text:
    The People of the State of New York ex rel. The Brooklyn Elevated Railroad Company, Relator, v. James A. Roberts, Comptroller of the State of New York Respondent.

      Taxation of a corporation — mlmation of railroad . ioch— average price during the year — the intrinsic value need not be fixed — presumption in favor of and conclusiveness of the Comptroller’s valuation.

    Where the Comptroller in estimating and appraising the capital stock of a railroad company, for the purposo of taxation under chapter 542 of the Laws of 1880 and the acts amendatory thereof, fixes tlie valuation at the average price at which the stock sold during the year, lie has complied with the statute, and it is not necessary for him to ascertain the “intrinsic” or actual value of the stock in cash, unless such intrinsic value exceeded the market value.
    "Where a person or corporation aggrieved seeks to review the action of the Comptroller in imposing a tax under chapter 542 of the Laws of 1880, the burden is upon the relator to show some error or mistake upon the part of the Comptroller.
    The determination of the Comptroller as to tlie amount of a tax should not he disturbed unless it clearly appears that it is erroneous.
    Certiorari issued out of tlie Supreme Court, and attested on tlie loth day of February, 1891, directed to James A. Roberts, Comptroller of the State of New York, commanding kini to certify and return to the'office of the clerk of the county of Albany all bis acts and proceedings relative to the assessment of the Brooklyn .Elevated Railroad Company for taxes for the year ending November 1,1893, together with all other papers, documents and records pertaining to the assessment of said relator, and also a statement of such facts as might be pertinent or material to show the legality of said assessment and tlie value of the property so assessed and the ground for the valuation made by said Comptroller, and also all his acts and proceedings, with all papers, documents and records before him pertaining to the application of tlie said relator for a revision or resettlement of sueli assessment.

      William II. Page, Jr., and Fredeiick P. Delafielcl, for tlie relator.

      T. F. Ilaneoek, Attorney-General (G.D. B. Ilasbroudc, Deputy Attorney- General), for tlie respondent.
   Putnam, J. :

This is a proceeding brought to review a valuation made by the Comptroller of the State of the capital stock of the Brooklyn Elevated Railroad Company for the purpose of taxation for the year 1893, under the provisions of chapter 542 of the Laws of 1880, and the acts amendatory thereof and supplemental thereto. Relator contends that the Comptroller erred in the principle upon which he proceeded in making the valuation.

On the 16th day of November, 1893, relator made a report under the provisions of section 1 of the act of 1S80, by which it appraised its capital stock at twenty dollars per share. The Comptroller, being dissatisfied with such appraisal, made a valuation of said stock at thirty dollars per share. Thereafter, on motion for a rehearing, ho reappraised the stock at twenty-nine and five-sixths dollars per share.

Under section 1 of the act of 1880 it was the duty of the Brooklyn Elevated Railroad Company, in making its report to the Comptroller, to estimate and appraise its capital stock at its actual cash value, “ not less, however, than the average price which said stock sold for during said year.” And the statute provided that if the Comptroller was not satisfied with the valuation so made, lie was authorized to make a valuation thereof and to settle an account upon the valuation so made by him for the taxes, penalties and interest due the State thereon.

The only question that need be considered is whether or not it is shown by the papers and evidence submitted to us that the Comptroller, in fixing the valuation of relator’s capital stock, appraised it at a sum above the average price at which said stock sold during the year. It was not necessary for him to ascertain the “ intrinsic ” or the actual value of the stock in cash unless that exceeded the market value, as, under the statute, he was obliged to appraise it at a sum not less than the average price at which said stock sold during the year.

It is well settled that in a proceeding'to review the action of the Comptroller in imposing a tax under the act of 1880, the burden is upon the relator to show the error or mistake, if any, of the Comptroller. (People ex rel. Western Electric Co. v. Campbell, 80 Hun, 466.) It is said by Cray, J., in People ex rel. American Const. & Dreding Co. v. Wemple (129 N. Y. at page 565), “The determination of the Comptroller as to the assessment and taxation, unless clearly shown to have been erroneous, should not be disturbed.” And in People ex rel. Roebling's Sons’ Co. v. Wemple (138 N. Y. at page 583), O’Brien, J., says in regard to an assessment by the Comptroller under, the act of 1880; “ Ilis determination as to the amount of the tax should not' be disturbed now unless it clearly appears to be erroneous.” ' It was not, therefore, as the learned counsel for the relator assumes, incumbent on the Comptroller to show that his valuation of relator’s stock, and his determination as to the market value thereof, was right, but, on the contrary, the burden was upon the relator to show the error, if any, of the Comptroller.

After a careful examination of the papers submitted to us and the evidence taken in the case, we- find it impossible to say that the relator established the fact that the valuation placed upon its stock by the Comptroller was greater than the average price at which said stock sold during the year allowed. The only witness' who testified before the Comptroller was Mr. Longyear, auditor of relator, and produced by it as a witness. He swore that the stock sold during the year in question from nineteen to forty and three-eighths, nineteen being the lowest and forty and three-eiglitlis the highest sum paid for the stock, and that the average market value, as shown by the quotations during such year was twenty-nine and five-sixths, that being the valuation placed upon said stock by the Comptroller. It is impossible, therefore, to say that the relato]1 proved any error or mistake on the part of the Comptroller "in fixing the valuation of its stock. The statute prescribed that its valuation should not be less than the average price for which said stock sold during the year. It was shown that there had been sales of the stock of relator during that period, and its own witness fixed the average price thereof at the sum at which the Comptroller valued its capital stock. We are of opinion that the papers and evidence submitted sustain the determination made by the Comptroller.

Determination of the Comptroller confirmed and writ of certiorari quashed, with fifty dollars costs, printing and other disbursements.

•Mayhmm, P. J., and Herrick, J., concurred.

Writ of certiorari quashed, decision of Comptroller affirmed, with fifty dollars costs and disbursements.


source: Caselaw Access Project

author: Putnam, J.:

license: Public Domain

text:
    John Q. A. Ward, Respondent, v. Homer Burgher, Appellant.

      Summary proceedings — sufficiency of the petition — they may he instituted against an under tenant.

    A petition instituting summary proceedings for the recovery of the possession of certain premises set forth that the plaintiff was the- owner of the premises which he had rented to a club for a year, that the defendant was in possession as an under tenant of the club, and that the defendant held over after the expiration of the term without permission of the owner.

      Held, that the petition was sufficient to confer jurisdiction; that summary proceedings may be instituted against an under tenant under the provisions of section 2231 of the Code of Civil Procedure.
    Appeal by the defendant, Homer Burgher, from a judgment and order of affirmance of the Ulster County Court in favor of the plaintiff, bearing date the 27th day of April, 1895, and entered in the office of the cleric of the county of Ulster affirming a final order in summary proceedings rendered after a trial before a justice of the peace.

      B. O. Ohetwood, for the appellant.

      M. II. Gouoh, for the respondent.
   Putnam, J.:

I think the petition was sufficient to confer jurisdiction upon the justice to issue a precept. It set forth that the plaintiff was the owner of the premises described therein ; that on or about September 3, 1893, they were rented to the Peckamose Pishing Club for one year from that date, and that defendant was in possession as an under tenant of such club, and held over after the expiration of the term without the permission of plaintiff.

