text:
    H. D. Blakeslee, Appellant, v. Isaiah Sincepaugh, Respondent.

      False statements made ly an infant to the purchaser of property estop the inf amt — when a failure to examine the records is not negligence.

    Where statements, to the effect that a party has no deed or mortgage against certain land and no interest therein, are made by one person to another for the purpose of inducing the latter to purchase such land, although the land is at that time the propei’ty of the person making such statements, and where the person to whom such statements are made, relying thereon, purchases the land, the fact that the person so making such statements was at that time an infant, providing he was of an age to appreciate his rights and duties, does not prevent him from toeing estopped by such statements from claiming the property.
    Where false representations were made toy the owner of land, and an fraud was committed toy him in order to facilitate the selling of his property as the property of another, a purchaser is not, as a matter of law, guilty of negligence in omitting to consult the records in the office of the county clerk.
    Appeal by the plaintiff, ti. D. Blakeslee, from a judgment of the Supreme Court in favor of the defendant, entered upon a verdict for the defendant, rendered at the Tompkins Circuit, in the office of the clerk of the county of Tompkins on the 27th day of October, 1891, and from an order made at the Tompkins Special Term, entered in said clerk’s office of Tompkins county on the 30th day of December, 1892, denying a motion for a new trial.
    The action was in ejectment for the recovery of nineteen and forty-one one-hundredths acres of land. In the complaint it is ■alleged that on December 3, 1880, Havilla D. Blakeslee, then being the owner of these and other lands, conveyed the same to the plaintiff ; that plaintiff thereupon entered into possession and so remained until on or about December 1, 1882, when the defendant entered into possession and ousted the plaintiff, and that defendant has ever since been in possession.
    In the answer it is, among other things, alleged that the defendant, on the 1st of December, 1882, .purchased the premises of Havilla D. Blakeslee; that, shortly before this, the plaintiff, knowing that defendant was about to purchase from Havilla D. Blakes-lee, falsely and fraudulently represented to the defendant that he, the plaintiff, had no title or interest in the premises and that they were owned by Havilla D. Blakeslee, and that defendant, relying on such, representations and by reason thereof, took a conveyance from Havilla D. Blakeslee, paying him therefor the sum of $680; that defendant thereupon went into possession and has made extensive improvements on the property. The answer also alleges that defendant has no knowledge or information sufficient to form a belief as to - whether the plaintiff became the owner or received a conveyance on or about December 3, 1880, or entered into possession.

      M. IF. Tompkins, for the appellant.

      David M. Deem, for the respondent.
   Merwin, J.:

Upon the trial of this action it was shown on the part of the plaintiff that Havilla D. Blakeslee, by deeds dated September 25, 1834, and September 22, 1838, became the owner of a quantity of land, and thereafter, by deed dated December 3, 1880, and duly recorded December 4, 1880, he with his wife conveyed the same to the plaintiff, excepting sixteen' acres theretofore conveyed to the plaintiff. The premises in dispute are a part of the lands described in these deeds. The consideration of the deed of December 3,1880, as stated in the deed, is the sum of one dollar and the maintenance and support of the parties of the first part during their natural lives. It was then shown on the part of the defendant, that Havilla. D. Blakeslee and wife, by warranty deed dated December 1, 1882, and recorded December 5, 1882, conveyed the premises in dispute, to the defendant for the consideration therein named of $680, which defendant at the time paid to the grantor or the person acting for him. Havilla D. Blakeslee was the grandfather of plaintiff, and evidence was given tending to show that plaintiff at this time lived with his grandparents, on the farm of which the premises in question were a part; that he knew of the negotiations for the purchase by defendant of the grandfather; that during these negotiations the defendant saw the plaintiff, told him he was talking about buying a. piece of land of his grandfather, and had heard that he, the plaintiff, had an interest in it, and asked him whether that was so, and whether he had any deed or mortgage against it; and he, the plaintiff, replied that he had no deed or mortgage against it, and had no interest in his grandfather’s premises; that the plaintiff at the time knew that he was the legal owner of the property, and made the statement to defendant with intent to deceive him and induce him to buy of the grandfather; that the defendant thereupon, in reliance upon the truth of plaintiff’s statement, and in ignorance of the true state of the title, made the purchase of the grandfather.

The plaintiff denied making the representations or that he knew that his deed covered the property conveyed to defendant. It was also shown that plaintiff was then a minor, having been born March 6, 1862.

