author: Martin, J.:

text:
    MARCIA E. PECK, Respondent, v. THE EQUITABLE ACCIDENT ASSOCIATION OF BINGHAMTON N. Y., Appellant.

      Accident insurance certificate — in what form and under what circumstances a recovery may be had thereon — what is “direct and positive proof” of death by " external, violent and accidental means."

    By a certificate of membership, issued to one Ira Peck, the defendant, The Equitable Accident Association, agreed to pay to the plaintiff a sum to be realized by an assessment not to exceed $5,000 within sixty days after due and satisfactory proof should be filed with its secretary, that said Peck had, while a member, sustained injuries effected through external, violent and accidental means, and that such injuries alone had occasioned death within ninety days from the .happening thereof. Said certificate also contained the following condition: ‘ ‘ Benefits under this certificate shall not extend, * * * to any cause of death or personal injury, unless the claimant under this certificate shall establish by direct and positive proof that the death of the person injured was caused by external, violent and accidental means, and was not the result of design either on the part of the member or of any other person.”
    On Thursday, March 24,1887, and within the life of the certificate, the arm of said Ira Peck was broken; how, in what manner, under what circumstances or at what place he was at the time it was broken did not appear. At seven' o’clock p. m., on that day, he was in front of the Vanderbilt House, in the city of Syracuse. At twelve o’clock of the same day he was, with his arm broken, at his rooms in that city, where the fracture was reduced. On the following Tuesday he was taken ill quite suddenly with severe pains in his chest and lungs, from which he was relieved, and was convalescent for a week or ten days, when he was again attacked in a similar manner, and ,on April 12,1887, he died.

      The evidence introduced by the plaintiff tended to show that the cause of his death was embolism or thrombus, which was the direct result of his arm being broken, while the evidence of the 'defendant tended to show that his death was caused by pneumonia, and that the breaking of his arm was not the cause of his death.
    In an action, brought by the beneficiary named in the policy to recover $5,000 and interest:
    Held, that the evidence was sufficient to justify the trial court in finding that the fracture of the defendant’s arm alone caused his death, and that it was the sole and proximate cause thereof. •
    That the requirements of the certificate as to “direct and positive proof ” did not make it necessary that the plaintiff should establish the fact and attendant circumstances of the decedent’s injury, by persons who were actually present when the injury occurred.
    That the fact that the injury was caused by external violence was directly and positively established by the proof given of the nature and character of his injury.
    That the presumption, if any, was that his injury was caused by accidental means rather than that it was the result of design either on the part of the decedent or of any other person.
    That it was not to be presumed that his injury was self-inflicted, or that it was intentionally inflicted by any other person.
    The certificate provided that the principal sum agreed to be paid should be realized upon an assessment, in accordance with the provision of the by-laws of the association within sixty days after due and satisfactory proof should be filed with its secretary of the injuries sustained.
    It was found by the trial court that if an assessment had been levied as provided by such policy, it would have produced at least $5,000, and that the plaintiff was entitled to a judgment for that sum, with interest and costs.

      Held, that this action was maintainable in its present form.

      Freeman v. National Benefit Society of New York (42 Hun, 252); Fulmer v. Union Mutual Association (12 ÜST. Y. State Rep., 346); Nankinson v. Paige (12 Civ. Pro. JR., 279, 288); O’Brien v. Nome Benefit Society of New York (21 N. Y. State Rep., 640, 648) followed.
    Appeal by tbe defendant from a judgment, entered in tbe office of tbe clerk of tbe county of Onondaga on tbe 26th day of December, 1888, recovered upon a trial at tbe Onondaga Oounty Circuit before tbe court without a jury.
    Tbe action was upon a certificate of membership, issued to one Ira Peck by tbe defendant, which was in tbe nature of a policy of insurance against accident. It, among other things, provided that tbe defendant would pay, at its office in Binghamton, N. Y., to tbe plaintiff tbe principal sum, not exceeding $5,000, realized upon an assessment in accordance with the provisions of its by-laws, within
      sixty days after due and satisfactory proof should be filed with its secretary that said Peck had, while a member, sustained injuries effected through external, violent and accidental means, and such injuries alone had occasioned death within ninety days from the happening thereof. It also provided that such certificate was issued and accepted subject to the conditions, provisions, limitations and exceptions therein contained or referred to, together with the classification of hazards embraced therein, and all of the provisions of the rules, regulations and by-laws of the defendant which were made a part of the contract between the parties.
    Among the conditions which were made a part of such certificate or policy were the following : “ That benefits under this certificate shall not extend * * * to any death or disability which may have been caused wholly or in part by bodily infirmities or disease existing prior or subsequent to the date of this certificate, * * * nor to any case except where the injury is the proximate and sole cause of the disability or death, * * * and these benefits shall not be held to extend * * * to any cause of death or personal injury, unless the claimant, under this certificate, shall establish, by direct and positive proof, that the death or personal injury was. caused by external violence and accidental means, and was not the result of design either on the part of the member or of any other person.” j
    The defense consisted of denials of the complaint and allegations' that the assured falsely represented his age; that his death was caused wholly or partly by bodily infirmities or by disease existing-prior or subsequent to the date of the certificate; that the alleged injury was not the sole or proximate cause of his death, and that the proper pooofs of the injury were not furnished as required by the policy. On Thursday, March 24, 1887, and within the life of this certificate, the arm of the said Ira Peck was broken. How, in what manner, under what circumstances, or at what place he was at the time it was broken, does not appear. At seven or eight o’clock p. m. on that day he was in front of tire Yanderbilt House, in the city of Syracuse. At eleven or twelve o’clock of the same day he was at his rooms in that city with his arm broken. The fracture was reduced. On the following Tuesday he was taken quite suddenly with severe pains in his chest and lungs. From this he was relieved and was convalescent for a week or ten days, when he was again attacked in a manner similar to the first, and from that time he gradually grew worse until April 12, 1887, when he died.
    The evidence introduced by the plaintiff tended to show that the cause of his death was embolism or thrombus, which was the direct result of his arm being broken, while the evidence of the defendant tended to show that his death was caused by pneumonia, and that the breaking of his arm was not the cause of his death. Upon this evidence the trial court found: “ That the said Ira Peck, on the 24th day of March, 1887, met with an accident whereby his arm was fractured, and thereby sustained bodily injuries effected through external, violent and accidental means within the intent and meaning of said contract of insurance and the conditions thereto annexed; that thereafter, and while said contract and policy of insurance was in full force and effect, said Ira Peck died at Syracuse, N. Y., on the 12th day of April, 1887, and that said bodily injuries, sustained by said Ira Peck aforesaid, directly produced a disease of the lungs, ■called by the physicians pneumonia, thrombus and embolism, respectively, from which he died, and the said accident, therefore, ■alone occasioned the death of said Ira Peck within ninety days from the happening of the same.” It also found that if an assessment had been levied as provided by such policy, it would have produced at least $5,000, and that the plaintiff was entitled to a judgment for $5,000, with interest thereon from August 1. 1887, together with the costs of this action.

      O. W. Ohwpmcm, for the appellant.

      W. G. Tracy, for the respondent.
   Martin, J.:

The questions chiefly litigated on the trial, and the only questions presented for our consideration on the argument of this appeal were: 1. Whether the decedent’s injury was the proximate and sole cause of his death. 2. Whether the fact that the decedent’s death or injury was caused by external violence and accidental means was established by direct and positive proof within the intent and meaning of the policy. 3. Whether the decedent made false statements as to liis age. 4. "Whether this action could be maintained in its present form.

W e are of the opinion that the evidence was sufficient to justify the trial court in finding that the fracture of decedent’s arm alone caused his death, and that it was the sole and proximate cause thereof. (McCarthy v. Travelers’ Ins. Co., 8 Biss., 362; Barry v. U. S. Mutual Accident Association, 23 Fed. Rep., 712 ; National Benefit Association of Indianapolis v. Grauman, 107 Ind., 288.) It must be admitted that there was no evidence by any witness who saw the decedent when he was injured, as to the particular manner in which his injury was caused. But the requirement of this certificate as to direct and positive proof did not make it necessary that the plaintiff should establish the fact and attendant circumstances of the decedent’s injury by persons who were actually present when the injury occurred. The fact that the injury was caused by external violence was directly and positively established by the proof given of the nature and character of his injury. We think the presumption, if any, was that his injury was caused by accidental means rather than that it wus the result of design, either on the part of the decedent or of any other person. It was not to be presumed that his injury was self-inflicted, nor that it was intentionally inflicted by any other person. The evidence was sufficient to justify the trial court in finding that the injury sustained was caused by accidental means. But the more difficult question is, whether it was established by such direct and positive proof as the certificate required. While this question is not free from doubt, still we are inclined to the opinion that the proof was sufficiently direct and positive to answer the requirements of the certificate. (Travelers’ Ins. Co. v. McConkey, 127 U. S. 661, 666; Mallory v. Travelers’ Ins. Co., 47 N. Y., 52.)

