, by the instructions of the defendants, was carried up in this elevator car. Bond directed the plaintiff what load was proper, and plaintiff followed his directions. The elevator never caught but once when plaintiff was taking up a large bag of waste paper, and he then lowered the elevator, changed its position and carried the paper up all right. A witness for the defense testified that he examined the elevator immediately after the time of the accident, that he saw one of the links of the chain on one corner broken, the machinery was all right and in good order; there was no flaw in the link; the iron was strong. He saw a mark where something had been jammed between the elevator and the iron beam covered with tin. This, in the opinion of the witness, indicated such a jam of the elevator as would explain or account for the breaking of the link.

Plaintiff’s counsel offered evidence to prove that immediately after the accident, repairs were made by defendants to the elevator, and a chain was substituted stronger than that which had broken. This evidence was not admitted.

The evidence does not disclose with clearness what was the immediate cause of the breaking of this chain at the moment when it did break, and inquiry on that subject must depend on such inferences as may reasonably be derived from the evidence. On the one hand it might be inferred that the chain, if it were, as Bond said it was, too slight in the beginning, became more and more enfeebled by the wear and tear of eight days’ use, until the moment of the accident when it broke ; while on the other hand, it might perhaps be questioned whether the mark indicating the jamming of the elevator did not tend to prove some negligence in loading the elevator which might have led to the accident. But these were questions of fact, as to the conflict of evidence and the comparative weight to be attached to evidence, which properly came within the province of the jury ; and if a jury had found a verdict for the plaintiff on the evidence, a court would not have been justified in setting that verdict aside.

Recent authoritative judicial decisions have made the rules of law, as applicable to this case, comparatively clear. The master is bound to use ordinary care, vigilance and caution, in providing for his servant, machinery competent, sufficient and safe in its construction, and he is also bound to use the same degree of care in maintaining the machinery in such condition of competency and safety ; and if the master knows, or by ordinary care could have known, of any defect or insufficiency in the machinery tending to cause danger to his servant, and fails to correct the defect, or to give his servant timely warning of his danger, he is legally responsible to his servant for any disaster that may ensue.

Acts which the master, as such, is bound to perform for the safety and protection of the employees, cannot be delegated so as to exonerate him from liability to a servant who is injured by the omission to perform that act or duty, or by its negligent performance, whether the nonfeasance or misfeasance is that of a subordinate or inferior agent to whom the doing of the act has been committed, or on whom it has properly devolved (Fuller v. Jewett, 80 N. Y. 52; FIike v. Boston R. R., 53 Id. 549; Malone v. Hathaway, 64 ld. 5; Hough v. Texas R. R., 100 U. S. [10 Otto] 217). The servant is justified in presuming that these duties on the part of the master have been duly performed, and failure of the master to perform these duties is not one of the-ordinary risks of the business which the servant is by law presumed to accept. On the other hand, if the servant had as good means to.detect the existence of a dangerous defect or insufficiency in the machine, as the master had ; if the defect was obvious, or could by ordinary care have been discerned, and if the servant continue in the employment without objection or remonstrance, then the servant is presumed to have accepted the extraordinary risk and is himself responsible for the consequence (Laning v. R. R., 49 N. Y. 532-534). The servant is not chargeable with knowledge of latent defects, but only with knowledge of such as are obvious (De Forrest v. Jewett, 88 N. Y. 264, 268).

There is no evidence in the case at bar that the insufficiency of the chain was obvious, but knowledge of its insufficiency for the work of the house was communicated by Bond, the chief engineer, to Denning, the defendants’ superintendent ; and for the purposes of this contention, Bond’s knowledge must be held to be the knowledge of the defendants (B ickner v. R. R., 2 Lans. 506; aff’g 49 N. Y. 672; Laning v. R. R., 49 N. Y. 521). And the negligence of these agents of the defendants to act upon their knowledge for the protection of the plaintiff, must be regarded as the negligence of the defendants (Laning v. R. R., 49 N. Y. 532-3; Fuller v. Jewett, 80 ld. 46; Hough v. Texas R. R., 100 U. S. 217).

The question whether plaintiff could himself by ordinary care have detected the insufficiency of the chain and also whether his own negligence to use such care contributed to the account were questions of fact within the province of the jury to consider (Payne v. R. R., 83 N. Y. 574).

The following decisions of the court of appeals have been cited as bearing on this case: In De Graffe v. N. Y. Central R. R. (76 N. Y. 128-9), it was proved that a brake chain was made of the best material and would bear a strain of six times the amount of the power applied. The court of appeals held that from that evidence and the fact that the chain did break, although the evidence was far from conclusive, yet the case was rightly submitted to the jury and the jury was justified in concluding that there was some weakness or defect in the chain. A more recent decision, Dillon v. R. R. (48 Super. Ct. 283), seems to adopt the same principle. There it was held that the mere fact of the falling of a floor loaded with oats was evidence to go to the jury of a defect in its construction (see also Mullen v. St. John, 57 N. Y. 567).

In the case at bar, the jury would have had for their consideration, if the case had been submitted to them, the additional fact, that the chief engineer of the defendants had communicated to them his opinion that the chain was too slight for the work of the house and in what he said immediately after the accident, attributed the accident to that cause.

The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.

Sedgwick, Ch. J.

[Dissenting.] I agree with Judge Truax in all matters discussed by him, excepting that I am of opinion that there was ho evidence that there was any negligence of defendants in respect to the elevator or chain (De Graff v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 126).

The defendants had incontrovertibly proved that they had used due diligence in procuring a skilled man to construct the elevator. The only piece of evidence that is referred to, to show that the defendants had notice that there was a defect, in fact, is a declaration of an engineer who was to, and afterwards did, run the elevator. He said “ that chain is too light for the work of this house.” It is said that this shows knowledge on his part, that the chain, was too light, if such were the fact, and that as he was defendant’s agent, the knowledge is imputed to the defendants. This declaration shows no knowledge as to a defect in the chain, although it may show that he had an opinion, from the appearance of the chain, that it was too light for the work of the house. Assume that the defendants are intended to have the opinion that their agent is supposed to have,—or indeed that they had, of themselves, such an opinion,—what proof is there that they did not do what was required by the law to be done, in consequence of its existence ? There is no proof that they did not do all that could be done. ¡N o negligence is to be presumed. They, as the proof incontrovertibly shows, procured a man of special experience and^skill, and made such communication to him that he used this chain, and he testifies that each chain would lift 3,000 pounds ; that is, that the four chains would support four times the weight which was expected to be carried upon the elevator. Such was his opinion, as against the opinion of Bond. It seems to me, it does not tend to show negligence, if the defendants relied upon the judgment of the maker of the elevator rather than upon their own or Bond’s judgment.

The evidence does not present to me any proof that the chain was, in fact, what Bond said he thought it was, that is, too light for the work of the house. It cannot be that the work of the house, as thus used, means the first load or the loads of eight days. It means the work for an indefinitely long time. It in reality implies that it may be sufficient for some time, or a short time, but not for a long time. And the fact that it broke when it did, indicates that the breaking was nob due to what appeared to Bond to be a deficiency.

But the evidence shows that Bond was not defendant’s agent in respect to matters connected with the elevator, at the time he made the remark. The evidence clearly shows that he had nothing to do with the elevator at that time. Mr. Hilton had the affair in his own charge entirely. He had interviews with the maker, had given the instructions, had made the contract, had not called on Bond for any service, and had not put him in charge of the elevator. The elevator had run eight days when the accident happened on September 8. The conversation was in the latter part of August, and before it was started and run. As Bond had no service in connection with the making of the elevator, or in its running, he was not such an agent of the defendants that a remark he made constitutes notice to the defendants, or implies knowledge on their part.