The defendant, in his answer, alleged that he was in possession of said premises under a valid and subsisting lease, which had not expired. On the trial no objection was made by him to the sufficiency of the petition, and he made no motion for the dismissal of the proceedings when the plaintiff rested. The issues formed by the petition and answer were submitted to the jury without objection.

Tlie plaintiff testified that he rented the premises to the Peckamose Pishing Club to be occupied by defendant, who was in the employ of the club, for one year from September 3, 1893, and that the lease was not extended. The defendant was sworn as a witness- and did not deny this statement of plaintiff. The letters introduced by defendant did not conclusively show an extension of the lease. It did not appear from the one dated June 14, 1894, for what time the fifty-dollar check therein inclosed was a payment, whether for a period before or after the letter. It would appear, however, from the subsequent letter dated July 13, 1894, inclosing a check for sixteen dollars and sixty-six cents, and the receipt of July 18, 1894, for salary for- the month of June, 1894, that the fifty-dollar check of June fourteenth was for salary previous to June 14, 1894.

We conclude, therefore, that the petition was sufficient to confer jurisdiction on the justice. Under the provisions of section 2231 of the Code of Civil Procedure summary proceedings may be instituted against an under tenant, and the evidence was sufficient to show that defendant was in occupancy of the premises as an under tenant of the lessee. The testimony on the trial presented a question of fact which was properly submitted to the jury, the defendant making no objection to such submission.

The plaintiff testified positively to a lease for one year, which expired on September 3, 1894, and that such lease had not been renewed, and if the letters and receipt read by defendant had some tendency to contradict this evidence, such letters and receipt were not so conclusive as to authorize the justice to withdraw the case from the jury, especially as the defendant, when sworn as a witness* did not controvert the statement of the plaintiff.

The judgment should be affirmed, with costs.

TVIayham, P. J., and Herrick, J., concurred.

Judgment affirmed, with costs.'


text:
    Russell C. Smith, Respondent, v. Mary McMillan, Appellant.

      Former adjudication — a justice of the peace must-nonsuit at. or before the time when the case is finally submitted — a judgment of nonsuit entered subsequently is a decision upon the merits.

    A justice of the peace has no power to ente» a judgment of nonsuit four days after the final submission of the case; if after the case is submitted he takes the four days allowed him by the statute for his decision and then enters a judgment, which he describes as a nonsuit, it is in fact a judgment upon the merits, and as such is a bar to a second action by the plaintiff against the defendant for the same cause.
    Herrick, J., dissenting.
    Appeal by the defendant, Mary McMillan, from a judgment of 'tbe County Court of Washington county, entered in the office of the clerk of the county of Washington outlie 8th day of June, 1895, upon the verdict of a jury.
    The action was originally commenced in the Court of a Justice of /he Peace, where judgment was rendered for the, defendant.

      Fred A. JBratt, for the appellant.

      J. M. Whitman^ for the respondent.
   Putnam, J.:

We are of the opinion that the court below should have granted the motion of defendant, made at the close of the trial, to dismiss the complaint on the ground that in a former action brought by the plaintiff against the'defendant for the same injury alleged in the complaint herein, defendant recovered a judgment on the merits against the plaintiff.

It was not denied by the respondent that' he had in 1893 brought an action before one Burpee, a justice of the peace, for the same trespass for which he seeks now to recover. The proceedings in that action as set out in the docket of the justice were read, and it ■ appeared that the parties appeared therein and joined issue, that witnesses were sworn, and the case was tried before said Burpee. After the evidence was taken the attorneys for the respective parties summed up and the case was submitted to the justice on December 16, 1893, he taking the customary time in which to render his decision. On December 20, 1893, lie entered up judgment — as lie termed it — of nonsuit against the plaintiff, with five dollars costs.

We think this was in fact a judgment on the merits, although called by the justice a judgment of nonsuit. In Elwell v. M’Queen (10 Wend. 519) it was held that a justice at the trial has a right to nonsuit .the plaintiff if, in his judgment, he fails upon his own showing to make out his case, either on the ground of the incompeteucy or the insufficiency of his evidence; and a judgment of nonsuit in such a case is no bar to another action for the same cause. But if the cause be submitted to the justice after hearing proof, and he takes time to make up his judgment, it is not then in the power of the justice to nonsuit the plaintiff; his determination is equivalent to the verdict of a jury and a judgment thereon; and though he may call his judgment a judgment of nonsuit, and enter it accordingly, it will be deemed in law a judgment for the defendant, and will be a bar to a subsequent action.”

The same doctrine has been held in other cases. (See Hess v. Beekman, 11 Johns. 457; Gillilan v. Spratt, 8 Abb. [N. S.] 13 ; Peters v. Diossy, 3 E. D. Smith, 115; Blum v. Hartman, 3 Daly, 47.)

The learned counsel for the respondent calls our attention to the case of Seaman v. Ward (1 Hilt. 52), in which Daly, J., holds that a motion for a nonsuit having been made before a justice, and the decision reserved by him, he could, after the submission of the case, render a judgment of nonsuit that would not be a bar to subsequent action; and the counsel urges that as on the trial of the former action before Burpee a motion for nonsuit was made by defendant, and the decision reserved, said justice was authorized, after the submission, to render a judgment of nonsuit.

The statement of Daly, J., in Seaman v. Ward (supra), that a justice who reserves his decision on a motion for a nonsuit can render a judgment of nonsuit after the case is finally submitted to him, merely expresses the opinion of the learned justice, was not called for in the decision of that case, and, I think, is contrary to the doctrine laid down in Elwell v. M'Queen (supra).

The motion for a nonsuit on the trial before Burpee was made at the close of plaintiff’s evidence, and was not renewed. Afterwards the defendant swore a witness, and the attorneys of the respective parties summed up, and the justice took the customary time in which to render liis decision. When the justice reserved his decision on the motion for a nonsuit he must be deemed to have made such reservation until the close of the trial. Under the pro visions of section 3015 of the Code of Civil Procedure, he was only authorized to enter a judgment of nonsuit at or before the final submission of the case. That section says he shall enter a judgment of nonsuit forthwith.” He had no right under the statute to render such a judgment against plaintiff four days after the submission of the cause. When he reserved his decision, as above suggested, he must be understood to have made such reservation for the period during-which, under the statute, he was authorized to render a judgment of nonsuit, and he cannot render such a judgment after the final submission.

We think, therefore, that the doctrine laid down in Elwell v. M’Queen (supra) applies.

Judgment should be reversed, with costs in this court, and judgment of nonsuit rendered in favor of defendant in the action, with costs.

Mayham, P. J., concurred; Herrick, J., dissented.

Judgment reversed, with costs and disbursements of this appeal, and judgment of nonsuit rendered, with costs.


text:
    Charles H. Sherman, Respondent, v. Billings, King & Company, Appellant.

      Warranty — measure of damages for its breach— the damages must be shown specifically— evidence as to the sale of the article.

