author: Maoomber, J.:

text:
    CHARLES E. TUTTLE, Appellant, v. THOMAS DENNIS, Respondent, Impleaded with TRUMAN PARSHALL.

      Lien for service by a stallion —upon a mare and colt fin the hands of one purchasing the mare before the filing of a notice of the lien.

    In an action brought to foreclose a lien for twenty-five dollars, which the plaintiff claimed for service of his stallion rendered to -the mare of the defendant, it appeared that a written statement had been ¿leí in the proper clerk’s office, under the provisions of chapter 458 of the Laws'of 1887, as amended by chapter 457 of the Laws of 1888, and that a certificate, of-'license had been issued by the county clerk to the owner of the stallion, and that a notice of lien had been filed and recorded, as required by section 3 of said, áct; in the clerk’s office, before the expiration of six months from the date of service; but that the mare had been purchased by the defendant in the action'.after such service, and before any notice of lien was filed. . -

      Seld, that a lien was created, in pi’asenti, from tlie time of service, which could only be defeated by the failure of the owner of the stallion to file a notice of the lien within the time prescribed by the statute.
    Appeal by the plaintiff Charles E. Tuttle from a judgment of the Ontario County Court, entered in the clerk’s office of the county of Ontario on the Ith day of May, 1890,.in favor of the defendant and against the plaintiff, for forty dollars and twenty-eight' cents, reversing the judgment of a justice of the peace in favor of the plaintiff.
    The action was brought to foreclose a lien, upon a mare and colt, by the plaintiff, as the owner of a stallion, under the provisions of chapter 458 of the Laws of 1881, as amended by chapter 451 of the Laws of 1888.
    The lien claimed was for twenty-five dollars for service by the stallion, and the proceedings were instituted before a justice of the peace. Both defendants appeared, but the defendant Thomas Dennis alone answered the complaint. The justice, on the 18th day of December, 1889, rendered judgment establishing the plaintiff’s lien upon the mare and colt in question, which judgment was reversed by the County Court.

      E. W. Gardner, for the appellant.

      Charles H. Paddoek, for the respondent.
   Maoomber, J.:

This action was begun before a justice of the peace to foreclose a lien of twenty-five dollars, which the plaintiff claimed for services of his stallion rendered to the mare of the defendant Parshall. The price agreed upon with the defendant Parshall, who then owned the mare, was twenty-five dollars to insure. The defendant Dennis bought the mare after such service and before any notice of lien was filed.

The judgment of the justice of the peace was as follows: “ I find from the evidence that the plaintiff has a lien on the mare and colt in the sum of twenty-five dollars, and that he is entitled to foreclose his lien and sell said property. Wherefore I did, on December 18, 1889, render judgment in favor of the plaintiff and against the defendant for $25 damages and $6.78 costs.”

This action was brought in pursuance of the provisions of chapter 458 of the Laws of 1887, as amended by chapter 457 of the Laws of 1888, entitled “An act to prevent deception and fraud by owner or owners, or agent, who may have control of any stallion kept for service, by proclaiming or publishing fraudulent or false pedigrees, and to protect such owner or owners or agents in the collection of fees for the services of such stallions.”

By section 1 of this act provision is made for filing with the clerk of the county a written statement giving the name, age and pedigree, if known, the description and terms and conditions upon which the stallion will serve. Upon filing such statement the county clerk is required to issue a certificate or license to the owner that such statement has been filed in his office, which statement and certificate shall be posted in a conspicuous place in each locality in which the stallion shall be kept for service. Section 2 provides a penalty for publishing a false pedigree of the horse. Section 3 is as follows: “ Whenever the owner or agent of any stallion shall have complied with the foregoing provisions of this act, the services of such stallion shall become a lien on each mare served, together with the foal of such mare from such service, in an amount agreed upon between the parties at the time of service, or if no agreement was entered into then in such amount as specified in the statement of the owner or agent filed with the county clerk, provided a notice of lien shall be filed, within one year after such- service, in- the same manner and plac.e as chattel mortgages are now required by law to be filed. The notice of lien so filed shall be in writing, specifying against whom the claim is, the amount of the same, together with a full description of the property upon which the lien is held. Such lien shall terminate at the end of one year from the date of filing notice thereof, unless within that time an action shall be commenced for the enforcement thereof.”

The amendment made by chapter 457 of the Laws of 1888 extended the time for filing the notice óf lien from six months, as was provided in the act of 1887, to one year from the time of service. No question is made but that the plaintiff conformed strictly to the requirements of this act relating to the duties of the owner of stallions. A proper certificate was issued to him by the county clerk and the same was duly posted. A notice of lien, as required by section 3, was filed in the clerk’s office on December 8, 1888, before the expiration of six months allowed by the statute of 1887, from the time of service, and the same was duly filed and recorded.

The learned county judge reversed the judgment of the justice of the peace upon the ground that the defendant Dennis, having purchased the mare before notice of hen had been filed, took her and her subsequent foal discharged of any lien in favor of the plaintiff, by this statute. That proposition presents the only meritorious question in the case.

This act, manifestly, was passed in the interest of the improvement in the breed of horses through systematic and judicious breeding, and for the protection and encouragement of the owners of stallions with ancient pedigrees against persons fraudulently seeking service without pay. Yery little reflected light is thrown upon its interpretation from the mechanics’ lien laws of the State; yet, in so far as such laws may be resorted to for its elucidation, the same corroborate the contention made in behalf of the plaintiff, namely, that it is not necessary to charge the purchaser of the mare with notice of the service in order to enable the owner of the stallion to enforce this statutory lien. The mechanics’ lien law of 1875, chapter M33, provided that any person who should thereafter perform any labor in erecting, altering or repairing any house, building, etc., with the consent of the owner, being such owner as is in this section hereinafter described, should, on filing with the county clerk of the county in which the property is situated, the-notice prescribed by the fourth section of this act, have a lien for the value of such labor and materials upon such house, etc., to the extent of the right, title and interest of the owner of the property,, existing at the time of filing said notice. Section 4 of that act. provided that no lien should attach to said land, buildings or appurtenances unless such notice was filed by the clerk; and such notice when so filed thereafter only operated as an incumbrance upon said property. By the lien law applicable to the city of New York, chapter 379 of the Laws of 1875, it was expressly provided that no lien should attach until the filing of the claim. So, also, of the lien law given to livery stable keepers and others (chapter 498-of the Laws of 1872), where the lien was expressly declared to take effect only from the time of giving the notice thereof, and while the. property was in the hands of the keeper, etc. Under these laws,, and, as we understand it, under all mechanics lien laws, no lien can be created until notice thereof is actually filed.

In the act before us for construction, certain duties are required of the owner of a stallion as a condition precedent to any right of lien. He is required to file a statement of the pedigree of his horse, and if the same is untrue, no recovery can be had for service. There is nothing analogous to this requirement in the mechanics’ lien laws. The purpose of the statute seems to be, that when the owner has; fully and fairly disclosed the pedigree of his stallion, and has filed the same with the clerk of the county, and has received and posted the same together with the clerk’s certificate, he shall not be cheated or deprived of the value of the service. The statute makes it a. condition precedent to the lien that the statement of such pedigree shall be filed and posted. It is absolute in its terms, that in such an event the owner shall have a lien. Its language is; Whenever the owner or agent of any stallion shall have complied with the foregoing provisions of this act, the service of such stallion shall become a lien on each mare served, together with the foal of such mare, from such services,” etc. Here alien was created w,jprcesenti from the time of service. There was provided but one way of defeating it, and that consisted in the failure of the owner of the stallion to file a notice of lien within the time prescribed by the statute. The lien existed from the time of service, but it was liable to become inoperative and defeated by a failure to file the notice, and in no other event. This, manifestly, was the purpose of the statute. In the usual course of service, where, as in this case, the contract was-to insure, it could not reasonably be expected that the owner would, immediately after the service, file a notice of lien. Such act was not required in order to secure-him. •

A very significant circumstance in determining the intent of the legislature in this respect is the. fact that, in the act of 1887, the time for filing the notice of lien was limited to six months, but experience showed that in many, perhaps in a majority of cases, it was not absolutely determinable whether the íñare was in foal at the end of six months from the service, and hence the time was extended to one year for the filing of the notice, a •period in which it would be absolutely known whether or not the contract to insure had been fulfilled. Under this act we are of the opinion that the purchaser of the mare takes the property, subject to the lien which may then exist upon her and her foal.

The judgment of the justice of the peace, though not artistically prepared, is, in substance, in accordance with sections 1737 and 1740 of the Code of Civil Procedure. Even if it were otherwise, it was the duty of the County Court, under section 3063 of that Code to render the proper judgment according to the justice of the case, without regard to technical errors or defects which did not affect the merits of the case.

W-e are not unmindful that there is á further question in the case relating to notice to the defendant -Dennis, before purchasing- the mare, of the actual services rendered by the plaintiff’s stallion; but we prefer to rest our judgment upon the main proposition as contained above, namely, that the lien for the service of a stallion under this statute attaches from the time of service, provided the same is followed by the filing of the notice of such lien within the time prescribed.

The judgment of the County Court should be reversed and that of the justice affirmed, with costs.

Dwight, P. «I., and Corlett, J., concurred.