There was not sufficient evidence that the decedent made any false statement as to his age to defeat the recovery in this action, and the court properly so held. That the plaintiff could maintain this action in its present form seems to be established by the cases of Freeman v. National Benefit Society of New York (42 Hun, 252); Fulmer v. Union Mutual Association (12 N. Y. State Rep., 346); Harkinson v. Page (12 Civ. Pro. R., 279, 288); O’Brien v. Home Benefit Society of New York (21 N. Y. State R. 640, 643).

These considerations have led ns to the conclusion, that the judgment appealed from should be affirmed.

Hardin, P. J., and Her win, J., concurred.

Judgment affirmed, witb costs.


source: Caselaw Access Project

license: Public Domain

text:
    JAMES BROWN, Respondent, v. THE HARTFORD FIRE INSURANCE COMPANY, Appellant.

      Insurance policy — proofs of loss — when held to he sufficient.

    In an action, brought on a fire insurance policy issued by the defendant, thedefendant alleged in its answer, as a defense, that the plaintiff had neglected and refused to furnish the defendant with a certificate under the seal pf a magistrate, notary public or commissioner of deeds nearest the place of the fire, and not concerned in the loss or related to the assured, as required by the provisions of the policy.
    It appeared on the trial that the plaintiff made and delivered to the defendant an account of his loss, in which he claimed that the amount of such loss was $2,200, and with this account he produced to the defendant the certificate of the nearest magistrate to the. effect that he was not concerned in the loss or related to the insured; that he was acquainted with the character and circumstances of the assured; and having made diligent inquiry, into the fact set forth in the foregoing instrument, he believed and was satisfied that the said assured had, without fraud, by reason of the fire therein described, sustained loss on the property insured to the amount of $ , the sum stated in his affidavit of loss. These proofs of loss were retained by the defendant,, the only specific objection made to them being that they did not contain a particular account of the loss.
    Subsequently the plaintiff furnished an additional account of loss which contained a detailed statement of the property destroyed, and in which he also claimed that the amount of his loss was $2,200; and with that account another certificate by the same magistrate, by which he certified that he had examined the circumstances attending the fire or damage alleged, and that he was well acquainted , with the character and circumstances of the assured, and verily believed that he had by misfortune, without fraud or evil practiced on his part, sustained loss and damage on the property in an amount unknown to the magistrate.

      Held, that the first certificate of the magistrate was a substantial compliance with the requirements of the policy, and that the production of the second certificate, if defective, did not render the first unavailing.
    That as the defendant retained the account of loss and certificate first delivered, and required an additional and more particular account of loss, which was furnished, that both of the accounts of loss and both of the certificates furnished should he taken together and be regarded as constituting the proof of loss furnished by the plaintiff, and that the second proof of loss furnished did not in any manner supersede or nullify the first.

      Appeal, by tbe defendant from a judgment recovered upon tbe trial of tbe action at tbe Oneida County Circuit, which was entered in the office of the clerk of Oneida county on the 10th day of May, 188Y, and from an order of the Oneida Special Term denying amotion for a new trial, made upon a case and exceptions, and based solely on the exceptions taken on the trial, which was entered in the said clerk’s office on December 19, 1888.
    The action was on a fire insurance policy issued by the defendant to the plaintiff on a stock of hardware contained in a brick building situated at North Bay, Oneida county, N. T. The amount for which such policy was issued was $1,500. The property insured was totally destroyed by fire November 22, 1884.
    Among other matters set up as a defense to this action, the defendant, by its answer, alleged that the plaintiff neglected and refused to furnish the defendant with a certificate, under the seal of the magistrate, notary public or commissioner of deeds nearest the place of the fire and not concerned in the loss or related to the assured, as required by the provisions of such policy. The policy contained the following provision: “ In case of loss the assured shall give immediate notice thereof and render to the company a particular account of said loss, under oath, stating the time, origin and circumstances of the fire; the occupancy of the building insured or containing the property insured; other insurance, if any, and copies of the written portion of all policies; the whole value and ownership of the property and the amount of loss or damage, and shall produce the certificate under the seal of a magistrate, notary public or commissioner of deeds, nearest the place of the fire and not concerned in the loss or related to the assured, stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has, without fraud, sustained loss on the property insured to the amount claimed by said assured.” After the fire, and on or about December 13,1884, the plaintiff prepared and delivered to the defendant an account of his loss, and also produced to the defendant a certificate under the seal of the nearest magistrate, which was as follows:

      “STATE OE NEW YORK,
    County ok Oneida,
    “ I, James Rae, a justice of th# peace, in and for said county, residing most contiguous to the property of James Brown, insured, as set forth in the preceding affidavit, certify that I am not concerned in that loss or claim, either as a creditor or otherwise, or related to the insured or sufferers, and that I am acquainted with the character and circumstances of said James Brown, and having made diligent inquiry into the facts set forth in the foregoing statement, believe and am satisfied that the said assured has, without fraud, sustained by said described fire, loss on the property insured to the amount of dollars, the sum stated in his affidavit of loss.
    “ In witness whereof, I have hereunto set my hand and official seal this 13th day of December, A. D. 1884.
    “ JAMES RAE, [l. s.].
    “ Justice of the Peace.”

    After the receipt of such account and certificate by the defendant, its duly authorized agent wrote and sent to the plaintiff a letter, which was received by him, and which was as follows:
    “ Glens Falls, Jcmua/ry 3, 1885.
    “ James Brown, North Bay, N. Y.:

    “ Dear Sir. — ■ I have received certain papers signed by you, which purport to be proofs of loss by fire to property named in policy No. 902, of Hartford Fire Ins. Co., Camden, N. Y., agency. You will please take notice that the so-called proofs of loss are not in conformity with, and do not fulfill the terms and conditions of the policy. Among other defects, they do. not contain a particular account of said (alleged) loss. (See line 26 of printed conditions of policy.) You will also please take notice that this Co. has not waived, and does not waive, any exceptions or objections to said papers or alleged proofs of loss, nor any defense to any claim made or to be made by reason of said policy, fire and alleged loss.
    “Resp’lly,
    “A. NEWTON LOCKE,

      “G. A.”

      On. the loth day of January, 1885, such, agent sent plaintiff another letter as follows:
    “Syracuse, N. Y., January 15, 1885.
    “ James Brown :
    “Dear Sir. — Yours of 7th inst. has been received. In reply thereto you will please take notice that the Hartford Fire Ins Co. objects to your so-called proofs of loss, because it does not contain a particular account of the loss. That is precisely as I explained to you in person when we met at No. Bay, and as I wrote you 3d Jan. inst. It is not sufficient to say the value was $2,200. Your contract with the Co. requires you to furnish a ‘ particular account.’ You must prepare a schedule of the goods alleged to have been burned. You will take notice that the Hartford Fire Ins. Co. does not, and will not, waive any exceptions or objections to said papers or alleged proof of loss, nor any defense to any claim made or to be made by reason of said policy, fire and alleged loss.
    “ Respectfully,
    “A. NEWTON LOCKE,

      "G. A

    After the receipt of these letters from the defendant’s agent, the plaintiff prepared and delivered to the defendant a further account of loss, which contained a particular or detailed account of the plaintiff’s loss, and accompanying which was another certificate by said magistrate, as follows :
    “STATE OF NEW YORK,

      ss.:

    County oe Oneida,
    “I, James Rae, residing in North Bay, most contiguous to the property hereinbefore described, hereby certify that I am not concerned in the loss or claim above set forth, either as a creditor, or otherwise, or related to the insured or sufferers; that I have examined the circumstances attending the fire, or damage as alleged, and that I am well acquainted with the character and circumstances of the assured, and do verily believe that he has by misfortune and without fraud or evil practice on his part, sustained loss and damage on the property insured, amount unknown to me.
    “ In testimony whereof, I have hereunto set my hand and [l. s.] official seal, this 31st day of January, A. D. 1885.
    “JAMES RAE,
    “ Justice of the Peace.”

      After the defendant had received such additional account and certificate, the defendant’s agent again wrote the plaintiff the following letter:
    “New York, JT’elj’y 17, 1885.
    “ Ja’s Brown :
    “Dear Sir. — We received, without letter of explanation, a statement purporting to be proof of loss on 22d November, 1884, to property named in policy No. 902, issued to you by Camden agency. Please take notice that it is not, in form or substance, a compliance with the requirement of said policy, and the same is hereby rejected as proofs of loss, and you are required to furnish full proof in due form and in strict compliance with all the terms, conditions and provisions of the policy. There is no particular account of amount of loss signed and sworn to by you, and the so-called proof of loss does not bear the certificate of nearest official to the amount of loss. You will take notice that the company has not waived or dispensed with any of the terms, conditions, stipulations or provisions of said policy, and reserves any and all objections to any and all claims made or to be made upon it by reason of said alleged loss under policy.
    “A. N.-L.,
    “ a. A.”

