text:
    VINCINZO MELE, Appellant v. THE DELAWARE AND HUDSON CANAL COMPANY, Respondent.

      Demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action.

    The absence of contributory negligence on plaintiff’s part need not be alleged in the complaint; that fact is involved in the allegation of defendant’s negligence. Prima facie, all servants of a common carrier employed in the railway service, are fellow servants, and neither has a cause of action against the master for the negligence of another. The rule is, that all who serve the same master, work under the same control, derive authority and compensation from the same common source, and are employed in the same general business, although in different grades or departments of business, and are fellow servants who take the risk of each other’s negligence. The rulings of courts in other states, drawing a distinetion between the grades or departments of service under a common master, and giving a remedy to a laborer or clerk in jured by an engineer, etc., have never been approved by the courts of this state, and are contrary to their decisions.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 4, 1891.
    The complaint alleges that on or about July 21st, 1888, the plaintiff, a workman in the employ of the defendant, was crossing a bridge over which the defendant’s trains pass, at or near the place known as Maryland, Otsego Co., N. Y., on his way to his work, in common with other employees ; that in attempting to avoid an approaching train of defendant plaintiff slipped and fell; that other workmen in company with plaintiff signalled the train to stop; that the engineer in charge negligently and without due or proper warning, caused the train to pass over the plaintiff before he could rise and avoid the same; that the signaling was made while defendant’s train was at a distance of about five hundred feet from the plaintiff, and that in consequence of the negligence the plaintiff sustained bodily injury, so that both his arms were amputated, to his damage $25,000.
    The defendant demurred to the complaint on two grounds:—First. That the complaint does not state facts sufficient to constitute a cause of action. Second. That there is no such corporation as that named as defendant. The court below sustained the demurrer, and from the interlocutory judgment entered thereon in favor of the defendant the plaintiff appeals.

      Smith & Vosburgh, attorneys, and Myndert A. Vosburgh of counsel, for appellant, argued:—
    I. The absence of contributory negligence on plaintiff’s part need not be alleged in the complaint; that fact is involved in the allegation that the injury was caused by defendant’s negligence. Lee v. Troy, etc., Co., 20 N. Y. Weekly Dig. 413; Robinson v. N. Y. Cent. R. R., 65 Barb. 146; 66 N. Y. 11; Urquhart v. City of Ogdensburg, 23 Hun, 75. In Urquhart v. City of Ogdensburg, the court says: “Although in action to recover damages alleged to have been caused by defendant’s negligence the burden of proof is on the plaintiff to show on the trial, by competent proof, that his negligence did not contribute in any degree to the injury complained of, yet it is not necessary for him to specifically allege these facts in the complaint. The averment that the negligence of the defendant was the cause of the injury is equivalent to an averment that it was the sole cause.” When the question of contributory negligence is put in issue by the answer, then it may become necessary for plaintiff to prove the absence of contributory negligence. Until it is so placed in issue it is immaterial. Hale v. Smith, 78 N. Y. 480.
    II. The complaint does not state facts which show that the plaintiff was a “fellow servant” of the engineer within the rule exempting a master from liability, nor is it a necessary inference from the fact stated in the complaint, that plaintiff was “ a workman in employ of the defendant,” that he was also a “ fellow servant ” within the rule. It is a well-settled rule of law, upon which this court needs no citation of authorities, that if the court can construe a cause of action out of a complaint it is its duty to do so, and the rule applies to the case at bar, and if the court can conceive of a case where a “ workman in the employ of the defendant ” would not be a “ fellow sevant ” within the rule, the judgment must be reversed and the demurrer must be overruled. The general rule exempting a master from liability in these cases is : The master is not liable for injuries personally suffered by his servant through negligence of a fellow servant acting as such while engaged in the same common employment. 1 Sherman & Redf. on Negligence, ed. 1888, 180. To relieve the master from liability under the rule three elements must concur: (1) Plaintiff must be a “ fellow servant ” within the rule. (2) He must be acting as such. (3) He must be engaged in the same common employment. It is submitted on the first point that a simple, practical test of common service is laid down as a safe rule to follow in Vallez v. R R. Co., 85 Ill. 500, where the court says it is a safe rule to hold those to be fellow servants whose negligence is likely to inflict injury on another.
    III. If plaintiff was not a fellow servant- within the rule he was either a licensee or a trespasser, in either of which cases the defendant is liable. The duties and obligations of an engineer towards trespassers on a railroad track are stated in Patterson on R. R. Accident Law, at page 197. Following this general rule the courts hold that where railway servants in charge of the train see on the line a trespasser whom they know to be incapacitated from hearing signals it is their duty to stop the train, and they must make every effort to do so. 62 Tex. 252 ; 19 Am. & Eng. R. R. Cas. 21. Also, where they see a trespasser who is prevented from escaping by having his foot caught. 19 Am. & Eng. R. R. Cas. 25 ; 16 Neb. 332 ; Memphis Co. v. Sanders, 43 Ark. 225; Bailley v. Chicago R,. R, 4 Bist. 430. Also it is very culpable negligence in the railroad company for the lookout to fail to see a person on the track who is plainly visible. E. Tram Co. v. White, 5 Lea. 540. In New York the Court of Appeals in Chrystal v. Troy Co., 105 N. Y. 164, lay down the rule that an engineer of a railroad train is not bound to stop his train the moment he sees some living thing upon the track.

      Edwin Young, attorney and of counsel, for respondent, argued:—
    I. The complaint does not state facts sufficient to constitute a cause of action. To constitute a cause of action the burden is upon plaintiff to allege and prove affirmatively, first, absence of contributory negligence of plaintiff; and second, negligence of defendant. Powell v. N. Y. C. R. R. Co., 14 N. Y. St. Rep. 74; Held v. N. Y. C. R. R. Co., 12 Wk. Dig. 163 ; Kelsey v. Jewett, 15 Ib. 457 ; Wilds v. N. Y. C., 24 N. Y. 449; Button v. H. R. R. Co., 18 Ib. 248.
    II. Contributory negligence of plaintiff, {a) There is no allegation of the absence of contributory negligence on the part of plaintiff. As this is an absolutely essential part of plaintiff’s case, the omission of such an allegation is absolutely fatal to his cause of action, (b) If plaintiff’s claim is correct that his statement of facts amounts to such an allegation, he is nevertheless confined to the exact facts stated in the complaint, and, in the absence of a general allegation of the absence of contributory negligence, he cannot prove any other fact bearing upon that subject than those actually stated in his complaint. Those facts thus stated are simply as follows : “ The plaintiff above named, a workman in employ of defendant, was crossing a bridge over which defendant’s trains passed, at or about the place known as Maryland, in the county of Otsego and state of New York, on his way to work, in common with other employees.” Assuming these facts to be true, they do not show the absence of contributory negligence as matter of law, for they fail to show any right or license to be upon the bridge, or any excuse therefor, whether an employee or trespasser, and he is prohibited from proving any other facts to establish such right, license or excuse, in the absence of a general allegation of the absence of contributory negligence. In the Urquhart Case, 28 Hun, 75, it was held, that no specific averment of absence of contributory negligence is necessary, where the complaint avers negligence of defendant. “ The averment that the negligence of the defendant was the cause of the injury, is equivalent to an averment that it was the sole cause.” But in the case at bar there is no averment of any negligence on the part of defendant. The only negligence alleged is that of the engineer, who was a co-employee of plaintiff, and whose negligent act was, therefore, not the negligent act of defendant. It has been directly held in the following cases, that a person walking upon a railroad bridge, trestle, or track, in the absence of proof of a license or right to be there, was guilty of contributory negligence. McCarty v. D. & H. C. Co., 17 Hun, 74; Tennenbrock v. S. P. R. R. Co., 59 Cal. 269; Mason v. M. P. R. R. Co., 27 Kan. 83 ; U. P. R. R. Co. v. Rollins, 5 Ib. 167; C. B. & Q. v. Olson, 12 Bradwell (Ill.) 245; Carter v. C. & G. R. R. Co., 19 So. Car. 20 ; 1ll. Cent. R. R. Co. v. Hall, 72 Ill. 222; 1ll. Cent. R. R. Co. v. Godfrey, 71 Ib. 500.
    III. Negligence of defendant. The complaint fails to allege any negligence of defendant. The only act of negligence alleged, is the negligence of the engineer, “ A,” in failing to signal, and “ B,” in failing to stop in time to avert the accident. As matter of law, neither of these acts constitute negligence, under the circumstances alleged in the complaint, whether plaintiff was a trespasser or employee; even assuming the negligence of the engineer was that of defendant. The old statutory obligation to give signals under the general railroad act, has been repealed by chapter 593 of the Laws of 1886, § 29. In Harty v. C. R. R. of N. J., 42 N. Y. 472, Earl, Ch. J., says : “Railroad companies are not required by this law to ring the bell nor sound the whistle, when the highway passed along the railroad, nor when it passed at an elevation over or under it; nor are they required to take these precautions for the protection of persons walking along upon the railroad. I conclude, therefore, that the intestate was not within the protection of the law, and that the railroad company owed him no duty, under the law, to ring the bell or sound the whistle.” Byrne v. N. Y. C. and H. R. R. R. Co., 94 N. Y. 12; Griffin v. N. Y. C. and H. R. R. R. Co., 40 Ib. 34. The question of signals under the allegations of the complaint, moreover, becomes entirely immaterial, in view of the fact that the approaching train was actually seen by plaintiff and all of his comrades when five hundred feet from the point of accident. As signals are only given for the purpose of notifying persons of the approach of the train, so long as they are actually notified in ample time the question of signals becomes entirely immaterial. The allegations of the complaint fail to establish a prima facie case of negligence of the engineer, in failing to stop the train. If plaintiff “ slipped and fell ” when defendant’s train was 500 feet from him, the engineer had a right to assume that he would get up and get off the track before the train reached him, and was not obliged to stop his train at that point, nor to make any effort to do so, until he saw there was reasonable ground for supposing he was not going to succeed in doing so. Plaintiff was a full grown man, and the engineer had a right to assume that he would make a reasonable effort to get off the track, as the rest of his comrades seem to have done, and as he must have had ample time to have done, as the train was five hundred feet away. As said by Peckham, J., in Chrystal v. T. and B. R. R. Co., 105 N. Y. 170; "that the engineer willfully or recklessly ran upon him after he discovered that he was in peril is inconceivable, and certainly cannot be assumed. An engineer is not bound to stop his train the moment he sees some living object upon the track. He has the right, in broad daylight, when his train is perfectly visible, and its approach must be heard and known, at least in the first instance, to assume that the object, whatever it is, will leave the track in time to escape injury. He could not know, when he first saw the plaintiff, that he was too young to be conscious of the danger to which he was exposed, and without the imputation bf negligence he could run on until he discovered that he was heedless of the danger. Reasonable care in the management of trains, which must first make their time between stations and have the right of way, does not require more.” Matze v. N. Y. C. and H. R. R. R. Co., 1 Hun, 417; C. R. I. and P. v. Austin, 69 1ll. 426; T. H. and I. R; R. Co. v. Graham, 12 Am. and Eng. R. R. Cases, 77; Mason v. M. P. R. R. Co., 27 Kan. 83; The Lake Shore R. R. v. Miller, 25 Mich. 279.
    IV. The complaint alleges only a negligent act of a co-employee for which defendant is not responsible. • It directly alleges that the plaintiff “is an employee of defendant,” and was “on his way to work with other employees.” It must, therefore, be assumed that the plaintiff and the engineer were co-employees employed by the same master. The plaintiff admits this, as we understand him, but contends that while in the act of going to his work, he must be regarded as a trespasser, and cannot be regarded as a co-employee of the engineer while in the performance of that act. But the Court of Appeals in this state has directly held to the contrary. Boldt v. N. Y. C. R. R. Co., 18 N. Y. 432 ; Gillshannon v. Stonybrook R. R. Co., 10 Cush. 228; Vick v. N. Y. C. and H. R. R. R. Co., 95 N. Y. 267; Ross v. N. Y. C. and H. R. R. R. Co., 5 Hun, 488; Russell v. N. Y. C. and H. R. R. R. Co., 17 N. Y. 134; Seaver v. B. and M. R. R. Co., 14 Gray, 476. Nor does it matter whether plaintiff was a laborer, survey- or, machinist or attorney of the road, so long as he was performing the act of going to his work he was a co-employee, and cannot recover. This proposition was directly passed in the case Ross v. N. Y. C. and H. R. R. R. Co., 5 Hun, 488. See, also, Russell v. H. R. R. R., 17 N. Y. 134; Wharton on Negligence, paragraphs 229-235; Albro v. The Agawam Canal Co., 6 Cush. 75; Coon v. The S. and U. R. R., 5 N. Y. 492; Sherman v. R. and S. R. R., 17 Ib. 153; Warner v. R. R. Co., 39 Ib. 468; Tinney v. R. R. Co., 52 Ib. 632; Baulec v. R. R. Co., 59 Ib. 356.
   By the Court.—McAdam, J.