    In an action brought to recover damages resulting from the breach of a warranty as to the quality of a “ wood filler,” sold by the defendant to the plaintiff, it appeared that the plaintiff had a contract to finish certain wagons for one Griffin, or his successor, the Glens Falls Blackboard Company, in doing which he used two gallons of the warranted liquid wood filler, purchased of the defendant, but shipped to and paid for by Griffin; the filler subsequently scaled off, leaving the bare wood exposed, and it became necessary to paint the wagons. It further appeared that the wagons were subsequently sold by Griffin, but the court upon the trial would not permit the defendant to show the price at which the wagons were sold.
    The complaint alleged that before the commencement of the action the Glens Falls Buckboard Company had brought an action against the plaintiff for damages resulting from the use of the filler upon the wagons; that the plaintiff gave the defendant notice of the action, requesting it to defend the same, and that judgment therein was recovered against the plaintiff for $582.87 damages and costs; but, although such allegations were denied in the answer, no proof was given on the trial of the recovery-of such a judgment; the court, however, directed a verdict for the plaintiff in a sum equal to the amount of the judgment.

      Held, that mere proof of damage to the wagons, in consequence of the use of the filler, was not sufficient to sustain the plaintiff’s claim in the absence of proof that the plaintiff had been compelled to pay Griffin something because of such injury;
    That it was erroneous to exclude evidence of the price at which Griffin sold the wagons alleged to have been damaged by the filler, since it did not appear that Griffin had not sold them (although damaged) at a greater price than that which he stated they would have brought had they been properly finished in the first instance;
    That if Griffin sold the wagons at a price greater than their market value, with knowledge of the imperfect quality of the filler, and upon terms which left no liability upon his part to his purchasers, the measure of damages was the difference between the price which he received and the value of the wagons as they would have been if the filler had been equal to the warranty;
    That the price at which they were sold would have furnished some evidence of their market value.
    Mayham, P. J., dissenting.
    Appeal by the defendant, Billings, King & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the Fifth day of June, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Warren Circuit, and also from an order bearing date the 13th day of June, 1895, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

      H. A. Howard and G. H. Sturges, for the appellant.

      James H. Bairn, for the respondent.
   Putnam, J.:

The plaintiff, in the spring of 1892, being engaged in the business of finishing and painting wagons and carriages, and having a contract to finish nineteen wagons for W. B. Griffin, or his successor, the Glens Falls Buckboard Company, purchased of defendant two gallons of liquid wood filler, which its agent warranted was a good filler for finishing wagons. Plaintiff, relying upon the representation and warranty of defendant, took the filler and used it upon the nineteen wagons of said Griffin during the spring of 1892. The filler was not as warranted. When the Wagons on which it was used came in contact with water it scaled off and left the bare wood exposed. It became necessary to paint the wagons. Evidence was given to the effect that seventeen of the nineteen wagons of Griffin’s were single and two of them double. If properly finished they would have been worth $175 for the singles and $350 for the double ones, and after defendant’s filler was used on them they were not worth half as much. The action was brought by plaintiff to recover damages for the breach of warranty of defendant on the sale of the filler. The complaint alleged the facts above set out, and also that before the commencement of the action the Glens Falls Buckboard Company had brought an action against plaintiff for damages occasioned to said wagons in consequence of using said filler; that due notice of the commencement of said action was given to defendant, and also a request that it would defend the same; that defendant neglected to pay any attention to said action and that plaintiff did defend the same; that judgment was duly awarded against plaintiff therein for $500 damages and $82.87 costs.

Defendant in its answer denied any knowledge or information sufficient to form a belief as to the allegations in the complaint in regard to the action of the Glens Falls Buckboard Company or the rendering of a judgment therein against plaintiff.

The trial court held that the plaintiff was entitled to recover as damages the difference in value between the wagons as they were with this filler on them and what their value would have been if the filler had been as recommended, but the court reduced the recovery to the amount of the judgment above referred to, that being the amount claimed in the complaint.

Although the allegations contained in the complaint in regard to the rendition of a judgment in favor of the Glens Falls Buckboard Company for $582.87 for damages on account of using said filler were denied in the answer, no proof was given on the trial of the recovery of such judgment. In fact, the judgment was not referred to by either party until after both had rested. The defendant then moved to dismiss the complaint on the following, among other, grounds: “ There is a fatal variance between the complaint and the proof, in that the complaint alleges a contract between the plaintiff and the Glens Falls Buckboard Company, in and by which he contracted to do work, and did do work, upon 19 carriages, the carriages mentioned, I suppose, in the proof, in that they allege a judgment by the Glens Falls Buckboard Company against Mr. Sherman for damages to the 19 wagons, and a notice to the defendant to defend, and a recovery in that action against the plaintiff.”

The trial court denied the motion to dismiss the complaint, and directed judgment in favor of plaintiff for the amount of the judgment set out in the complaint, with interest, to which direction the defendant duly excepted.

The plaintiff having alleged as special damages the recovery of the said judgment against him by the Glens Falls Buckboard Company, and that allegation having been denied in the answer, I think the objection to a recovery interposed by defendant, as above set forth, should have been sustained. The recovery of the judgment so denied in the answer was not admitted upon the trial by defendant. As we have seen, it was not mentioned until the close of the testimony, when the defendant objected to a recovery by plaintiff on the ground of a fatal variance between the complaint and proof, in that the complaint alleged a judgment by the Glens Falls Buckboard Company against plaintiff. Of course, the variance referred to wás the failure of plaintiff to prove the judgment which he had alleged in the complaint as special damages. In the absence of proof of the recovery of the judgment alleged in the complaint, it is difficult to understand on what theory a verdict could be directed for the amount of the said judgment, including eighty-two dollars and eighty-seven cents costs.

I infer, however, that the trial judge was of opinion that the plaintiff, notwithstanding the allegation in the complaint in regard to the judgment, was entitled to recover such damages as he proved on the trial he sustained in consequence of the defective filler irrespective of the judgment, such damages being the difference in the value of Griffin’s wagons treated with the filler in question and their value if properly finished. Such damages as shown upon the trial, under the ruling of the judge, exceeded the amount of the judgment as alleged in the complaint. In directing a verdict for the amount of the judgment as so alleged, I conclude the judge intended merely to reduce the amount of the damages he held the plaintiff was entitled to recover, to the amount claimed in the complaint.