At the close of the evidence the counsel for plaintiff asked the court to direct a verdict for the plaintiff upon several grounds, chiefly that the evidence upon the part of the defendant was not sufficient to constitute an estoppel; that at the time of the alleged statements the plaintiff was an infant, and that if he made the statements he did not know at the time whether or not he owned the land, and that no fraud was shown upon his part, and that the defendant was guilty of negligence in not causing the records to be searched. The court denied the motion and stated that in its opinion the better way to dispose of the case was to submit it to the jury on four questions: “ First, whether these statements were made by the plaintiff to the defendant; second, whether the plaintiff had knowledge at the time he made them, that he was the legal owner of this land; third, whether they were made by the plaintiff with the intention that they should be acted upon by the defendant in the purchase of the land; fourth, whether they were acted upon and relied upon by the defendant when the land was purchased by him.” The plaintiff’s counsel duly excepted to such ruling and to the denial of the motion. The case was thereupon submitted to the jury upon the line suggested by the court, and a general verdict rendered for the defendant. There was no exception to the charge and no request that any 'other question should be submitted to the jury.

1. The first proposition now presented by the plaintiff is, that the plaintiff, being an infant at the time of making the alleged statements, was not estopped thereby.

Assuming, as we must, that the facts, so far as warranted by the evidence, were found against the plaintiff, we have here a case of intentional fraud. In Spencer v. Carr (45 N. Y. 406), where, as here, it was claimed that an infant was barred of her title by an equitable estoppel, it was held that in the absence of intentional fraud upon her part she would not be estopped, and that as that was not found she would not be deprived of her legal rights. The inference is, that if there was intentional fraud, the doctrine of equitable estoppel would apply notwithstanding infancy. The opinion of the court in the case strongly supports this inference, in cases where the infants are of sufficient age to appreciate their rights and duties. We are referred to no case in this State where the views suggested in Spencer v. Carr are criticised. In Brumfield v. Boutall (24 Hun, 457), the question of fraud on the part of the infant was not up, nor was it in Sherman v. Wright (49 N. Y. 231). The same may be said as to Ackley v. Dygert (33 Barb. 176). In Brown v. McCune (5 Sandf. 224), decided in 1851, it was held that fraudulent representations as to his age did not bind an infant. This case was criti-cised, and the opposite rule held in Eckstein v. Frank (1 Daly, 334). In Green v. Green (69 N. Y. 553), a father had taken a deed from his minor son and paid him the consideration, and the question was whether the son, on becoming of age, could repudiate the deed without restoring the consideration. It was held that he could, it appearing that the money was spent and he had no other property with which to replace it. There was no question of fraud in the case.

In 1 Story’s Equity (§ 385), it is said in reference to cases like the present, that cases of this sort are viewed with so much disfavor by courts of equity, that neither infancy nor coverture will constitute any excuse for the party guilty of the concealment or misrepresentation ; for neither infants nor femes covert are privileged to practice deception or cheats on other innocent persons.” In 2 Sugden on Yendors (8th Am. ed. 507, chap. 23, § 1, pl. 17), it is said: “ If a person having a right to an estate permit or encourage a purchaser to buy it of another, the purchaser shall hoid it against the person who has the right, although covert, or under age.” In 2 Pomeroy’s Equity (§ 815), it is said : An equitable estoppel arising from his (the infant’s) conduct may be interposed, with the same effect as though he were adult, to prevent him from affirmatively asserting a right of property or of contract in contravention of his conduct upon which the other party has relied and been induced to act.” Numerous cases are cited to each of the quoted propositions. The same rule is stated in Bigelow on Estoppel, 448. (See, also, note in 44 Am. Dec. 386; Bispham’s Eq. § 293.)

There is no doubt in tlie present case that the infant was of sufficient age to appreciate .his rights and duties. He lacked only a few months of being of age. The rule to be inferred from the Spencer case, as to the application of the doctrine of equitable estoppel to infants, while it may not be entirely consistent with the supposed disability and need of protection of infants, has, 1 think, the weight of authority in its favor, and it should be followed by us in this case. The court below, therefore, properly held that the fact that plaintiff was an infant did not of itself relieve him.

2. The plaintiff further claims that he should not be estopped because he had no knowledge that he owned the land in dispute-This, however, upon the evidence was a question of fact and was found adversely to plaintiff..

3. It is further claimed that the burden of proof is on the defendant, and that the testimony being evenly balanced defendant must fail. It is true that the burden of proof was on the defendant, and that statements testified to by the defendant were denied by the plaintiff. It was, however, for the jury to determine where the truth was, and there were many surrounding circumstances that bore upon the question.