    No other account of loss or certificate of magistrate were furnished by the plaintiff. On the trial the question of-the sufficiency of such certificates was raised by objection to its admission in evidence, find also by motion for a nonsuit based on that ground.

      I. D. Oarfield, for the appellant.

      D. T. SecM'le, for the respondent.
   Martin, J.:

But a single question is presented for our consideration on this appeal. The only claim made by the appellant is, that the plaintiff failed to produce a proper certificate of the magistrate, notary public or commissioner of deeds nearest the place of the fire, as required by the policy upon which this action is brought; that the production of such a certificate was a condition precedent to the plaintiff’s right of recovery, and that the trial court erred in not so holding and in refusing to nonsuit the plaintiff upon that ground.

That the production of such a certificate was a condition precedent to the plaintiff’s right of recovery we have no doubt. It is not, however, claimed that the plaintiff failed to furnish a certificate, nor that the magistrate, who made the certificate produced, was not nearest the place of fire, or that he was concerned in the plaintiff’s loss or related to the assured. The sole claim of the defendant is, that the last certificate produced did not certify that the magistrate verily believed that the assured had, without fraud, sustained loss on the property insured to the amount elcmned Toy said assiored.

The plaintiff made and delivered to the defendant an account of his loss, in which he claimed that the amount of such loss was $2,200, and with this account he produced to the defendant the certificate of the nearest magistrate that he was acquainted with the character and circumstances of the assured, and having made diligent inquiry into the facts set forth in the foregoing statement, he believed and was satisfied that the assured had, without fraud, sustained by said described fire loss on the property insured to the amount of dollars, the sum stated in his affidcmit of loss. While this certificate did not, perhaps, strictly comply with the provision of the policy, it was a substantial compliance with it, and sufficient. The only specific objection made to the proofs of loss furnished was, that they did not contain a particular account of such loss. This account of loss and certificate were retained by the defendant. Subsequently the plaintiff furnished an additional account of loss, which contained a detailed statement of the property destroyed, and in which he also claimed that the amount of his loss was $2,200. With that account another certificate by the same magistrate was produced, by which he certified that he had examined the circumstances attending the fire, or damage alleged, and that he was well acquainted with the character and circumstances of the assured, and verily believed that he had by misfortune, without fraud or evil practice on his part, sustained loss and damage on the property insured, amount unknown to him. The last certificate, if considered alone, was not strictly such as was required by the provisions of the policy. If the first certificate produced by the plaintiff was superseded by the last, so that the first must be wholly disregarded, and not treated as a part of the proofs of loss furnished by the plaintiff in pursuance of the requirements of the policy, then, perhaps, the defendant’s claim, should be sustained. If, however, the first certificate was not superseded by the second, and is still to be treated as a part of the plaintiff’s proofs of loss, then that provision in the policy was substantially complied with, and the court properly refused to grant the defendant’s motion for nonsuit on that ground. Hence the real question to be determined is whether the first certificate furnished is to be still regarded as a part of the plaintiff’s proofs of loss.

By an examination of the provision of the policy under consideration, it will be seen that the certificate of the magistrate does not. necessarily form any part of the account of loss required. It, at. most, need only refer to the amount claimed by the assured; it is a. portion of the plaintiff’s required proofs of loss, but may, and we think does, exist independent of the account of loss. The first certificate was received by the defendant and retained by it without objection. It sufficiently certified as to plaintiff’s loss to the amount claimed by him. The amount claimed was not changed by the additional account furnished by the plaintiff. We are of the opinion that when the plaintiff produced to the defendant the first certificate of the magistrate, it was a substantial compliance with the requirements of the policy, and that the production of a second certificate, if defective, did not render the first unavailing. Moreover, we are of the opinion that as the defendant retained the account of loss and certificate first delivered, and required an additional and more particular account of loss, which was furnished, that both of the accounts of loss and both of the certificates furnished should be taken together, and be regarded as together constituting the proofs of loss furnished by the plaintiff, and that the last proofs furnished did not, in any manner, supersede or nullify the first. When considered together we think the magistrate’s certificates must be regarded as a sufficient compliance with the requirements of the policy, and that the court properly so held.

If correct in these conclusions, it follows that the judgment should be affirmed.

Hardin, P. J., concurred; Merwin, J., not sitting.

Judgment and order affirmed, with costs


text:
    JAMES R. PURDY, Respondent, v. THE ROME, WATERTOWN AND OGDENSBURG RAILROAD COMPANY, Appellant.

      Injuries sustained by a servant —■ negligence of the master — agreement of release, void' if not given for a sufficient consideration.

    In an -action, brought to recover damages because of personal injuries sustained by the plaintiff while in the defendant’s employ, it was claimed that the injuries.. were caused by the neglect of the defendant to furnish the plaintiff with proper-implements and appliances to be used in the work on which he was employed.
    The defendant set up as a bar to a recovery in this action a writing or paper,. signed by the plaintiff, wherein it was stated that he agreed that the defendant, should not, in any case, be liable to him for any damages or injuries to his person or property by reason of the negligence of the defendant or his employees.. It appeared that this instrument was signed by the plaintiff while he was in the. defendant’s employ, and that at the time when it was signed no agreement was. made between the parties as to any future employment of the plaintiff by the; defendant, nor did the plaintiff read the instrument or know its contents.

      Held, that, without deciding or discussing the question as to the validity of such; an agreement, when founded upon a good and sufficient consideration and fairly understood by the parties, this agreement was without a sufficient consideration to support it, and that it was not a bar to this action.
    Appeal from a judgment, entered in the office of the clerk of’ Oneida county on the 12th day of February, 1887, on the verdict ■ of a jury rendered at the Oneida Circuit against the defendant for-$o,000 damages and costs, and from an order, made the 12th day of February, 1887, denying the defendant’s motion for a new trial, made upon the minutes of the justice presiding at the trial.
    The action was brought to recover for personal injuries sustained by the plaintiff while in the defendant’s employ. It was based on the alleged negligence of the defendant in not furnishing the plaintiff with proper implements and appliances for the purposes of’ the work in which he was employed.

      EBrnwid, B. Wynn, for the appellant.

      Q-. 8. KlooTe, for the respondent.
   Martin, J.:

A careful examination of the evidence in this ease has led us to the conclusion that it was sufficient to justify the court in submitting tbe question of the defendant’s negligence to the jury. (Ellis v. N. Y., L. E. and W. R. R. Co., 95 N. Y., 546; Gottlieb v. N. Y., L. E. and W. R. R. Co., 100 id., 462.)

Nor do we think it can be held, as matter of law, that the plaint-tiff: was guilty of contributory negligence. Under the evidence the question of plaintiff’s contributory negligence was for the jury, and was properly submitted to it. (Thurber v. H. B., M. and F. R. R. Co., 60 N. Y. 326; Massoth v. D. and H. C. Co., 64 id., 529; Stackus v. N. Y. C. and H. R. R. R. Co., 79 id., 464; Halsey v. R., W. and O. R. R. Co., 12 N. Y. State Rep., 319; affirmed in Court of Appeals March, 1889.)

The defendant claims that the writing or paper signed by the ■plaintiff, wherein it was stated that he agreed that the defendant should in no case be liable to him for any damage or injury to his person or property by reason of the negligence of the defendant or its employees, was a bar to the recovery in this action. This instrument was signed by the plaintiff while he was in the defendant’s employ. ITis employment pi’eceded the execution of the agreement and continued until the time of his injury. When it was signed ■there was no agreement between the parties as to any future employment of the plaintiff by the defendant. It was without any new consideration whatever. The plaintiff did not read it, nor did he know its contents. Without deciding or discussing the question as to the validity of such an agreement, when founded upon a good and sufficient consideration and fairly understood by the parties, we .are of the opinion that this agreement was without a sufficient consideration to support it, and that the trial coui’t committed no error in holding that it was not a bar to this action.

The appellant has called our attention to no errors of the court in the admission or rejection of evidence, or in its charge to the jury, and we have found none that would seem to require discussion or justify a reversal of the judgment herein, hence it follows that the judgment and order should be affirmed.

Hardin, P. J., concurred; Merwin, J., not sitting.