The learned judge in the court below, properly held that there was no force in the objection that plaintiff has not in his complaint affirmatively alleged that no negligence on his part contributed to the disaster, and that the allegation that the negligence of the defendant caused the injury carries with it the inference that such negligence alone was the cause. Urquhart v. City of Ogdensburg, 23 Hun, 75; Robinson v. N. Y. C. & H. R. R. Co., 65 Barb. 146, aff’d in 66 N. Y. 11; Lee v. Troy Co., 20 Week. Dig. 413; Hackford v. N. Y. C. R. R. Co., 6 Lans. 381, aff’d, 53 N. Y. 654; Hale v. Smith, 78 N. Y. 480; Lee v. Troy C. G. L. Co., 98 N. Y. 115. The judge put his decision on the ground that the plaintiff, though not a trespasser, was a fellow servant in a common employment with the engineer, and that no action would lie against the master of both. To sustain this proposition he cites Bolt v. N. Y. C. R. R. Co., 18 N. Y. 432; Malone v. Hathaway, 64 Ib. 5; Vick v. N. Y. C. & H. R. R. Co., 95 Ib. 267. These cases, particularly Bolt v. N. Y. C. R. R. Co., supra, seem to be decisive of the question involved. In that case, plaintiff was a track laborer, who was struck by a train while walking on the track on his way to his work. The court held, that while doing this particular act, he was a co-employee of the engineer for whose negligence the company was not liable. (See also Gillshannon v. Stonybrook R. R. Co., 10 Cush. 228.) The rule is that all who serve the same master, work under the same control, derive authority- and compensation. from the same common source, and are engaged in the same general business, though it may be in different grades or departments of it, are fellow servants, who take the risk of each other’s negligence. Prima facie, all servants of a common master, employed in the railway service, are fellow servants, and neither has a cause of action for the negligence of another.

The rulings in other states, drawing a distinction between the grades of service, and giving a remedy to a laborer or clerk injured by an engineer (Chicago R. R. Co. v. O’Keefe, 47 Ill. 110; Ryan v. Chicago R. R. Co., 60 Ib. 170 ; Vallez v. R. R. Co., 85 Ib. 500; O’Donnell v. Alleghany R. R. Co., 59 Pa. St. 239), have never been approved in this state, and are contrary to its policy. We have endeavored .to distinguish this case from Bolt v. N. Y. C. R. R. Co., supra, but cannot.

The fact that the plaintiff slipped and fell, and was helpless upon the track when the warning was given by his co-laborers, only adds to the degree of negligence on the part of the engineer, and tends to establish more clearly freedom from fault upon the part of the plaintiff. It does not reach the underlying principle, too firmly established to be now questioned, that the plaintiff cannot recover for the negligence of a fellow servant, no matter how gross, and that the engineer guilty of the wrong came within that relation. For these reasons, and without seriously considering the second ground of demurrer, which seems to be without merit, the order and interlocutory judgment entered upon it must be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.


source: Caselaw Access Project

author: By the Court.—McAdam, J.

license: Public Domain

text:
    DANIEL MAHONY, Respondent v. LOUIS UNGRICH and LOUIS K. UNGRICH, Impleaded, etc., Appellants.

      Action for services in procuring a purchaser for real estate. •

    The plaintiff established a clear cause of action against Louis K. Ungrich,' and the only question in the ease is whether the obligation is to be enforced against him alone or jointly with his brother and co-owner Louis Ungrich. The evidence shows that Louis IC. Ungrich had authority to sell the property ; that he did sell it and executed the contract of sale on his own behalf and as agent for his brother Louis, who subsequently ratified the sale by joining with his brother Louis K. in the deed required by the contract. The property had been placed in the hands of several real estate brokers by Louis K. Ungrich to the knowledge of his brother Louis, and inferentialiy by his approval.

      Held, that the circumstances stated were sufficient to authorize a finding that Louis K. Ungrich had authority from his brother to employ assistance in effecting a sale of the property, and to make a contract for the payment of the customary brokerage charges. It is impossible to lay down any inflexible rule by which it can be determined what evidence shall be sufficient in any given case, but whatever evidence has the tendency to prove the agency is admissible, even though not full and satisfactory, as it is the province of the jury to pass upon and determine what weight it is entitled to receive.
    Before Sedgwick, Ch. J., and McAdam, J.

      Decided May 4, 1891.
    The plaintiff sued to recover $675 for services rendered to the defendants in procuring a purchaser for their property on the Northwest corner of 9th Avenue and 17th street, at $67,500. The plaintiff is not a broker, and relied upon a special agreement to pay him one per cent commission.
    The defendants conceded that they sold the property to one Robert Blackburn for $67,500, and defended upon the ground that they never employed the plaintiff, never promised to pay him a commission, and on the further ground that he was not the procuring cause of the sale. Upon the conclusion of the evidence on the part of the plaintiff, the defendant’s counsel moved to dismiss the complaint on the general ground that no cause of action had been proved, and that it affirmatively appeared that the plaintiff was not the procuring cause of the sale, and upon the further ground that no cause of action had been established against Louis and Louisa Ungrich, two of the three defendants.
    The complaint was dismissed as to Louisa Ungrich, and the motion to dismiss as to" Louis and Louis ■Kossuth Ungrich was denied. The trial proceeded against these two defendants, and resulted in a verdict in favor of the plaintiff for $722.24, the amount claimed and interest. A motion for a new trial on the minutes was made and denied, and the two defendants named appeal from the judgment and order. .

      Edward P. Orrell, for appellant, Louis Ungrich.

      Johnston & Johnston, for appellant, Louis K. Ungrich.

      Jeroloman & Arrowsmith, for respondent.
   By the Court.—McAdam, J.

The plaintiff proved that he had a conversation with Louis K. Ungrich, one of the defendants, at which he was employed on their behalf to find a purchaser for the property in question, under an agreement that he was to be compensated for his services at the rate of one per cent upon the selling price. That, acting under this employment, he called the attention of Blackburn to the property, and placed him in communication with the defendants, and that his efforts eventuated in the sale to Blackburn at $67,500. Blackburn, the purchaser, was next called as a witness and testified that his attention was first called to the property by the plaintiff and, in effect, that he was the procuring cause of the sale subsequently made. Indeed, Louis K. Ungrich admitted in the presence of the witness Quinn that the plaintiff was the inducing cause of the sale, and the proof on this subject is emphatic.

The plaintiff having proved: 1st, his employment to sell; 2d, a special agreement to pay him for his services at the rate of one per cent on the selling price ; 3d, a sale through his efforts to Blackburn at $67,500, established a clear cause of action against Louis K. Ungrich, and the only remaining question is whether the obligation is to be enforced against him alone or jointly with his brother and co-owner Louis Ungrich.