It becomes then necessary to determine whether the rule of damages adopted by the trial court was correct. Plaintiff had a contract with Griffin to finish nineteen wagons and bought the two gallons of defendant’s filler to use in doing the work. In consequence of the filler not answering the warranty, the wagons of Griffin were damaged. The court held that plaintiff’s damages were the amount of the damage to Griffin’s wagons in consequence of the defective filler. I am unable to see how an injury to Griffin’s wagons damaged plaintiff, unless he was compelled to pay Griffin for such injury. Plaintiff’s damages, in consequence of defendant’s breach of warranty, were the injury he actually suffered in consequence of such breach. For instance, if Griffin had refused to pay plaintiff for his labor in consequence of the defective filler, or he had been compelled to refinish the wagons, or if it had been shown that Griffin obtained a judgment against plaintiff, the plaintiff would have been entitled to recover of the defendant the value of such labor, the cost of such refinishing or the amount of such judgment, as the case might be. But mere proof of damage to Griffin’s wagons in consequence of the defective filler was not,, as the court held on the trial, sufficient to sustain plaintiff’s claim. It was shown on the trial that the filler was shipped to and paid for by Griffin. The second gallon was ordered as well as paid for by him. Under the evidence in this case the court or jury could have very well found that the filler was used on Griffin’s wagons by his consent. They could have found that under the contract between plaintiff and Griffin, although the former was to finish the Wagons in a good and workmanlike manner, he was to finish them with defendant’s filler. If the court or jury had so found, as they could have, from the evidence, Griffin had no claim against plaintiff for damages, and, as far as the evidence shows, plaintiff suffered no injury in consequence of the breach of warranty of defendant. Had the plaintiff shown the recovery of the judgment alleged in the complaint by the Glens Falls Buckboard Company (the successor of Griffin), he would have shown that he sustained damages in consequence, of the breach of warranty of defendant. I do not think that mere proof of damage to Griffin’s wagons alone was sufficient to justify the judgment.

But if we assume that the rule of damage adopted below was correct I think the trial court, in excluding evidence offered by defendant, inadvertently fell into an error which requires a reversal of the judgment. Griffin was called as a witness by plaintiff, and, among other things, testified that he did not believe that he got for the wagons much more than half what the wagons would have been worth if properly finished. On the examination of the witness by defendant the following question was asked and ruling made, viz.: Q. At what price did you sell those nineteen wagons ? [Objected to as immaterial and incompetent and not affecting the. measure of damages; objection sustained; defendant duly excepted.] (By the court.) He may have sold them for more or less than they were worth. If he sold them for more than they were worth, that is not yours, it is his.”

I think this ruling was a material error. The question was proper on the cross-examination of the witness. Also the price at which the wagons were sold was some evidence of their market value. But the question to be determined was, what was Griffin’s damage in consequence of the defective filler, the trial court holding that the amount of Griffin’s was the measure of plaintiff’s damages. The single wagons, properly finished, would have been worth $175 each, and the double ones $350. Suppose Griffin had, in fact, sold all the wagons for the prices above specified, notwithstanding their defective finish, I should say that in fact he suffered no damage. The trial court, however, determined that if in fact he sold every wagon for the sum it would have been worth if properly finished, yet his damage was to be measured by the actual value of the wagons as they were with the defective filler on them, and hence he sustained the objection to the question above set out asked by defendant of Griffin. The rule of damages, in a similar case, has been recently passed upon by the Court of Appeals in Wait et al. v. Borne et al. (123 N. Y. 592). That w^as an action to recover for an alleged breach of warranty on the sale of certain oil to be used in manufacturing carpets by the plaintiffs, and which it was claimed did not answer the warranty. A portion of the carpets bad been sold. It was held : “ That the proper rule of damages in such a case would generally he the difference between the market value of the carpets as they would have been if the oil used in their manufacture had been equal to the warranty and their value as they were; but, in case the plaintiffs sold any of them for more than their market value, after knowledge of the vicious quality of the oil, and under circumstances leaving no liability on their part to the purchasers, the measure of damages would he the difference between the price received and the value of the carpets as they would have been if the oil liad been as recommended.”

In the case under consideration the wagons had been sold after Griffin knew of the defective character of the filler, and as the defect was, as I judge from the evidence, apparent on inspection of the wagons it is not to he presumed that Griffin incurred liability to purchasers on the sales. Hence, defendant should have been allowed, under the above authority, to show the pme Griffin received for the wagons.

The judgment should he reversed and a new trial granted, costs to abide the event.

Herrick, J., concurred; Mayham, P. J., dissented.

Judgment reversed and a new trial granted, costs to abide the event.


text:
    David Van Schaick, Respondent, v. Charles H. Ramsey, as Executor, etc., of Joseph H. Ramsey, Deceased, Appellant.

      Pledge — conversion by the pledgee — pledgor entitled to recover only his actual damages.

    Where a pledgee tortiously sells the pledge or otherwise wrongfully puts it out of his power to return it, the pledgor’s right of recovery is clear; but in such an action the pledgee has a right to have the amount of a debt which he holds against the pledgor deducted in considering the amount of damages.
    In an action brought to recover damages for the alleged conversion of certain Stock, it appeared that the plaintiff executed an instrument by which he agreed to sell to one Joseph. H. Kamsey 100 shares of the stock of a corporation within one year at the par value of $100 per share, the scrip to he issued to Eamsey for the plaintiff and to he used as collateral security to raise §5,000 for the use of the said corporation upon the plaintiff’s account; further, that if Eamsey did not elect to buy the scrip, representing the stock, it should be transferred to the plaintiff; Eamsey also executed an instrument of even date which recited that the stock had been issued to him in pursuance of the foregoing agreement. Subsequently Ramsey pledged the stock to George Westinghouse, Jr., for §5,000, and paid the proceeds to the corporation as agreed, and thereafter sold the stock to Westinghouse for §5,000 more, receiving from him in all the sum of §10,000.

      Held, that, if the absolute transfer to Westinghouse was a conversion, the plaintiff was, nevertheless, entitled to receive only indemnity for his actual injury; That as Eamsey was authorized to pledge the stock for §5,000 and had done so, paying the amount to the corporation for the account of the plaintiff, this was, in effect, a payment to the plaintiff, and the latter could recover of Eamsey, or of his estate, only the balance which Eamsey had received from Westinghouse, to wit, the sum of §5,000.
    Appeal by the defendant, Charles H. Ramsey, as executor, etc., of Joseph H. Ramsey, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 6th day of December, 1893, upon the report of a referee.
    The action was brought to recover damages alleged to have resulted from the conversion of certain shares of stock by the defendant.

      Isaac II. Maynard, for the appellant.

      William F. Beutler, for the respondent.
   Putnam, J.:

On the trial plaintiff read in evidence a contract made between him and defendant’s testator in. two parts, marked “ A ” and “ B,” of which the following is a copy:

' Plaintiff’s Exhibit “ A.”
“ For value received and in consideration of one dollar, in hand paid me by Joseph H. Ramsey, of Howe’s Cave, N. Y., I, David Yan Scliaick, late or at present of Albany, hereby agree with the said Ramsey to sell him at his option one hundred shares N ew York and Montana Mining and Milling Company stock, at any time he may elect to buy the same within one year from this date, at par value of one hundred dollars for each share. The scrip for the same shall be issued by the company to the said Ramsey for me, to be used as collateral to raise five thousand dollars for the use of the company on my account. If the said Ramsey does not elect to buy the stock, the scrip for the same shall be transferred to me.
“DAVID VAN SCHAICK.
“Dated July 27th, 1885.”
Plaintiff’s Exhibit “B.”
“Whereas, one hundred shares of the New York and Montana Mining and Milling Company stock has been issued to me by the said company in pursuance of an agreement of this same date between David Van Schaick and myself. The stock is to be used as collateral to raise five thousand dollars for the use of the company on his account. In case the said one hundred shares are not purchased by me as provided in the said agreement, the scrip for the same is to be transferred to the said Van Schaick.
“ Dated July 27th, 1885. J. II. RAMSEY.”