Judgment of the County Court of Ontario county reversed and that of the justice of the peace affirmed, with costs of this appeal and in the County Court.


source: Caselaw Access Project

author:
CoRLETT, J.:
      Dwight,, P. J.

license: Public Domain

text:
    THERESA WIWIROWSKI, as Administratrix, etc., Respondent, v. THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY, Appellant.

      Proof as to the absence of contributory negligence—from what facts the taking of proper preca/utions may be presumed.

    In an action brought by a wife to recover the damages resulting from the death of her husband upon the defendant's railroad, it appeared that the wife, her husband and a friend, were walking on a sidewalk, across which ran the tracks of the'railroad company, the wife being about three feet behind her husband and his friend; that the plaihtiif, as they approached the tracks, watched for a train passing up or down; that she looked both ways, saw no light or ear coming, heard no noise, saw no flagman, heard no one call to them, and did not hear any bell or whistle; that the two men stepped upon the tracks of the defendant’s railroad and were struck by the rear end of a tender attached to a locomotive which was being backed along the track, and were both killed.
    The evidence offered by the defendant, the Railroad Company, tended to show that proper signals were given as the engine and tender approached the crossing; that the persons killed were trespassing upon the defendant’s tracks, and that they were warned and urged not to cross by the flagman, but his warnings were unheeded, while the evidence on the part of the plaintiff tended to show the reverse.
    At the close of the evidence the defendant’s counsel asked the court to direct a verdict for the defendant upon the ground, among others, that there was no proof of want of contributory negligence on the part of the deceased.

      Held, that the motion was properly denied; that if the jury found, as they might, that the plaintiff’s evidence was true, .they might fairly assume that her husband took the same precautions as the plaintiff, and made the same observations as she did. (Dwight, P. J., dissenting.)
    Appeal by tbe defendant from a judgment, entered in tbe office of tbe clerk of tbe county of Erie on tbe 20th day of February, 1890, in favor of tbe above-named plaintiff and against tbe said defendant, for tbe sum of $2,600.47, damages and costs; and also from an order, entered in said clerk’s office on tbe lltb day of February, 1890, denying tbe said defendant’s motion for a new trial upon the minutes of tbe court.
    Tbe action was brought to trial at the Erie County Circuit on tbe lltb day of December, 1889, and a verdict was rendered in favor of tbe plaintiff for tbe sum of $2,500.

      James Fraser GLvclc, for the appellant.

      Frcmlc B. Ferlcms, for tbe respondent.
   CoRLETT, J.:

On the evening of October 27, 1888, the plaintiff, her husband and a neighbor named Jacobowski, were going td Rilings’ planing mill, in the city of Buffalo, on Clinton street, on business. They went down Clark street to Fillmore avenue, along that avenue to the space between the West Shore Railroad tracks and the N ew York Central tracksthen westerly along that space to Oneida street, and from that point along the sidewalk on the southerly side of that street across the three tracks of the New York Central and Hudson River Railroad Company, to the west bound track of the defendant, upon which the accident occurred. On that track an engine was backing in from East Buffalo towards the city with a tender and caboose. The tender came first, the reversed engine next and the caboose, coupled to the head of the engine, last. The rear of the tender struck the plaintiff’s intestate and Jacobowski on the crossing, killing them both instantly. The plaintiff was about three feet behind the men at the time of the accident.

On the northerly of the Central’s tracks, ears were standing from within twenty feet of Oneida street up to near Montgomery street. A passenger train had just passed on the east bound Central track lying next to the one on which the. accident occurred. The* rear lights of that train were in sight when the engine and caboose which caused the injury came along. It was between six and seven o’clock when the accident happened and very dark.

The testimony on the part of the plaintiff tended to show that the plaintiff and the persons killed went on the sidewalk on Oneida street, along which they walked across the New York Central and Hudson River Railroad tracks, the two men in front and the plaintiff three feet behind. That as they approached the defendant’s track the plaintiff watched for a train passing up or down; that she looked both ways; saw no light or car coming; heard no moise; saw no flagman; heard no one call to them, and did not hear any bell or whistle; that under-such circumstances the men stepped upon the defendant’s west bound track and were struck by the rear end of the tendey and killed. The plaintiff stood on the sidewalk.

Tiie defendant’s evidence tended to show that proper signals were given as the engine and tender approached the crossing; that the persons killed were trespassing on the defendant’s tracks, and that they were warned and urged not to cross by the flagman, but that his warnings were unheeded. The evidence on the part of the plaintiff tended to show the reverse. The plaintiff’s evidence also tended to show that the engine and tender drawing the caboose were being backed down at the rate of five miles an hour, crossing numerous streets on a dark night without signal lights, which could be seen at the crossings, and without warnings that could be heard; also, without a flagman to give warning, and that none was given. The evidence also tended to show that there was no head-light to throw light upon the tracks in front of the moving train to enable those in the cab to see what was on the track; that the tender was broader than the front of the engine and would partially hide the track in front; that the train was being run in the dark, and those on it were unable to see what they were approaching, and that such was the situation when the men were killed.

The plaintiff, as administratrix of her husband, brought this action to recover damages for his death. It was tried in February, 1890, at the Erie Circuit, before Justice Daniels and a jury. At the close of the evidence the defendant’s counsel asked the court to direct a verdict for the .defendant upon the ground, among others, that there was no proof of want of contributory negligence on the part of the deceased. This was denied. Exception was taken by the defendant. The jury found a verdict of $2,500 for the plaintiff. A motion for a new trial was made and denied, and the defendant appealed to this court.

The only substantial controversy on this appeal is whether the deceased was guilty of contributory negligence, and whether the cause was so barren of proof upon that question as to require that the plaintiff should have been nonsuited, or that a verdict should have been directed in favor of the defendant.

In Parsons v. New York Central and Hudson River Railroad Company (113 N. Y., 355-364), the rule is thus stated by the judge delivering the opinion: “ The question is, whether the injured party, under all of the circumstances of the case, exercised that degree of care and caution which prudent persons of ordinary intelligence usually exercise under like circumstances. This rule must in all cases, except those marked l>y gross and- inexcusable negligence, render the question involved one of fact Tor the jury.” All the more recent cases are to the same effect. (Galvin v. Mayor of New York, 112 N. Y., 223; Palmer v. Dearing, 93 id., 7; Hourney v. Brooklyn City R. R. Co., 27 N. Y. State Rep., 49; Beckwith v. N. Y. C. and H. R. R. Co., 28 id., 130; Tolman v. Syracuse, Bing. and N. Y. R R. Co., 98 N. Y., 203; Cowan v. Third Ave. R. R. Co., 31 N. Y. State Rep., 145.)

The evidence in this case required a submission of this question to the jury. If the plaintiff hád received injuries, and she had brought an action to recover damages, it could not be successfully urged, assuming her evidence to be true,-.that the case should not have been submitted to the jury. While it does not appear what acts of diligence were exercised by the deceased before he stepped upon the track, it does appear what the facts were and the surrounding indications of danger, by the testimony of the plaintiff. If the jury found, as they did, that her evidence was true, it is fair to assume that her husband, the plaintiff being with him, took the same precautions and made the” same observations that she did. When it appears that observation and looking both ways would have disclosed no danger, it is not too -much to assume that the deceased exercised proper caution before going upon the track, and as he cannot speak upon the subject, it would not be logical or in accordance with human nature to hold that he exercised less caution than his wife, or that he exposed himself Atp danger without proper precaution. If there had not been any evidence that looking and observing would have disclosed no danger when in fact there was, it could be urged with great force that there was want of affirmative proof of proper diligence. But when it affirmatively appears that diligent observation disclosed no danger, it cannot be urged with any cogency that the person killed neglected proper precaution. Under all the circumstances, it satisfactorily, appears that the learned trial justice was right in refusing to nonsuit the plaintiff and directing a verdict for the defendant; also in denying the defendant’s motion for a new trial.

The judgment and order must be affirmed.

■Macomber, J., concurred.

Dwight,, P. J.

(dissenting):

The evidence plainly required the submission to the jury of the question of the defendant’s negligence, and amply supported the verdict of the jury in that particular; the question is whether there was evidence to warrant the verdict on the other branch of the case, namely, of the absence of contributory negligence. It is conceded that there was no evidence showing, or tending to show, that the deceased himself exercised any care to avoid the collision whicii caused his death. His mouth being closed, as well as that of the person most immediately in his company, the court, as well as the jury, would be disposed to seize upon slight circumstances, if such existed, from which the inference might be drawn that he was looking and listening for an approaching train. But of such circumstances there are none, so the learned judge, who submitted the case to the jury and denied the motion for a new trial, substantially concedes. The charge of the court is not in the record, but the opinion which accompanied the denial of the motion for a new trial suggests the ground upon which the verdict in this particular was permitted to be found, and was sustained by the court at the circuit, viz., that the lack of evidence of the requisite care for his own safety on the part of the deceased may be cured by evidence of the exercise of such care on the'part of another person in his company or near vicinity. The learned judge says : “Nq authority has gone so far as to hold that a person in the position of the plaintiff, sustaining the relation she did to one of the deceased persons, by her own endeavor to discover the approach of the train, if one could be seen to have been in the vicinity, would not answer all the requirements of the rule demanding care of a person as near to her as her husband was, before he should undertake to cross a railway.” The suggestion seems to be of the possibility of a vicarious satisfaction of the law which imposes the duty of care for his own safety upon a person who enters a position of danger. The proposition is one which would seem to require affirmative authority to support it, and which can hardly stand upon the absence of express authority to the contrary. Undoubtedly the two persons involved might stand in such a position relative to each other as to entitle the one to rely upon the watchfulness of the other. If the deceased had been, blind or deaf, or otherwise disabled, and had entrusted himself to the care and guidance of his wife, he might have freed himself from the obligation of caring for himself. But here is no suggestion of such a reliance or of the necessity for it. The wife was not leading or guiding her husband; the latter and his friend went first and she followed as she could. There was nothing in the relation or relative position of the two which charged her with responsibility for his safety. The testimony of the wife, to the effect that she looked both ways and saw no light or cars approaching, was, no doubt, admissible as descriptive of the situation, so far as it went. But the cars were approaching, and the undisputed evidence shows that the bell on the engine was ringing and the two red lights on the caboose were in sight. The most that can be said is that the light and the sound were not consciously perceived by the witness, or, if perceived, that they did not convey to her mind the impression of an approaching train. "Who can say but that, if the deceased had been looking and listening, he might not only have heard the bell and-seen the red lights, but also might have been warned by them of the approaching train.