I think that the judgment should be affirmed, with costs.

Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

Decided May 5, 1884.

Re-argument of appeal. The former appeal was heard in January, and was decided in June, 1883.

Clifford A. H. Bartlett, for appellant.

Horace Russell, for respondents.

By the Court.—Truax, J.

The respondents contend on this re-argument, that “ the chain broke, not because it was not strong enough for the use for which it was intended, but because of improper use by the plaintiff, or some other person, without the knowledge of the defendants.” This point was considered on the former appeal. We then came to the conclusion that the evidence would warrant the jury in finding that the chain broke because it was too light for its work, and not because the elevator had been improperly loaded or used. We see no reason to change the conclusion that we then came to.

The respondents also contend that they are not liable, ‘ ‘ because they did not build the elevator themselves, but purchased it and its appliances of independent contractors of skill and repute.” Undoubtedly the defendants had the right to rely to some extent upon the judgment and skill of the manufacturers from whom they bought the elevator. That it was purchased from a firm skilled in the manufacture of elevators was a fact that tended to excuse the defendants, but it was not of itself a conclusive justification, under the circumstances disclosed on the trial. We did not hold that the defendants were negligent in purchasing the elevator. We held that, whether they were or were not negligent in using the elevator after they had received notice that it “was too light for the work of the house,” was a question of fact that should have been submitted to the jury. This notice we then considered, and now consider, sufficient to put a prudent man upon his guard. Up was as particular as the notice in Kain v. Smith (89 N. Y. 375), that “ the old jigger was played out,” which the court of appeals said was direct notice that “ a new jigger was needed.” In Ford v. Fitchburg R. Co. (110 Mass. 240), the defendant was notified “ that the engine was nota proper one to run the train with ;” and in Huddleston v. Lowell Machine Co. (106 Id. 282), the defendant was notified “ that the floor was decayed, and ought to be seen to and fixed,” and it was held that these notices were sufficient to put the defendants on their guard.

This case is to be distinguished from Malone v. Hathaway (64 N. Y. 5), and Devlin v. Smith (89 Id. 470), because in those cases there.was no evidence that the defendants knew, or ought to have known, of any defect in the posts that held the wash-tub, or in the scaffold.

The defendants also contend that Bond’s negligence was not their negligence. The evidence shows that Bond was the “head engineer,” that “ he had entire charge of all the machinery,” and that “there was not a steam pipe or boiler or any machinery in the house he lmd not charge of.” What is the meaning of the word “charge f ’ Smith in his work on synonyms says that it “denotes delegated care under circumstances of responsibility.” It means that the defendants delegated to Bond the exercise of that care to the plaintiff that the law imposed upon them. This, evidently, is the understanding that Mr. Denning had of Bond’s duties, for he testified that the whole building was in his (Denning’s) charge, but that he had no power or responsibility whatever in reference to the construction of the building, and then added, “Mr. Bond, the chief engineer, had charge of the machinery in the building,” thus placing his lack of power and responsibility in reference to the construction of the building in opposition to Bond’s charge of the machinery. Judge Hilton sought to contradict this evidence by saying that the construction of buildings and the supply of necessary apparatus came under his charge. If by this statement lie meant to say that he retained the general control and supervision of the machinery, then it raised a question of fact that should have been submitted to the jury. If, said the court of appeals in Malone v, Hathaway, “if it was claimed that the defendants had transferred the charge and direction of any branch of the busines and their duties upon him” (a servant) “ it would have been a proper question for the jury.”

In Corcoran v. Halbrook (59 N. Y. 517), the agent, for whose negligence the defendants were liable had “ general charge of the mill and machinery.”

We are of the opinion that the words “ Bond had entire charge of the machinery ” mean that the defendants had delegated to Bond the duty of repairing defective machinery or of putting new machinery in its place, a duty that the defendants owed to the plaintiff, and that therefore, notice to Bond was notice to the defendants.

The judgment and order appealed from are reversed and a new trial is ordered with costs of this argument to plaintiff.

O’Gorman, J., concurred.

Sedgwick, Ch. J.

[Dissenting.] The testimony shows that the defendants secured the services of men of great skill and experience, to build the elevator. They selected the chain. The testimony of one of them gives the particulars as to the means of estimating the sufficiency of the chain.

Whether or not, a chain is strong enough for the contingencies of a proposed service, is not a matter of simple apprehension. It- involves peculiar knowledge and the application of scientific principles.

The engineer, who had charge of the machinery of the defendants, is testified by some witnesses to have said on an occasion before the accident, “ That chain is too light for the work of the house,” and immediately after the accident, “I knew that the chain was too light for the work of the house,” or, “ not strong enough.”

There is no evidence that the engineer had seen any sign of weakness or insufficiency of the chain, unless its size was such a sign. The only fact he knew was that it was a three-eighths chain. At the most then, he judged or he had an opinion, not to say he guessed, that the chain was too light. In considering testimony as to its tendency to prove negligence, if a favorable construction for a defendant is equally admissible with one unfavorable, the former is to be made.

At the most, the defendants are to be charged with what was the fact, viz., that the engineer had the opinion that has been referred to. What would be the duty of a master who knew that his engineer had such an opinion ? It could not be other than to obtain the opinion of the men best qualified to judge of such a matter. This the defendants had already done. They had taken, precautions which showed due care on their part. To call upon them to repeat them because of an opinion imputed to them, would seem to be a form only.

What questions could be left to a jury on these facts % None more favorable to the plaintiff, than whether the defendants, according to the facts of the case, should have relied upon the opinion of the engineer rather that that of the experts. There is no fact to show that the engineer’s opinion should have had the more weight. The case shows it was more prudent to take the judgment of the men of the greater skill and experience. Any other conclusion would make the engineer the final judge. To leave the question to the jury when there was no fact to guide them, v/ould put it within their power to find a verdict without any support, against the rule that the preponderance of the testimony must be for the plaintiff to justify a verdict against the defendant.


source: Caselaw Access Project

author: By the Court.—Sedgwick, Ch. J.

license: Public Domain

text:
    HERMAN ROSENBERG, et al., Respondents, v. HUGO BLOCK, et al., Appellants.

      Special partnership—pleading—action Try—counterclaim, against general partner in.—Estoppel.

    Where a person purchases goods from one doing business ostensibly in his own name, but in fact with a special partner, of which said purchaser is ignorant, it is doubtful if, when sued by both partners for the price, the purchaser can counter-claim an indebtness of the general partner incurred prior to the consignment of the goods. But such indebtedness cannot be so counter-claimed, where it appears that the purchaser was informed at the time of the sale of the existence of a special partner, though not of her name.
    Where an action is brought by the general and special partner, a statute of the foreign state, under which the partnership was formed, requiring all actions to be brought by the general partner 'alone, cannot be used to support a plea of misjoinder of parties plaintiff, though it appears on the face of the complaint that the partnership was formed under said foreign statutes.
    Where the proof in an action by the general and special partners shows a non-compliance with the statute in regard to the kind of capital contributed by the special partner, which results in said special partner being made a general partner, it is not a variance though the complaint rests solely on the existence of the special partnership.

      Decided June 16, 1884.
    Where it appears that prior to an action against'agents to recover the amount of certain sales made by them in plaintiffs’ behalf, said agents represented to plaintiffs that they were in a position to remit, but intended to apply the proceeds to an asserted claim against one of the plaintiffs, they are thereby estopped from setting up that the moneys were not received by them till after the action was begun.
    Before Sedgwick, Cli. J., and Ingraham, J.
    Appeal by defendants from judgment entered upon verdict of jury in favor of plaintiffs.
    The facts appear in the opinion.