It was admitted that the New York and Montana Mining and Milling Company issued stock certificate No. 9 for 100 shares dated July 27, 1885, to Joseph IT. Ramsey, the defendant’s testator, and that the defendant’s testator subsequently thereto sold and transferred the said certificate, and the stock therein called for to George Westinghouse, Jr., of Pittsburgh, Penn., and received therefor ten thousand dollars ($10,000). It also appeared that after the agreements A and B were executed defendant’s testator transferred the stock therein described to George Westinghouse, Jr., as collateral for a loan of $5,000, which sum he received and paid to the New York and Montana Mining and Milling Company.

■Afterwards Ramsey transferred the stock, absolutely, to Westinghouse. The latter paid him $10,000 for the stock; $5,000 when it was placed with him as collateral and $5,000 afterwards when the absolute transfer was made.

Plaintiff claimed that by the transfer of the stock to Westinghouse Ramsey unlawfully converted itthe referee so found and awarded judgment against the defendant for $10,000, the par value of said stock, with interest and costs.

Sedgwick, in Ms work on the Measure of Damages (7th ed. vol. 2, p. 391, m. p. 481), says: “ There are many cases, however, where the plaintiff, though entitled to recover, is not at liberty to receive the full value of the property. So, in cases of pledge, if the pledgee tortiously sell the pledge, or otherwise wrongfully put it out of his power to return the article pledged, the pledgor’s right of recovery is clear; but the pledgee in such action has a right to have the amount of his debt recouped in the damage.” (See, also, Baltimore Marine Ins. Co. v. Dalrymple, 25 Md. 269-307 ; Wheeler v. Pereles et al., Exrs., 43 Wis. 332; Belden v. Perkins, 78 Ill. 449 ; Gruman v. Smith, 81 N. Y. 25; Smith v. Reeves, 33 How. Pr. 183.)

In the case under consideration, assuming that Joseph IT. Pamsey by the absolute transfer of the stock' to George Westingliouse, Jr., converted it, and hence that the plaintiff was entitled to recover, yet, as in the case of a pledgor, his recovery should not have exceeded the amount of his actual damage. He should only have been allowed to receive an indemnity for the actual injury.

Let us consider the situation at the time of the alleged conversion. Pamsey had then, as he was authorized to do under the contracts A and B, pledged the stock to Westingliouse to secure a loan of §5,000. He had received the'money and paid it into the company for the plaintiff. Thus, in fact, Ramsey had paid plaintiff $5,000 on account of the stock by paying that sum to the corporation on his account. If then Pamsey had never made any subsequent transfer to Westingliouse, and had concluded to take the benefit of his option to purchase under the contract, plaintiff having received $5,000 on account of the stock, Pamsey would only have been obligated to pay him the additional sum of $5,000.

Again, if there had been no subsequent sale by Pamsey to Westinghouse after the transfer of the stock to the latter as collateral for a loan of $5,000, and Pamsey had not elected to purchase the stock, before plaintiff would have been entitled to the retransfer from Westingliouse he would have been obligated to pay the latter the sum of $5,000 loaned upon the stock.

Before the alleged conversion plaintiff had received $5,000 on his stock collected and paid him by Pamsey. It is not alleged or claimed that he- had ever repaid to Pamsey or Westingliouse the amount so loaned. We think plaintiff’s real interest in the stock should be deemed to have been $5,000, and that his recovery should have been limited to that sum and the interest thereon.

If the judgment from which this appeal is taken is allowed to stand, the respondent will receive for the stock the amount of the judgment, $10,000, and interest, and also the $5,000 paid by Ramsey to the New York and Montana Mining and Milling Company on his account. Although Ramsey lawfully obtained for and paid for plaintiff $5,000 on the stock before the alleged conversion, and although such conversion was of stock legally mortgaged for one-half its value, plaintiff by the judgment herein was allowed to recover the full value of the stock.

We think plaintiff’s damages should have been limited to the actual amount of his interest in the stock at the time of the alleged conversion.

There are other questions raised which we do not think it necessary to consider or discuss.

For the reasons above suggested the judgment should be reversed, a new trial granted and the referee discharged, costs to abide the event.

Mayham, P. J., and Herrick, J., concurred.

Judgment reversed, referee discharged, a new trial granted, costs to abide the event.


text:
    Wynantskill Knitting Company, Appellant, v. Edward F. Murray and John T. Birge, Respondents.

      Oa/rriersby water — constructive delivery — duty of consignee to take goods — when the ca/rrier becomes a warehouseman — reasonable time to remove goods is a question of law — a pmtial delivery excused by its acceptance.

    It is the duty of common carriers by water to convey the goods shipped to the port of destination, and there to deliver them to the consignee either actually or constructively.
    There is a constructive delivery when the carrier unloads the goods at its wharf at the port of destination, notifies the consignee of the arrival of the goods, and a reasonable time for their removal by the consignee has elapsed.
    It is the duty of the consignee, upon receiving such notice, to proceed at once and with diligence to remove the goods.

      After the lapse of a reasonable time for the consignee to remove the goods, the liability of the carrier as such ceases, and, if he is responsible thereafter, it is as a warehouseman.
    Where there is no dispute as to the facts, the question of what is a reasonable, time within which the consignee should have removed the goods, after they were unloaded and he had received notice of the fact, is one of law for the court.
    Upon the trial of an action brought against the defendants, as common carriers, to recover the value of seventy-one bales of cotton destroyed by fire, it. appeared that a barge belonging to the defendants left the city of New York with 100 bales of cotton shipped to the plaintiff, and arrived at the port of destination on the morning of July 9, 1893, and by noon of that day seventy-one bales of the cotton had been unloaded. It further appeared that the defendants had sent a notice to the plaintiff on the eighth of July, which was received on the morning of the ninth, to the effect that the 100 bales of cotton were ready for delivery, and upon receipt of the notice the plaintiff removed some of the cotton. On the thirteenth of July a fire broke out in the cotton, and a. number of bales were damaged or destroyed. Twenty-nine bales which were in the hold of the barge, surrounded by other freight, had not been unloaded at. the time of the fire, and were subsequently accepted by the plaintiff, and no. claim with reference to them was made in the complaint, or asserted on the trial.

      Meld, that the failure of the consignee to remove the cotton within three full days after notice of its arrival was unreasonable delay, and one which excused the-carrier from any liability for the loss of the cotton;
    That the liability of the carrier was not affected by the fact that twenty-nine bales of the cotton had not been unloaded at the time of the fire because it was in the hold and surrounded by other freight, which had to be first removed, it not appearing that the consignee, when it commenced to take away the seventy-one bales, made any objection to accepting the twenty-nine bales at. another time.
    Appeal by the plaintiff, the Wynantskill Knitting Company, from a judgment of the Supreme Court in favor of the defendants, entei’ed in -the office of the clerk of the county of Rensselaer on the 20th day of November, 1894, upon the verdict of a jury rendered after a. trial at the Rensselaer Circuit, and also from an order entered in said clerk’s office on the 23d day of November, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

      Olin A. Martin, for the appellant.