4. It is further claimed that the defendant was guilty of laches in neglecting to consult the records in the clerk’s office, and the case of Trenton Banking Co. v. Duncan, (86 N. Y. 221), is cited in support of the proposition. In that case the plaintiff, who sought the benefit of an estoppel, neither looked at the record nor made any inquiry of anybody as to the ownership of the property, and it was held that its failure to examine the record and make inquiry prevented its recovery. The present case is materially different. So in McCulloch v. Wellington (21 Hun, 5), there were no representations by the owner, but, as said in the opinion at page 14, it was the case of a purchaser who, from his confidence in the vendor, or from other circumstances, not imputable to the claimant, has purchased property and omitted to make the necessary and ordinary examination of title. In Lyon v. Morgan (19 N. Y. Supp. 201), the effect of failure to examine the record was not determined, and the case was decided upon other grounds.

If tbe present case was one where the owner was simply silent, it may be that the constructive notice from the record would prevent the defendant from receiving any benefit from the doctrine of estoppel. But assuming there were false representations and intentional fraud, the rule would be different. (Brinckerhoff v. Lansing, 4 Johns. Ch. 65 ; Fisher v. Mossman, 11 Ohio St. 47.) As said by Judge Strong in Hill v. Epley (31 Penn. St. 334) : “ It should never be forgotten that there is a wide difference between silence and encouragement.”

" A party setting up an equitable estoppel is himself bound to the exercise of good faith and due diligence to ascertain the truth.” (2 Story Eq. [12th ed.] § 1553b.) "Whether the defendant in that respect was negligent under the circumstances of the present case was a question of fact. (Moore v. Bowman, 47 N. H. 494.) The court below was, therefore, correct in holding that it should not be said, as matter of law, that the defendant was guilty of negligence.

5. The appellant claims that incompetent testimony was admitted to his prejudice, but we find no ruling that supports this contention.

No other question is presented. It follows that the judgment should be affirmed.

Hardin, P. J., and Parker, J., concurred.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: Merwin, J.:

license: Public Domain

text:
    The New York Central and Hudson River Railroad Company, Respondent, v. Paul S. Maine, as Supervisor of the Town of Fenner, and The Board of Supervisors of Madison County, Appellants.

      Action by a taxpayer to restrain a submission of a claim against a county — when maintainable — statement of the legal effect of a transaction — waiver of a defense by the boa/rd of supervisors.

    An action brought by a taxpayer of a county to restrain the submission to the General Term of the Supreme Court, upon an agreed' statement of facts, of a claim of a town within such county against the board of supervisors thereof, is not maintainable in a case in which the defendants have acted in good faith and in the belief that the submission contained a full, fair and truthful statement of all the facts upon which the controversy depended, and there was no intent or purpose to defraud any taxpayer of the county, unless the acts complained of were beyond the authority of the board and wholly illegal and void.
    Such a submission states the legal effect of the transaction, when it states that the amount of certain taxes was duly collected from a railroad company by the collector's of a town and was duly paid over by said collectors to the county treasurer, when the fact was that the railroad company paid such taxes directly to the county treasurer.
    A board of supervisors of a county has power to waive the defense that an alleged erroneous payment of taxes to the county by a town therein was voluntary, provided there is no fraud or collusion and the county has had the benefit of the amount of such tax.
    Appeal by tbe defendants, Paul S. Maine, as supervisor of tbe town of Fenner, and tbe board of supervisors of Madison county, from a judgment of tbe Supreme Court, rendered at tbe Madison Special Term in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of Madison on tbe 16tb day of May, 1892, and by tbe defendant Maine, as sucb supervisor, from an order of tbe Supreme Court, made on the 26th day of April, 1892, denying tbe defendant’s motion for additional findings.
    Tbe judgment restrained tbe defendants from further proceeding in tbe matter of tbe submission to tbe General Term of a certain controversy between tbe defendants, and from presenting any amended or other submission which does not contain a statement of certain facts found in tbe decision.
    Tbe action is brought by tlie plaintiff as a taxpayer of tbe county of Madison, to restrain tbe submission to tbe General Term of a claim of tbe town of Fenner against tbe county upon an agi'eed statement of facts. It is alleged that tbe statement of facts is false and collusive in divers particulars, and that tbe alleged grounds of resistance do not fully or truthfully raise tbe defense as it in fact exists, and that tbe submission was drawn and was proposed to be submitted by collusion and in fraud of tbe taxpayers of tbe county. Tbe submission bears date January 24, 1891, and was filed January 21, 1891.
    On the 1st day of February, 1869, pursuant to tbe provisions of chapter 140 of tbe Laws of 1868, entitled “ An act to authorize tbe village of Canastota and tbe towns of Cazenovia and Fenner, in tbe county of Madison, to issue bonds and take stock in tbe Canastota Railroad Company,” the commissioners of the town of Fenner, duly appointed for that purpose, borrowed upon the credit of the town the sum of $20,000 and issued bonds therefor, and with the money so borrowed took and paid for stock to the same amount in the said railroad company. In the year 1882 the assessed valuation of the said railroad company for that year in the town of Fenner was $24,350, and the State tax assessed against and collected from the company was $243.50, which was divided as follows: For State purposes, $51.16; for county purposes, $61.52; for town, $130.82. In the following years, up to and including 1889, similar assessments were made against the railroad company in said town, and a tax each year collected. The submission states in detail the amount of the tax each year and what part of it was for State purposes and what for county purposes. It then states that such sums, specifying the items each year for State and county taxes, “ were duly collected from said railroad company by the collectors of said town, on or before the first day of February of said years respectively, and were duly paid over by said collectors to the county treasurer of Madison county, and were paid out by him for general county purposes, including State taxes, on the 1st day of June of said years respectively.
    “No part of said sums has ever been refunded to said town of Fenner, or been applied by the county treasurer to the ereation of a sinking fund for the payment of the bonded indebtedness of said town.