Judgment and order affirmed, with costs.


text:
    CHARLES WERNER, SOLOMON WERNER and JULIUS WERNER, Respondents, v. MINNA G. TUCH and MORRIS TUCH, Appellants, Impleaded with Others.

      Agreement for a release of pa/rt of mo?‘lgaged premises — not enforceable after a default in the payment of interest — tender■—insufficient when coupled with-a demand-for a release of pa/rt of the mortgaged premises —■ when the tender must he kept good.

    In an action brought to foreclose a mortgage, given April 9, 1881, by the defendants. Minna Q-. and Morris Tuch to the plaintiffs to secure the payment of $5,260 and interest, it appeared that the mortgaged premises consisted of a house and lot situated at Blossburg, in the State of Pennsylvania, and certain other premises situated in the city of Elmira, New York, the latter constituting three separate, and distinct lots. The mortgage provided for the payment of the principal May 1, 1891, and also contained an interest clause providing that if default, should be made in the payment of the interest, and it should remain unpaid for • sixty days, the whole principal sum, and the interest thereby secured to be paid, should, at the option of the plaintiffs, immediately become due and payable.
    It also contained an agreement for the release of the mortgaged premises in parcels, if sold by the mortgagors, on payment of a part of the said principal sum, as follows: The lot in Pennsylvania on payment of $2,5C0; the most easterly of the. Elmira lots on payment of $1,750; the most westerly of the Elmira lots, and the lot between the two, on payment of $850 on the sale of each lot.
    The interest falling due on May 1, 1887, not having been paid at the end of sixty days, the plaintiffs elected to regard the whole amount of principal and interest. secured to be paid by the said bond and mortgage as due, and commenced this. action to enforce the collection thereof by a foreclosure and a sale of the premises described in the said mortgage, excepting one lot which had been released on the payment of $850.
    After this action of foreclosure was commenced the defendants Tuch sold the other two lots in Elmira to their daughter and tendered to the plaintiffs the sums of $1,750 and $850, and $185 for the interest and costs, and demanded that the plaintiffs should execute releases for said lots, which the plaintiffs refused to do.

      Held, that the right to obtain a release of a part of the mortgaged premises, on the payment of a part of the sum secured to be paid by the mortgage, did not survive the defendants’ default in payment of the mortgage debt and interest as it became due.
    That, to extinguish the respondents’ mortgage lien, it was necessary to have tendered the whole amount that was due upon the said bond and mortgage.
    That the fact that the tender, as proved, was coupled with an express demand for a release of part of the mortgaged premises before the money would be paid, rendered the tender insufficient to discharge the plaintiff’s mortgage.
    The appellants, by their answer, sought an affirmative judgment releasing such premises from the lien of the said mortgage.

      Held, that they could not obtain such a judgment without keeping their tender good, which was not done in this case.

      Kortright y. Oady (21 N. Y., 843) distinguished.
    Appeal by the defendants Minna Gr. Tuch and Moms Tuch from ■a judgment, entered in the clerk’s office of the county of Chemung on the 2d day of June, 1888, upon the trial of the action at the ■Oneida Special Term by the court without a jury.

      Frederick Collin, for the appellants.

      A. J. Simpson, for the respondents.
   Martin, J.:

This action was commenced July 6,1887, to foreclose a mortgage given April 9, 1881, by the defendants, Minna Gr. and Morris Tuch, to the plaintiffs to secure the payment of the sum of $5,260 and interest. The premises mortgaged consisted of a house and lot situate in Blossburg, Pa., and certain other premises situate in the city of Elmira, N. Y. That portion of the premises situate in the city of Elmira was treated by the parties as consisting of three separate or distinct lots. The principal sum secured by said mortgage was to be paid on the 1st day of May, 1891, with semi-annual interest at five per cent. The mortgage also contained an interest clause by which, if default should be made in the payment of the interest, and it should remain unpaid for sixty days, the whole principal and interest should, at the option of the plaintiffs, immediately become due and payable. It also contained a condition or agreement for the release of part of the mortgaged premises, if sold by the mortgagors, on payment of a part of said principal sum, as follows: The Blossburg house and lot on payment of $2,500 ; the most easterly of the Elmira lots on payment of $1,750 ; the most westerly of said lots on payment of $850; and the lot lying between the other two on payment of $850; the mortgagors to have the privilege of paying off any part of the principal sum during the term, provided they should not be otherwise in default.

On June 11,1881, upon payment to them of $850 of the principal sum secured by said mortgage, the plaintiffs released to the defendants Tuch the most westerly of the lots situated in Elmira. The interest which became due on said mortgage prior to May 1, 1887, was all paid, but the interest which became due on that day was not paid. At the end of sixty days the plaintiffs elected to regard the whole amount secured by said bond and mortgage as due, and commenced this action to enforce the collection thereof by a foreclosure and sale of the property described in said mortgage that had not been released, and which was situate in the city of Elmira. Several months after this action was commenced and at issue, and subsequent to the filing of the notice of Us pendens herein, the defendants Tuch sold these two lots to their daughter, and then tendered to the plaintiffs the sum of $1,750 and $850, and the further sum of $185 for interest and costs, and demanded that the said plaintiffs should execute two releases, one of each of said lots. The plaintiffs refused to accept the amount tendered and execute such releases, and claimed that there was due and unpaid on said mortgage, of principal, $4,410, besides interest and costs. This tender was not kept good, nor was the money brought into court. There was due and unpaid on said mortgage debts $4,410, besides interest and costs.

The only issue tried was that raised by the defendants’ supplemental answer, in which it was alleged that the defendants Tuch had sold these two lots to their daughter; that they tendered to the plaintiffs the sums of $1,750 and $850, and demanded a release of said lots, which was refused, and they asked for a judgment that said premises be released from the lien of said mortgage. The court, at Special Term, held that the alleged tender was insufficient and ineffectual to discharge and extinguish the lien of the plaintiffs’ mortgage on the premises; that the defendants Tuch were not entitled to a release of the premises from the lien of such mortgage; and that the plaintiffs were entitled to a judgment for a foreclosure and sale of said premises. The correctness of this decision presents the only question raised on this appeal. The appellants challenge its correctness, and insist that their alleged tender to the plaintiffs totally extinguished their lien upon the premises in question, and hence the plaintiffs were not entitled to the judgment awarded them, and cite Kortright v. Cady (21 N. Y., 343), and kindred cases, to support their claim. The cases cited are to the effect that a tender of the money due upon a mortgage at any time before foreclosure discharges the lien, though made after law day and not kept good, and though the money is not brought into court. If, therefore, the facts in this case bring it within the principle of those cases, it must follow that the judgment in this case is wrong and should be reversed.

But we think the case at bar clearly distinguishable from the cases cited, and relied upon by the appellants. It will be observed that by the terms of the mortgage the whole amount of the mortgage debt had become due, and that the only premises affected by this action were the premises which the appellants sought to have released from the lien of the mortgage upon an alleged tender of only a part of the amount thus due. We are of the opinion that the appellants’ right to a release of a part of the mortgaged premises on payment of a part of the mortgage debt did not survive their default to pay the mortgage debt and interest as it became due. The provision giving the mortgagors the right to a release of a part of the mortgaged premises, when read in connection with the other provisions of the bond and mortgage, shows quite clearly that it was the intent of the parties that the mortgagors should have such right only so long as they should not be in default in complying with the provisions of the contract to be kept and performed by them, and hence we think that the appellants were not in a position to enforce a release of a part of the mortgaged premises upon the tender of the amount for which such releases were to be given. (Pierce v. Kneeland, 16 Wis. 672.)

To have extinguished the respondents’ mortgage hen it was necessary to have tendered the whole amount that was due upon said bond and mortgage. (Graham v. Linden, 50 N. Y., 547, 550.) The tender as proved was coupled with an express demand for a release of the mortgage before the money would be paid, which rendered the tender insufficient to discharge the .respondents’ mortgage. (Jewett v. Earle, 21 J. & S., 340; Roosevelt v. Bull’s Head Bank, 45 Barb., 579; Frost v. Yonkers Savings Bank, 70 N. Y., 553; Day v. Strong, 29 Hun, 505; Wheeler v. Wheeler, 18 N. Y. State Rep., 446.) The appellants by their answer sought an affirmative judgment releasing said premises from the hen of said mortgage. This they could not obtain without keeping their tender good. (Tuthill v. Morris, 81 N. Y., 94; Breunich v. Weselman, 100 id., 609.)

We are of the opinion that the appellants’ alleged tender did not extinguish the respondents’ mortgage lien upon the premises in question, and that the court properly held that the respondents were entitled to a judgment of foreclosure and sale.

The judgment is affirmed, with costs.

Hardin, P. J., concurred ; Merwin, J., concurred in result.