The evidence shows that Louis K. Ungrich had authority to sell the property; he did sell it, and executed the contract of sale on his own behalf and as agent of his brother Louis. Louis ratified the sale, by joining in the execution of the deed required by the contract. The property was placed in the hands of several brokers by Louis K. Ungrich, to the knowledge of his brother, and inferentialiy by his approval. The circumstances stated .were sufficient to authorize a finding that Louis K. Ungrich had authority from his brother to employ assistance in effecting a sale of the property, and to make any contract for the payment of the customary brokerage charges. It is impossible to lay down any inflexible rule by which it can be determined what evidence shall be sufficient to establish an agency in any given case, but it may be said in general terms, that whatever evidence has the tendency to prove the agency is admissible, even though not full and satisfactory, as it is the province of the jury to pass upon and determine what weight it is entitled to receive. Bickford v. Menier, 36 Hun, 446 ; Haywood Co. v. Burns, 15 St. Rep. 570; Leslie v. Knickerbocker I. Co., 63 N. Y. 27. The case was carefully submitted to the jury, and they found the facts in favor of the plaintiff. The evidence satisfactorily sustains their verdict, and the judgment entered upon it and the order denying the motion for a new trial must be affirmed, with costs.

Sedgwick, Ch. J., concurred.


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    ALBERT WILSON, Respondent v. GEORGE W. SMITH, Appellant.

      Amendment of pleadings, practice therein, motion for, and, order of the court.

    The power of the court to allow amendments should in all cases be exercised in furtherance of justice and upon cause shown; with this qualification the power is plenary.
    In the present case, the plaintiff did not seek to introduce a new or independent cause of action barred by the statute. He applied to correct an inadvertent error in his complaint by amending it to conform to the truth and fact. The amendment was in furtherance of justice and properly allowed. It would have been an abuse of discretion to have denied it.
    Before Sedgwick, Ch. J., and McAdam, J.

      Decided May 4, 1891.
    The plaintiff sued to recover $542.30, for so much money, “ laid out and expended for and at the request of the defendant.” The action was commenced April 8, 1890, and ten days afterward the plaintiff served a bill of particulars of his demand, the first item of which was for “ cash loaned defendant $234.” The answer which consisted of a “ general denial,” was served May 5, 1890. No further proceedings were taken until Nov. 5, 1890, when the ^plaintiff moved to amend the complaint by making it conform to his bill of particulars, by stating that $234 of the original demand was “for cash loaned” and the remainder for money had and received according to the original complaint. The motion was granted Nov. 13, 1890, upon payment of ten dollars costs, and with leave to the defendant, to answer the amended complaint within twenty days thereafter. The defendant appeals from the order.

      George Yeaman, for appellant.

      Albert Wilson, for respondent.
   By the Court.—McAdam, J.

The amendment allowed did not increase the amount of the plaintiff’s demand which was to recover $542.30, and merely allowed him to state the fact that $234 of it was a separate item for cash loaned, the remainder of the claim being for so much money paid, laid out and expended, as charged in the original complaint. The moneys expended were paid out between January 1, 1884 and July 1, 1884. The loan was made June 8, 1884, so that nothing was imported into the complaint by the amendment, except that which was necessary to apprise the defendant of the nature of the demand against him. The cause of the error was explained, the delay excused, and a case presented which called for the exercise of the liberal power of amendment vested in the court. (Code, § 723.) The defendant claims that the effect of the amendment was to introduce a new cause of action barred by the statute of limitations, and that this circumstance was sufficient to require the denial of the motion, citing Sheldon v. Adams, 18 Abb. 405; Evangelical L. C. v. Fuigar, 11 Week. Dig. 460. These cases do not question the power of the court to allow such an amendment, but hold that it should be exercised as in other cases, only in furtherance of justice and upon cause shown. With this qualification the power is plenary. Hatch v. Central N. Bk., 78 N. Y. 487; Eighmie v. Taylor, 39 Hun 366. The plaintiff did not, however, invoke the exercise of this power in the pres-. ent instance. He did not seek to introduce a new or independent cause of action barred by the statute. He applied to correct an inadvertent error in his complaint by amending it to conform to the truth and fact. The amendment was neither misleading nor prejudicial to the defendant, for he had been apprised of the true state of facts by the service of the bill of particulars, seven weeks before. the statute of limitations could have been attached. The" amendment was in furtherance of justice and properly allowed. Indeed, it would have been an abuse of discretion to have denied it. The appeal is without merit,., and the order appealed from must be affirmed, with, costs.

Sedgwick, Ch. J., concurred.


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    WARREN N. FITCHETT, Respondent v. THOMAS CANARY, Appellant.

      Action for conversion of personal property—Lien of stable keeper, relinquishment of.

    For a defence in this action the defendant alleges, that the property in question was sold at auction to satisfy a claim due to defendant; that at plaintiff’s request he bought the property in at $240, and that plaintiff then pledged the same to defendant as security for all his charges amounting to $342.16.
    The defendant boarded and fed the horse until June 1, 1888, when he sold his stable to Heineman Bros., who took possession of plaintiff’s property and charged the expense of its care to plaintiff. Heineman’s Bros, subsequently changed the charge of keeping, etc., to the defendant, at his request, but no arrangement was made between the defendant and Heineman Bros, that the property was to be kept on defendant’s account or in preservation of his lien. The defendant denied the alleged pledge of the property to defendant, who removed the same to New Jersey, without the permission of plaintiff, which acts of defendant constituted the alleged conversion.

      Held that the defendant waived his'lien when be transferred his stable to Heineman Bros, and delivered plaintiff’s property to them under a new arrangement by which the expense of keeping and care was to be charged to the plaintiff. Heineman Bros, became and were the plaintiff’s agents; their possession his possession, and this voluntary surrender was a relinquishment of the defendant’s lien, which could only be preserved by some understanding made at the time, by which the Heinemans were to hold the property for the benefit of the defendant and for the preservation of his lien, and no such arrangement was ever made. There being no lien and no sale divesting the plaintiff’s title, the removal of the property out of the state by defendant, without the consent of the plaintiff, constituted in law a conversion for which the defendant is answerable. Assuming to one’s self the property and right of disposal of another man’s goods is a conversion. The fact that the defendant came lawfully into the possession of the property forms no objection or defence to the action. It is the breach of the trust, or the abuse of such lawful conversion, which constitutes the conversion. The use of the thing, without the consent of its owner, or contrary to his wishes, is a conversion. Assuming the right of disposal or the exercise of dominion or an unwarranted control over it, is a conversion. This is sufficiently sustained by the proofs and is not excessive in amount.

      Before Sedgwick, Ch. J., and McAdam, J.

      Decided May 4, 1891.
    The action, was for the conversion of a bay horse, buggy and harness belonging t.o the plaintiff. The defendant admits the ownership of the property by the plaintiff, and alleges in defence that the property was sold at auction to satisfy a claim due to the defendant, and that at such sale the defendant, at plaintiff’s request, bought the property in at $240, and that the plaintiff then pledged the same with the defendant as security for all his charges aggregating $342.16. The defendant did board and feed the horse until June 1, 1888, when he sold his stable to Heine-man Bros., and they took possession of the plaintiff’s property and charged the expense of caring for it to him. They subsequently changed the charge to the defendant, but no arrangement was made between the latter and Heineman Bros, that the property was to be kept on his account or in preservation of his lien. The plaintiff denied the alleged pledge of the property which was, after the sale, removed by the defendant to New Jersey without , the plaintiff’s permission. The acts aforesaid constitute the conversion complained of. The jury rendered a verdict in favor of the plaintiff for $900. A motion was made on the minutes for a new trial, and from the judgment entered on the verdict, and from the order denying the application for a new trial, the defendant appeals.