      Samuel W. Weiss, for appellants.

      Theron Q. Strong, for respondents.
   By the Court.—Sedgwick, Ch. J.

The complaint averred that plaintiff Herman Rosenberg was the general partner, and the plaintiff Fanny Bottigheimer was the special partner of a limited partnership created under the statutes of the state of "Virginia; that the partnership consigned to the defendants merchandise “upon the agreement, that the defendants would sell the same as agents for and on account of plaintiffs, and remit the proceeds of sale to them ; that the defendants as such agents did sell said merchandise, for about the sum of $800, which they received as plaintiffs are informed and believe ; but did not remit the proceeds of said sale to plaintiffs; that payment of said proceeds of sale has been demanded, but defendants neglected and refused, and still neglect, &c.”

The answer set up as a separate defense that the statute of Virginia, under which as alleged in the complaint, the special partnership was created, provides that all actions on behalf of such a special partnership shall be brought in the name of the general partner, and that thete was in this action a misjoinder of parties, in making Fanny Bottigheimer, the alleged special partner, a plaintiff.

And as a separate defense, that the plaintiff Herman Rosenberg before the consignment mentioned in the complaint, and to the beginning of the action, transacted business ostensibly for himself, solely and in his own name, with consent of plaintiff Bottigheimer, and with like consent he held himself out to defendants as the sole owner of the merchandise consigned, and the defendants received the same on his sole account, under an agreement with him individually that these defendants would on sale thereof account to him individually ; that thereupon “these defendants sold the merchandise so delivered to them as aforesaid, for and as agents of said Rosenberg individually, and duly accounted to him individually for the proceeds.”

And as a separate defense, by way of counter-claim or set-off, the answer averred that they did not know or believe, and had no reason to know or believe, that the merchandise in question was owned or consigned by the partnership or was consigned by it, but that it was consigned, as they believed, by Rosenberg individually, and was owned by him ; that before the time of the creation of the alleged partnership, the plaintiff was indebted to the defendants for the goods sold and delivered by them to him $1,593, which he promised to but had not paid, and the a nswer demanded judgment for such amount or that it be set off against plaintiff’s claim.

And as a separate defense, the answer averred that the alleged partnership was fictitious and colorable ; and that Bottigheimer was in fact not a partner, and that Rosenberg was solely interested therein.

It is doubtful, that, even if the defendants did not know that Bottigheimer was a partner of Rosenberg, the defendants could off-set an indebtedness due by Rosenberg and incurred by him, before the merchandise actually belonging to the plain tiff’s firm was consigned. But the testimony was incontrovertible that in answer to inquiry by the defendants to Rosenberg, “In whose name do you at present carry on business % ” the defendants were informed that Rosenberg carried on business in his own name, having a special partner. It was immaterial that they were not told that the name of the special partner was Fanny Bottigheimer. This information they received, before the consignment in question was made.

The provision of the statute of Virginia, that actions by a special partnership, should be brought in the name of the general partner, was law for the courts of Virginia, but could not direct the form of any remedy that the laws of this state empowered its courts to give. Our statutes as to special partnership refer only to special partnerships formed under it. And the law here is, that action shall be brought by the parties in interest.

That the plaintiffs were partners, either general or as members of a special partnership, was proven by evidence of the written contract of the plaintiffs that the special partnership should be formed. This was recorded, and notice of the formation of the partnership published. After proof of these facts, the interest of the plaintiff Bottigheimer was sufficiently shown, unless the defendants should show that, in truth, Bottigheimer had no interest in the firm, and her name was used only for the purpose of preventing off-sets of Rosenberg’s former debts,, or some other fraudulent object, which defendants might take advantage of. But there was no attempt to show such a purpose or object. Questions were put to Rosenberg, who was examined on commission, which were pointed to the circumst anees connected with an assignment he had made for the benefit of creditors before the special .partnership was formed, and to things done by the assignee, and as to whether any of the assigned property had gone into the assets of the special property. At the time these questions were asked, they did not tend to show that Bottigheimer had no interest in the special partnership. If they did, it was within the discretion of the court to require that such a point should be opened by the defendants, after the close of plaintiff’s case. The appellants’ counsel claims that the proof showed that no special partnership was formed, by reason of a non-compliance with the requirements of the Virginia statute as to the kind of capital contributed by Bottigheimer, and, although this would result in her being made a general partner’, the proof failed because the complaint rested solely upon the existence of a special partnership. This does not seem to be a variance. The averments of the complaint were proved, bxit the defendants showed the existence of another fact, which did not change the interest of Bottigheimer in the cause of action. She would be liable for all debts of the firm, and was entitled to the firm property, to be applied to their discharge.

The appellants’ counsel urges that the action cannot be maintained, because it is for money had and received, and the defendants did not receive the proceeds of the consigned goods after they were sold by them, before this action was begun. It is not clear to me that the action is only for money had and received, although there were allegations enough to sustain such an action. By the complaint the defendants agreed to sell and to remit; and they did sell for about $800, but did not remit. There was no question made on the trial as to the form of the complaint. It is a case where it would be proper to conform the pleadings to the proof. There was no dispute on the trial as to the duty of defendants. One of them testified that their instructions were to sell these goods for $780, less .5 per cent, and $50. He also testified ihat the goods were sold. He did not say for what they were sold, but that the defendants received $600, not accounting for the difference. He said this was received after this action was begun. Ho reason was given for not remitting before action begun Whatever was received, excepting that before action was begun, the defendants had credited on their books Rosenberg’s old indebtedness, with what the goods sold for.

I am of opinion that the defendants were estopped from setting up on the trial, that before the action, they could not remit because they had not received the proceeds of their sale (Edwards v. Farmers’ Fire Ins. & L. Co., 21 Wend. 482; Dows v. Morewood, 10 Barb. 187; citing Everett v. Saltus, 15 Wend. 474; aff’d, 20 Wend. 268). They led the plaintiffs to believe that they were in a position to remit, but that they claimed that the proceeds should be applied to Rosenberg’s old indebtedness. Such was the effect oí a letter by them to Rosenberg dated August 19, 1882

As we have seen, the defendants were bound to follow instructions. It is to be presumed that they did follow them, except as otherwise shown by evidence. If they did not, they are liable, unless a sufficient excuse is sliown. They did not attempt to excuse it. There is no proof that they did not sell for the price of the instructions. They only proved that they collected $600. They led plaintiffs to believe that they had received the proceeds.

The facts that have now been noticed were indisputably proven, and it is not necessary to notice several exceptions which become immaterial on these facts. I think the judgment should be affirmed, with costs.

Ingraham, J., concurred.


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    HERMAN LINDE v. THE REPUBLIC FIRE INS. Co.

      Submission to arbitration—notice to claimant.—Trial—direction to jury— exceptions.—“ Gash value,” evidence of.

    Where the parties enter into an agreement to submit to arbitration the question of the damage by fire to certain pictures, the property of claimant, which were insured by the other party to the submission, and on the failure of the two arbitrators to agree, an umpire is chosen in accordance with the submission, the umpire and arbitrators cannot proceed to make a valid award without notice to the claimant to enable him to make such representations or explanations as may be proper.
    Where an award is pleaded as a bar to the recovery of greater damages than are therein given, and the court directs a verdict in accordance therewith, to which no exception is taken nor request made to go to the jury, but plaintiff asks that the court direct a verdict for a much larger sum, which was refused arid an exception taken,—unless the evidence shows as matter of law that plaintifE was entitled to the direction asked, he has no remedy on appeal, though the award pleaded is invalid for lack of due notice to claimant.