      William J. Roche, for the respondents.
   Putnam, J.:

This is an appeal from a judgment entered in the Rensselaer county clerk’s office on November 20, 189é, upon a verdict of a jury and from an order denying the plaintiff’s motion for a new trial.

The following facts may be deemed established by the verdict of the jury: On Wednesday, the 6th day of July, 1892, a barge belonging to defendants left the city of New York with 100 bales ■of cotton owned by the plaintiff, which were shipped to it at the city of Troy. The barge arrived at Troy, reaching the dock at the foot of State street, where the defendants conduct their business, ■on the morning of Saturday, July ninth; the work of unloading the barge was commenced at seven o’clock, and the decldoad of seventy-one bales of cotton consigned to plaintiff was unloaded before twelve o’clock of that day; on the evening of the eighth the defendants made out and deposited in a post-office box a postal card addressed to plaintiff, notifying the company that the 100 bales of cotton were ready for delivery; the plaintiff’s president received this postal card on Saturday, and at once notified the teamster ■employed by plaintiff to go and get the cotton; defendants’witnesses say that the first was taken away on Saturday afternoon; it is not denied by plaintiff that some of the cotton was drawn away before Wednesday, the thirteenth day of July. On the afternoon ■of that day a fire broke out in the cotton, and thirty-six bales were damaged or destroyed. Twenty-nine bales of the cotton had been placed in the hold of the defendants’ barge in New Yoi'k, and other freight was placed around them, and they were not unloaded at the time the seventy-one bales wore put on the wharf. When the defendants’ freight, including the seventy-one bales of cotton, was removed the barge left the dock to deliver other freight, and the twenty-nine bales were taken along. It returned to defendants’ clock about noon on Wednesday, the thirteenth. Before these twenty-nine bales could be unloaded the fire broke out in the cotton on the wharf. Those bales were, therefore, taken back to New York, plaintiff consenting, and subsequently taken back to Troy and accepted by plaintiff. No claim with reference to them is made in the complaint or was asserted on the trial.

The action was brought against the defendants as common carriers. No claim is made in the complaint or was asserted on the trial against them as warehousemen. Their duty as common carriers by water was not only to convey the cotton to the port of destination, but to deliver it there to the consignee. Such delivery could be either actual or constructive. There was a constructive delivery if the defendants unloaded the cotton at the wharf at Troy .and notified plaintiff after the lapse of a reasonable time for its removal by the latter. (Tarbell v. The Royal Exchange Shipping Co., 110 N. Y. 171.)

It was the duty of plaintiff, on receiving such notice, to at once and witll diligence proceed to remove the cotton. (Tarbell v. The Royal Exchange Shipping Co., supra; Hedges v. The Hudson River R. R. Co., 49 N. Y. 223.)

■ The cotton remained at the risk of the defendants until after the lapse of a reasonable time for the consignee to remove it. After the expiration of such time the liability of the defendants as common carriers ceased, and if in any way responsible, they were only so as warehousemen. The defendants had no right to place the cotton in a warehouse for the plaintiff until the latter had a reasonable time to remove it. (Redmond v. Liverpool, N. Y. & Phila. S. Co., 46 N. Y. 578-583.)

It has been held that what is a reasonable time in which to remove goods by the consignee after the same are unloaded at a wharf and notice given, where there is no dispute as to the facts, is ordinarily a question of law to be passed <5n by the court. (Hedges v. The Hudson R. R. R. Co., supra; Wright v. The Bank of the Metropolis, 110 N. Y. 237-249; Colt v. Owens et al., 90 id. 368.)

These authorities do not conflict with Scheu v. Benedict (116 N. Y. 510), and other cases, which hold that under certain circumstances the question of reasonable diligence in removing goods after their arrival should be submitted to the jury as a question of fact.

On tkfe evidence in this case the jury were authorized to find that on Saturday, the ninth of July, plaintiff received the notice sent by defendants of the arrival of the cotton; it was unloaded on that day by noon and plaintiff commenced drawing it away; it was not damaged or destroyed by fire until the afternoon of the following Wednesday.

"VYe think, under the doctrines established in the cases cited above, the court did not err in instructing the jury that if they found the cotton was delivered on the dock at Troy on the morning of Saturday, July ninth, and plaintiff received the postal card notifying It of its arrival on that day,, the liability of defendants as common carriers ceased before the fire on the following Wednesday, and they were only liable thereafter, if at all, as warehousemen, and in declining to charge, as requested by plaintiff, that the question whether this cotton was taken away by the plaintiff within a reasonable time is one, under the circumstances of this case, for the jury to pass upon.”

If the plaintiff had notice of the arrival of the cotton on Saturday, the ninth, and allowed it to remain on the dock until the afternoon of the following Wednesday, it failed to act promptly and-with reasonable diligence and defendants ceased to be liable as common carriers. (Hedges v. The Hudson R. R. R. Co., supra; Tarbell v. The Royal Exchange Shipping Co., supra.)

And it was for the court, under the circumstances, to determine the question as to the reasonable diligence of plaintiff in removing the goods. In the case of Hedges v. The Hudson R. R. R. Co. the action was brought against the defendant, as common carrier, to recover for a portion of a carload of paper destroyed by fire. The plaintiff had notice of the arrival of the paper on the morning of the twenty-fourth of May and removed one load, and the balance was burned the same night. In his opinion Judge Folg-er remarked: “We do not perceive that there is here any dispute as to the material facts. It is certain that with three or four trucks all the paper could easily have been hauled away before the close of defendant’s business on the day on which one load was taken with one truck. It is certain, too, that with the one truck of their own two loads could have been received by the plaintiffs from the defendant on that day, so that it was a question of law for the court whether it was unreasonable for the plaintiffs to employ but one truck, or, if reasonable to employ but one truck, whether it was reasonable to send it but once for paper that day. The learned trial judge left the question to the jury. In this we think that he erred.” In this case it is clear that the plaintiff could,, with reasonable diligence, have removed the cotton during the three days that elapsed after it received notice of its arrival, before the fire, and, under the authorities cited, the court was authorized to determine the question as to its reasonable diligence.

The trial court was not called upon to charge, as requested by plaintiff, that before the character of defendants as common carriers could change to that of warehousemen they must warehouse the freight. As we have seen, there was no claim in the complaint against defendants as warehousemen. The only question before the court was whether the defendants were liable as common carriers, and on the subject of such liability it had given the jury all the instruction necessary in a clear, full and fair charge.

The liability of defendants was not affected in any way by the fact that twenty-nine of the one hundred bales of cotton it had undertaken to transport had not been unloaded at the time of the fire. No negligence is claimed on the part of defendants in not unloading these bales at the same time they unloaded the deckload of cotton. It appears that the twenty-nine bales were in the hold of the barge surrounded by other freight and could not be unloaded until such freight was removed. Under the circumstances, we think the defendants had the right to unload the cotton in the way they did. On the unloading of the seventy-one bales plaintiff commenced taking it away, and it does not appear that it made any objection to the cotton being unloaded in two parcels, afterwards accepting the twenty-nine bales.

We think the case was fairly submitted to the jury by the learned trial judge, that no errors were committed, and that the judgment should be affirmed, with costs.