Judgment affirmed, with costs.


text:
    HENRY J. HURST, Appellant, v. CHARLES ELLIOTT and Others, Respondents.

      Sale by a mortgagor of his equity of redemption — injunction to stay waste committed on the mortgaged premises by his vendee, who has assumed payment of the mortgage thereon.

    On December 13,1886, the plaintiff sold certain premises to the defendants Charles and Eva Elliott for $400, of which $100 was paid by the sale and delivery to the plaintiff of certain articles of personal property, and the balance by their assuming and agreeing to pay a mortgage given by the plaintiff to secure a portion of the purchase-price paid by him for the property. As an inducement to the Elliotts to purchase the plaintiff stated that if they would buy the said premises they could cut the trees standing thereon and convert them into fire-wood.
    In an action, brought to restrain the defendants by injunction from removing, selling or in any way interfering- with the wood and timber which had been cut by them on the said premises, and to have it sold and the proceeds applied on said mortgage:

      Held, that as there was an express oral license to cut the trees in question, given by the plaintiff to the defendants Elliott, the plaintiff thereby waived any right he might otherwise have had to restrain their doing so.
    That as the defendants had relied upon such license in making the purchase, and had acted upon it in cutting the trees, a court of. equity would not issue its injunction to aid the plaintiff in restraining an act on the defendants' part to which he had expressly consented.

      Queers, whether a mortgagor, who has sold his equity of redemption in the mortgaged premises without taking any indemnity against his liability upon his bond, can have an injunction against his vendee to stay waste on the ground that he would be answerable for the amount of the mortgage which the proceeds of sale of the land might fail to satisfy.
    Appeal from a judgment, entered in tbe office of tbe clerk of tbe county of Jefferson on the 18th day of January, 1888, dismissing tbe plaintiff’s complaint upon a trial had at the Jefferson County Special Term by the court without a juzy.

      Waylcmd F. Ford, for the appellant.

      Brown db Morse, for the respondents.
   Martin, J.:

On the 17th day of April, 1885, the plaintiff purchased the premises described in the complaint, and gave his bond and a mortgage thereon to secure the payment of $800 of the purchase-price, which was payable in seven equal payments, with annual interest, the first payment of principal to become due April 22,1887. This mortgage was assigned to and held by one Gilderoy Lord.

On December 18, 1886, the plaintiff sold the premises to the defendants, Charles and Eva Elliott, for $400. One hundred dollars was paid by their selling and delivering to the plaintiff certain articles of personal property, and the remaining $300 by their assuming and agreeing to pay the aforesaid mortgage as the same should become due. When the agreement to sell said premises was entered into between the plaintiff and defendants Elliott, and, as an inducement to the Elliotts to purchase, the plaintiff stated to them that if they should buy said premises they could cut the trees standing thereon and convert them into fire-wood, etc. After the purchase of the premises by the defendants Elliott they took possession and coznmenced cutting the trees thereon and converted them into fire-wood, which they removed from the premises and sold a portion of it to some of the defendants. The defendants Elliott also sold some of the trees standing on a portion of the premises to other defendants, who cut them and converted them into fire-wood, while other defendants assisted in cutting such trees as the employees and agents of the purchaser. The premises with the trees cut and removed therefrom-were inadequate security for the amount unpaid on said mortgage. This action was brought to restrain the defendants by injunction from removing, selling, or in anyway interfering with the wood and timber which had been cut on said premises, and to have it sold and the proceeds applied on said mortgage.

On the trial the court found the foregoing facts, and held: 1. That the plaintiff, after having thus conveyed the premises to the defendants Elliott, was not in a position, at the commencement of this action, where he could restrain the commission of waste on the mortgage premises, as he had neither paid the mortgage debt nor been in any manner charged therewith. 2. That the plaintiff having consented that the defendants might cut and remove said wood, and the defendants having acted upon the faith thereof, the plaintiff was estopped from interposing any right or claim thereto.

In the case of Brumley v. Fanning (1 Johns. Ch. 501) it was held that a mortgagor who had sold his equity of redemption without taking any security or indemnity against his bond, could not have an injunction to stay waste against his vendee on the ground that he would be answerable for what the land might fail to satisfy of the mortgage. If such is the law, then it is clear that the plaintiff could not maintain this action, and the plaintiff’s complaint was properly dismissed on that ground, but we do not deem it necessary-to determine that question.

The evidence clearly shows that the plaintiff, as an inducement to the defendants Elliott to purchase the mortgage premises, gave his express consent that they might cut the timber thereon if they made such purchase, and expressly stated to them that they could cut as much as they had a mind to. Under this proof we think the court properly held that the plaintiff could not maintain this action to restrain the defendants Elliott, and those claiming under them, from removing the wood which had been cut by them in pursuance of this license or agreement. Here was an express license to cut the trees in question, given by the plaintiff to the defendants Elliott, and a consequent waiver by the plaintiff of any right he might otherwise have had to restrain their doing so. The defendants having relied upon such license in making the purchase, and acted upon it in cutting the trees, a court of equity ought not to issue its injunction to aid the plaintiff in restraining an act to which he had expressly consented, nor in enforcing a right which he had expressly waived. (Jones on Mortgages, § 692.)

"We think the case was properly disposed of at the Special Term, and that the judgment should be affirmed.

Hardin, P. J., and Merwin, J., concurred.

Judgment and order affirmed, with costs.


author: Williams, J.:

text:
       JEREMIAH CALLAGHAN, as Administrator, etc., of the Estate of JULIA CALLAGHAN, Deceased, Appellant, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY and THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondents.

      Gate-tender at a railroad crossing — effect of his action in raising the gate and beckoning a ■ pe/rson to drim aoi'oss the 1/rack — liability of the company a question for the jury.

    In an action, brought to recover damages for the death of the plaintiff’s intestate, Ms wife, which was alleged to have been occasioned by the negligence of the defendants, it appeared that at West Genesee street, in the city of Syracuse, the street and the defendants’ tracks crossed each other at an angle of about fifty-five degrees, the street running nearly east and west and the tracks nearly north and south. The westerly track was used by the Delaware, Lackawanna and Western Railroad Company, and the two easterly ones by the New York Central and Hudson River Railroad Company. Gates were placed on the roadway, one on the east and the other on the west of the tracks.
    A team, driven by the plaintiff, approached the crossing from the east and, the gates being down, stopped a little way from the east gate while a train on the New York Central track passed by, going from the city north. As this train passed the gate-tender began to raise the east gate, and as the bars went up the team started along under the gate to cross the tracks. As the team came upon the New York Central tracks the people in the wagon, for the first time, saw a train on the Delaware, Lackawanna and W estera track approaching them, coming from the city towards the north. The gate-tender did not raise the west gate at all. He beckoned the people in the wagon to drive on across the tracks. Plaintiff, who became frightened and excited, whipped up his team and drove across the tracks, and when on the Delaware, Lackawanna and Western track the train struck the wagon, and the plaintiff’s intestate who was in the wagon was killed and the plaintiff himself injured.
    The two trains were going in the same direction, pretty fast, the one some rods behind the other. The smoke of the engine of the front train settled down upon the track behind it, and there was a curve towards the east as the tracks approached the crossing from the south.

      Held, that as the gate-tender was situated where he had a favorable view of the tracks the people in this wagon had a right to suppose, when the gate-tender raised the east gate, that he intended to raise the west gate immediately thereafter; that no trains were coming, and that the team might safely pass over the track at the crossing.

      That, whether they did rely upon this act oí the gate-tender and, therefore, made less vigilant use of their eyes than they would otherwise have done to discover whether a train was coming, and whether they were justified in so doing; and whether they failed under the circumstances, in view of the raising of the east gate hy the gate-tender, to exercise such a degree of care and caution as an ordinarily careful and prudent man would have used, were questions of fact for the jury.
    That a judgment in favor of the defendants, entered upon an order directing a nonsuit and a dismissal of the plaintiff’s complaint, should be reversed.

      (Hushing v. Sharp, Receiver (9(5 N. Y., 676); lAndeman v. New York Central and Hudson River Railroad Compcmy (42 Hun, 306) followed.