      Albert I. Sire, attorney, and Chauncey Shaffer of counsel, for appellant, argued :—
    I. At the close of the plaintiff’s case a motion was made to dismiss the complaint on the ground that plaintiff had not maintained his action according to the allegations of the complaint. This motion was denied, to which defendant excepted. In order to have properly maintained his action according to the complaint, plaintiff must have proved, (a) That he was, at the time of the alleged conversion, the owner of the property, (b) That he was entitled to the immediate possession, (c) That the property was in Heineman’s stable under an agreement between the Heinemans and defendant and that it was not to be removed except upon his order, (d) That the property was wrongfully removed by the defendant and hypothecated, (e) The value of the property, It is conceded that plaintiff was the owner. In order to maintain the action, says Park, C. J., in Ayres v. French, 41 Conn. 150, “ the plaintiff must have the immediate right to the property in presentí, and if he has no such right he cannot recover.” Salt Springs National Bank v. Wheeler, 48 N. Y. 495 ; Gurney v. Kenney, 2 E. D. Smith, 132; Zimmerman v. Fairbanks, 35 Wis. 368; Fairbanks v. Phelps, 22 Pick. 535; Philpot v. Kelly, 3 A. & E. 106 ; Griffin v. L. I. R. R., 101 N. Y. 353 and 354. Proof that the defendant did some positive wrongful act is necessary to support an action of trover. Bromley v. Coxwell, 2 Bos. & Sul. 438 ; Rose v. Johnson, 5 Burr. 2825 ; Severin v. Keppell, 4 Esp. R. 156. There was no evidence on the part of the plaintiff that defendant had ever hypothecated the property. The presumption of the lawfulness of defendant’s possession of the property is more than sufficient to rebut any allegation or insinuation that he converted the property by simply removing it “ across the way.” A party who converts property is guilty of a positive wrong, and the wrong, like fraud or any other tort, must be proved, as the presumptions are all against it. Greenleaf’s Ev., § 40. The existence of a state of facts being once shown it is to be presumed that it has continued until the contrary is shown. Green-leaf ’s Ev., § 41. The burden of sustaining an affirmative of an issue is upon the party alleging the facts constituting the issue and so remains throughout the trial. Heineman v. Heard, 62 N. Y. 448. It was shown throughout the entire case that although communications were addressed to and received by the plaintiff to make, and he himself declared that he would make, some settlement of the charges against his property, it nowhere appeared in the evidence that he ever offered to make such settlement, or required the delivery to him of his property. Where the defendant came lawfully into possession there must be a demand and refusal before the commencement of the action. A sale by the defendant after suit brought will not avail. Stone v. Livingston, 6 Johns. 44 ; Purves v. Moltz, 5 Robt. 653 ; 2 Abb. N. S. 409 ; 3 E. D. Smith, 252 ; Gillet v. Roberts, 57 N. Y. 28 ; Powers v. Bassford, 19 How. 309. A mere nondelivery is not a conversion, but a denial of right or title in answer to a demand is. Nelson v. Weil, 12 Weekly Dig. 154. A demand and refusal is usual proof where defendant came into possession rightfully. Rawley v. Brown, 18 Hun, 456 ; 6 Johns. 44 ; Master v. Webb. 60 How. 302, 305; 4 Lans. 263; 3 Hill, 348.
    II. There was no sufficient evidence upon which to base the finding of the jury as to the value (review of testimony as to value.) The verdict ($900,) was, therefore, clearly without evidence to support it upon the question of value. The complaint demanded judgment only for damages in the value of the property. No claim is made for damages for detention or otherwise, nor was any evidence given to that effect. The measure of damages is the value of the goods at the time and place of conversion. Kennedy v. Strong, 14 Johns. 128; Caffe v. Bertrand, How. App. Cases, 224 ; Correll v. Hill, 6 N. Y. 374. For conversion the value at the time of the conversion furnishes the proper rule. Ormsby v. Vermont Copper Co., 56 N. Y. 623; 58 Ib. 308; 60 Ib. 40; 69 Ib. 60. The auction price is a fair test of value. Philbrook v. Kellogg, 18 Hun, 399 ; Crouse v. Fitch, 1 Abb. Ct. App. 475. “ It is the duty of the supreme court general term to set aside a verdict which is against the clear weight of evidence. Justice would be promoted if the supreme court should more frequently exercise its unquestioned right of reviewing verdicts upon the facts. Smith v. Ætna Life Ins. Co., 49 N. Y. 216.
    III. The question is, has the creditor so far voluntarily parted with possession as to warrant the conclusion that he intended to abandon the lien. Allen v. Spencer, 1 Edm. Select Cases, 117. Where promissory notes are pledged by a debtor to secure a debt, the pledgee acquires a specific property in them, which is not lost by their being re-delivered to the pledgor to enable him to collect them. White v. Platt, 5 Denio, 269 ; Clark v. Iselin, 21 Wall. 360 ; Duncomb v. N. Y. H. & N. R. R., 84 N. Y. 208. Plaintiff could have held the property as the agent of defendant. “ The doctrine is now well incorporated in our jurisprudence that the agent to take and keep legal possession for the pledgee, may be no other than the pledgor himself.” Hays v. Riddle, 1 Sandf. 248; aff’d in 32 N. Y. 553 ; Bank of N. Y. v. Vanderhost, 1 Robt. 221; Duncomb v. N. Y. H. & N. R. R., ante. But there was not even the least semblance of a surrender of possession of the defendant or an abandonment of the property of any description. The fact that the defendant, for his convenience, left the property in charge of the Heinemans for a few days after he had sold his business to them, who were stable keepers, and his tenants, cannot fairly be said to have been a surrender or abandonment.- What directions plaintiff may have given in respect to the horse were properly disregarded by the Heinemans, as they were responsible only to the defendant for its preservation and care. A particular finding by a court or jury based upon the evidence in this case that the defendant parted with the possession when he left the property to be kept by the Heinemans could not be upheld. This part of the charge gave the jury the opportunity to find that there had been a lien created on the property by agreement between the parties which was afterwards lost by a surrender of possession, and the court assumed, in charging as it did, that there was evidence to so find when in fact there was no such evidence. The issue should have been narrowed to the question, Was a lien created by agreement ?

      Blandy & Hatch, attorneys, and Charles Blandy of counsel, for respondent, argued :—
    I. The facts proven demonstrated conversion in the cepit of the most barefaced character. The defendant attempted, as remarked in the statement, to justify the removal of the property from the stable of Heineman Bros, to the private stable of Sire in the same street, and afterwards from there to defendant’s farm at New Brunswick, N. J., upon the claim as set up in his answer, that on May 22d, at the auction sale, the plaintiff assigned, transferred, conveyed and pledged said horse, wagon and harness to defendant, as security for the payment of said keep, care and charges, costs, expenses and disbursements then accrued and thereafter to accrue, which amounted, at the time of the commencement of this action, he claimed, to $342.16. Upon the stand the defendant, to support this plea, testified to the alleged pledge as follows: “ Plaintiff said to me, ‘ You bid • the horse in, and if he don’t bring enough, whatever the difference is I will bring a man over from Brooklyn, in a day or two, and pay you the whole bill; you have got security enough; you can hold the horse, wagon and harness till I pay you the whole bill, and I will pay it in a few days.’ Then I bid him in for $250, at an expense of $5 auctioneer’s fees, which I paid. Fitchett did not repay the amount to me; Fitchett told me I could take the horse, wagon and harness, and hold them, and if he didn’t bring the man over to sell them for the best price I could, and if there was anything coming to him it would go to him, and if I become the loser he would make good my loss some time on the whole affair. I told him I didn’t want to have that horse at a daily expense, I would make it as cheap as I could, and send him where he would be kept much cheaper; he said, ‘Do whatever you please if I don’t bring this man over in two or three days to redeem the whole lot.’ I took possession that day of the horse, wagon and harness, and retained possession ever since. I kept the horse at my stable after the 22d of May till the 21st of June. I sold the stable out in the meantime, the first of June, and Heineman Bros, took possession ; then after the first of June up to the 21st of June I took charge of the horse and retained possession of him. I paid the bill on him to Heineman Bros.—$17.50. Since May 22d I retained the custody, possession and control of the horse, wagon and harness, and it was subject to my direction all the time.” The testimony of one Payne—a witness for defendant, a dealer in horses—if true, in some respects corroborates the defendant’s version. As opposed to this defense is—(a) A flat denial by the plaintiff of the alleged pledge, and a denial that he saw Payne on the 22d May. (&) Lane, the foreman and bookkeeper of defendant, said he never heard of the alleged pledge; he was present at the sale in question, and afterwards took the horse back to defendant’s stable. He entered the horse on the horse-book for Heineman Bros, for June, as plaintiff’s and entered all the other owners of horses and persons to be charged, and entered plaintiff as a boarder of Heineman Bros., and introduced plaintiff to them as a boarder ’of this horse, (c) The fact that Canary did not remove the property from the stable before yielding up possession to Heineman Bros, on June 1st along with four of his own horses, which he did remove that day. (d) The fact that the horse stood charged against plaintiff on' the books of Heineman Bros, from June 1st to June 10th, when, because they (Heineman Bros.) supposed they would have to pay Canary (defendant) the amount due from plaintiff to him for back keep before they could get the horse as a boarder, therefore they caused the entry which charged plaintiff as owner to be changed, and the horse to be changed in the twofold manner to u Fitchett & Canary.” (e) The fact that on July 6th, after the conversion, Heineman Bros., on Fitchett’s application for a bill for keep, made out the bill to plaintiff for the keep from June 1st to 21st— $17.50. This was before Heineman Bros, knew of any trouble growing out of the removal of the property, and yet, in date, after defendant said he had paid this same bill to Heineman Bros. (/) The fact that Heineman Bros, altered their books to make the charge to Canary on June 10th, and that Canary pretended to have paid this $17.50 bill, and yet could not fix the date of payment, except to say it was before suit, while suit was brought against him on July 3d, and yet the bill was not made out by Heineman Bros, nor dated until July 6th, disproves the defendant’s defence, and creates a strong suspicion against the bona jides of either the defendant or Heineman Bros.’ position as witnesses, to say nothing of the fact that the latter had been sued for parting with possession against plaintiff’s warning to the contrary, and therefore were directly interested. (g) The fact that when the horse-book was made out by Lane for Heineman Bros, containing the name “ W. N. Fitchett” as the owner and person to whom, to make the charge, there stood on the same book a charge against defendant Canary for the keep of four horses for one day, viz., the first day, shows that Canary took away his four horses on the first day of Heineman Bros, taking possession, but did not take away his property. (A) The fact that Lane, on the Tuesday before defendant Canary removed the property, conveyed to Fitchett Canary’s threat to remove the property; the fact that three or four days before their removal Fitchett told Lane not to let Canary have it; Fitchett’s notification to Heineman Bros, not to permit any one to take it out, and the stealthy manner in which the defendant removed the property late in the evening of the day the plaintiff remained around the stable all day, in the endeavor to see Canary, but left without seeing him, and the fact of removing it beyond the jurisdiction of this court to New Jersey, are all important facts, and inconsistent with the idea of any such pledge as defendant contends for. It is true Heineman Bros, swore in substance that they never accepted the plaintiff as a boarder, never recognized or knew him in the transaction, but on the contrary that the horse was charged to Canary on their books, and paid for by him and that he was their boarder. But subterfuge was very apparent when the witness was compelled to admit, on cross-examination, that what is called the “horse-book” was the book of original entry, and in which is entered on the first of every month the names of the customers or boarders, with spaces for the number of horses boarded; and that this horse was originally charged to the plaintiff, “ W. N. Fitchett,” that the entry was changed between the dates of June 1st and 21st by interlining the name of “ Thos. Canary ” over that of “ W. N. Fitchett,” and that such change was made after conversing with the defendant. Lane said the change was made about June 10th, on the direction of Heineman Bros. Whichever of these dates is correct is not material; it is sufficient to know that on July 6th, long after the conversation had taken place, the plaintiff sent his brother Alexander Fitchett to Heineman ■ Bros, for a bill for the keep from June 1st to June 21st, when Heinéman Bros, made out and delivered Exhibit “ A ” charging it to plaintiff. According to defendant’s evidence he had paid this bill prior to July 3d, yet Exhibit “A” was not made out until July 6th; Heineman admitted furnishing this Exhibit “A” to plaintiff, and also admitted that Lane had introduced plaintiff to them as one of their boarders after they entered into possession. It cannot be said that the verdict was influenced by passion or prejudice, or clearly against the evidence. Hynes v. McDermott, 7 Abb. N. C. 98. To set aside the erroneous conclusion of the jury must be unmistakable. Hynes v. McDermott (supra).