For the reasons indicated, I think the defendant was entitled to a nonsuit, or, at least, that the motion - for a new trial should have been granted, and, accordingly, that the judgment and order appealed from should be reversed.

Judgment and order appealed from affirmed.


author: Coelett, J.:

text:
    EMMA K. ENOS, Respondent, v. JOHN A. ENOS, Appellant.

      JShidenae as to the defendant’s wealth cmd family, in am, action for slander.

    In an action to recover damages because of the utterance of slanderous words by the defendant, charging the plaintiff with being a prostitute and a thief, evidence was given on behalf of the plaintiff to the effect that the defendant had no children, and that he had property of the value of $50,000, in regard to which the trial justice charged the jury that the evidence had been permitted, “not for the purpose of affecting your judgment as to the amount of damages he should pay, because you will not be permitted to enhance the damages for the reason that the defendant is a wealthy man, and the evidence was not allowed in the case for any such purpose whatever, but it was allowed for the sole purpose of showing the effect that was to be given, to the language uttered by this particular individual.”

      Held, that, in an action for slander or libel, the pecuniary circumstances of the defendant are not involved in the issue; and evidence showing him to be rich or poor is not admissible on the question of damages.
    That the error in this case was not cured by the charge of the justice that the evidence was proper to enable the jury to determine what weight would be given to the defendant’s words.
    That a new trial should be granted, as the jury might well have reasoned that the defendant being a man of wealth, and having no family dependent upon him, they should render a larger verdict than if these facts did not exist.
    Appeal by tbe defendant Jolin A. Enos from an order made at tbe Yates County Circuit, and entered in tbe Yates county clerk’s office on tbe 4th day of December, 1889, denying a motion made for a new trial, after a trial before tbe court and a jury at tbe Yates County Circuit, at which a verdict was rendered for tbe plaintiff in tbe sum of $3,000.

      M. A. Leary, for tbe appellant.

      Galvin J. Huson, for tbe respondent.
   Coelett, J.:

This action was brought to recover damages for slander. Tbe complaint charges, in substance, that tbe defendant, at various times during the years 1886-87-88, charged tbe plaintiff with being a prostitute and a thief. Tbe answer was a denial. The cause was tried at tbe Yates Circuit, before a justice and a jury, in December, 1889, and resulted in-a verdict of $3,000 for tbe plaintiff. A motion for a new trial was made and denied, and tbe defendant appealed to this court.

J'he plaintiff gave evidence tending to prove tbe allegations of tbe complaint. Tbe defendant’s evidence controverted that of tbe plaintiff.

Mason L. Baldwin was sworn as a witness on tbe part of the plaintiff, and testified that be was a banker and knew tbe defendant. Tbe witness was asked tbe following question: Has Mr. Enos any children living ? ” Tbe counsel for tbe defendant objected. Counsel for plaintiff offered to prove that the defendant was a man of means and had no one depending on him for support, to which the counsel for tbe defendant objected. Tbe objection was overruled and exception taken. “A. No, I don’t understand he has any.” “Q. TThr lie a wife?” “A. Yes, sir.” “ Q. Do you know the amount of personal property Mr. Enos owns ? ” Tbelcounsel for the defendant objected to this question, as being incompetent and immaterial, and not to be taken into consideration in determining the question at issue here before the jury. Received arid exception taken. “A. Yes,.in the neighborhood.” “Q. How much?” “A. In the neighborhood of $50,000.” The witness also testified that the defendant owned a farm of 100 acres.

The trial justice, in charging the jury'on this subject, said: “ In the first place, evidence has been permitted here as to the wealth and standing of the defendant, not for the purpose of affecting your judgment as to the amount of damages he should pay, because you will not be permitted to enhance the damages for the reason that the defendant is a wealthy man, and the evidence was not allowed in the case for any such purpose whatever Rut it was allowed for the sole purpose of showing the éffect that was to be given to the language uttered by this particular individual. Yon have a right to know the financial condition and standing of the defendant in the community where he resides for the purpose of saying what weight would be given to anything he may say concerning another individual ; because a man in the position of this defendant certainly has it in his power, by making a statement, to carry with it greater weight than another person would have who 'occupied a less prominent position in the society in which he moves. So that you are to consider this testimony solely with a view to arriving at the weight which is to be given by you to the statements which this defendant may have, made concerning this plaintiff.”

The leading contention on the part of the appellant is, that the trial court erred in admitting the evidence above quoted. The first question objected to was, whether the defendant had any children living. The plaintiff’s counsel stated as a reason why the evidence should be admitted, that he would show him to be a man of wealth, and that he had no one dependent upon him for support. After this statement the defendant again objected. It was overruled and exception taken, and the witness answered to the effect that he had no children. Whether the defendant had or had not children could in no way bear upon the question as to how much weight or importanee would be attached to the words he used concerning the plaintiff. The only possible purpose of this evidence, in the nature of things, was to show that the defendant had no family dependent upon him for support. This was the view taken by the learned counsel for the plaintiff, for he stated that such was his purpose in offering the evidence. The court, after being fully advised of the reason why the eyidence was offered, overruled the objection. How far, or to what extent, the fact that the defendant had no children, affected the jury on the question of damages, it is impossible to determine. They might well have reasoned, as the plaintiff’s counsel did, that being a man of wealth, and having no family dependent upon him, they should render a larger verdict than if those facts did not appear.

The other question objected to was an inquiry as to the wealth of the defendant. The ground of the objection was that the evidence was incompetent and immaterial, and not to be taken into consideration in determining the question at issue before the jury. The witness was allowed to answer this question after exception, and the evidence showed he had $50,000 of personal property, and a farm of 100 acres. In view of what was said after the question was asked in reference to the children, it is difficult to see upon what theory this question was asked, except as bearing upon the question of damages. Both questions, naturally and legitimately, bore upon that subject, and the jury were fully informed as to the defendant’s family and property.

It is now the rule in this State that, in an action of slander or libel the pecuniary circumstances of the defendant are not involved in the issue, and evidence showing him to be rich or poor is not admissible on the question of damages. (Dain v. Wycoff, 7 N. Y., 191-193; Palmer v. Haskins, 28 Barb., 90; Austin v. Bacon, 49 Hun, 386.)

The trial justice in his charge to the jury in the portion above quoted stated that such was the law; but he treated the evidence as proper for another purpose, stating that the jury had a right to know the financial condition and standing of the defendant for the purpose of showing what weight should be given to his words.

It is the general rule that where improper evidence has been receiyed under objection, which may affect the verdict, it is not cured by a direction of the judge to disregard it. (Erben v. Lorillard, 19 N. Y., 299; Wright v. Equitable Life Ins. Co., 41 Supr. Ct. [9 J. & S.], 1; Allen v. James, 7 Daly, 13; Neuman v. Goddard, 48 How. Pr., 363; Travers v. Eighth Ave. R. R. Co., 3 Keyes, 497.) It is true that this rule has been somewhat modified in Gall v. Gall et al (114 N. Y., 109), and Ilolmes v. Moffat (120 id., 159), but not so as to affect the questions involved in this appeal.

A specific objection must always be takem unless the evidence in its essential character is incompetent. (Tooley v. Bacon, 70 N. Y., 34, 35; Baylies on New Trials, 179.) It is a familiar rule that where illegal evidence which might affect a verdict is admitted, a new trial must be granted. (Starbird v. Barrons, 43 N. Y., 200; Baird v. Gillett, 47 id., 186.)

Evidence of the amount of the defendant’s property was not admissible on the question of damages, nor was that as to the number of his children. It is difficult to see from an examination of the case for what purpose the evidence 'objected to was admitted, in view of what occurred at the time, except as bearing upon the question of damages.

Was the evidence objected to admissible on the question of how much weight should be attached to the words spoken % It is difficult to see upon what principle, as a legal proposition, a man’s financial ability should increase or diminish the importance of liis declarations on the question of another’s character. This is well illustrated in the present case, for several witnesses testified that they attached no weight or importance to the defendant’s utterances, and still the evidence objected to was held to be competent upon the ground that his financial standing would add weight and influence to his words. The position or standing of an individual speaking slanderous words might bear upon the weight of his utterances, but the amount of money or property he possesses would not naturally affect his credibility, or cause his statements to be more readily believed. If this were so, no reason is seen why a man’s wealth might not be proved in all cases where he is a witness for the purpose of increasing the force and cogency of his evidence.