      It seems that, in the absence of gates and a gate-tender, it would have been the duty of the people in the wagon, after the first train had passed by, and before the team was driven upon the tracks, to look out for any other trains that might be coming upon the tracks, and that if there was smoke from the first train, which obstructed the view, to wait until the smoke cleared away and the view was unobstructed. (Per 'Williams, J.)
    Appear, from a judgment in favor of the defendants, entered in the office of the clerk of Onondaga county on the 16th day of March, 1888, upon an order made at the Onondaga Circuit non-suiting the plaintiff and dismissing his complaint, with costs.
    The action was brought to recover damages for the death of plaintiff’s intestate, his wife, alleged to have been caused by the negligence of the defendants. The trial court disposed of the case upon the ground that there was no evidence for the jury as to the absence of contributory negligence.
    The accident occurred in the city of Syracuse, at the West Genesee street crossing of defendant’s tracks, about two o’clock in the afternoon. The street and tracks crossed each other at an angle of about fifty-five degrees; the street running nearly east and west, and the tracks nearly north and south. There were three tracks side by side; the most westerly one being the Delaware, Lackawanna and Western, and the two easterly ones the New York Central. The three tracks were protected by gates across the roadway, one east and the other west of the three tracks. Each gate consisted of two wooden bars, one fixed on either side of the roadway; the bars meeting in the middle of the roadway when lowered; the two gates were operated, each by a separate crank, the cranks being, however, at the same place, which was west of the three tracks and north of the roadway. A gate-tender was kept at the crossing to operate the gates. At the time of the accident plaintiff was driving a team of farm horses, attached to an ordinary lumber wagon. He sat upon a seat near the front of the wagon, on the right hand side; his wife, the intestate, sat next to him on his left, and one Mrs. Foley sat at her left, and on the left hand side of the wagon. Mrs. Foley’s son was behind the seat in the wagon. These people lived in a country town of Onondaga county. They came into Syracuse early -in the day with farm produce for sale, and at the time of the accident were going out to Geddes, to the house of Mrs. Foley’s daughter. The day was cold, and it was cloudy. As the team approached the crossing from the east the gates were down; the team stepped a little ways from the east gate, and a train on the New York Central track passed by, going from the city north.
    As this train passed the gate-tender began to raise the east gate, and as the bars went up the team was started along under the gate to cross the tracks. As the team came upon the New York Central tracks the people in the wagon first saw a train on the Delaware, Lackawanna and "Western track approaching them, coming from the city north. The gate-tender did not raise the west gate at all. He beckoned the people in the wagon to drive on across the tracks. Plaintiff was frightened and excited and he whipped up his team and drove along across the tracks. When on the Delaware, Lackawanna and Western track the train struck the wagon and the two women and the boy were killed, and plaintiff himself was more or less injured. The two trains were going in the same direction, pretty fast, and the one some rods behind the other. There was some smoke from the engine of the front train that settled down upon the track behind that train. There was a slight curve towards the east as the tracks approached the crossing from the south. The team went to and upon the tracks after the east gate was raised, slowly. The horses were gentle and manageable, the plaintiff was a good driver and was sober at the time of the accident. The people in the wagon were, to some extent, acquainted with the locality where the accident occurred. The railroad tracks all passed over a canal bridge, at a point 2,300 feet south of the crossing, towards the city. From this bridge to the crossing the tracks were built upon an embankment. There were some houses, trees, etc., obstructing the view of the tracks by persons traveling along West Genesee street towards tlie crossing. But when forty-one feet easterly from the most easterly track there was an unobstructed view of the tracks south of the crossing for a distance of 714 feet, and, approaching nearer the crossing the view was extended for a further distance south, until before reaching the easterly track there was an unobstructed view of the whole 2,300 feet of tracks to the canal bridge. Tlie bell of the engine on the Delaware, Lackawanna and Western train was ringing, as required by statute, as it approached the crossing.

      M. E. da G. W. Driscoll, for the appellant.

      Jenney, HrooTes, Marshall cfe Huger, for the respondent, Delaware, Lackawanna and Western Railroad Company.

      Miscoclc, Doheny & Miscode, for the respondent, New York Central and Hudson River Railroad Company.

      Decided February, 1889.

   Williams, J.:

The features of this case that attract our attention, and specially require our consideration upon this appeal, are the gates and gate-tenders that were present at the accident, their acts and movements.

If these elements were absent from the case, we might very readily concur with the trial court in its disposition of it, because, although there are some features aside from these, bearing upon the. question of contributory negligence, favorable to the plaintiff, such as two trains following each other so closely, the smoke from the engine attached to the first train settling down upon the tracks behind that train, and the curve in the tracks as they approached the crossing, yet it would be difficult, after considering these features, in the absence of the gates and gate-tenders, and their acts and movements, to account for these people being upon the track, in front of this train, consistently with the absence of negligence on their part. •

Just where the team stood, how near the east gate when the first train passed the crossing, and when the gate-tender began to raise the bars of the east gate, does not appear; but considering that the team moved along slowly towards the tracks, from the place where it had stopped, and that it had reached the New York Central tracks before the east gate was entirely raised, and before the gate-tender had begun to raise the west gate at all, we may conclude the team was standing near the east gate, and within forty-one feet of the east track, when the first train j>assed the crossing. In the absence of gates and a gate-tender, we should say it was the duty of the people in the wagon, -after the first train passed by, and before the team was driven upon the tracks, to look out for any other train that might be coming upon the tracks, and if there was smoke from the first train which obstructed the view, to wait until the smoke cleared away and the view was unobstructed; and we should say, upon the evidence, if they had so looked, they would have seen the train, and, therefore, would have been guilty of negligence in going upon the tracks before it had passed by. The question, therefore, is whether the presence of the gates and gate-tender, and the action of the gate-tender in raising the bars of the east gate, so far relieved the persons in the wagon from the duty to look and listen for the approaching train as to make the question of their negligence, under the circumstances, one of fact for the jury.

In Glushing v. Sharp, Receiver (96 N. Y., 676), the plaintiff drove upon the track of the Long Island Railroad Company, in Brooklyn, his team was struck by a passing train and his horse killed and wagon injured. There were gates and a gate-tender at the crossing. As he approached the track he saw a train of cars pass and the gate-tender raise the gates and go into the gate-house. At the cross-walk, thirty feet before reaching the track, he looked and saw no train. His view was there somewhat obstructed. He did not look again, though the view for the remaining thirty feet to the track was entirely unobstructed, and if he had looked, he would have seen the train before driving upon the track. A recovery was had and was sustained by the Court of Appeals, the court saying : “ The claim of the defendant is that the plaintiff should have been nonsuited on account of his own carelessness, and this claim he bases upon these facts: that at the place where the plaintiff looked, about thirty feet from the railroad track, his view was somewhat obstructed, and that he did not look again while passing the thirty feet, although during that space his view was unobstructed, and he could have seen the train if he had looked. We think the case, as to plaintiff’s negligence, was properly submitted to the jury. He looked both ways, and whether, under all the circumstances, he should have looked again, or continued to look, was for the jury to determine. Tlie raising of tbe gate was a substantial assurance to bim of safety, just as significant as if tbe gateman had beckoned to bim, or invited bim to come on, and that any prudent man would not be influenced by it, is against all human experience. Tbe conduct of tbe gateman cannot be ignored in passing upon plaintiff’s conduct, and it was properly to be considered by tbe juiy with all tbe other circumstances of tbe case.”

In Lindeman v. New York General and Hudson Ewer Railroad Company (42 Hun, 306), plaintiff’s intestate drove a team attached to a coal wagon upon tbe track of defendant’s railroad, in tbe city of Albany, and was killed. There were gates at tbe crossing, and at tbe time of tbe accident they were open. It was in the night, and an unobstructed view of tbe track could be bad for seventy-three feet before reaching it. Tbe intestate was seen, just before reaching tbe track, to look both ways. Tbe engine was backing slowly towards tbe crossing, having no light before it. There was a nonsuit at circuit, which tbe General Term reversed, bolding tbe question of contributory negligence was for tbe jury, saying: “Tbe defendant insists that be could have seen the engine if be bad looked, and was, therefore, negligent as a matter of law. But be bad passed tbe place before, and, therefore, knew of the gates. He saw they were not across tbe road, and, as they were white, be undoubtedly saw them standing upright on each side; as said in Glushing v. Sharp (96 N. Y., 616), this was an assurance of safety just as significant as if a gateman bad beckoned to bim or invited him to come on. * * * The opening of the gates is an affirmative act, giving every traveler to’ know that the crossing is safe, x x x iphg question of tbe negbgence of tbe deceased should have gone to tbe jury.”