Mayham, P. J., concurred ; Herrick, J., concurred in the result.

Judgment affirmed, with costs.


text:
    Silas W. Heath, Respondent, v. The Glens Falls, Sandy Hill and Fort Edward Street Railroad Company, Appellant.

      Personal injuries — a failure to exercise the best judgment in an emergency is not contributory negligence.

    Where a person is placed in peril by the negligence of another he is not chargeable with contributory negligence if, in the sudden emergency, he fails to exercise the best judgment.
    If his action was induced by the negligent acts of another, such other partjr is not excused; unless the action was utterly unjustifiable or inexcusable under the circumstances, in which case the injured person has been guilty of such contributory negligence as will prevent a recovery.
    Appeal by the defendant, Tlie Glens Falls, Sandy Hill and Fort Edward Street Railroad Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tlie office of tbe clerk of tbe county of "Warren on tlie 20th day of June, 1895, upon tlie verdict of a jury rendered after a trial at tlie Warren Circuit, and also from an order entered in said clerk’s office on the 28tli day of J une, 1895, denying tbe defendant’s motion for a new trial made upon tlie minutes.

      Edward W. Douglas, for the appellant.

      Jamas H. .Bain, for tbe respondent.
   Putnam, J.:

This is an appeal from a judgment in favor of tbe plaintiff, entered in the cleric’s office of Warren county on tlie 20th day of June, 1895, on a verdict of a jury, and from an order denying a motion on the minutes of the court to set aside the verdict and for anew trial upon exceptions, and because the verdict is contrary to the evidence. Plaintiff brought the action to recover for the loss of the services, comfort and society of his wife, Jane Heath, and for expenses for. medical services rendered necessary by reason of certain injuries inflicted upon ber by reason of the alleged negligence of defendant.

Plaintiff and his wife were passengers on a car of defendant’s on tbe night of August 2é, 1891, at which time a collision occurred between said car and another running on tbe same .track in an opposite direction. The night was dark and there were no lights. Plaintiff’s wife, on seeing the danger of the impending -collision, arose for the purpose of escaping from the car, was thrown out and injured.

For such injury she commenced an action against defendant and recovered a judgment. On the appeal from that judgment we considered, on evidence substantially the same as that in the case under consideration, the questions as to the negligence of defendant and the alleged contributory negligence of plaintiff’s wife, and determined that on such evidence those questions were properly submitted to' the jury by the trial judge, and that the verdict of the jury would not be disturbed. (See 86 Hun, 620.)

Hence it will be unnecessary for us, at this time, to consider those portions of the brief of the learned counsel of appellant devoted to the discussion of the questions raised by him as to the alleged failure of plaintiff to show actionable negligence on the'part of defendant which caused the injury to Jane Heath, and as to her alleged contributory negligence.

An opinion in the case, therefore, seems unnecessary. We only deem it proper to consider briefly some of the exceptions taken by the defendant on the trial to the charge of the judge.

It is claimed that the trial judge erred in charging as follows : “ The law is that where a defendant is liable for damages caused by its negligence, it is not excused because the plaintiff or the person injured did an act which, upon further reflection, is seen to have been unwise or unnecessary, provided that act was caused by the peril in which the person was placed, or seemed to be placed. That is to say, if there is an impending collision between two cars, or seems to be, a person is not obliged to sit in his seat and await the result. He must act according to his own nature. If he is frightened he will act as a frightened man will act, and you are not to hold a person who is placed by the negligence of another in imminent peril, to that cool and dispassionate action which you, in looking back upon the event, shall judge to have been wiser than the action which the person frightened and placed in peril, and acting under the impulse induced by that peril, did actually perform.

“ So that if you find that Mrs. Heath jumped from this car, or moved towards the side of the car, you will consider whether her acts were induced by tlie negligent acts of tlie defendant. If they were induced by the negligent acts of the defendant, then the defendant is not excused because she acted unwisely. If they were induced solely by her own foolishness or stupidity; if they were utterly unjustifiable or inexcusable under the circumstances, then of course tlie fault is her own, and tlie consequence must fall upon her, or upon her husband in this action, and cannot be placed ippon the defendant.” And also in refusing to charge as requested, to wit: “ That any act on the part of plaintiff’s wife, done under the impulse of a sudden emergency, or the access of fear or excitement, and contributing to the injury, must be imputed to her as negligence, unless such act was such as a person of ordinary prudence would have done under the same circumstances.”

We think the portion of the charge above quoted fairly states the well-settled doctrine that one placed suddenly by another in a position of peril is not to be deemed guilty of contributory negligence for a failure to exercise the best judgment in the emergency. (Buel v. N. Y. C. R. R. Co., 31 N. Y. 314; Roll v. Northern Central Ry. Co., 15 Hun, 496; 80 N. Y. 647; Voak v. Northern Central Ry. Co., 75 id. 320; Coulter v. American Merchants' Un. Ex. Co., 56 id. 585 ; Twomley v. C. P., N. & E. R. R. R. Co., 69 id. 158.)

But were it otherwise, no exception appears to have been taken by the appellant to the above-quoted portion of the charge.

Nor was any valid exception taken by the defendant to the refusal of the judge to charge as requested by it in the seventh request above quoted. ' The general exception of defendant at the end of the trial was to the court’s refusal to charge in the language stated, and to its modification of tlie respective requests as stated. Such a general exception, it is well settled, is unavailing. (Haggart v. Morgan, 5 N. Y. 422; Harwood v. Keech, 1 Hun, 389-392; Schelley v. Diehl, 13 Wkly. Dig. 228; Pinedo v. Germania Smelting & Refining Works, 22 id. 21.)

We think the court did not err in declining to charge as requested by defendant in the seventh request, or in either of the other requests made by defendant and referred to in the brief of its counsel. The trial judge had fairly instructed the jury as to the law applicable to the case, and upon the subjects referred to in such requests, and. his refusal to instruct the jury in the particular language requested cannot be deemed error. (Holbrook v. The Utica & Schenectady R. R. Co., 12 N. Y. 236.)

But if otherwise, there was, as we have seen, no valid exception taken by the defendant to any of the refusals of the judge to charge as requested.

"We have carefully examined and considered each exception to the rulings of the court in receiving and excluding evidence, adverted to by counsel for appellant, and conclude that none of the rulings so excepted to require a discussion or a reversal of the judgment.

The judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J„ concurred.

Judgment affirmed, with costs.


author: Putnam, J.: Herrick, J.

text:
    John F. Buhrmaster, Respondent, v. Nelson Ainsworth, Appellant.

      Wrongful entry — by a landloi'd temporarily placing ice upon the premises of Ms tenant — th§ tenant may recover the estimated expense of removing the ice — measure

    "Where a tenant brings an action against bis landlord for entering into an ice-house on the demised premises, and wrongfully placing therein ice of his own, which the tenant will be compelled to remove, the tenant, if he does not seek to recover the rental value of the premises, may recover, as an element of his damages, the amount which it will necessarily cost him to remove the property thus wrongfully placed on the premises. Herrick, J., dissenting.
    Where, at the time of the trial of such an action, it does not appear that the tenant has removed the ice in question or that he has replaced it by other ice, he cannot recover for his services in procuring men to fill the house in the first instance and notifying them after his eviction that they need not come for that purpose, nor can he recover the difference between what it would have cost him to fill his house when evicted and such cost at the time of the trial of the action.
    Appeal by the defendant, Nelson Ainsworth, from a judgment of the County Court of Schenectady county, entered in the office of the clerk of the county of Schenectady on the 25th day of June, 1895, modifying, and affirming as modified, tbe judgment of a justice of the peace.