The learned counsel for the respondent cites no case holding that the amount of money a man has adds to the weight or influence of liis statements on questions of character. But in any view of the case, it is impossible to know that the admission of the evidence objected to, on the question of children did not affect the minds of the jury, and it certainly cannot be claimed, as to this evidence, that it could have weight on the importance to be attached to the slanderous words. The fact that a man has or has not children can certainly have no weight in any such direction. The only legitimate effect was to influence the jury in giving the plaintiff a larger verdict because he had no one dependent upon him for support.

Suppose that no evidence of the amount of the defendant’s wealth had been admitted, and proof had been offered showing that he had no children or family to support, and it had been received under objection, it could hardly be argued that the evidence was competent; it could not be construed to be received except for the purpose of showing that no injury would be indicted upon the defendant’s family by finding a verdict against him for a large sum of money. Such evidence would naturally tend to influence the jury on the question of damages.

It follows that a new trial must be granted, with costs to abide the event.

Dwight, P. J., and Maoomber, J., concurred.

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


author: Corlett, J.:

text:
    THE WATERLOO WOOLEN MANUFACTURING COMPANY, Respondent, v. JAMES SHANAHAN, as Superintendent of Public Works, JAMES SHANAHAN, Individually, WILLIAM L. SWEET, JUSTIN B. H. MONGIN and GEORGE COOK, Appellants, Impleaded, etc.

      Public officer—acting under an unconstitutional statute—liability of, to an indi- " victual damaged.

    Where the superintendent of public works makes a contract for the dredging and excavating of the channel of a river, which is a public highway, in accordance with the provisions of an unconstitutional statute, he is properly made a party defendant individually, in an action, brought by a person whose rights are affected by such work, to restrain the execution thereof and for damages.
    In such case, as the act under which the superintendent makes the contract is unconstitutional and void, the superintendent cannot invoke its protection in defense of his action in contracting for and making the improvements contemplated thereby to the prejudice of the plaintiff.
    In such case the superintendent is acting outside of his official authority, and his official position affords him no protection in so doing.
    Appeal by the defendant J ames Shanahan, as superintendent of public works, and James Shanahan, individually, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Seneca on the 31st day of August, 1890; also an appeal by the defendants William L. Sweet, Justin B. H. Mongin and George Cook, upon questions of law and upon facts, from the same judgment.
    The action was brought to obtain a judgment enjoining and restraining the defendants, their servants and agents, from digging, dredging or altering the bed or channel of the Seneca river, or interfering with the plaintiff’s right to the same, and to recover the damages which the plaintiff might sustain in consequence of the doing of such acts by the defendants.

      Charles A. Hcuwley, for appellants, Sweet, Mongin and Cook.

      Chcurles F. Tabor, attorney-general, for- James Shanahan, as superintendent of public works, and James Shanahan, individually.

      Frederick L. Manning, for plaintiff and respondent
   Corlett, J.:

In 1798 Samuel Bear became the owner of lan„ on the south side of the Seneca river, along which he fiug a race to a mill. This- race leaves the river at the larger or eastern end on Big Island. Seneca river flows from the outlet of Seneca lake, at the village of Geneva, easterly through the villages of Waterloo and Seneca Falls, and finally empties into the Oswego river. It divides the village of Waterloo, one ward being south of the river, the other north. The land on the north side of the river was patented by the State to John McKinstry in 1802, and contained 640 acres, which was conveyed by him to Elisha Williams on the 3d of December, 1807 Before the 6th day of April, 1813, Williams constructed a race or canal for hydraulic purposes, and erected one or more mills on the site now occupied by the plaintiffs factories, adjoining the river. The race conveyed the waters from the river to the mills, furnishing their motive power. The race was on the north side of Big Island, which divides its flow, its main current being south of the island.

The lands owned by Bear on the south side amounted to 100 acres, who continued its owner until 1826. On the 6th day of April, 1813, the Seneca Lock Navigation Company was incorporated. (Session Laws, chap. 144 of 1813.)

On the 20th of April, 1825 the legislature authorized the construction of the Cayuga and Seneca canal. The act provided for the purchase by the State of all the rights and title of the Seneca Lock Navigation Company. (Session Laws of 1825, chap. 271.) The State simply acquired the rights of the Seneca Lock Navigation Company, and no others.

The plaintiff was incorporated in 1836, and is the owner of all the water-power and privileges which Williams had in his lifetime, with the exception of one run of stone. Its property, consisting of large buildings and machinery, is valued at $250,000; employs three hundred men in the manufacture of woolen goods. Its average insurance is about $350,000. ■ A protection of .the property insured requires the use of force pumps propelled by water.

Bear race is now owned by the defendants, Sweet', Mongin & Cook. Their mill is at the end of it, and their title was derived by mesne conveyances from Bear. The mill is on Washington street, in Waterloo, and the race draws its water from the south side of Seneca river,, They obtained title three or four years ago, paying for the mill, lands and water privileges, $9,000.

The canal of the Seneca Lock and Navigation Company was originally of the width of forty feet, and three or four feet deep. In 1840 an act was passed authorizing improvements of the Cayuga and Seneca canal, which expressly provided that the rights and interests of persons owing or holding hydraulic privileges on the outlet should not be injured by such improvements. Prior to 1857 this canal was enlarged and deepened until its present dimensions are seventy feet on the surface, with a depth of from seven to nine feet. There, has been no increase in size or depth since 1857, but by the previous enlargement the amount of water taken into the canal was greatly increased. The plaintiffs now own twenty-eight-thirtieths of the water-power and its appurtenances.

Before 1888 Bear race always remained at its original dimensions, twenty-feet wide, and three and one-half feet deep. Neither Bear race or the Seneca river, at the place where the race leaves it, constitute any portion of the canal system of the State of New York.' The race and lands on each side of it are private property, now owned by the defendants, Sweet, Mongin & Cook. The plaintiff, since it became the owner of its property, has always claimed the right to use, and has used, for its own purposes all the surplus waters flowing from the canal that supplies their mills, not necessary for navigation. This user has continued for more than twenty years before the commencement of this action, and was always acquiesced in by the canal authorities.

On the 18th day of May,-1888, chapter 325 of that year became a law. It provides as follows: “The superintendent of public works is hereby authorized, in his discretion, to expend the $15,000, or so much thereof as may be necessary, which were appropriated by chapter 113 of the Laws of 1881, and directed therein to be applied to improvements on the Cayuga and Seneca canal, towards dredging and excavating the channel of the Seneca river, from its intersection with said canal in the village of Waterloo, to the old Bear race, and thence towards dredging and excavating the said race to Washington street in said village so as to admit the passage of canal boats therein from said canal.”

This act was passed by a three-fifths vote, but did not receive a two-thirds vote of the members of either house of the legislature. In pursuance of the provisions of this act, the defendant Shanahan, who was and still is superintendent of public works, made a contract with the defendants Fuller and Albaugh for the performance of the work specified in the act. They were engaged in its construction and had the work partly completed when this action was commenced. If the contract is finished, Bear race will be considerably more than thirty feet wide and deeper than at present, and will draw from the Seneca river an amount of water much larger than now, and will greatly diminish the surplus in the canal, to which the plaintiff is entitled.

On the trial the facts above stated, with others, were found by the court. The court also determined, among other things, as questions of law, that chapter 325 of the Laws of 1888, appropriating the moneys for the improvements of Bear race was a local act, and not having received a two-thirds vote of either house of the legislature, was unconstitutional and void; also, that the purpose for which the race was to be improved was not public but private, and that, by the improvement, the water-power of the plaintiff would be seriously diminished and impaired, and its value greatly reduced; also, that the effect of the act is to take the property of the plaintiff for a private purpose, and was void for that reason.

There is no question about Seneca river being a public highway. If the trial court was right in its conclusion that the act of 1888 was void, all difficult questions are eliminated from the case. The pivotal facts involved in a determination of this question are within a narrow compass. As between the plaintiff and the State there was neither doubt or confusion until that act.

In the Silsby Manufacturing Company v. The State of New York (104 N. Y., 562) chapter 144 of the Laws of 1813, above cited, and chapter 271 of the Laws of 1825, were construed. The court held that the State, having acquired “ the stock, property and privileges belonging or appertaining to ” said company, and only that, has no authority to use any more of the waters of said river than are necessary for the purposes of navigation, and has the right to use them only for that purpose. No question arises upon the evidence as to Bear race, or its ownership, including the lands on each side; it was private property. But chapter 325 of the Laws of 1888 not only provides for excavating the channel of the river, but also for dredging and excavating Bear race to Washington street, in that village. To that extent, therefore, the act provided for work by the State upon private property without title in the State or provision in the act for acquiring it.