Tbe language quoted above from Glushing v. Sharp is quoted in full by Judge Danforth in Woodard v. New York, Lake Erie and Western Railroad Company (106 N. Y., 390). This was a dissenting opinion, but tbe court divided in tbe case, four and three. Applying tbe rule laid down in these cases to tbe present case, it seems to me tbe question of contributory negbgence was for tbe juiy, and that tbe trial court was in error in directing a nonsuit and dismissal of tbe complaint upon this ground. Tbe object in having these gates and gate-tender was to avoid collisions at this crossing between trains and persons traveling along the street with teams. The duty of the gate-tender was to have his gates down across the road-bed when trains were approaching. He was stationed at a place where he had a favorable view of the tracks; and the people in this wagon had a right to suppose, when the gate-tender raised the east gate that he intended to raise' the west gate immediately after, that no trains were coming, and that teams might safely pass over the tracks at the crossing. Whether they did rely upon this act of the gate-tender, and, therefore, made a less vigilant use of their eyes than they would otherwise have done to discover whether a train was coming, and whether they were justified in so doing; whether they failed, under the circumstances, in view of the raising of the east gate by the gate-tender, to exercise such a decree of care and caution as an ordinarily careful and prudent person would have used, were questions of fact for the jury. The plaintiff testified he did look at various times while approaching the track, but did not discover the train until the team was upon the New York Central tracks. It may be doubted whether he looked very carefully, because if he did, he should have seen the train before he reached the tracks. The more reasonable conclusion, from all the circumstances, would be that these people, seeing the bars of the east gate going up, immediately after the first train passed, supposed the gate-tender was doing his duty, and that he would not raise that gate if there was any train coming, and that they relied upon the safety in crossing the tracks implied by the raising of the gate. That, therefore, without waiting for any smoke to clear away, or to obtain any very clear or satisfactory view of the tracks to the south, they started to cross over. We should hardly be willing to assume they saw the train coming, and from the first supposed they could get over ahead of it, or that the gate-tender saw the train before he raised the east gate. We rather assume that, up to the time the team reached the New York Central tracks, neither the gate-tender nor the people in the wagon had discovered the approaching train; that then they all discovered it at about the same time, all were frightened and excited, and none of them acted cooly, nor did what would have insured safety to the people in the wagon. The gate-tender could have rushed across the Delaware, Lackawanna and Western track, seized tbe borses by the bits, and kept them back off the track the train was approaching on. He could have made motions to the people in the wagon to keep. back. He did not do either of these things, upon plaintiff’s evidence, but stood still, leaving the west gate down so .the team could not escape, and yet motioning to the people to come along over the tracks. So, also, the plaintiff might have stopped his team, backed them up, or turned them around, and kept them off the track, or all the people could have jumped from the wagon, and in either contingency no one would have been injured. But, instead of doing any of these things, plaintiff, obeying the motion of the gate-tender to drive on, or misunderstanding the real motion the gate-tender made, supposing it to be a motion to come on, when, in fact, it was a motion to keep back, whipped up his horses and drove directly upon the track the train was approaching on. If the jury found the people in the wagon were free from negligence up to the time they discovered the approaching train, when the team was upon the New York Central tracks, then when they first discovered the train they were in a place of danger, brought there by the negligence of the gate-tender, defendant’s agent, and it was a question for the jury whether, in attempting to extricate themselves from this danger, being frightened and excited, and not knowing or being able to judge correctly which track the train was upon, they exercised such a degree of care and caution as an ordinarily careful and prudent person would have used. If they did, then they were not negligent, though they entirely failed to so act, in the sudden emergency, as to insure safety. (Sherry v. N. Y. C. & H. R. R. R. Co., 104 N. Y., 652, 656.)

The judgment should be reversed and a new trial ordered, costs to abide event.

Follett and Martin, JJ„, concurred; .Hardin, P. J., not sitting.

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


author: Merwin, J.:

text:
    MARY KETCHAM, Respondent, v. SARAH FOX and GEORGE DICKERSON, Appellants.

      Skeem/plary damages uncter the civil damage aet —liability of the landlord therefor.

    In an action, brought under the civil damage act, against the tenant and landlord of premises on which intoxicating liquors have been sold to the plaintiff’s husband, the landlord, in the absence of any evidence to shew that he had knowledge of the circumstances under which the liquor was sold to the husband, is not liable to pay exemplary damages.
    Appeal from a judgment, entered, in the office of the clerk of ' Oneida county March 27, 1888, upon a verdict rendered at the Oneida Circuit in March, 1888, in favor of the plaintiff for $1,125, and from an order denying a motion made upon the minutes of the court for a new trial.
    The action was brought under the “civil damage act.” The defendant Dickerson was the owner of a hotel at Rome, and the defendant Fox conducted it as his lessee from April 1, 1885, to December, 1886. The plaintiff claimed that the defendant Fox, or 'her agents, at divers times furnished intoxicating liquor to the plaintiff’s husband, causing his intoxication, in consequence of which plaintiff was injured in her person and means of support. The defendants answered separately.

      E. O. Worden, for the appellants.

      J. P. Olney, for the respondent.
   Merwin, J.:

The plaintiff, as part of her case, was allowed to prove, over the objection and exception of defendants, a conversation the plaintiff had with the husband of defendant Fox, some five years before the trial, about his selling liquor to plaintiff’s husband. This was before the lease from Dickerson to Mrs. Fox, and was not at the hotel in question. It would seem to be clearly incompetent.

Edson Fox, the husband of Sarah Fox, being upon the stand as a witness for defendants, and having testified, among other things, that he carried on the business for his wife, the defendant Fox, during the time they occupied the hotel, from April 1, 1885, to December 1, 1886, stated that he had a conversation with Ketcham himself on the subject of his getting liquor there, and was then asked what the conversation was. This was objected to by the plaintiff generally, and the objection w&s sustained and defendants excepted. The witness was then asked: Did you ever tell Ketcham that you would hot sell him, or that he could not get any liquor there ? ” A general objection to this was sustained and defendants excepted. We think the defendants were entitled to this evidence, in view of the claim of the plaintiff that Mrs. Fox and her agents furnished liquor after being forbidden by the plaintiff. The question of exemplary damages was in the case, and the forbidding of sales was shown in view of that. The defendants had a right to show what they did on the-same subject and to what extent they complied with the request of plaintiff. On the same subject the defendants offered to show special instructions given by defendant Fox and her husband with reference to Ketcham, to those who assisted them. This being objected to was ruled out and exception taken. This was admissible on the question of exemplary damages. The plaintiff claimed that Mrs. Fox or her agents persistently sold liquor to Ketcham after she and her husband were notified not to do so. Their motives and good faith were attacked as bearing on the damages, and they had a right to show what they did in relation to the same matter. These rulings were material as the case stood.

The court charged the jury that the defendant Dickerson was liable in the action to the same extent as the defendant Fox; that the right to exemplary damages'in the case was based on the question of fact, which the jury might find, that Sarah Fox persistently continued to sell liquor to plaintiff’s husband after she had notice that he was a pauper and an habitual drunkard, and had been forbidden to do so by the proper officials of the town.

These propositions were duly excepted to by the defendants. So that the question is whether the defendant Dickerson is liable for exemplary damages, upon a case being made that would warrant their recovery against the other defendant. The affirmative of this proposition was held by a divided court in Reid v. Terwilliger (42 Hun, 310). It was, however, held in this department in Rawlins v. Vidvard (34 Hun, 205), the action being against the landlord alone, that exemplary damages could not be awarded without proof of aggravating circumstances with which the defendant was connected. In that case it was shown that the defendant had knowledge that intoxicating liquors were to be sold, and circumstances were also shown sufficient to authorize the award of exemplary damages against the tenant. This was held not to be enough as against the landlord. It is a little difficult to see how the landlord should be any more liable, in case the action was against him and the tenant together than he would be in case the action was against him alone. The statute under which the action is brought makes him liable just as strongly in the one case as in the other, and no more so. So that substantially the Rawlins case is an authority adverse to the ruling in the Reid case.

It is now quite definitely settled by authority that exemplary damages are not recoverable in every case where a cause of action is made out, but that circumstances of abuse or -aggravation must be shown. (See Rawlins case and cases cited.) This proposition seems to be recognized in Neu v. McKechnie (95 N. Y., 632.) The statute, however, does not prescribe the rule to be followed in such cases, and, therefore, we must have reference to the law as it has been laid down in kindred cases. Generally speaking, exemplary damages are given to punish a willful wrong-doer, and by way of example to prevent similar wrong. In hiayne on Damages (Wood’s ed.), section 16 9, it is said, with reference to an action for tort against several, that in no case could the malignant motive of one party be ‘ made a ground of damages against the other party who was altogether free from such improper motive; that, in such case, the plaintiff was bound to select the party against whom he meant to get aggravated damages, citing Clark v. Newsam (1 Ex., 140.) In Cleghorn v. New York Central and Hudson River Railroad Company (56 N. Y., 44), it is said by Chief Justice Church, that for injuries by the negligence of a servant while engaged in the business of the master, within the scope of his employment, the latter is liable for compensatory damages, but for such negligence, however gross or culpable, he is not liable to be punished in punitive damages, unless he is also chargeable with gross misconduct. So that if the tenant is to be deemed the agent of the landlord, the latter would not be liable for exemplary damages, unless in some way assenting to or responsible for the aggravating circumstances that furnish the occasion for such damages. In the present case the court, by the charge referred to, made the right to recover such damages to depend entirely on the act of the tenant. There is evidence in the case that the landlord had some knowledge of what was going on, but the right to recover exemplary damages was not made to depend on that. The jury were told that the landlord was liable to the same extent as the tenant, and that the right to exemplary damages depended on the view of the jury as to certain acts of the tenant alone. In view of the decision of this court in the Rawlins case, that was not correct.