      Decided June 16, 1884.
    The policy of insurance in this case provided that the damage should be estimated according to the “cash value” of the pictures at the time of the lire. Held, that the values assigned thereto by plaintifE and another person, for the purposes of the insurance, could not be deemed evidence of such values ; and the court further held, on a review of the evidence, that it contained no proof of such value.
    Before Sedgwick, Ch. J., and O’ Gorman, J.
    Plaintiff’s exceptions, ordered to be heard in the first, instance at. general term, after a direction to jury to find for plaintiff, in the sum of $134.13.
    • Action against an insurance company to recover for damages by fire to certain oil paintings, the property of plain tiff and insured by defendants. The policy provided for an appraisal of the damage in case of loss, and the parties entered into a written agreement submitting the question to two arbitrators and an umpire to be chosen by t hem if necessary, the agreement of any two to be binding. No provision was made therein for notice to the parties. The arbitrators failing to agree, an umpire was chosen, who with one of the arbitrators, proceeded, without notice to plaintifE, the claimants, to make an award of $500 damages, which plaintiff refused to accept, and brought this action.
    Further facts appear in the opinion.

      Lauterbach of Spingarn and Robert H. Griffin, for plaintiff.
    The award is void for want of notice of the appointment of the third appraiser, and of the proceedings had before him (Elmendorf v. Harris, 23 Wend. 632; Peters v. Newkirk, 6 Cow. 106; Lutz v. Linthicum, 8 Peters, 61; Day v. Hammond, 57 N. Y, 479; Moran v. Bogert. 16 Abb. Pr. N. S. 303; Morton v. Cameron, 3 Robt. 189; Brown v. Lyddy, 11 Hun, 456).

      Luke A. Lockwood, for defendant.
    The submission and award were complete in themselves, independent of -the terms of the policy. It was in the nature of an appraisal, and attendance and hearing of parties were not necessary (Collins v. Vanderbilt, 8 Bosw. 313). The submission was in writing. It made full provision for the appointment of the third arbitrator or umpire. It provided that the appraisement of any two in writing should be binding upon both parties. The two appraisers, in accordance with the submission, appointed the third. Two of them in writing fixed the damages at $500. By their own agreement this award is binding on both, parties (Valentine v. Valentine, 2 Barb. Ch. 439; Coleman v. Wade, 6 N. Y. 44; Wibesly v. Mathews, 91 N. Y. 649).
   By the Court.—Sedgwick, Ch. J.

The action was for damage by fire to property insured by the defendants. The court held that the plaintiff was entitled to recover, and the question at the end of the trial concerned the amount that the evidence showed of damage to the property. The court ruled that the plaintiff was bound by an appraisement made of the damage, by an arbitrator and umpire, after there had been a consent by the parties to submit the matter to arbitration. If the merits of this appeal were to be determined by the validity of the award, which was the principal matter argued here, I could not be able to affirm the direction of the learned judge. For assuming that after the arbitrators had failed to agree, there was a competent appointment of the umpire, whose award in connection with the arbitrators, to be made thereafter, might be binding, I am of opinion that the umpire and arbitrator could not proceed without notice to the plaintiff that would enable him to make representations or explanation, the the form of which it is not necessary to pass upon, to the umpire and his associates. There is no evidence in the case, or from the nature of the submission, that the plaintiff waived his right to this notice. An opportunity to appear before the umpire would have been of peculiar value in this case, for it clearly appeared that the umpire and that arbitrator who signed the award, were not experts in the valuation of the claim of the kind in question, and indeed knew little about it.

But if the award be determined to be invalid, it does not follow that there should be a new trial. The judge informed counsel of his intention to direct a verdict in the amount of $134,13, which would be the proper amount if the award were binding. There was no exception to this or to the direction as it was made. Nor did the counsel ask leave to go to the jury, as to the amount of damage, but having previously maintained that the evidence' of value was uncontradicted, asked that the jury be directed to award the sum of $1,655, with interest, and upon a refusal of this, excepted to the refusal. Thus it appears, that if the plaintiff was not as matter of law entitled to the only amount which he claimed, then the direction of the judge that the plaintiff should recover the sum named in the direction, was not injurious to the plaintiff.

The measure of damages is indicated in the policy, which is against all loss or damage, “ the amount of loss or damage to be estimated according to the actual cash value of the property at the time of the fire.”

The property damaged was described by a schedule attached to the proof of loss as pictures, fourteen in number, by Rembrandt, Raphael, Hobbema, Gruido Reine, Salvator Rosa, and other celebrated old masters. Of course, there was no evidence that these were genuine paintings. The plaintiff, and a witness Lanthier had assigned to them values, for the purposes of the insurance, which, aggregated, would if they had been cash values, have justified, a verdict in the sum asked. There was no evidence, however, that they were cash values. The plaintiff knew nothing about the cash values, but testified how much he gave for them, without any facts to show that he gave their market value or their cash value.

The witness Lanthier testified in a most incoherent manner, and his testimony furnished no means of ascertaining the cash value. His former valuation was not based upon what he knew to be their value. He was asked by the plaintiff to make a fair valuation upon the pictures for the plaintiff to keep. There was no market in this country for old paintings.- He thought the plaintiff’s former valuation was excessive. There were only Tour or five that he wanted to buy; that he would have bought if the plaintiff had sold them to him. He did not pay much attention to the lot. He accepted three or four that he rather fancied, and would have paid a good price for them. He examined the pictures once, but saw them three times in all, he thought. He then said that there was a certain market, if the pictures were authenticated ; that the market value depended upon such an authentication. That he could only remember about three pictures, and the only one he really remembered was a portrait by Rembrandt. That the value he placed upon that was $2,000. His testimony as to the cash value was no stronger than indicated by a declaration : “ I was willing to give him that much money for them.” And as to his means of affixing the valuation, he was asked, “ And you were able then, from your recent examination of the pictures, to determine their values,” to which he answered, 111 don’t know how I ought to answer that. I ought to have examined them a little more carefully than what I did.”' Take it altogether, the jury would not have been justified in finding in his testimony any evidence of actual cash value. At the most, he would have been willing to give the sum he named for the Rembrandt, because he rather fancied it; without affirming that it had that cash value. If the amounts he named were taken as the basis, the proportion that the defendant was to pay would not have been the sum asked by plaintiff’s counsel.

The other testimony as the point came from a gentleman who testified that he was familiar with the old masters and had examined fourteen or sixteen pictures shown him by Mr. Linde, it is from the nature of the evidence to be presumed after the fire. He left the stand to enable the plaintiff to testify that before the fire these pictures were in excellent condition, and that he believed the signature to the paintings to be original. The former witness then testified : “The Rembrandt, if it were in good condition, I think ought to be worth $5,000, to a dealer $2,000.” This witness spoke of no other picture. No inference could be properly drawn that the sums named could be procured in cash for the Rembrandt, as it was, in fact.

I, therefore, think that there was no error in refusing to give the direction as to damage, and that as the plaintiff did not ask to have the question of damages submitted to the jury, the verdict that was given cannot be set aside.

The plaintiff’s exceptions should be overruled, and judgment directed to be entered on the verdict, with the costs of the argument to the defendant.

O’Gorman, J., concurred.


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    GUSTAV LIPPMAN, et al., Respondents, v. SAMUEL SHAPIRO, Appellant.

      Arrest—subd. 1, § 550 Code Giv. Proc.~ Action to recover chattels.—Value representations.