In the People v. Allen (42 N. Y., 378), construing chapter 880 of the Laws of 1869, it was decided, upon facts no stronger than those appearing on behalf of the plaintiffs in this case, that the act was for local purposes, and not having received a two-thirds vote was unconstitutional and void. It is impossible to distinguish the principle decided in that case from the one involved in the case at bar To tlie same effect are People v. Supervisors of Chautauqua (43 N. Y., 10); Matter of Deansville Cemetery Association (66 id., 569), where it was also held that the question whether private property is sought for public use is a judicial one to be determined by the courts. On the same point is Matter of Niagara Falls and Whirlpool Railway Company (108 N. Y., 375).

The principle involved in this case has been adjudged in numerous decisions arising upon a great variety of facts. (Jordan v. Woodward, 40 Me., 317; West River Bridge Co. v. Dix, 6 How. [U. S.], 507-547.) The trial court logically considered and determined this branch of the case. The use of this money was obviously for a private and not public purpose.

The learned attorney-general in his exhaustive brief argues, with force and cogency, that Shanahan, as superintendent being a public officer, could have no adjudication against him in this action. His contention would be unanswerable if he was acting in that capacity. When it appears that there is no law authorizing this contract, the fact of his occupying a high public position is immaterial. (People of New York v. Canal Board of New York, 55 N. Y., 390; Tribune Assn. v. The Sun, 7 Hun, 175.)

In this case the act under which the superintendent made the contract being unconstitutional and void, the superintendent could not invoke its protection in contracting and making improvements to the prejudice of the plaintiff. He was acting outside of his official authority, and his official position is no protection.

The learned counsel for the appellant argues, with much pertinacity and ability, that although the act as framed might fall short of being a public one, yet as its recitals indicate that it was only part of a legislative scheme, subsequent laws would make it complete for public purposes ; that, therefore, it was not private but public. .

One difficulty with the argument is that there is nothing in the act to show that there will be future legislation; another, and perhaps more serious one, is that public policy, in the very nature of things, is adverse to piecemeal legislation of that character. If an act on its face which is not public can be upheld because future acts may make it so, great mischief might result. Constitutional prohibitions might be evaded and overthrown by gradual and indirect approaches. None of the rulings of the trial court to which, exceptions are taken involve questions which would change the result.

There is no controversy between the plaintiff and the State outside of the act of 1888. That being a nullity, any action which would impair the value of the plaintiff’s property never has been, and it is presumed never will be, taken by the State. ■

The defendants, Sweet, Mongin & Cook, insist upon appropriating the supposed rights of the State for their beñefit. It is enough to say that there being no controversy between the State and the plaintiff, these defendants are in no position to avail themselves of the benefit of such supposed rights.

The judgment must be affirmed.

Dwight, P. J., and Macomber, J., concurred.

Judgment appealed from affirmed, with costs.


text:
    MARY E. BAGLEY, Appellant, v. ADELIA A. JENNINGS, Respondent.

      Stipulation extending the time in which an appeal may he taken.

    The parties to an action may, by a written stipulation, extend the time beyond the period prescribed by the statute within which an appeal may be taken from the judgment entered therein.
    Appeal by the plaintiff Mary E. Bagley from an order of the Monroe County Court, entered in the clerk’s office of the county of Monroe on the 5th day of March, 1890.
    The order appealed from denied a motion, made to dismiss the appeal taken in the above-entitled action to the County Court, on the ground that the appeal was not taken within the time prescribed by the statute.
    It appeared that the following stipulation had been signed by the defendant:
    MUNICIPAL COUBT — City of Boohester.
    MARY E. BAGLEY, Appellant, against ADELIA A. JENNINGS, Respondent.
    It is hereby stipulated and agreed that the plaintiff herein may have the time allowed for appeal from the judgment granted herein on the 27th day of December, 1889, in the Municipal Court of the city of Rochester, extended twenty-five (25) days from the 16th day of January, 1890.
    And that said twenty-five (25) days shall be considered as an additional time in which plaintiff may serve and perfect her appeal from said judgment.
    (Signed.) ADELIA A. JENNINGS, Defendant.

      John F. Dorothy, for the appellant.

      Horace McGuire, for the respondent.
   Corlett, J.:

On the 27th day of December, 1889, a judgment was entered in the Municipal Court of the city of Rochester in favor of the appellant for nine dollars and fifty-five cents damages, and five dollars costs, for rent. The time to appeal from the judgment of the Municipal Court would expire on the 16th day of January, 1890. On that day the defendant made a written stipulation extending the plaintiff’s time to appeal twenty-five days. The papers show that the purpose of the stipulation was to enable the parties to settle the controversy by arbitration or otherwise. No settlement was had, and an appeal was taken by the plaintiff within the time limited by the stipulation. The defendant moved to dismiss the appeal on the ground that the notice was not served within the statutory time. The County Court dismissed the appeal, and the plaintiff appealed to this court.

Sections 3016 and 3017 of the Code of Civil Procedure limit the time for an appeal in a cause like this to twenty days from the entry of judgment. This limitation was primarily for the benefit of the parties affected by the judgment. The legislature imposed upon the parties desiring to appeal the duty of vigilance, and unless he perfected an appeal within the statutory time, his right to review was lost.

The learned counsel for the respondent cites several cases showing that the court has no power to extend the time to appeal. But he cites no case showing that it is not within the power of the parties to stipulate for an extension of time. It has frequently been held that a party may waive the right to insist that the appeal was not taken in time. (Pearson v. Lovejoy, 53 Barb., 407; Stubbs v. Stubbs, 11 Week. Dig., 244; Pickersgill v. Read, 7 Hun, 636, Durant v. Abendroth, 41 Supr. Ct., 53.)

In Jacobs v. Morange (1 Daly, 523) it was held that, “ where a court has not jurisdiction of the subject-matter, the consent of parties will not confer it; but a consent that an appeal may be brought after the time has elapsed for bringing it, is not liable to that objection. The appellate court having the general power to review judgments upon appeal, such a consent does not confer it, but is a mere waiver of the right to insist that the time has passed for bringing the appeal.”

To the same effect is Struver v. Ocean Insurance Company (9 Abb. Pr., 23), where it was held that giving admission of due service of notice of appeal is a waiver of the objection that it was not served within the time to appeal.

It is a familiar rule that a party may waive a statutory, or even a constitutional provision, for his own benefit, and having done- so, he is concluded. (Matter of Application of Cooper, etc., 93 N. Y. 507-512.)

In Staats v. Garrett (21 Weekly Dig., 39) a stipulation was given to the appellant of time to serve his case. Upon a motion to dismiss the appeal, becanse not taken in time, it was held that an extension of time to serve the case was a waiver of the notice of entry of judgment, and that the appeal was well brought. This was affirmed in 98 New York, 630.

In Townsend v. The Masterson, etc., Stone Dressing Company (15 N. Y., 587) it was held that a stipulation made between the parties that no appeal should be taken from the decision of the General Term, was valid, and the' appeal was dismissed on that ground.

In the Matter of the Petition of Lackawanna Railroad Company, Appointing Commissioners, etc. (98 N. Y., 453), the court say: Parties by their stipulations may, in many ways, make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce. They may stipulate away statutory, and even constitutional rights; they may stipulate for shorter limitations of time for bringing actions, for the breach of contracts, than are prescribed by the statutes, such limitations being frequently found in insurance policies. They may stipulate that the decision of a court shall be final and thus waive the right of appeal, and all such stipulations not unreasonable, not against good morals or sound public policy, have been and will be enforced, and generally all stipulations made by the parties for the government of their conduct or the control of their rights in the trial of a cause, or the conduct of a litigation, are enforced by the courts.”

The learned county judge fell into the error of supposing that the cases which control his decision included stipulations made between parties. This was a misapprehension. In this case the parties wished time to see if they could stop further litigation by settlement, and it was stipulated to extend the right to appeal, so that in case no adjustment was effected no rights would be lost. This was neither against good morals or sound public policy, and when after that, a party to the stipulation seeks to prevent its enforcement the court will not listen to him.

The County Court has full power and jurisdiction to hear and determine appeals on their merits, and while neither the court or a party, without the consent of the other, can extend the time to appeal prescribed by statute, yet, where they stipulate an extension, they simply determine between themselves the time when the controversy should be submitted to the appellate court, and the statute in no way abridges the power of the parties to extend the time by stipulation. The reasoning of all the cases sustain this view.

It follows that the order appealed from should be reversed.

Dwight, P, J., and Macomber, J., concurred.

Order of the County Court reversed, with ten dollars costs and disbursements.


author: Daniels, J.:

text:
    CHARLES HANSEN, Appellant, v. CHARLES SCHNEIDER, JAMES R. MACK and JOSEPH H. OLCOTT, Respondents.

      Employee, injured by the fall of an elevator — when the employer is not liable because of there having been no safety clutch on it.

    In an action brought to recover the damages resulting from an injury occasioned to the plaintiff by the fall of an elevator in a building leased to the defendants, it appeared that the plaintiff,while in the employment of the defendants, was engaged in placing barrels upon the floor of an open elevator; that while he was endeavoring to start the elevator it was discovered that a brick had become wedged between the elevator and the wall, rendering the former immovable. A person working with the plaintiff, and with his knowledge and at his suggestion, left the elevator to remove the brick, and succeeded in removing it, whereupon, on account of the rope having been slackened in the previous effort to start it, the elevator at once fell into the basement, a distance of about eight feet, seriously injuring the plaintiff, who had remained in the elevator.
    This elevator had not been supplied with any safety clutch, but the defendants, ■ who were moving into the premises where the elevator was, were not shown to have had any knowledge of the fact that the elevator had not been provided with such clutch, and the premises had not been long enough in their possession, or subject to their inspection, to charge them with negligence for not ascertaining that this was its condition, there being no proof that the absence of the clutch was so obvious or conspicuous as to be readily seen by persons examining the lofts for the purpose of hiring, which was all that the defendants could have been assumed to have done.