      Frank Cooper, for the appellant.

      Jacob W. Gluts, for the respondent.
   Putnam, J.:

An erroneous rule of damages was adopted in the lower (justice’s) court. Plaintiff’s action was to recover for the wrongful entry of defendant, his landlord, on the 12th of January, 1895, on premises, leased to him, and for taking possession of an icehouse thereon and filling it with ice. The action was commenced on the seventh day of February thereafter.

Plaintiff produced evidence showing that when evicted ho was about to fill the icehouse, and he recovered three dollars for services in procuring men to do the work and notifying them not to come after his eviction. He was also allowed five dollars for the difference in value of ice sufficient to fill the building at the time he was so dispossessed and at the time of the trial, and ten dollars, the estimated cost of removing the ice placed in the house by defendant. It did not appear that plaintiff had removed such ice or had replaced it.

It is well settled that the damages which can be allowed in a case like this are limited to such as may be supposed to have entered into, the contemplation of the parties in making the contract, and such as. flow naturally from the violation of the agreement, and are certain in their nature ; speculative profits and accidental and consequential losses are not recoverable. Under the rule so stated it does not require a discussion to show that it was error to allow the first two items above specified as damages.

Ordinarily the measure of damages for an eviction is the rental value of the premises less the rent reserved. (Dodds v. Hakes, 114 N. Y. 261-265 ; Drucker v. Simon, 4 Daly, 53; Chatterton v. Fox, 5 Duer, 64; Giles v. O'Toole, 4 Barb. 261.

But in such a case as this, where a tenant brings an action against, his landlord for entering into a part of the demised premises and wrongfully placing therein property of his own, which the tenant will be compelled to remove — in fact, for a temporary eviction or trespass — if such tenant does not seek to recover the rental value of the premises, I see no objection to liis being allowed what it will necessarily cost him to remove the property so wrongfully placed on his premises by the landlord. In such a case he elects to retain the premises and recover damages as for a trespass.

It follows that the item of ten dollars allowed plaintiff can be sustained.

The judgment should be.modified by striking out the two items of three dollars and five dollars, and, as so modified, affirmed without costs to either party.

Mayham, P. J., concurred.

Herrick, J.

(dissenting):

I think the item of ten dollars should also be stricken out. There is nothing in the case to show that such expense will be necessarily, or even properly, incurred.

The judgment should be modified, with costs of this appeal to the appellant.

Judgment modified, and as modified affirmed, without costs to either party.


author: Per Curiam :

text:
    Edward Butcher, Jr., Appellant, v. John L. Henning and William H. McCall, Respondents.

      Judgment — money collected thereon cmd paid to a creditor, the attorney, of the judgment creditor — it cannot he recovered on a reversal of the judgment.

    Where an action has been brought, a judgment recovered therein, collected and the money paid to the plaintiff’s attorney, an action will not lie, after the judgment has been reversed, to recover of the attorney the money which, by an agreement between himself and his client, he has retained in payment of a debt due to him from his client.
    Appeal by the plaintiff, Edward Butcher, Jr., from a judgment of the Sujxreme Court in favor of the defendants, entered in the office of the clerk -of the county of Saratoga on the 30th day of October, 1894, upon the dismissal of the complaint directed by the court after a trial at the Saratoga Circuit before the court without a jury.

      E. E. Bullard, for the appellant.

      William, H. MeGall, for the respondents.
   Per Curiam :

In Langley v. Warner (3 N. Y. 327) it was held by the Court of Appeals that where a judgment had been collected and the money paid to the attorney who prosecuted the suit, an action will not lie against the attorney to recover back the money after a reversal of the judgment, although by agreement between him and his client he retained the money in payment of a debt due from the latter to him.

The facts in the case cited were quite similar to those appearing in the case under consideration. We are not aware that the doctrine established in Langley v. Warner (supra) has ever been doubted or overruled. (Grauer v. Grauer, 49 N. Y. St. Repr. 354, 355; Wright v. Nostrand, 53 N. Y. Super. Ct. 381, 386; Simpson v. Hornbeck, 3 Lans. 53, 55; Forstman v. Schulting, 108 N. Y. 110, 113.)

The judgment should be affirmed, with costs.

Present — Putnam and Herrick, JJ.; Matham, P. J.,not sitting.

Judgment affirmed, with costs.


author: Per Ouriam :

text:
    Lewis Abrams, Respondent, v. Charles Lavine, Appellant.

      Attachment — insufficiency of an affidavit stating what a third, party has said.

    An affidavit upon which an attachment is sought is insufficient, where the deponent states what a third person had told him, the statements of such third person made in this form being merely hearsay.
    A statement contained in such an affidavit that the third person would not voluntarily make an affidavit is a mere conclusion. The plaintiff snould allege an attempt to procure the deposition of such person and his refusal to make an affidavit in the premises.
    Appeal by the defendant, Charles Lavine, from an order of the Supreme Court, made at the Washington Special Term and entered in the office of the clerk of the comity of Warren on the 23d day of May, 1895, denying the defendant’s motion to vacate a warrant of attachment.

      Cha/rles P. Patterson, for the appellant.

      Lymcm Jenkins, for the respondent.
   Per Ouriam :

The grounds upon which plaintiff applied for an attachment were that defendant had failed to meet him at Glens Palls as he had promised to, and that plaintiff had seen and had a conversation with one Aronsen, in which the latter said “ that something about six months ago one Link failed at North Creek, N. Y., at the place where said Lavine is now, and was at that time, doing business; that said Link was assisted during said failure by said Lavine, and that he was now about to assist said Lavine to sell, assign, dispose of and secrete his property with intent to defraud his creditors, and that said Lavine said that he should make an assignment of all his property within about thirty days.”

The statements of Aronsen, on which plaintiff applied for an attachment,' were mere hearsay. The plaintiff failed to give any sufficient reason why the affidavit of Aronsen was not produced. The fact that the latter is a friend of defendant and has done business in the town where defendant resides was no sufficient reason. The statement that Aronsen will not voluntarily make an affidavit is evidently a mere conclusion of the plaintiff. He should have alleged an attempt to procure the deposition of Aronsen and the refusal of the latter to make an affidavit. (Farley v. Shoemaker, 17 N. Y. St. Repr. 205; Steuben County Bank v. Alberger et al., 78 N. Y. 252.)

_ As said by Danforth, J., in the case last cited (p. 258): “ It would be intolerable if the property of a citizen was liable to seizure upon such vague and inconclusive averments as are contained in the affidavits before us.”

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Present — Mayham, P. J., Putnam and Herrick, JJ.

Order reversed, with costs and disbursements.