    In an action to recover the possession of chattels, where it appeared upon an application for an order of arrest under Code Civ. Pro. § 550, subd. 1, that plaintiffs had been induced by the false and wrongful representations of defendant to sell him the chattels in question, etc.; that he soon thereafter made an assignment for the benefit of creditors, and that the sheriff was unable to find the chattels.

      Held, as defendant knew the chattels were obtained by fraud and should be paid for or returned, that whether he disposed of them before the assignment or concealed them from the assignee, which is also a concealment as to plaintiff, it is in furtherance of the original fraud and tends to deprive plaintiff of the benefit of his chattels, and it will be inferred that such was defendant’s intent; that a like intent and effect will be presumed, if the chattels were delivered to the assignee, unless it appears that the assignment was made in such manner that the assignee could not deem it the duty of his trust to oppose a reclamation thereof by plaintiff.

      Viirthe-r held, that an intent to put the property beyond the reach of its owner by any act, the other elements appearing, will justify the order of arrest, though the fraudulent actor .may not have contemplated an action at law to recover the specific property.

      Decided June 16, 1884.
    Before Sedgwick, Ch. J., and Ingraham, J.
    Appeal by defendant from order denying motion to set aside order of arrest of defendant.
    The action was brought to recover the possession of certain chattels from defendant. The papers upon which the order of arrest was granted showed that the plaintiffs were doing business as clothiers in the city of New York, and that before and up to the time of the assignment hereafter mentioned, the defendant was also doing business in said city, as a retail clothier ; that between September 6, and December 3, 1883, by means of fraud and false representations, as to his credit and solvency, &c., defendant had obtained possession of and wrongfully detained from the plaintiffs personal property consisting of clothing.
    That on December 12, 1883, defendant made an assignment for the benefit of creditors. Plaintiffs’ affidavit also set forth that the defendant had “removed and disposed of said property with the intent to put the property beyond their reach, and with the like intent to deprive them of the benefit thereof, and with the intent that the same should not be found or taken by the sheriff herein,” and that defendant had refused to return the property to the sheriff.
    A certificate of the sheriff was also set forth, as follows :
    "“ I further certify that before the coming of this writ to me the property within described had been eloigned, concealed, removed or disposed of so that I could not find or take the same, as by the said requisition I am commanded.”
    The motion to vacate was made on the papers on which .the order of arrest was granted, and was' denied upon the ground that it appeared that the defendant had disposed of the property with the intent to deprive the plaintiff of the benefit thereof.

      Blumensteil & Hirsch for appellant.
    As presenting a case of eloignment, it is seriously defective: 1st. The action is brought against the assignor, when upon the face of the affidavit it appears that, prior to the commencement of the action, the defendant had made a general assignment. The property would thus pass to the assignee, and could not be taken under the requisition in this action, without making the assignee a party. 2d. It is not averred that the property sought to be recovered is not in the possession of the assignee, and hence non constat, that if the assignee had been made a party it could not have been taken under the writ properly issued, and therefore it does not appear that it was disposed so that “it could not be taken by the sheriff, and with intent to deprive the plaintiff of the benefit thereof, &c.”
    The assignee in cases of this kind, not being a Toonajide purchaser, takes the property subject to all the equities existing against the defendant, and the same proof which would enable the plaintiff to recover of the debtor, would suffice in an action against his general assignee.
    The certificate of the sheriff does not strengthen the case. He simply certifies that it was not in defendant’s possession, and that it had been removed, &c., all of which would ,be true if it was in the possession of the assignee. There is no actual concealment shown in any of the affidavits on this motion.
    The cases are clear, that to authorize an order of arrest under this subdivision, it must appear that the property has been removed after suit brought, or if disposed of before suit, it was done to defeat expected process (Watson v. McGuire, 2 Daly, 219; Pike v. Lent, 4 Sand. 650; Roberts v. Randall, 3 Sand. 707; Mulvay v. Davison, 8 How. 111). Or that defendant had sold the property with intent to perfect the fraud, and put it beyond the reach of the owner (Barnett v. Selling, 70 N. Y. 492). An assignment of the property to an assignee for the benefit of creditors is not such a sale as puts it beyond the reach of the owner, for in such a case, as before stated, the assignee takes no better title than the assignor had.

      Louis Levy and C. P. Hoffman, for respondents.
   By the Court.—Sedgwick, Ch. J.

The motion was denied below, on the ground that the proof showed that the defendant had disposed of the goods, which the sheriff could not find, with intent to deprive the plaintiff of the benefit thereof. The action was for the recovery of personal property, and the order of arrest was granted under subd. 1, § 550, of the Code of Civil Procedure.

There were enough facts to show that the- plaintiffs had been induced by the false representations of the defendant to sell him the goods. The sheriff was unable to find these goods. I am not inclined to give any force to the fact of the sheriff’s certificate, that declares that before the coming of the writ to him, the property had been eloigned, concealed, removed, or disposed of, so that he could not find or take the same. That is the statement of a judgment on his part, which a judge should make, upon facts that would show its correctness.

Barnett v. Selling (70 N. Y. 492), must be followed. The opiniepn says that an intent to put the property beyond the reach of its owner, by any act, will, the other elements appearing in the case, authorize the order, although the fraudulent actor may net contemplate an action at law to recover the specific property. The cited case justly gives importance to the fact that a fraudulent purchaser is affected by his knowledge, that the circumstances justify a reclamation of the chattels from him.

In the present case, the defendant knew that the chattels had been fraudulently obtained by him and that he should either pay for them or return them. Instead of that, he disposed of them before the assignment, or concealed them from the assignee, which would be really a concealment from all persons, among them these plaintiffs, or he delivered possession of them to the assignee. Any of these things would be in furtherance of the original fraud, and would tend to deprive the plaintiffs of the benefit of them. The inference would be, that such was the intention of the defendant. Because, however, the assignee not be: ing a bona fide purchaser, cannot withhold the goods from the plaintiffs, it is argued that if the goods are in possession of the assignee, the assignment cannot be'deemed to show that the defendant had an intent by it, to deprive the owner of the benefit of the goods. The inference is to the contrary, unless it should appear, and it does not, that the defendant made the assignment in such manner that the assignee would not claim the goods and not believe it to be the duty of his trust to oppose the plaintiffs’ reclamation.

The existence of the facts, that have been referred to, made aprima facie case which the defendant was called upon to explain. Indeed, the absence of explanation strengthened the inferences unfavorable to the defendant.

I, therefore, am of opinion that the order should be affirmed, with $10 costs, and disbursements to be taxed.

Ingraham, J., concurred.


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    HENRY S. CARPENTER, et al., v. ELMORE A. KENT, et al.

      Decided June 16, 1884.

      Accounts stated—rule as to opening.

    The rule in respect of the opening an account stated is, that where fraud is not alleged and shown, it is to be opened no further than as respects specific items or entries averred in the pleadings to have been made or admitted through excusable error or mistake.
    Before Sedgwick, Ch. J., and Truax, J.
    Defendant’s exceptions ordered to be heard in first instance at general term, the court having directed a verdict for plaintiff.
    Action to open an account stated, to recover $1,550 of plaintiff’s money retained by defendants, being the amount of an alleged draft upon defendants, erroneously charged against plaintiff, in said account. Plaintiffs had consigned grain to defendants for sale by them as plaintiffs’ agents, and defendants had from time to time made advances thereon, and the account in question rendered by defendants related to these transactions. The mistake was admitted by the answer, which did not set up fraud, or any other specific mistake in the account; but on the trial defendants offered to prove that if they had known of the errors in the said charge against plaintiffs, they would not have consented to a compromise of a certain other group of items included in the account, relating to losses on grain shipments which they claimed were chargeable against plaintiffs, and one half of which defendants assumed on said compromise, which correspondingly affected .the balance first-stated against plaintiffs. This offer was refused. There was no attempt to prove that a dispute relative to items in the account had been settled upon any consideration pertaining to said erroneous charge against plaintiffs; nor was it shown that the account was opened by mutual consent.
    Other facts appear in the opinion.