      Held, that the defendants could not, under such circumstances, be legally charged with negligence on account of the elevator not having been supplied with a safety clutch.

      Appeal by tbe plaintiff from a judgment of tbe Supreme Court, entered in the office of tbe clerk of tbe county of New York on April 25, 1889, dismissing tbe plaintiff’s complaint after a trial before tbe court and a jury at tbe New York Circuit.
    Tbe action was brought by tbe plaintiff, an employee of tbe defendants, to recover damages alleged to have resulted from an injury received by tbe plaintiff while in' tbe defendants’ employ, by reason of tbe fall of an elevator upon which tbe plaintiff was employed, which, it was alleged, bad no safety appliances to arrest its descent in case of any accident happening to tbe machinery or rones or supports by which it was operated.

      John Brooks Lea/oitt, for tbe appellant.

      Austen G. Fox, for tbe respondents.
   Daniels, J.:

Tbe plaintiff a Dane, came to this country in 1882, and in December, 1885, be went into tbe employment of 'the defendants, at their factory, which was at No. 358 "West Twenty-seventh street. He remained in that employment until tbe 1st of May, 1886, and on that day they commenced to move into tbe fourth and fifth floors of tbe next building. Tbe plaintiff was directed to assist, and did so by sweeping up dust and gathering it in barrels.

He and another person in tbe employment of tbe defendants placed the barrels upon tbe floor of an open elevator to take them to tbe street, where they were unloaded, and tbe barrels returned to tbe elevator. Tbe plaintiff, and tbe person with him also, went into tbe elevator and tbe latter endeavored to start it to go to tbe upper floors again. But the usual efforts for that object proved ineffectual. And then it was discovered that a brick bad become wedged between tbe elevator and a wall rendering it immovable. The other person with tbe knowledge, and at tbe suggestion of tbe plaintiff, then left tbe elevator to remove tbe brick, and be did remove it, when, on account of tbe rope having been slackened in tbe previous effort to,start it, tbe elevator at once fell into the basement, a distance of about eight feet, producing serious and lasting injuries to tbe plaintiff, who had all tbe while remained in tbe elevator. This elevator bad not been supplied with a safety clutch., which was described to be a bolt or ball connected with a heavy spring kept in tension by a rope, which when slack or broken permitted the spring to shoot the bolt into the slides in the side posts on which the elevator is guided, locking it firmly and immovably there. And it was for the want of this appliance that the defendants were prosecuted to recover indemnity for the injuries.

But the defendants were not shown to have been aware of the fact that the elevator had not been provided with this or any other clutch. And the premises had not been so long in their possession, or subject to their inspection, as to subject them to the charge of negligence for not ascertaining that this was its condition. Their lease was dated the 13th of February, 1886, but their term or right of occupancy did not commence until the day of the plaintiff’s injury. And there was no proof that the absence of the clutch was so obvious or conspicuous as to be readily seen by persons examining the lofts for the purpose of hiring, which is the most they may be assumed to have done. And if that were not the fact, then the defendants could not be legally charged with negligence on account of the elevator not being supplied with a clutch. In this important respect this case differs from those specially relied upon to support the appeal. For, in Corcoran v. Holbrook (59 N. Y., 517), the elevator was out of repair to the knowledge of the general agent, which the court held to be imputable to the defendants, rendering them liable to the charge of negligence. In Stringharn v. Stewart (100 N. Y., 516) the defendant was clearly liable for the condition in which the elevator had been maintained and allowed to be used. And in Avilla v. Nash (117 Mass., 318) the defendant was liable for allowing a defective elevator to be used, although that had been forbidden by a rule, but one which was systematically disregarded to the knowledge of the defendant. There had been no such use, nor, indeed, any use, of this elevator by persons riding in it to the knowledge of either of the defendants. And at the left side of the street entrance to the elevator a sign was up forbidding persons riding in this elevator, which was so placed and large enough iu its lettering as to be observed by persons proposing to use the elevator And, although the plaintiff was a Dane, and not acquainted with the English language when he came into the country in 1882, it may be assumed, in the absence of evidence to the contrary, that he had become sufficiently conversant with the language to enable him to read and understand this sign on the 1st of May, 1886.

By the lease to the defendants the elevators were to be used for freight only. And the fact that another elevator had been used in the other building by the workmen passing up and down, furnished no ground for assuming that this one might be so used, especially as this restriction of its use had been inserted in the lease.

The general rule undoubtedly is, as the plaintiff’s counsel has insisted upon it, that the employer is bound to observe reasonable care and attention for the safety of the persons employed in using the apparatus and machinery provided for them. (Washington,etc., R. R. Co. v. McDade, 135 U. S., 554.) But in this case the evidence did not prove that the defendants had omitted the observance of this care, or that they knew of, or in any manner sanctioned the use of this elevator by their employees. There were no facts disclosed at the trial which would have sustained a recovery by the plaintiff.

The judgment should, therefore, be affirmed.

Yah Brunt, P. J., concurred; Brady, J., dissented.

Judgment affirmed.


text:
    THE COMMERCIAL UNION ASSURANCE COMPANY (Limited) OF LONDON, Respondent, v. HENRY C. BAUER, Appellant, Impleaded with PETER KOENNE.

      An answer that the defendant “ signed a paper substantially of the tenor and, effect set forth in said complaint,” followed by a denial of knowledge or information “whether the same was duly signed and executed,” admits the execution and sealing of the paper.

    In an action to recover upon a bond tbe complaint alleged that tbe defendants duly signed, executed and delivered their certain bond, or written obligation, to tbe plaintiff. Tbe answer of one of tbe defendants alleged “ that on or about the 28th day of January, 1886, this defendant signed .a paper substantially of tbe tenor and effect set forth in said complaint, and left the same with one James "W. Wheaton, but this defendant has no knowledge or information sufficient to form a belief as to whether the same was duly signed and executed by the defendants, or whether the same was duly delivered to the plaintiff as alleged in said complaint.”

      Held, that, under the pleadings, this defendant was not at liberty to give evidence to show that he had not executed the bond, or that it had not been sealed by him.
    Appeal by tbe defendant Henry C. Bauer from a judgment of the Supreme Court, entered in the office of the clerk of tbe county of New York on the 13th day of January, 1890, in favor of the plaintiff, after a trial before the court and a jury at the New York Circuit, at which a verdict was rendered in favor of the plaintiff for $2,011.25.
    The action was brought upon a bond alleged to have been executed by the defendants, conditioned that James W. Wheaton would discharge well and truly his duties as agent of the plaintiff, etc.

      Robert E. Oonnelly, for the appellant.

      John JJotman, for the respondent.
   Daniels, J.:

The verdict was directed for the amount owing by James W. Wheaton, for moneys received by him, as the plaintiff’s agent, and which he had failed to pay over. The defendant Bauer was held liable for the amount under the obligations of a bond executed by himself and the other defendant as sureties for the agent. The amount for which the agent was in default was proved by his reports and accounts, and that proof was not controverted upon the trial. -

But the defendant’s counsel propounded questions to him as a witness in his own behalf, which were expected to obtain answers showing that the bond was not filled out nor sealed when he subscribed his name to it. These questions were objected to by the plaintiff’s counsel, and the answers were excluded by the court. The evidence was considered to be inadmissible under the issues •framed by the defendant’s answer. And whether that was the correct view to be taken of the pleadings is the sole point raised by the appeal.

That part of the complaint which alleged the execution of the bond is as follows:

Second. That on or about the 28th day of January, 1886, the said defendants duly signed, executed and delivered their certain bond or written obligation to the plaintiff, dated on said last-mentioned day, and sealed with tbeir seals, wherein and whereby they jointly and severally bound themselves, their respective heirs, executors and administrators to this plaintiff in the sum of $2,000, upon the condition (it being recited in said bond that “ said James W. Wheaton has been appointed agent of the plaintiff at Brooklyn, E. D., in the County of Kings, New York”) that if the said James W. Wheaton should well and truly discharge his duties as such agent, and should pay over to the plaintiff all funds thereto received by him as such agent, and should well and truly conform to and obey all the regulations of the plaintiff, communicated to him from time to time touching the issuing of policies, the collecting of premiums thereon and all other matters pertaining to the business of the said agency, then the said bond or obligation should be null and void, otherwise to remain in full virtue, force and effect; and that it was further provided in said bond that proof of the plaintiff’s incorporation was waived.

And the entire answer to these allegations was, that on or about the 28th day of January, 1886, this defendant signed a paper substantially of the tenor and effect set forth in said complaint, and left the same with one James W. Wheaton; but this defendant has no knowledge or information sufficient to form a belief as to whether the same was duly signed and executed by the defendants, or whether the same was duly delivered to the plaintiff as alleged in said complaint, and said paper is the same alleged in the complaint to be the bond or written obligation of defendant, and no other. The residue of the complaint, as well as of the answer related to the fact of Wheaton’s default and the amount of it. And these matters were distinctly put in issue.