    II. Even if defendant had established a lien by special pledge, he could lose it by parting with possession of the property. Geneva, etc., R. R. v. Sage, 35 Hun, 95. The learned judge correctly propounded the legal rights of the parties in this regard when he charged : “ Although the defendant may have had a lien, he may afterwards have lost it again. If, when he sold his business out to Heineman Bros, on June 1st, 1888, he delivered plaintiff’s horse, wagon and harness to the Heineman Bros, to be kept by them for the account of plaintiff, he parted with the possession of them, and by parting with his possession he lost his lien; but if he reserved the horse, wagon and harness for his own account, and they were kept by Heineman Bros, for his own account and not for account of the plaintiff, the defendant preserved his lien.” To the first portion or branch of this proposition—that italicized — the defendant excepted. The exception is not well taken. If the defendant did part with possession, even if the jury should believe in the first instance that a pledge had been created —he thereby lost his lien. Geneva, etc., R. R. Co. v. Sage, supra. In that case a railroad company ivas held to have lost its lien for freightage in carrying a horse, by delivering thereof to the consignee, and quoting from the opinion of Beardsley, J., in the old case of Bigelow v. Heaton, 4 Denio, 496, the court say: “ A relinquishment of possession by one who has a lien upon property, is an abandonment of the lien. This, as a genéral rule, is entirely settled. By a transfer of the possession the holder is deemed to yield up the security he has by means of the custody of the property, and to trust only to the responsibility of the owner or other person liable for the debt.” That the defendant parted with possession when he sold to Heineman Bros, is clearly demonstrated by the review of the evidence under the first point, and upon this point, therefore, the verdict is fully sustained.
    III. It was unnecessary to prove a demand before suit. The action is for conversion in the cepit as distinguished from detinet. The facts established a tortious taking by the defendant, in one or both of the following respects. (1) By taking the horse out of the possession of the Heinemans. In such a case it is unnecessary to prove a demand and refusal. Farrington v. Payne, 15 Johns. 432 ; McKoon v. Geils, 5 Weeldy Dig. 486 ; Bates v. Conkling, 10 Wend. 389 ; Thompkins v. Haile, 3 Ib. 406. (2) But conceding, for the sake of argument, that the property was not in the possession of the Heinemans, the removal of the horse against the express directions of the plaintiff was a conversion in itself and no demand was necessary. Van Brunt v. Shenk, 11 Johns. 428 ; Syeds v. Hay, 4 Term Rep. 264; Esmay v. Fanning, 9 Barb. 176 ; Hallet v. Carter, 19 Hun, 629 ; Horsefield v. Cost, Add. (Pa.) 152 ; Johnson v. Howe, 7 Ill. 344; Boyce v. Brockway, 31 N. Y. 490; Laverty v.
      Suethen, 68 Ib. 522. Demand and refusal are mere evidence of conversion : it may be proved by other facts. Jessop v. Miller, 1 Keyes, 321 ; Johnson v. How, supra.

   By the Court.—McAdam, J.

The defendant waived his lien, when he transferred the stable to Heine-man Bros., and delivered the' plaintiff’s property to them, under a new arrangement by which the expense of keeping it was charged to the plaintiff. Heine-man Bros, became the plaintiff’s agents; their possession, his possession, and this voluntary surrender was a relinquishment of the defendant’s lien, which could only be preserved by some understanding made at the time, by which the Heinemans were to hold the property for the benefit of the defendant, and for the preservation of his lien. See Geneva, etc. R. R. Co. v. Sage, 35 Hun, 95; Bigelow v. Heaton, 4 Den. 496. No such arrangement was ever made. The answer does not plead a stable-keeper’s lien given by the statute [Laws 1872, ch. 498 ; Laws 1880, ch. 145), nor a common law lien by agreement of the parties, but a sale by the plaintiff’s authority, a buying in by the defendant on plaintiff’s account, and a subsequent pledge until $342.16 was paid.

The plaintiff denies that any such understanding was had or agreement made (fols. 121, 122). The conflict was submitted to the jury, and they adopted the plaintiff’s theory that no such contract or pledge was made.

The defendant, shortly after the auction sale, removed the property to the private stable of one Sire, at No. 211 West 58th street, where it remained a few days under defendant’s control, and from thence it was removed by him, to the farm of Sire, at Morris Farms, New Jersey, and from there to the farm of the defendant at New Brunswick.

There being no lien, and no sale divesting the plaintiff’s title, the removal of the property out of the state, without the consent of the plaintiff, was an unwarranted assumption of control of his property, not justified by necessity or by any warrant whatever, and constitutes in law a conversion for which the defendant is answerable. (How. Tr., § 629 ; 2 Hilliard on Torts, 4th ed. 32, et. seq.) The defendant had no more right to take the plaintiff’s property to Morris Farms or New Brunswick than he would have to take it to Texas or to Europe.

Assuming to one’s self the property and right of disposing of another man’s goods is a conversion. The fact that the defendant comes lawfully into possession forms no objection to the action. It is the breach of the trust or the abuse of such lawful possession which constitutes the conversion. Murray v. Burling, 10 Johns. 172. The using a thing without the license of the owner, or contrary to it is a conversion. Assuming the right to dispose of it, or exercising dominion or an unwarranted control of it, is a conversion.

Any asportation of a chattel for the use of the defendant or some third person is a conversion of it, because it is an act inconsistent with the general right of dominion which the owner of the chattel has in it, for he is entitled to the use of it at all times and in all places to suit his pleasure. Addison on Torts, 3d ed., 310.

The jury upon ample evidence as to value, assessed the damages at $900. The verdict is sufficiently sustained by the proofs, and is not excessive in amount. The exceptions taken are without merit, and the motion for a new trial was properly denied.

For these reasons, the judgment and the order denying the motion for a new trial must be affirmed, with costs.

Sedgwick, Ch. J. concurred.


author:
By the Court.—McAdam, J.
      Sedgwick Ch. J., (concurring.)

text:
    WILLIAM B. DUNCAN, Jr., Respondent v. THE CHINA MUTUAL INSURANCE COMPANY, Appellant.

      Marine insurance—Extent of insurable interest—Clause providing that any change of interest in the vessel insured, shall not affect the validity of the ■ policy.

    This action is upon a policy of insurance, issued by defendant upon the steamship Samana. The facts in the case are fully set forth in the statement of the case and the opinion of the court.

      Held, that the loss occurred within the lifetime of the policy, and, under its provisions, the obligation on the part of the defendant to pay became complete. A marine policy has a somewhat wider scope than is generally attributed to it, for it extends beyond the person by whom it was effected, to all who derive title from him subsequently by a purchase which includes the insurance as well as the property. The right to transfer the benefits of a marine policy to a purchaser of the property may be exercised without the knowledge or concurrence of the insurer. The phrase “ whom it may concern ” is a technical one, and refers only to those who are in contemplation of the parties making the contract. In case of a change of interest in the property and policy, the transferee becomes a party concerned, within the meaning of the contract, because the introduction of a new party, by transfer of interest is authorized by the terms of the policy, and was, therefore, within the contemplation of the parties as fully as if the transferee had been a party in interest when the policy was issued. In marine insurance the main considerations for the insurer are, the character of the risk, the value of the property and the amount insured. The party or person to whom the money is paid in ease of loss, is of little consequence, so long as it is paid to a party authorized to receive it for the person entitled to the same. The policy fixes the value of the vessel at $45,000, and, being a total loss, the defendant is liable for its proportion, and there is nothing in the case to mitigate or reduce it.
    Before Sedgwick, Ch. J., Truax and McAdam, JJ.

      Decided May 4, 1891.
    The action is upon a policy of insurance issued by the defendant, July 28, 1888, upon the steamship “ Samana,” which then belonged to the Steamship Samana company. The plaintiff owned all the stock of this company, except a nominal amount of twenty-five dollars which was held by five persons to satisfy some requirement of the English law. He was the managing owner, and for practical purposes the company. The vessel was valued in the policy at $45,000. The amount insured by the defendant was $5,000.
    In October, 1888, the company, through Mr. Duncan, made a contract with one Colville to sell the Samana for $41,000 to a company to be formed by Colville. Part of the price, $12,500, was paid in cash, the balance, $28,500, was secured by a mortgage. This contract further provided that the policies then existing upon the steamer should be held for a certain time for the benefit of the vendee, and that the vendee should pay the unearned premiums up to this time, and thereafter should itself take out policies.
    The agreement is annexed to the proofs of loss. The telegrams annexed thereto show that the vendee agreed to pay the unearned premiums on the policies on the Samana down to December 3, 1888. Mr. Duncan testified that the policy in suit was in his possession from its date until December 3, 1888, and that it was expressly agreed that he should continue to hold the policies as security for the mortgage.
    A company was formed by Colville, known as the Banana Steamship Co. The steamer was conveyed to this company, and it executed a mortgage to the plaintiff for the unpaid balance of the purchase money. Duncan testified that this was in fact the consideration for the mortgage, although in the printed form of the mortgage it is expressed to be given to secure a considerable sum of money due from the Banana Steamship Company to the plaintiff.
    The steamship “ Samana, ” sailed from New York, Nov. 22, 1888, bound for Aux Cayes in the West Indies. She has never since been heard from.
    The testimony of Captain Fraser and Captain Klinksel, was taken on the trial in support of the proposition that .the Samana was lost before December 3, 1888. The judge submitted to the jury the question whether the vessel was lost before the-3d of December, and they found that she was. At the time this proof was offered, the evidence of Eustace and Hughes had not been taken. Their testimony shows conclusively that the proposed agreement to cancel the policy in suit from and after December 3, 1888, at noon, was never made. ' The plaintiff declined to assent to the condition on which alone the defendant was willing to cancel the policy, and it never was canceled. This proof rendered the evidence of the captains unnecessary. For it was conceded bjr the defendant that the vessel was lost at sea within the year covered by the policy.
    Upon the conclusion of the evidence, the defendant’s counsel requested the trial judge to charge the jury:
    I. The plaintiff having sold the steamship insured, the extent of his insurable interest in the vessel was the amount of the unpaid purchase money, to wit: $28,500.
    II. That without consent of the underwriters, the policy issued to the Steamship Samana Co. could not be extended to cover any interest of the Banana Steamship Co. in the vessel insured by any agreement between that company and the Steamship Samana Co.
    III. The Steamship Samana .Co. having parted with a portion of its interests in the insured vessel, the loss which it has suffered is but a partial loss.
    IV. The amount recoverable under the defendants’ policy is to be ascertained by the following proportions : as $41,000, is to $28,500 (the unpaid purchase money represented by the mortgage), so is $5,000 (the amount insured by the policy), to the amount recoverable, namely, $3,475.50.
    The trial judge declined to charge either of the four propositions, and the defendant’s counsel excepted. Only one question was submitted to the jury, and that for a special verdict, to wit: “Was the Steamship Samana lost at sea by or in consequence of any of the perils insured against by the policy in suit before the 3d of December, 1888 ?” The jury found “that the vessel was lost prior to that date.” Upon the coming in of this special finding, the court directed the jury to find a general verdict in favor of the plaintiff for $5,644.92, the amount of the policy and interest, to which direction the defendant also excepted. The defendant then moved for a new trial, which was denied, and from the judgment and order denying the application for a new trial the appeal is taken.