      A. B. Tappen, lor plaintiffs.
    Accounts once settled between the parties after full examination will not be opened by the court unless fraud be alleged and satisfactorily proven: but either party has a remedy, for any manifest error or mistake which was not the subject of dispute or of settlement, that is to say: 1st. Falsification, which applies to some item in the account false or erroneous. 2d. Surcharging, which supposés credits omitted that ought to be allowed (1 Wait's Actions and Defenses, 196, 198; McIntyre v. Warren, 3 Abb. Ct. App. 99; Wilde v. Jenkins, 4 Paige, 481). And the effect of surcharging or falsifying is to leave the account in full force as a stated account except where impugned (Lockwood v. Thorn, 11 N. Y. 170; Story’s Eq. Jur. § 523).
    The plaintiffs’ action is properly brought for one single manifest conceded error, or item, wrongly charged against the plaintiffs by the defendants and the amount of which the defendants withhold after demand. An action will lie to correct the mistake and collect the money, and if defendants in charging a draft to plaintiffs had undercharged the amount they would have a like remedy to collect the difference (6 Wait's Actions, 427; McDougal v. Cooper, 31 N. Y. 498; Stanton v. Jerome, 54 Id. 480). A mutual mistake of fact will authorize the court to correct the account in that respect (Calkin v. Griswold, 11 Hun, 208.)
    The position which defendants’ counsel takes is substantially that the $1,550 having been1 wrongly charged by defendants against plaintiffs, yet that wrong charge induced defendants to accept a compromise, they concealing the error from the plaintiff.

      L. A. Gould, for defendants.
   By the Court.—Sedgwick, Ch. J.

The complaint averred that the- plaintiffs, from time to time, had consigned to the defendants quantities of grain for sale by defendants as plaintiffs’ agents; that from time to. time, the defendants made advances to the plaintiffs upon the grain; that at a certain time the defendants rendered to the plaintiffs an account of sales and advances, which presented a balance against the plaintiffs ; that the balance was adjusted “between the parties by the payment of certain moneys by the plaintiffs, to the defendant, who accepted the same in full payment of the balance claimed” ; that afterwards on a further examination of the account the plaintiffs for the first time discovered that the defendants had erroneously charged in the account as an advance," a payment to the plaintiffs, $1,550, which in fact had never been advanced or paid, and claimed judgment for this sum.

It appeared by the admission of the defendants that the sum had been erroneously charged.

The answer was that the charge of $1,550 “formed a part of the account as stated between the said firms and was a part of the consideration which induced defendant firm to accept the payment offered by plaintiffs, and upon the discovery of the fact that it should not have been included in said account was thereafter and before the commencement of this action opened by consent, and the statement and settlement thereof was set aside by mutual agreement and consent of the parties thereto respectively.”

This defense, if it would avail at all, was not proven. One of the defendants testified, in substance, that in settling the account, they supposed, erroneously that the charge had been correctly made, but there was no attempt to prove that a dispute as to another item had been settled by the parties, upon any consideration that pertained to the rest of the account. There was an offer by defendants in a letter to open the account entirely, but this was re-' jected by the plaintiffs.

The other defense was, that upon a just and true accounting between the parties, it would appear that there was due to the plaintiffs $556, which the defendants had tendered to the plaintiffs, and for which, with interest and costs, judgment was offered.

The court refused to allow the defendants to show the result of such an account as the answer referred to, and directed judgment for the plaintiffs in the amount of the erroneous charge and interest.

The pleadings refer to the account as an account stated as commonly understood. And so it was, in fact. One of the items, or a group of items in the account presented by the defendants, concerned certain charges which the plaintiffs disputed. They referred to certain losses in selling grain, and did not refer to advances or payments to plaintiffs. This dispute was settled by the plaintiffs bearing half of the loss, which correspondingly affected the balance first stated against the plaintiffs. This it will be perceived, did not affect the legal character of the account, as so affected. It became substantially a second account which was stated between the parties.

The rule in respect of opening accounts stated, is that where fraud is not alleged and shown, it is to be opened no further than as respects specific items or entries averred in the pleadings to have been made or admitted through excusable error or mistake (Bruen v. Howe, 2 Barb. 592, cited 42 N. Y. 436).

In the present case, the plaintiffs confined their averments to a specific charge, and the issue was to be confined to this. The defendants had the right to aver fraud, but this was not averred. They had the right to show that the account was opened in all respects by mutual agreement, but they failed to prove this. On the other hand, they did not plead that there was any other specific mistake, which when corrected, would affect the right of the plaintiffs to recover for the mistake that they proved.

Defendants’ exceptions overruled, and judgment ordered for plaintiffs upon the verdict, with costs.

Truax, J., concurred.


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    JAMES S. FLYNN, Respondent, v. THE NEW YORK ELEVATED R. R. Co., Appellant.

      Evidence.—Judge's charge.—Inference from failure to call witness.

    In an action for damages from alleged negligence of defendant, plaintiff’s counsel asked the court to charge “ that if the defendant here failed to produce witnesses that they could have done, who were in the employ of the contractors at the time of the accident and who were present at the time of the accident, that fact the jury shall take into consideration in coming to a conclusion.” To which the court replied, “That is a question the jury will consider for themselves.”

      Held, error calling for reversal.
    The case not disclosing that the witnesses were under the control of defendant more than of plaintiff, or more in their interest, or more easily reached by subpoena, neither side having called them, so far as the contingencies of the request are regarded, the fact bore against one party as much as against the other.
    The charge should not have allowed the jury to use the fact against defendant, unconditionally and without regard to the question whether or not defendant had fully met plaintiff’s ease irrespective of the witnesses in question,

      Decided June 16, 1884.
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.
    Appeal by defendant from judgment entered on verdict of jury, for plaintiff in the sum of $20,000.
    The action was for damages, from the negligence of defendants.

      Deyo, Duer & Bauerdorf, for appellant.

      Louis J. Grant, for respondent.

       See former reports of this case; see 49 Super. Ct. 60, 536.

   By the Court.—Sedgwick, Ch. J.

In my opinion one exception taken will call for a new trial. The counsel for plaintiff asked the court to charge “that if the defendants here failed to produce witnesses that they could have done, who were in the employ of the contractors at the time of the accident, and who were present at the time of the accident, that that fact, the jury shall take into consideration in coming to a conclusion.” The court said, “That is a question the jury will consider for themselves,” and the exception was taken to this.

The court substantially charged that under the circumstances specified in the request, the jury were at liberty to consider the fact that the defendant had not called the witnesses referred to, as unfavorable to the defendant.

The case did not disclose that these witnesses were under the control of the defendants more than of the plaintiff, or more in their interest, or more easily reached by subpoena. Neither side had called them. So far as the contingencies mentioned in the request, were regarded, the fact of not calling the witnesses, bore against one side as much as the other.