It follows that the judgment and order must be reversed and a new trial granted, costs to abide the event.

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

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


text:
    ELIZABETH H. NICHOLS, Respondent, v. ELIAS P. HOWLAND, Appellant.

      Deed — description, when it comeys the bed of a brook and when only to the center thereof.

    A deed, containing a description: “ Beginning at a stake and stones on the south side of the highway on the line between the said lotNo. 15 and lotNo. 31, thence on said line across the brook to a stake and stones on the southerly hank of said brook, running south 28° east 56 rods, thence down said brook 62 rods to a stake and stones on said bank,thence north 28° west to a stake and stones,” — where the monuments referred to are placed on the southerly bank of the stream, at or near the edge of the water —has the effect of transferring and conveying all of the bed of the brook, and does not extend simply to the center line thereof.
    The intention so to do is clearly evinced by the fact that the line runs “ across the brook.”
    Appeal from a judgment entered upon a verdict recovered September, 1887, at the Delaware Circuit, and entered in the office of the clerk of Delaware county January 17, 1888, and from an order denying a motion made on the minutes for a new trial.
    The action was in ejectment to recover certain premises along the southerly side of East brook, in the town of Walton. The controversy was over the location of the northerly line of plaintiff’s property. The jury found that the line was the thread of the stream or brook as it was in 1840.
    Shortly before the trial the parties entered into a stipulation, entitled in the action and reading as follows: “ It is hereby stipulated that for all the purposes of the trial and determination of this action that the plaintiff is the owner in fee simple of the eastern portion of lot No. 15 of the Livingston patent, and entitled to the possession, as the same was conveyed with other lands to Burr Lyon, one of plaintiff’s grantors, by deed dated December 10, 1840, and recorded in book 20, at pages 506 and 507. And that the defendant is the owner in fee simple of all that portion of said lot No. 15 which is bounded and described in a deed from Jacob Eells and wife to Benjamin J. Bassett, one of defendant’s grantors, and is entitled to the possession thereof, said deed beazúng date October 9, 1843, aizd recorded in book No. 27, at pages 182, etc. Dated June 17,1887.”
    The descz’iption iii the Lyon deed was as follows: “ Beginning at a stake and stones on the westerly comer of said lot No 15; thence running south thirty-eight degrees east seventy chains and eighty-one links to a stake and stozies; thence north sixty-two degz-ees east thirty-four chains and thirty-two links to a stake and stones; thezice north twenty-eight degrees west forty-nine chains and fifty links to a stake azid stones standing on the southerly bank of the brook; thence down the brook sixty-two rods to a stake and stones on the said bank; thence north twenty-eight degrees west to the line between lots Nos. 14 and 15 to a stake and stones; thence on a direct line to the place of beginning, containing 214 acres, be the same more or less.”
    The descz’iption in the Bassett deed was as follows: “ Beginning at a stake and stones ozi the south side of the highway on the line between the said lot No. 15 and lot No. 31; thence on said line across the brook to a stake and stones on the southerly bank of said bi’ook running south twenty-eight degrees east fifty-six rods ; thence down said brook sixty-two rods to a stake and stones on said bank; thence north twenty-eight degrees west to a stake and stones, near the aforesaid highway, sixty-four rods; thence noz’th sixty-two degrees east sixty rods to the place of beginning, containing twenty-one acres and ninety-six rods, be the same more or less.”

      The court held that, under the stipulation, the question in dispute was as to “the actual location of the line as fixed by the deeds referred to in the stipulation, and charged the jury that, if they found that the monuments mentioned in the deeds were placed on the bank of the stream, at or near the edge of the water, then the description carried the right of the grantee to the center of the stream, as the channel of the stream was located at the time of these grants, 1840 and 1843, and the plaintiff would be entitled to a verdict for the possession of the land to the center of the stream as it ran in 1840 and 1843.

      W. H. Johnson, for the appellant.

      E. R. Hanford, for the respondent.
   Merwin, J.:

The court below correctly held that the course of the. trial must be guided by the stipulation as to the issue between the parties, although it might operate to modify the pleadings. The line in dispute was the northerly line of the plaintiff or the Burr property, and .the southerly line of the defendant or the Bassett property. Both of the deeds referred to in the stipulation describe this line substantially in similar terms: “To a stake and stones standing on the southerly bank of the brook; thence down the brook sixty-two rods to a stake and stones on the said bank.” In the Bassett deed, in order to reach this fine, there came a com’se on the east side of the lot southerly along the line between lots Nos. 15 and 31, “ across the broohP

Both properties seem to have been owned originally by one Heath, who, in 1803, gave a deed to one Merrick of the Bassett property, in which the lines on the east and south are described as in the Bassett deed. Then, in 1825, the balance of the uroperty was conveyed. At the trial it was held that if the description in the Bassett deed covered the land which plaintiff sought to recover, then the action could not be maintained. Evidence was given as to the location, in fact, of the stakes and stones referred to in the deed as being on the southerly bank of the creek, it being claimed by the plaintiff that they were near the edge of the water, while it was claimed by defendant that at the easterly end they were about eighteen feet from the brook and at the westerly end were about twelve. The jury by their verdict found with the plaintiff in this respect.

Assuming, then, that those monuments were placed on the southerly bank of the stream, at or near the edge of the water, did the premises of the defendant, as described in the Bassett deed, include the bed of the stream ? If so, then the theory of the trial was not correct.

In Luce v. Carley (24 Wend., 451), the description began “at a hard maple tree standing on the east bank of the Onondaga river,” and then, after going east and north, proceeded as follows: “ Thence west, 50 chains and 10 links, to the east bank of the Onondaga river; thence north along the Onondaga river to the first mentioned bounds.” It was held that the grantee took to the center of the stream. In the Seneca Nation of Indians v. Knight (23 N. Y., 498), the description began at a post standing on the bank of Lake Erie, at the mouth of Cattaraugus creek, and on the north bank thereof, then, after various courses and distances, it came “ to a post standing on the north bank of Cattaraugus creek; thence down the same and along the several meanders thereof to the place of beginning.” It was held that the boundary went to the center of the creek. A similar doctrine was stated by Chancellor Walworth in Child v. Starr (4 Hill, 369), though not necessary to the decision.

In Kings County Fire lnsurance Company v. Stevens (81 N. Y., 287), the description commenced at a point on the southerly side of a road, running thence southerly, and, after various courses and distances, came again “ to the road,” and thence “ along said road to the place of beginning.” It was held that the title went only to the southerly side of the highway. Substantially the same thing was held in Lee v. Lee (21 Hun, 1). A like construction was made in English v. Brennan (60 N. Y., 609). There the line commenced in the margin of the street, and ran thence along the street. The starting point was held to be controlling, and the line did not go to the center. The cases above cited in 24 Wendell and 23 New York would be quite in point in favor of plaintiff’s theory, were it not for the fact that the Bassett deed, which is under consideration, by its terms brings the easterly line across the brook. That shows an intent to include in the deed the whole of the brook. A fixed and definite monument is placed on the southerly of farther bank to which the line goes. Such a monument, placed to locate the end of a fine expressly brought across the brook, cannot be said to be placed there only for the purpose of indicating where the fine strikes the stream, as suggested in the earlier eases referred to. It is more analogous to the definite starting points on highways that are held to control in the latter cases, although the intermediate fine is made to run along the highway. The expression here, “ down the brook to a stake and stones on said bank,” indicates that the line follows the course of the stream but continues and terminates on the same bank at a point formally designated and fixed. In all these cases it is a question of interpretation and intent in view of the description in the deed and such surrounding circumstances as may properly appear. (Mott v. Mott, 68 N. Y., 253.)

I am, therefore, of the opinion that the description in the Bassett deed should be construed as including the bed of the stream, and, if so, the plaintiff cannot, in any event, recover to the center, as his deed is controlled by the deed to Merrick in 1803, upon which the conveyance to Bassett was based. The southerly bank referred to seems to have been of some considerable width, and more or less steep all along the line. It may be that the place of the location, on the bank, of the stakes and stones, may have some bearing on the question whether the deed of 1803 carried the title to high or low-water mark. That matter, however, is not important to be considered now.

It follows that the judgment and order should be reversed and a new trial granted, costs to abide the event.

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

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