      North, Ward & Wagstaff, attorneys, and J. L. Ward of counsel, for appellant.

      Wheeler, Cortis & Godkin, attorneys, and Everett P. Wheeler of counsel, for respondent.
   By the Court.—McAdam, J.

The contract was one of indemnity, and the defendant, by its valued policy, agreed that in the case the steamship “ Samana ” was lost at sea, it would pay to the Steamship Samana Company, on account of whom it might concern, the sum of $5,000. The loss occurred within the lifetime of the policy, and under its provisions the obligation to pay became complete.

The meaning and intention of the parties is apparent. The policy insures “ W. B. Duncan, Jr., on account of whom it may concern, in case of loss, to be paid * * * to Steamship Samana Company, limited.” At the end of the policy is the following clause : “ It is agreed that any change of interest in the vessel hereby insured shall not affect the validity of this policy.” This contemplated the possibility that happened. While the policy was in force, the Steamship Saman a Co. sold the steamer to the Banana Steamship Co. for $41,000, in payment for which it received $12,500 in cash and a consideration money mortgage, in the name of the plaintiff, its managing agent, for the balance of the unpaid purchase money, which mortgage by virtue of the plaintiffs’ relations to the Steamship Samana Co., was held by him in trust for it. Contemporaneously with the execution of these papers, another agreement was executed by which the Banana Steamship Company was to have the benefit of the seller’s policies of insurance. These instruments are to be construed together as if all were contained within one. Marsh v. Dodge, 66 N. Y. 537. Their operation and effect were to create the change of interest contemplated by the special provision' of the policy, and to make the Banana Steamship Company, so far as it became interested in the property, one of those to whom the policy concerned, and its provisions extended. The loss was to be paid to the Steamship Samana Company, and the money when received by it was to be divided among those concerned, according to their respective interest's.

The principles relating to marine policies differ essentially, from those affecting fire insurance. A marine policy has a somewhat wider scope than that which is generally attributed • to it, and extends beyond the person by whom it is effected, to all who derive title from him subsequently, by a purchase which includes the insurance, as well as the property (see cases collated in 2 Am. Leading Cases by Hare and Wallace, 5th ed., pp.. 883, 884). It was said in Carroll v. The Marine Ins. Co., 8 Mass. 515, that the underwriter was entitled to notice of the transfer prior to the loss. But this doctrine is at variance with the authorities' which establish, that the right to transfer the benefit of a marine policy to a purchaser of the property may be exercised without the knowledge or concurrence of the insurers. 2 Am. Leading Cases, supra. The same rule was declared in Hitchcock v. North Western Ins. Co., 26 N. Y. 68, and see Henshaw v. Mutual S. I. Co., 2 Blatchf. 99 ; Hooper v. Robinson, 98 U. S. R. 528, and incidentally, Waring v. Indemnity Fire. Ins. Co., 45 N. Y. 606 ; Clinton v. Hope Ins. Co., 45 Ib. 454; Cromwell v. Brooklyn Fire Ins. Co., 44 Ib. 42; Savage v. Howard Ins. Co., 52 Ib. 501. The special provision in reference to change of interest was inserted in view of the rule stated, and to dispense with any notice of the change, even if notice would have otherwise been necessary.

The phrase “ whom it may concern ” is a technical one, and applies only to those who are in contemplation of the parties making the contract. Phillips on Ins., § 383 ; 1 Duer on Ins. 167, § 14; Hooper v. Robinson, 98 U. S. R. 528; Crosby v. N. Y. Mutual Ins. Co., 4 Bosw. 377. In case of a change of interest in the property and policy, the transferee becomes a party concerned, within the meaning of the contract, for the introduction of a new party by transfer of interest was authorized by the terms of the policy, and was, therefore, within the contemplation of the parties as fully as if the transferee had been a party in interest at the time the policy was issued. In marine insurance, the character of the risk, the value of the property and amount insured are the main considerations for the insurer, the person to whom the money is to go in case of loss, is of little consequence, so long as it is paid to a person authorized to receive it. The policy fixed the value of the vessel at $45,000, and being a total loss, the defendant is liable for its proportionate amount, $5,000, and there is nothing in the case which mitigates or reduces it. 1 Arnold on Ins. 321. The ¡steamship Samana Co. made an oral assignment to the plaintiff of its rights in the premises, and subsequently, the company made a written transfer thereof to one Barnes, and he in turn made a similar transfer to the plaintiff. These writings were executed after suit brought, but were only in confirmation of what had been orally done before, so that like any other ratification it related back to the time when the act was done which it was intended to confirm. These facts clearly established the plaintiff’s right to the insurance money, for whom it might concern. The defendant did not plead the non-joinder of the Steamship Samana Company, as a party plaintiff, and the transfers, aforesaid, conclude it as effectually as if it were before the court.

There was also a failure to plead the non-joinder of the Banana Steamship Co., but its presence as a party was unnecessary.

The action was properly conducted in the name of the plaintiff as assignee of the Steamship Samana Co. for the benefit of the Banana Steamship Co. to the extent of its interest. Powles v. Innes, 11 M. & W. 10 ; Wakefield v. Martin, 3 Mass. 558; Earl v. Shaw, 1 Johns. Cas. 313; Sparkes v. Marshall, 2 Bing. N. C. 761. The only effect of naming Duncan .in the. policy was to recognize him as the principal or agent to whom the insurer could look as-the responsible; .creditor for the premium. 1 Arnold on Ins. 165. If he had any interest in the subject matter insured, he was sufficiently covered by the general phrase “ whom it may concern,” and did not require to be especially named. The case was carefully tried, the exceptions to the admission of evidence, and to the refusals to charge the injury are without merit. The evidence sustains the verdict, and the motion for a new trial was properly denied.

It follows that the judgment as well as the order denying the motion for a new trial must be affirmed with costs.

Truax, J., concurred.

Sedgwick Ch. J., (concurring.)

I agree with Judge McAdam, but would like to say that, in my judgment, the right of the Banana Steamship Company, as'represented by the plaintiff, is not based upon its being intended as a party designated by the phrase in the policy “ on account of whom it may concern,” but rests upon the terms of the agreement for the sale, by which the policy was to be held for their benefit, and a collateral security for the payment of the mortgage of the purchase. This, of course, assumes that an assignee, by absolute transfer, can recover according to his interest at the time of loss.


text:
    FRANK LESLIE, Plaintiff v. GEORGE F. BASSETT, et al., Defendants.

      Bill of Exchange—Liability of acceptor on bill transferred after acceptance by payee before maturity.

    This action is brought by plaintiff on a bill of exchange drawn by the American Exchange in Europe on the defendants, and by the latter accepted, and afterwards, and before the maturity of the bill, transferred by the American Exchange to plaintiff. At the time of the transfer the American Exchange was indebted to the plaintiff in the sum of $50,000, upon which interest was about to become due to plaintiff. The American Exchange to provide for the payment of that interest, endorsed and delivered to plaintiff the bill in suit,, under the agreement that it should be applied in payment of the interest, and any balance above the interest should be applied on account of the principal. The defendants claim that the consideration for their acceptance having failed, and the plaintiff having made no present advance upon the faith of the bill, she was not a bona fide holder of it, and that she took it subject to all the equities between the original parties.

      Held, that independently of the question, whether the plaintiff became a bona fide holder of the acceptance within the meaning of Coddington v. Bay, 20 Johns. 637, and kindred cases, a proposition not necessary to consider, the verdict was properly directed for other reasons, namely:

      The acceptance by the American Exchange of Alcock & Co.’s draft on account of defendants, furnished a sufficient consideration for the acceptance in suit. There was no agreement that the specific moneys collected on the acceptance in suit were to be applied by the American Exchange towards the payment of its acceptance to Alcock & Co. The acceptance in suit belonged to the American Exchange to dispose of, or do with, as it pleased. The transfer of the acceptance by the American Exchange to the plaintiff as a payment, in advance, of the interest ' about to become due to her on the $50,000 loan, and the application of any balance above the interest on the principal, was, therefore, a valid transfer of the acceptance, by the person having the absolute right of disposal, to the plaintiff. Even assuming that there had been a failure of, or no consideration for the defendants’ acceptance, the rule applicable would be that laid down in the case of the Grocers’ Bank v. Pen-field, 69 N. T. 504. The court said: “ It is universally conceded that the holder of an accommodation note, without restriction as to the mode of paying it, may transfer it either in payment, or as collateral security, for an antecedent debt, and the maker will have no defence. It is only where the note has been diverted from the purpose for which it was entrusted to the payee, or some other equity exists in favor of the maker, that it is necessary that the holder should have parted with value on the faith of the note in order to cut off such equities of the maker.’’
    Before Sedgwick, Ch. J., and McAdam, J.