An unfavorable inference to the defendant could not have been made by the jury until they had found, from an examination, of the rest of the case, that there was something which the defendant could have contradicted or explained by witnesses whom it appeared they had the power to produce, and which uncontradicted or explained, tended to make a preponderance of evidence against them. If, irrespective of the testimony that might be given by the persons not called, the defendant had sufficiently met the plaintiff’s case, there was no reason for the defendants calling more witnesses. But the jury, under the charge, might have felt it their right or duty to consider that the defendants had not called the witnesses, without finding whether, irrespective of them, the defendant had fully met plaintiff’s case. If any fact had appeared, which though not conclusive in itself, was relevant to the charge against the defendants and went towards proving it, when it also appeared that the defendants had the power of disproving it, if it did not exist, or of explaining it, there would be such interest for calling the witnesses that the jury might consider their absence for what that should in their judgment, avail, when they inquired as to the whole case. The charge permitted the jury to use against the defendants the fact that they had not called the witnesses, irrespective of conditions (People v. Dyle, 21 N. Y. 578; People v. McWhorter, 4 Barb: 438; Gordon v. People, 33 N. Y. 501; Ormsby v. People, 53 N. Y. 475; Bleecker v. Johnston, 69 N. Y. 309).

I do not perceive any other exception which requires a new trial. On another trial one or two remarks that are scarcely erroneous, in the present trial, will no doubt be properly guarded.

If the exception did not call for a new trial, I would be forced to think that one should be ordered, for the excessive damages given. The amount of the verdict could hardly have resulted from a sober and unbiased deliberation as to the effect of the testimony on the subject. It is necessary only to allude to this.

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

Truax and Ingraham, JJ., concurred.


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    EMMA DE F. SHERWOOD, Respondent and Appellant, v. AUGUSTUS L. PIERCE, Appellant and Respondent.

      Decided June 16, 1884.

      Execution against the person—when it may issue.

    In an action in which a promise or contract and its breach is alleged; and, as a conclusion to such breach, the conversion of the property that was the subject of the contract is averred, and as appeared by the findings,
    , the recovery of the judgment, which was taken by default, is upon the promise or contract, as much as upon the tort, no order of arrest having been obtained, an execution issued against the person should be set aside. Where the defendant has been guilty of laches and misleading conduct, the condition that he shall not sue for false imprisonment may be imposed, on setting aside the execution against the person.
    Another view of such a case is, that after a sufficient cause of action on contract has been stated, the additional allegation of a conversion of the property, the subject of the action, may be considered as substantially surplusage ; the action is complete without it, and it cannot serve as a foundation for a judgment authorizing the issue of an execution against the person (Greentree v. Rosenstock, 61 N. Y. 583 ; Wood v. Henry, 40 Id. 124).
    Before Sedgwick, Ch. J., and Ingraham, J.
    Appeal by defendant from order denying motion to set aside judgment taken on default of appearance.
    Appeal by plaintiff from a part of same order that set aside an execution against defendant’s person.
    The facts'are stated in the opinion.

      Henry D. Sedgwick, for defendant.
    The second article of the complaint that simply avers a case of neglect to carry out the principal’s orders, and the words “but converted the said stock and the proceeds thereof to his own use” are “unnecessary and superfluous.” Such cause of action as the plaintiff undertook to allege was complete without this surplusage, and is not changed by it. It cannot serve as a foundation for a judgment authorizing the defendant’s arrest (Greentree v. Rosenstock, 61 N. Y. 583 ; Walker v. Bennett, 16 Id. 250 ; McMorris v. Simpson, 21 Wend. 610; Wood v. Henry, 40 N. Y. 124 ; Conaughty v. Nichols, 42 ld. 83 ; Tupman v. Nat. S. S. Co., 76 Id. 207 ; Palmer v. Hussey, 87 Id. 303 ; Smith v. Edmonds, 1 Code R. 86 ; Ladd v. Arkell, 37 Super. Ct. 35 ; Hawkins v. Hoffman, 6 Hill, 686, 588 ; Story Bailments, 9th ed. § 165).

      Erastus New, for plaintiff.
    The execution against the person was lawfully issued. Section 1487 of the new Code allows an execution to issue against the person on a judgment “where the plaintiff’s right to arrest the defendant depends upon the nature of the action,” provided- the final judgment is for a sum of money.
    Sections 549 and 1240 of new Code, being the sections giving the cases in which the right to arrest depends on the nature of the action, provide that a defendant may be arrested in an action, where the action is brought for a wrongful taking, detention or conversion of personal property. The plaintiff states a cause of action for the conversion of plaintiff’s personal property by the defendant to his own use, to the damage to the plaintiff in the sum of one thousand dollars. And the fact of the conversion of plaintiff’s stock and the proceeds to his own use by the defendant is expressly found by the court. The allegation of the conversion by the defendant to his own use of plaintiff’s property is sufficient without setting out the manner in which the defendant converted the property (Decker v. Matthews, 12 N. Y. 513; Esmay v. Fanning, 9 Barb. 177).
   By the Court.—Sedgwick, Ch. J.

My opinion is that the nature of the action was not such that an execution against the person might be issued properly without an order of arrest having been obtained.

The complaint averred, and the finding of the judge followed such averments, that the “plaintiff delivered said stock to the defendant with directions either to collect the amount of said loan at once, or sell said stock, and pay over the proceeds to the plaintiff, and defendant received said stock pursuant to said directions, and promised to comply therewith, but utterly failed, refused and neglected so to do, but converted said stock and the proceeds thereof to his own use.” It is manifest that the complaint states two causes of action. One of these is upon the breach of promise, and does not present a cause of arrest. The other is for conversion, in which it is claimed there may be an arrest. The recovery is upon the promise as much as upon the tort. In such a case, a defendant cannot be arrested.

Or another view may be taken under the case of Greentree v. Rosenstock (61 N. Y. 583) ; and like cases since Wood v. Henry (40 N. Y. 124), that the allegation of conversion is substantially surplusage, after a sufficient cause of action on contract has been stated, or is deemed to be an allegation of such conversion, as being equivalent to the breach of contract alleged, which would be an error of law.

The judge was, therefore, right in setting the execution aside, and I think the laches and misleading acts of the defendant justified the imposition of the condition that the defendant should not prosecute for a false imprisonment.

If the merits of the defense were disclosed solely by the defendant’s affidavit, there would be doubt that justice would not call for the opening of the judgment, resting as it does on the cause of action in contract. His affidavit is seriously opposed, and the balance against him is made by the fact that long after the judgment was obtained, he was notified of its existence, and that plaintiff intended to proceed against him. He acquiesced from the time the suit was begun in its prosecution, so far as he believed it did not charge him with a violation of duty, or render him liable to arrest, and in the judgment from October, 1883, to January, 1884, when he was arrested on execution. The action of the judge in refusing to set aside the judgment should not be disturbed.

Order affirmed, without costs to either party.

Ingraham, J., concurred.


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    PAUL BECHET v. MARGARET SMITHERS.

      Decided June 16, 1884.

      Sale—what constitutes.—Warranty of title—breach of.—Evidence.

    Plaintiff paid to defendant $750 in consideration of her agreement that plaintiff might have the option of buying certain land, for the sale of which to her defendant had a contract from the owner thereof, and upon which land there was certain machinery, the property of defendant. The agreement contained this clause: “ Should you decide not to purchase the said properties, then the $750 to be paid to me on the delivery of this letter, are forfeited by you and belong to me. You, however, can take the machinery on said properties, and dispose of the same at your pleasure. ” Defendant elected not to take the laud, but through his agent took possession of the machinery. In an action for breach of warranty of title to said machinery,

      Held, that there was an executed contract of sale of said machinery, and that defendant being in possession of the same at the time of the sale, a warranty of title is implied.