But it is reasonably clear that the answer was not intended to deny the execution of the bond by the defendant. It contains a distinct admission that he signed an instrument of the tenor and effect of that set forth in this part of the complaint, without any denial that it had been sealed by Mm. And that omission to deny was of itself an admission that it had been sealed by him. The admission expressly made was, that the instrument he signed was substantially of the tenor and effect set forth in the complaint, and that, as the plaintiff bad described it, was a completed instrument, filled out and sealed by tbe defendant. He, therefore, was not at liberty to controvert these facts, or either of them, by proof at the trial. By his answer he had, in its legal effect, admitted them, and had thereby excluded his right to disprove them by evidence.

The judgment, consequently, was right, and it should be affirmed.

Yan Brunt, P. J., and Brady, J., concurred.

Judgment affirmed.


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    JOHN EGMONT SCHERMERHORN, as Trustee, etc., Respondent, v. MARY S. FARLEY and PATRICK FARLEY, Individually and as Administrator, etc., Appellants, Impleaded with FRANKLIN A. THURSTON and Others.

      The possession of a bond and mortgage by the agent effecting the loan—confers no authority to receive the principal secured thereby, before it becomes due.

    In an action brought for the foreclosure of a mortgage it appeared that the money secured thereby had been loaned for the plaintiff, through the agency of a firm of attorneys, with which the bond and mortgage had been left by the plaintiff. The firm intrusted the business to the immediate control of a clerk, to whom the interest on the debt was from time to time paid, and was by him indorsed upon the bond, which, with the mortgage, was accessible to him, and to whom it was claimed by the defendants that the principal sum secured by the mortgage had been paid. This payment of the principal was made before the same, by the terms of the bond and mortgage, became due.
    Upon the trial evidence was offered to show such payment of the principal, which was rejected, although the defendants proved that the bond and mortgage had been surrendered by the clerk, with a discharge purporting to be subscribed with the name of the plaintiff, the execution of which had been proved by the clerk as a subscribing witness, and that this discharge had been filed with the register and the mortgage discharged of record. It appeared, however, that the plaintiff had not signed such discharge.

      Held, that the payments of the principal, which took place prior to the time that the principal sum secured by the mortgage became due, were not good as against the plaintiff, as no authority had been conferred by him, either upon the firm or upon its clerk, to anticipate the day of payment by receiving any part of the principal sum before it became due.
    That possession of the bond and mortgage, in the absence of any other actual authority, conferred no power to collect or receive the money before it became due.
    That the plaintiff was entitled to enforce payment of the bond and mortgage.

      Appeal by tbe defendants Mary S. Farley and Patrick Farley individually and as administrator of the estate of Eliza M. V. Farley, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York, on the 7th day of January, 1890, after a trial before the court, without a jury, by which it was adjudged that the sum of $17,000, secured by a certain bond and mortgage, to foreclose which the action was brought, with interest thereon, was due and owing to the plaintiff; that the plaintiff was entitled to a judgment foreclosing the rights of all parties to the action and directing a sale of the mortgaged premises.

      Field dt Feshon, for the appellants.

      Jones di Roosevelt, for the respondent.
   Daniels, J.:

The judgment, from which the appeal has been brought, is for the foreclosure of a mortgage upon premises known as 1990 Madison avenue, and the sale of the premises, and the recovery of any deficiency thereafter remaining, against Patrick Farley, as administrator of Eliza M. Y. Farley, deceased. The mortgage was given by the defendant, Franklin A. Thurston, who was at that time the owner of the premises, to secure a loan made to him by the plaintiff, amounting to the sum of $17,000. The defendant Thurston conveyed the premises to Terrence Farley, who assumed the payment of the mortgage. And he in like manner conveyed them to Eliza M. Y. Farley, who assumed and agreed to pay the mortgage, and upon whose decease letters of administration were issued to the defendant. Patrick Farley. She, in her lifetime, conveyed the premises to John T. Farley, subject to the mortgage, and he in the same form conveyed them to Mary A. Farley. The money was loaned for the plaintiff through the agency of the firm of Shipman, Barlow, Larocque & Choate, and the bond and mortgage were left with them for the benefit of the plaintiff. They intrusted the business to the immediate control and disposition of James D. Bedell, who was a clerk in their office, and was placed by them in charge of their real estate transactions of this description. The interest on the debt was from time to time paid to him and indorsed- upon the bond, which,- with the mortgage, was accessible to him. And in their answer these appellants, by way of ..defense, alleged that payment of the principal sum secured had also been made to him for the plaintiff in the action. And upon the trial they proposed to prove that they had made payments to Bedell, who, at the times they were made, had possession of the bond and mortgage, which, it was claimed, had satisfied and extinguished the mortgage debt. But this evidence was rejected, and the defendants excepted. They did prove that the bond and mortgage had been surrendered by Bedell with a discharge subscribed with the name of the plaintiff, the execution of which had been proved by Bedell as a subscribing witness. This had been filed with the register, and the mortgage discharged of record. But the plaintiff testified that his name had not been sub. scribed by him to the discharge. And there was no evidence that it had been, and the court thereupon found the fact to be that the name of the plaintiff to the discharge had not been placed there by him, or by his authority, and that it was a forgery. The defendants consequently can derive no advantage from the discharge itself or the entry made of it on the record. It was, on the contrary, wholly inoperative.

The payments, which it was proposed to prove had, in the manner already stated, been made, took place in the years 1881 and 1885, while the principal secured by the mortgage did not, by its terms, become due until the 1st day of December, 1886. And it was not proved, nor offered to be proved, that any authority had been conferred by the plaintiff, either on the firm having the business in hand, or upon Bedell, to anticipate that time by receiving any part of the principal sum before its maturity, unless such authority is to be inferred from the possession of the bond and mortgage. There were two other loans made at the same time by the plaintiff to Thurston upon adjacent parcels of property. And their history, and the transactions concerning them, have been made a part of the evidence in this case. For those loans discharges were subscribed and acknowledged by the plaintiff himself, which were to be delivered when the debts secured were paid. But neither th.e dealings with the other mortgages nor the delivery of these discharges added anything which could be construed into. an • enlargement of the authority of Bedell,, or of the firm in whose employment he was, over the debt or the, securities now in controversy. These, discharges are stated to have been intended to be delivered when the debts were collected. But no authority was given to collect either debt until the time when it matured. The discharges were pro« vided to be used in that event, and without .authority to use them otherwise. The case of the defendants must, therefore, be determined upon the facts relating to it alone, unaffected by these other and disconnected transactions. And from these facts, as no actual authority was delegated to receive the principal before it matured, the authority of Bedell is to be ascertained'and defined. And that extended no farther than to collect the interest and the principal as each should become due. The authority-to do that is deducible from the possession of the bond and mortgage, That possession, in the absence of any other actual authority, conferred no power to collect or receive the money before it became due. But it was at most to receive it only as it became due, and then to pay it over to the plaintiff. To exceed that by receiving the principal before it became due, would practically change the language and effect of the bond and mortgage, by nominating another time than that mentioned for the payment of the debt, and that the agent under this constructive authority could not do. He had them to collect as they had'been made, and not to modify or act upon them differently. And their simple possession was notice to persons dealing with him on the faith of that fact, that such was the utmost extent of his authority. This was the inference considered to be supported by the possession of a note in Hutchings v. Munger (41. N. Y., 155). It was there said that “all the evidence of Silence’s authority was his possession of the notes for the purpose of receiving the money due thereon. This possession was evidence of his authority to receive payment, but failed to show any authority to do anything else.” (Id., 158.) And the principle was applied to commercial paper in the cases of Burridge v. Manners (3 Camp., 193), and Morly v. Culverwell (7 M & W., 174). In the last case it was said of a bill that it “ is not properly jjaid and satisfied according to its tenor, unless it be paid when due.” (Id., 181.) And it was followed and considered applicable to the payment of a mortgage in Smith v. Kidd (68 N. Y., 130). Bor there it was declared to be the law that, “ even though an agent have authority to receive payment of an obligation, this does not authorize him to receive it before it is due.” (Id., 141.) And the principle has not been qualified or enlarged by anything which was decided in Brooks v. Jameson (55 Missouri, 505) Butler v. Dorman (68 id., 298) or Seiple v. Irwin (30 Penn., 513). On the contrary, in the last ease the court held that a party making an unauthorized payment took the risk of the integrity of the agent receiving it, and “must bear the loss which his unfaithfulness imposed.” (Id., 515.) In the. case of Heermans v. Clarkson (64 N. Y., 171), the payment was held to be within the authority conferred upon the receiver, and, therefore, to have been legally made, while in this case no authority to receive the principal was either made to appear or offered to be shown.

The case is an unfortunate one for the defendants. But the disaster encountered has arisen from placing too much reliance on the assumed existence of an authority not indicated by the facts themselves. If the proof which was offered and rejected had been received, it would have established no defense. But the plaintiff would still be entitled to enforce and collect the mortgage. The apparent authority of the agent was only to receive the money when it became due, and for a previous payment that afforded the parties paying no protection, as long as the money was never paid over to the plaintiff, but was misappropriated and applied to his own use by the person receiving it:

Other positions have been taken in the brief of the counsel to sustain this appeal. But they are really identical with that already examined. And as that must be overruled, it follows that the judgment should be affirmed, with costs.