      Decided May 4, 1891.
    The action is on a bill of exchange accepted by the defendants and transferred to the plaintiff before maturity. The circumstances leading to the acceptance and transfer are substantially as follows: “ The defendants, merchants, doing business in New York, were accustomed to made purchases of earthenware, of the firm of Henry Alcock & Go. of Colridge, Staffordshire, England, with which firm they had a line of credit. They had also been doing business through the New York office of the American exchange in Europe as a banking house in transacting their foreign business. Wishing to extend their credit with Alcock' & Co. beyond the usual limit, the defendants entered into an agreement with that firm, the substance of which was embodied in. „ a written memorandum, as follows:
    “ New York, September 20th, 1887.
    Terms 4 mos. Note with interest added at the rate of 5 per cent per annum to the extent of £2,000.
    . After the account shall have reached the limit of credit, £2,000, then Messrs. Alcock & Co. are to draw on American Exchange in Europe, London (with B. L. attached), on our account. Interest on same 5 per cent per annum.
    Geo. F. Bassett & Co.
    Henry Alcock & Co.”
    After this agreement was made, the defendants entered into' an agreement with the American Exchange, the substance and effect of which was that that corporation should accept the drafts drawn by Alcock & Co. for goods purchased by defendants of that firm, payable ninety days after date, with bills of lading and invoice attached. That the American Exchange should then draw upon defendants drafts for the amount of the draft drawn by Alcock & Co., with one per cent commission and expenses added, payable twenty days before the draft drawn by Alcock & Co. matured, so as to place the American Exchange in funds with which to pay the draft which it had accepted for Alcock & Co.
    . When this arrangement was consummated notice was given to Alcock & Co.
    Pursuant to the agreement, the defendants ordered a . bill of merchandise from Henry Alcock & Co., amounting to £344, 8s. 3d. For the purchase price Alcock & Co. drew their bill of exchange, dated March 28, 1888, upon the American Exchange, payable ninety days after date. This bill was forwarded to the American Exchange and duly accepted. The goods ordered were -sent to David Inglis, the agent of the defendant in Liverpool, who shipped them to the defendants.
    To place itself in funds to meet the bill of exchange which it had become bound to pay to Henry Alcock & Co., the American Exchange made its draft upon the defendants, Dated April 9, 1888, for $1,715.17, being the amount of the Alcock bill, with commissions and expenses added. This bill was payable sixty days from date, and on its face it is expressed to be for “ Mdse, a/c. 1087 Alcock & Co.”
    It is upon the acceptance of this draft that the action is brought.
    The plaintiff derived her title to the bill of exchange in suit in the following manner: On November 21, 1887, she loaned to the American Exchange in Europe, Limited, the sum of $50,000, and took therefor a certificate of deposit dated that day, and payable six months from date with interest at six per cent.
    The plaintiff and Mr. Gillig substantially agree in the statement that the plaintiff asked Gillig, as he was about to leave for Europe, in April, 1888, to make some provision for the payment of interest on the debt due plaintiff from the Exchange,, but which was not due until the 21st of May following. To this request Gillig assented, and thereupon endorsed and delivered to the plaintiff the bill in suit under the agreement that it should be applied in payment of interest, and that any balance above the interest should be applied on account of the principal.
    The bill in suit was drawn and bears date April 9, 1888. This transaction of its transfer was within a day or two thereafter, as they both testify.
    Thereafter, and on April 13th, 1888, the insolvency of the Exchange was known, and on April 13th, a receiver was appointed.
    Under the circumstances, the defendants claim,,that the consideration for their acceptance had failed, and that the plaintiff, having made no present advance upon the faith of the bill, was not a bona fide holder of it, and that she took it subject to all the equities between the original parties.

      Upon the conclusion of the trial, both sides asked for the direction of a verdict.
    The court directed a verdict in favor of the plaintiff for $1,995.60, the amount claimed with interest, to which direction the defendant excepted. The court thereupon ordered that the exceptions be heard in the first instance at general term, and the entry of judgment in the meantime suspended.

      Fullerton & Rushmore, attorneys, and C. E. Rushmore of counsel, for plaintiff.

      Wing, Shoudy & Putnam, attorneys, and Joseph A. Shoudy of counsel, for defendants.
   By the Court.—McAdam, J.

Independently of the question whether the plaintiff became a bona fide holder of the acceptance within the meaning of Coddington v. Bay, 20 Johns. 637, and kindred cases, a proposition not necessary to consider, the verdict was pror perly directed for other reasons. First, the acceptance by the American Exchange of Alcock & Co.’s draft, furnished a sufficient consideration for the acceptance in suit. Dowe v. Shutt, 2 Den. 621; Wooster v. Jenkins, 3 Ib. 187 ; Nantucket Pacific Bk. v. Stebbins, 6 Duer. 341; Newman v. Frost, 52 N. Y. 422. Second, there was no understanding that the specific moneys to be collected by the American Exchange, on the acceptance in suit, were to be applied towards the payment of its acceptance of Alcock & Co.’s draft. The arrangement was that the defendants should accept the draft of the American Exchange so as to put it in funds to pay its acceptance to Alcock & Co. twenty days before its maturity. In other words, so much money was to be placed with the American Exchange, to the credit of the defendants, against which its acceptance, a commission of one per cent and expenses were to be charged.

The American Exchange could do what it pleased with the defendants’ acceptance or the money realized from it, so long as the amount was credited on their books. Any use the Exchange might make of either would neither be a misappropriation or diversion of the acceptance or money. They could meet their own acceptance as well with any other money on deposit. The acceptance and its proceeds belonged to the Exchange to do with as it pleased, subject to its liability to make its acceptance to Alcock & Co. good. The defendants evidently trusted the responsibility of the Exchange and its ability to make good its obligation. The transfer of the acceptance by the Exchange to the plaintiff as a payment, in advance, of the interest soon to become due on the $50,000 loan made by her to it, the balance thereof above the interest to apply on the principal, was, therefore, a valid transfer of that instrument by the person having the jus disponendi, and she became the owner and transferee thereof before maturity. Even assuming there had been a failure of or no consideration for the defendants’ acceptance, the rule applicable would be that laid down in the case of The Grocers’ Bank v. Penfield, 69 N. Y. 504, wherein the question arose with respect to the title of the holder of a note made for the accommodation of the payee, and by him endorsed and delivered to the plaintiff solely as collateral security to a precedent debt, without any agreement, extending the time of payment of the debt. • The court said : “ It is universally conceded that the holder of an accommodation note, without restriction as to the mode of using it, may transfer it either in payment or as collateral security for an antecedent debt, and the maker will have no defence. 'It is only where the note has been diverted from the purpose for which it was entrusted to the payee, or some other equity exists in favor of the maker, that it is necessary that the holder should have parted with value on the faith of the note in order to cut off such equities of the maker.” Also see Continental Bank v. Townsend, 87 N. Y. 8.

The defendants do not plead diversion of the acceptance, and if they rely upon that defence it must be inferred from their answer, for the intention is not clearly expressed. It charges that the plaintiff received the acceptance with knowledge of the facts, and that she has collected and received out of property and security transferred to her by the American Exchange, sufficient to pay and satisfy all claims and demands she had against it, and ceased to have any right to collect or receive payment of the acceptance sued on, defences they utterly failed to establish. The defendants have called our attention to the case of Bassett, et al., v. Leslie, et al., 123 N. Y. 396, which was an interpleader suit brought by Bassett & Co. against Mrs. Leslie and Alcock & Co., in respect to the acceptance in suit and Alcock & Co.’s claim for the merchandise delivered on the faith of the acceptance of the American Exchange, subsequently dishonored. The court below, on demurrer interposed to the complaint, held, that the action was not maintainable. The general term, upon appeal, sustained the court at special term, and the court of appeals in affirming the courts below, and accepting as it properly did the allegations of the complaint in that suit as true (it having been demurred to), intimated that Mrs. Leslie (the plaintiff here) could not maintain an action on the defendants’ acceptance, it having been diverted, and she not being a bona fide, holder. The intimation was not necessary to a decision of that case, because the court put its affirmance on the ground that the claim of Mrs. Leslie on the acceptance, and of Alcock & Co. for the merchandise sold, were two separate and distinct obligations, and that Bassett & Co. could not be discharged from both on paying one. On the present trial, Bassett & Co., on the one hand, and Mrs. Leslie, on the other, have made their allegations and presented their proofs, and it is on these, and not on the undisputed facts alleged in the interpleader suit, that we are called upon to determine the propriety of the rulings made at the trial, and from these we draw the conclusions to which we have before referred. There was no defence to the action, the verdict was properly directed, the exceptions must be overruled, and the plaintiff permitted to enter judgment on the verdict, with costs.

Sedgwick, Ch J., concurred.


author: Per Curiam.

text:
    PHEBE PEARSALL, Appellant v. JACOB HIRSH, et al., Impleaded, etc., Respondents.

      Demurrer—Action in equity to compel the assignment of a contract by defendant Gutwillig to plaintiff.

    The complaint alleges, in substance, that plaintiff (by contract in writing) employed defendant Hirsh to buy certain real estate for her from defendant Ferguson at not above $51,000, Hirsh agreeing for $500 “ to make all reasonable efforts to purchase,” etc. That thereafter Hirsh bought the property for himself in the name of defendant Gutwillig, a relative, in violation of his agreement and in fraud of plaintiff’s rights, Hirsh being the real party in interest. That Hirsh had bought the property for $52,500, and paid $1,000. That plaintiff had tendered Gutwillig the $1,000 paid and demanded an assignment of the contract, etc. Hirsh and Gutwillig demurred to the complaint on the ground that it docs not state facts sufficient to constitute a cause of action.

      Meld, that, as matter of law, the only persons having an interest in a sealed contract are those that sign it. Assuming Hirsh to have been the agent of the plaintiff, he could not deal in respect of the property to his own advantage without becoming liable to his principal if there were no limitations to his action in the contract. He was to contract for the property in his own name and for the purchase at the price of $51,000, and assign it to the plaintiff, and to that end to make all rea-' sonable efforts to effect such purchase. After such efforts were made and failed, he could not be compelled to assign an agreement for sale at $52,500, the terms being that the plaintiff would become assignee of it if it were for $51,000. If Hirsh, through Grutwillig, bought at $52,500, without making all reasonable efforts to purchase at $51,000, such action might justify an action for damages upon Hirsh’s breach of the contract; but the complaint does not set forth such an action. The allegations of the complaint will not uphold the judgment that is demanded by it.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 4, 1891.
    Appeal by plaintiff from an order sustaining a demurrer to the complaint, and from an interlocutory judgment entered thereon.