      Further held, that evidence that plaintiff at or before the time of making the agreement, stated that he desired only the land, and cared nothing for the machinery, was inadmissible to show that the transaction was not a sale of such machinery.

      But further held, that the mere fact that the property was shortly thereafter taken from plaintiff, in an action by a third party, which plaintiff called upon defendant to defend, does not prove a breach of said warranty of title, it not appearing that the title of the present defendant to the property was litigated in that action, and it affirmatively appearing in this action that said defendant had good title at the time of the sale.
    Before Sedgwick, Ch. J., and Truax, J.
    Defendant’s exceptions. ordered to be heard in first instance at general term, verdict being directed for plaintiff.
    Action to recover damages upon a breach of an implied warranty of title on a sale of certain machinery by the defendant to the plaintiff, under a contract in writing made between them in the city of New York.
    The machinery was at the time in the possession of defendant, on certain mining lands in North Carolina, for the sale of which to her, defendant held a contract from one Holmes, the owner thereof. The agreement of sale between the parties hereto was as follows :
    “ (1.) I grant you the option to purchase the above said properties, with all the machinery and buildings thereon, until the 5th of August next, for the sum of $10,000, $750 payable bn my delivery to you of the present letter, $4,050 to be paid as soon as you desire to purchase the said properties, on which payment I shall transfer to you the original bond, of which copy is annexed to the present. The balance of $5,200 to be paid to M. M. L. Holmes, of the county of Rowan, North Carolina, under the provisions of the annexed copy of bond, upon the delivery to you of a good title conveying said properties to you. (2.) In case you purchase said properties, you are to pay me one-fortieth part of the net proceeds of all the metal you extract from the ores of said Roseman Gold Mine Lot. (3.) Should you decide not to purchase the said properties, then the $750 to be paid to me on delivery of this letter are forfeited by you, and belong to me. You, however, can take possession of the machinery on said properties, and dispose of the same at your pleasure, and for your own benefit. (4.) Upon the payment of said $750 you have the right to examine the properties in question, to take from the same ores in such quantities as you may desire, said ores to belong to you, subject to the conditions of the annexed copy of bond.”
    Plaintiff paid the $750, and elected not to take the land, but, through his agent, took possession of the machinery. Shortly thereafter the machinery was taken from plaintiff’s agent by process in the nature of replevin, at suit of certain third parties, brought in North Carolina, in which said third parties established titlé to and took the property.
    The plaintiff in this action notified defendant of the pendency of said action, and requested her to defend it, which she did not do. The judgment roll in said action was put in evidence in this action.
    Rurther facts appear in the opinion.

      D. M. Porter, for plaintiff.

      George W. McAdam and Albert Matthews, for defendant.
    There was no “sale” of this “machinery and fixtures ” by the defendant to the plaintiff. The special agreement between them must be taken together, in all its parts, in order to determine its meaning and legal effect. It is a contract generis. The defendant contracts to allow the plaintiff certain “ privileges ” for the sum of $750; and further provides that, if he does not avail himself of them all, he shall “ forfeit,” as damages, the sum of $750, but he shall, however, have permission to take possession of the machinery and fixtures and dispose of the same at his pleasure and for his own benefit. The sum of $750 was intended to belong to the defendant, as her liquidated damages, if the plaintiff failed to complete that transaction (Slosson v. Beadly, 7 Johns. 72; Kemp v. Knickerbocker Ice Co., 69 N. Y. 58).
    Even if there had been a “sale” of these chattels by defendant to plaintiff and a “ warranty of title” of the same, there was clear proof that the chattels belonged of right to the defendant at the time of making the contract between her and the plaintiff, and a failure of proof of any kind that they belonged to any one else at that time. There is no pretense that she conveyed them, or gave any right over them to any person except the plaintiff.
    The North Carolina action did not appear to proceed on the ground that the defendants had not given a good title to the chattels in question, to the plaintiff in this action (Blasdale v. Babcock, 1 Johns. 518). Even if the judgment were admissible in evidence to the jury on the subjects of eviction of possession of the chattels in question, it was not conclusive, nor could it overcome the other positive evidence of the soundness of the defendant’s title at the time of the contract, without further evidence showing that her title had been litigated in the replevin suit now in question (McKnight v. Dunlop, 4 Barb. 36 ; Colwell v. Bleakley, 1 Keyes, 62 ; Kerr v. Hayes, 35 N. Y. 333 ; McKnight v. Devlin, 52 Id. 403 ; Railroad v. Elmore, 53 Id. 624; Remington Paper Co. v. O’Dougherty, 81 Id. 489).
    This judgment in' the replevin suit (being a possessory action) was rather like a judgment in ejectment by a claimant'against anothers’ tenant, and not binding upon the landlord who was not a party to the suit. As to this defendant it is res inter alios acta (Ryerss v. Ripley, 25 Wend. 432 ; Same v. Same, 4 Hill, 458, note; Leland v. Tousey, 6 Hill, 334-5; Ainslie v. Mayor, 1 Barb. 168; Thompson v. Clark, 4 Hun, 165; Bennett v. Leach, 25 Id. 178-9).
   By the Court.—Sedgwick, Ch. J.

The defendant made an agreement with the plaintiff, in consideration of which' the plaintiff paid her $750. The agreement was that the plaintiff might have the option of buying certain land upon which there was certain mining machinery belonging to the defendant. She did not own the land, but had a contract for its sale to her. The agreement had this clause, “ Should you decide not to purchase the said properties, then the $750 to be paid to me on the delivery of this letter are forfeited by you and belong to me. You, however, can take possession of the machinery on said properties and dispose of the same at your pleasure.”

I am of opinion that the transaction comprises the legal constituents of a sale of the machinery, and that there was a contract of sale, which was executed upon the plaintiff afterward taking, as he did take possession of the same. He elected not to take the land. The complaint alleges that at the time of the making of the contract the defend-ant was not in possession of the machinery. The answer seems to deny this. The proof shows that the defendant was, when she sold, in possession through her agent. The law implies a warranty by her of title.

This action is brought upon an allegation that she was without title, and therefore had made a breach of the warranty. The proof was clearly the other way, and that she had delivered possession to the plaintiff. The only proof that was used in attempting to show her want of title, was what was also used to show that the plaintiff had been deprived of possession. It was an action brought in North Carolina by third persons against the agent of the defendant (the plaintiff in this action), who held possession of the machinery for the said defendant, on the claim that they owned the property, and that the defendant in the action wrongfully withheld it. The plaintiffs had judgment in that action, and it was executed by the property being delivered to them. The plaintiff here gave notice to this defendant that the action in North Carolina had been begun, and demanded that she should defend it. This proves nothing. The jjresent defendant was not bound to defend that action, when the plaintiff’s agent had a full de.fense, if the issue were the defendant’s title at the time of the contract. And the evidence here shows such a defense, and that the defendant had title at the time of the contract. There was nothing even to show that the issue in the former action involved any claim in derogation of a claim of title in defendant at and before the making of the contract. From all that, it appears, the claim may have been made of title proceeding from this plaintiff.

The court refused to allow the defendant to prove that when the contract was made, before it was signed by defendant, the plaintiff said to her that all he cared for was the land, and that the machinery was of no consequence, and he cared nothing about them. I think the court was correct. His indifference to the machinery did not deprive him of the benefits of the contract as to it that was actually made. If at the time, the declaration had been made by the plaintiff that he knew the defendant had no title, or by the defendant that she had none, which could not have been declared under the facts, a différent question would be presented.

My opinion is that the exceptions should be sustained, the verdict set aside, and a new trial ordered, with costs of the argument to abide the event.

Truax, J., concurred.