Van Brunt, P. J., and Brady, J., concurred.

Judgment affirmed, with costs.


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    ALICIA MAUD BLISS, Appellant, v. GRACE F. WEST and Others, Respondents.

      Ddiveiry of trust deeds —presumed from, their acceptance by the trustee and, recording, though afterwards found in the grantor’s possession•—when not void as made in contemplation of matrriage — effect of subsequent representations and possession of the property by the grantor.

    A testator stated in liis will that he had already provided for his three children, by an insurance on his life, and by trust deeds made on the 10th day of March, 1887. It appeared that these deeds had each been executed and acknowledged by the trustee, who accepted the estates thereby granted, and the trust thereby created and declared, and covenanted faithfully to perform the same, and that such deeds were recorded on the 11th day of March, 1887.

      Held, that these facts were sufficient to support the inference, although the deeds were in the safe of the grantor at the time of his decease, that they had been delivered to the trustee at the time when they were executed.
    It was not shown that the property described in the deeds had been conveyed in contemplation or expectation of marriage, or that the grantor was even acquainted with the person whom he subsequently married when the deeds were executed, acknowledged and recorded.

      Held, that they could not be adjudged fraudulent as against her for the reason that she was thereby deprived of an estate in dower in this property.
    That as the title had become vested in the trustee prior to any negotiations or conference between her and the grantor on the subject of marriage, neither the assertion of title by the grantor before or after his marriage with her, nor his continued control of the property could he attended with such effect.
    That the representation of the grantor, that he was the owner of the property, could not divest the trustee of the title to it or subject it to rights or equities in favor of the grantor’s wife.
    That in view of the fact that, under the terms of the trust, the trustee was directed to apply the net rents and profits to the grantor’s use during his life, the fact that the grantor remained in possession of the land described in the deeds, after his marriage and until his death, was not inconsistent with the trust or the delivery of the deeds.
    Appeal by the plaintiff upon questions of law and upon the facts from a .judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 20th day of January, 1890, after a trial at Special Term on the 7th day of November, 1889.
    The action was brought for the purpose of having three deeds, made by Charles Bliss, the husband of the plaintiff, to the defendant Grace F. West, adjudged fraudulent as against the plaintiff; that the defendant Grace F. West be adjudged to account for all money received by her, under and by virtue of the said deeds, and pay the same to plaintiff.

      F. H. Oowdrey, for the appellant.

      William W. Jenhs, for the respondents.
   Daniels, J.:

The plaintiff is the widow of Charles Bliss, who departed this life on the 23d of January, 1889. In September, 1887, he proposed to marry the plaintiff and represented himself to be the owner of two parcels of land in the city of New York, one of which was known as 435 West Thirtieth street, and the other as 235 West Fifty-first street, in that city. Both parcels had been improved, but the former was subject to a mortgage securing the payment of the sum of $15,000. The plaintiff accepted this proposal of marriage and intermarried with him on the ninth of November following. In May, 1887, the plaintiff commenced residing in the house on the Fifty-first street lot, in which the deceased also resided. And he executed and delivered to her a five-years lease of the other house and lot, dated on the 1st of May, 1887, but not acknowledged until the twenty-third of September following. In the fall of 1888 he entered into a contract for the improvement of the premises on Fifty-first street, and during the marriage two policies of insurance, previously obtained and continued, insured the property to him, and he paid the taxes. At his decease he left a will, by which he gave all his property to the plaintiff after the payment pf his debts. This will contained the statement that he had already provided for his three children by an insurance on his life, and by trust deeds made on the 10th of March, 1887.

These deeds were three in number, and each conveyed one-third of these parcels of land to Grace F. West in trust to receive the rents and profits of the premises, and apply so much as might be necessary to taking care of, insuring and keeping in repair the buildings thereon; and in case it should be deemed necessary by her, then to change, alter, remodel and otherwise improve the buildings, after obtaining the consent of the grantor and the concurrence of the beneficiary in writing, and to apply the residue of the rents and profits to the use of the grantor during his life, and after that for the use of his daughter Harriet C. Bliss, until Charlotte Bliss, another daughter, attained the age of twenty-one years. Other directions were given for the disposition of the rents and profits in case of the decease of the beneficiary before the attainment of the age of Twenty-one years by Charlotte Bliss, and for the final disposition of the remainder after the expiration of the trust estate, by which -alone his children and heirs were to be benefited. The other two deeds contained similar directions, but primarily after his own decease, for the benefit of each of his other two daughters, and after the expiration of the trust estates, to be disposed of in a similar manner as the one-third mentioned in the deed which has first been referred to. These deeds were each executed and acknowledged by the trustee who accepted the trust estates thereby granted, and the trusts created and declared, and she covenanted faithfully to perform the same. And they were recorded on the 11th day of March, 1887.

From these facts it was inferred by the court at the trial that the deeds had been delivered to the trustee at the time when they were executed. And the facts were sufficient to support that inference, although the deeds were in the safe of the grantor at the time of his decease. Their execution. and acknowledgment by the trustee and the subsequent record made of them evince the intention to have been to vest the trustee with the trust estates for the objects to be obtained by the creation of the trusts. What appears to have transpired fully warrants this conclusion. (Munoz v. Wilson, 111 N. Y., 295, 303-305; Scrugham v. Wood, 15 Wend., 545; Wallace v. Berdell, 97 N. Y., 13.)

The plaintiff’s object by this action was to obtain a judgment setting these deeds aside as fraudulent against her, she having been thereby deprived of an estate in dower in this - property. But neither the assertion of title by the grantor, before or after his marriage with her, nor his continued control of the property, can be attended with that effect. For the title had become vested in the trustee prior to any negotiation or conference between the grantor and the plaintiff on the subject of marriage. And it was not made to appear that it had been conveyed in contemplation or expectation of marriage either with the plaintiff or any other person. Neither was it proved that the grantor was even acquainted with her when the deeds were executed, acknowleged and recorded.

The facts which proved sufficient to rebut the inference of delivery in the cases of Knolls v. Barnhart (71 N. Y., 474) and Dietz v. Farish (79 id., 520), were.widely divergent from those appearing here. They were inconsistent with any preceding delivery. While here even the continued control oí the grantor was not specially at variance with the fact that the deeds had been delivered to the trustee, for he was entitled to the net rents and profits during his life, and taking them himself fulfilled that obligation. What he did was in harmony with the benefits reserved for himself. And the same answer is applicable to his act in contracting for improvements. That had been contemplated by the provisions contained in the deeds themselves; and neither the insurances, nor the payment of taxes supported the charge of bad faith against him. For the insurances continued after the deeds were made had been previously so effected, while the other policy was in the name of the trustee as owner. And the taxes were, by the deeds, made a charge upon the rents and profits realized from the property.

The most that could be affirmed against the title was the representation of the grantor that he was its owner. But he could not divest it or subject it to rights or equities in favor of the plaintiff by his unfounded claim of title. That had been placed by the deeds beyond his power, and no statement of his could restore his dominion over the land. The deeds were not void on account of the creation of a trust estate for himself for the term of his natural life. The plaintiff was not and is not a creditor of the grantor. And it is in favor of creditors only that the statute avoids trusts of this description. (3 B. S. [6th ed.], 142, § 1.)

The legal principle to which the plaintiff appeals will justify the avoidance of deeds executed previous to marriage with the intention thereby to deprive the wife of her dower in the land conveyed. But the cases brought within the range of this principle have been disposed of upon the effect of the fact that the conveyances were made after the parties had arranged for their future marriage, from which an intent to defraud the wife could be inferred. (Youngs v. Carter, 50 How., 410; Babcock v. Babcock, 53 id., 97; Pomeroy v. Pomeroy, 54 id., 228; Youngs v. Carter, 10 Hun, 194.) The facts of this case fail to place it within this principle or either of these authorities.

The deeds, though voluntary, and for the.final benefit of the' children of the grantor, appear to have been made in good faith. There was clearly no intention to defraud her in their execution and delivery, for the grantor was under no obligation then to her, either sentimental or legal. And when they are free from the taint of fraud, voluntary deeds, resting on the natural consideration of love and affection, will be sustained by both law and equity. (Young v. Heermans, 66 N. Y., 374, 381; Dygert v. Remerschnider, 32 id., 629, 650.) And where their execution and delivery have preceded the engagement of marriage, or the anticipation of that engagement, they have been held entitled to be maintained by the courts. (Littleton v. Littleton, 1 Dev. & Bat. [N. C. Bepts.], 327; McIntosh v. Ladd, 1 Humph. [Tenn.], 459.) These cases arose under statutes enacted for the protection of the wife, by the application and enforcement of the principle which has been stated. And in their theory sustain the deeds now in suit.

There were various offers of evidence made, which the court, on objection, rejected. But it is reasonably plain that the plaintiff has not been injured by these rulings against her. If it had been proved that the grantor’s estate turned out to be insolvent, or that he had claimed to be the owner of the property, or that the trustee had declared the deeds, after his decease, to be formal only, the evidence could not have affected the rights of these children as they had become fixed by the making and recording of the deeds.

The case was disposed of as the law required it should be and the judgment should be affirmed.

Van Brunt, P. J., and Brady, J., concurred.

Judgment affirmed.