      Burnett & Whitney, attorneys, and Henry L. Burnett and Edward B. Whitney of counsel, for appellant.

      Max Stern, attorney, and C. E. Minor of counsel, for respondents.
   Per Curiam.

The complaint averred that the defendant Ferguson was and is the owner of a certain described lot; that on, etc., by agreement in writing, bearing date on that day, plaintiff employed the defendant Hirsh as her agent for the purchase of said premises from the defendant, Ferguson, at a price not to exceed $51,000, and agreed to pay Hirsh for his services in securing a contract of sale from said Ferguson (the same to be taken in his own name to be assigned by him to plaintiff) the sum of $500, etc., and by which said contract said Hirsh agreed to make all reasonable efforts to purchase said lot of said Ferguson for plaintiff as above stated; that thereafter Ferguson entered into a contract under seal to sell the said lot to defendant Gutwillig for $52,500; that defendant Gutwillig is personally related to defendant Hirsh, and defendant Hirsh is the real party in interest.

The complaint, after proffering what was equitable on the part of plaintiff, demanded judgment, that plaintiff is entitled to an assignment of the contract of sale 5 that such assignment be made, and enjoining the defendants and each of them from conveying the contract or the property.

Possibly it might be enough to determine the demurrer, that the complaint did not state a cause, to consider the conclusive legal effect of the contract of sale to . defendant Gutwillig, under such decisions as that of Briggs v. Patridge, 64 N. Y. 357. By those decisions, as matter of law, the only parties having a legal interest in a sealed contract are those that sign it. But as this proposition was not discussed on the argument, it will not be made the ground of the decision here.

The defendant Hirsh having become the agent of the plaintiff, would, if there were no limitations by the rest of the contract, have been held to the performance of the obligations of an agent. And it will be assumed that while an agent he could not deal in respect of the property to his own advantage without becoming liable to his principal, the plaintiff. The maxim legem enim contractus dat, by the contract and not because such would have been his duty as agent to purchase for plaintiff, he was to obtain a contract in his own name for the purchase price of $51,000 and assign it to the plaintiff, and to that end to make all reasonable efforts to purchase said lot.

By the contract, if Hirsh was unable by all reasonable efforts to purchase, to procure a contract at a price of $51,000, he fulfilled the obligations of the contract on his part, and coulcl not be compelled under the contract to assign an agreement for sale for $52,500—the terms being that the plaintiff would become assignee of it if it was for $51,000.

If, indeed, Hirsh, through Gutwillig, bought at $52,500, not having made all reasonable efforts to purchase at $51,000, that perhaps might justify an action for damages from Hirsh’s breach of the contract. The complaint does not set forth such a cause of action.

The allegations of the complaint would not uphold the judgment that is demanded by it.

Judgment and order affirmed, with costs.


text:
    BENJAMIN FITCH, Appellant v. PAUL J. ARMOUR, Respondent.

      Action on a lease for aflat to recover damages, etc., in case of abandonment of premises before expiration of term.

    The plaintiff’s complaint stated the terms of the lease, whereby he leased to defendant the first flat or floor over the store known as No. 61, 5th Avenue, New York, for the term of six months and fifteen daj’s from October 15, 1888, at the yearly rent of $1,700, payable monthly, and that by said lease it tvas covenanted that in case of default in an;' of the covenants therein contained, the landlord might resume possession of and re-let the premises for the remainder of the term, at the best rent he could obtain, for and on account of the tenant, who should make good any deficiency. Defendant abandoned the premises about April 1, 1889, and has not paid rent, payable first of April, May, June, and July, 1889, amounting to $566.66.
    The answer set up several defences, and certain objections were taken on the appeal to the sufficiency of the answer to uphold certain defences on which defendant prevailed on the trial, and also in the omission to set up affirmative matter therein, of which on the trial defendant had the benefit. In the course of the testimony no objection was taken to the insufficiency of the answer, and when the ease went to the jury there was no objection and no allusion to that subject. Held, that said objections cannot be considered on the appeal, because they were not raised on the trial.

      field also, that the charge of the court, to the effect that the landlord was bound to keep in condition whatever pipes were used in common between the occupants of this flat and of those above, was a proper charge; as also the charge, that if the rent accruing from tenants occupying the premises after defendant left was not collected because of any neglect of the plaintiff, the defendant should be credited with it, because under the cited provision of the lease the plaintiff was acting on account of the defendant and was bound to use due diligence in renting the premises and collecting the rent; as also the charge, that the defendant should be credited witli the amount of rent that would have been payable under a letting which (he plaintiff might have made to a lady who had offered to take a lease of the premises for the remainder of the defendant’s term. The reason given by plaintiff for not making such alease and accepting the lady’s offer was without substance; it was the duty of the plaintiff to the defendant, under the terms of the lease in suit, to have accepted that offer.
    The plaintiff’s counsel asked the court to charge, that the plaintiff had the same right to discriminate, as to the character of the tenant that he would let into tiie premises in the place of defendant, that he had if it were not on the account of defendant. This request was not correct. If the plaintiff was acting for himself he could rightfully discriminate without any reason, but when he acted on account of defendant he could rightfully discriminate only for sufficient reason. The plaintiff also asked the court to charge, that if the plaintiff was of the opinion that to rent the premises to this lady, who was an actress, would lower the character or standard of the house, or-that it would be objected to by the other tenants, he was justified in declining to rent. Held that the first part of this request was inapplicable to the facts of the case as the plaintiff had not refused on that ground. As to the second part, a mere opinion, not supported by a reason for the opinion, would not be sufficient ground for rejection, as he was acting for defendant as well as for himself. This is especially true when no inquiry, which might be made easily of the tenants, was made of them.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 4, 1891.
    Appeal by plain tiff from judgment entered on a verdict of a jury for the defendant, and from an order denying plaintiff’s motion for a new trial made upon the judge’s minutes.

      Abram Kling, for appellant.

      C. Bainbridge Smith, for respondent.
   Per Curiam.

The action was by the plaintiff, as landlord, to recover from the defendant, as tenant, under the covenants of a written lease. It is not expedient to state in detail the defence .as it appeared by the answer. Certain objections are taken on the appeal to the sufficiency of the answer to uphold certain defences on which the defendant in fact prevailed on the trial, and in its omission to set up affirmative matter of which, on the trial, the defendant had the benefit.

In the course of the testimony no objection was taken on the ground of the insufficiency of the answer, and when the case went to the jury there was no objection, and no allusion was made to that subject.

The premises let were one floor in a house, the other floors of which were let to separate tenants. After the evidence was in, the plaintiff’s counsel said to the court, that he thought that the only question that could possibly go to the jury is, as to whether the landlord maintained or allowed to exist on the premises and outside of the premises occupied by the defendant, and over which the landlord has exclusive control, anything which would amount either to a nuisance or which would interfere with the beneficial enjoyment by the tenant of the premises. This was not an admission by plaintiff’s counsel that such question should be put to the jury, because it was made on a motion for a direction for a verdict in plaintiff’s favor. But it was an admission that the case embraced such an issue, and as there was proper evidence on the subject the defendant was entitled to go to the jury upon it.

The court made a proper charge on the subject,- the plaintiff excepting only to a part of the charge, which was, that the landlord was bound to keep in condition whatever pipes were used in common between the tenants of this flat and the occupants of- the flats above ; in other words, such as were not solely within the control and in the sole use of the occupant of this flat, such pipes the landlord was in duty bound to keep in repair. This charge is supported by Tallman v. Murphy, 120 N. Y. 352.

As the jury found for the defendant, there would be no need of going farther if there had not been other issues left to them which may have been determined by them in favor of defendant, irrespective of the question of eviction. The lease provided that in case of any default in any of the covenants, the landlord might resume possession of the premises and re-let the same for the remainder of the term, at the best rent he could obtain, for the account of the tenant, who' shall make good any deficiency. After the defendant had left the premises, the plaintiff leased a part of them to Lyman & Youngs for the sum of $300. They had not paid this rent, and the judge charged that if that rent was not collected by any neglect of the plaintiff, the defendant was to be credited with it. The charge was correct, as under the cited provision the plaintiff was acting on account of the defendant and was bound to use due diligence in renting and collecting rents.

The court also charged, that the defendant should be credited with the amount of rent that would have been payable under a letting which the plaintiff might have made to a lady who offered to take a lease for the remainder of the term. The only reason given by the plaintiff on the trial for not accepting her as tenant, was that she was an actress, and although he himself had no objection to her on that score, he believed that the occupancy might disturb other tenants in the building. He could not foresee in what way, but his impression was that her hours would be naturally late, and he feared, as his tenants were domestic characters, it might disturb them.

This reason was without substance, for the plaintiff had no cause to believe the hours would be later than those of other ladies in the ordinary evening pleasures of the city, and were they never so late, the coming in would not be attended with noise or anything else that might disturb the other occupants upstairs. As, upon the plaintiff’s testimony, this was the only reason, she vras to be deemed in all other respects a fit and responsible tenant, whose offer it was the duty of the plaintiff to the defendant to accept.

On this subject the plaintiff’s counsel asked the court to charge, that the plaintiff had the same right to discriminate as to the character of the tenant that he would let into the premises in place of the defendant, that he had if it were not on defendant’s account. The request was not correct, for, if the plaintiff were acting for himself, he could rightfully discriminate without sufficient reason. If he acted on account of defendant, he could rightfully discriminate only for sufficient reason.

The plaintiff also asked the court to charge, that if plaintiff was of opinion that to rent these premises to an actress would lower their character or standard, or would be objected to by the other tenants, he was justified in declining to rent. ■

The first part of the request was inapplicable to the facts of the case, as the plaintiff had not refused on that ground. As to the second part, a mere opinion, not supported by a reason for the opinion, would not be sufficient ground for rejection, as he was acting for defendant as well as for himself. This is especially true where no inquiry, which might be made easily of the tenants, was made of them.

The judgment and order should be affirmed, with costs.