      “ In each of said years, from 1882 to 1888 inclusive, there was raised, by taxation upon the taxable property of tho town, a sum equal to the railroad’s share of the entire tax, in excess of the amount required to be raised by said town for the ordinary expenses of said town. These sums were set apart by the county treasurer of Madison county as a sinking fund for the payment of said bonded indebtedness of the town, and were afterwards duly applied to that purpose.
    “ In fixing and determining the equalized value of the property of said town of Fenner for said years 1882, 1883, 1884, 1885, 1886, 1887, 1888 and 1889, for the purpose of ascertaining the amount of property in said town liable to taxation for State and county purposes, and for the purpose of aj)portioning the tax to be paid by said town, no reduction was made on account of the property of said railroad company, or any part thereof, and the same was treated as any other taxable property of the town, and as liable to taxation for State and county purposes.”
    The submission then states the proceedings of the board of supervisors with reference to the Statute of Limitations, and the position of the town in regard thereto. These need not be detailed here. The town claimed to recover of the county certain specific sums which were the same in amount each year as the amount of the State and county taxes in the tax paid by the railroad company, and in each case interest was asked from the first day of June following the payment. The questions submitted were: First, whether the plaintiff therein, as supervisor of the town of Fenner, was entitled to recover of the defendants therein, those sums, specifying them for each year; second, whether the board of supervisors of Madison county or the county of Madison was liable for the payment of those sums or any part thereof; third,- whether the Statute of Limitations barred the items claimed for the years 1882 and 1883 : and, fourth, whether the act under which the claim was made was constitutional.
    At the Special Term it was, among other things, found as follows:
    “ 4th. Such case and submission were executed and entered into by and between the defendants in this action in good faith, and in the belief that the same contained a full, fair and truthful statement of all the facts upon which the controversy between them depended. There was no intent or purpose on their part to injure or defraud the plaintiff in this action, or any citizen or taxpayer in said county.”
    “ 6th. In each of the years from 1882 to 1888 inclusive (except the year 1884), the supervisors of said county apportioned against the town of Fenner its share of the State and county tax, without taking out the assessed valuation of the said railroad property therein. The supervisor of the town thereupon added to the share so fixed, the amount to be raised for the town expenses, and divided the sum so ascertained, by the assessed valuation of the property of the town, less the assessed valuation of such railroad property, and in that manner acquired the rate per cent to be levied against all the taxable property of the town.
    “ He then multiplied the total assessed valuation of the property of the town by such rate per cent, and the sum so ascertained he Caused to be levied and collected against tlie taxable property of the town, including tlie railroad property.

      “ Such method caused to be collected in each year, not only the amount of taxes needed for State, county and town expenses, but also a sum in addition thereto, just equal to the amount of the tax levied upon and collected from the railroad company.
    “ 7th. In each year from 1882 to 1889, inclusive, the tax levied against the property of said railroad company was paid by such company directly to the treasurer of Madison county, and was received by such treasurer before he received from the collector any portion of the taxes collected by him.

      “ Upon receiving such taxes from the railroad company, the treasurer in each year made the credit and entry in the ‘ Railroad Sinking Fund Account,’ as stated in the next finding.”
    The county treasurer in 1871 opened with the town a sinking fund account, which has been continued to the present time, and in each year the treasurer “ has credited the town of Fenner therein with a sum equal to, and identical in amount, with the tax levied against and paid to him by the said railroad company in the town of Fenner, and stated in such account that it was the railroad tax from such railroad. Such credit was made as soon as the amount was received in each year from the company, but never before it was received. The money itself was not kept in separate deposit, but was deposited in bank in his general account as county treasurer. Such amount so credited was also (except in the year 1884) exactly equal to the sum raised in each year by the town of Fenner, in excess to the amount needed for the State, county and town taxes of such year.”
    The sums so credited the town were used by the treasurer solely for the purchase or the redemption and cancellation of the bonds issued by the town in aid of the railroad, and in each year a committee of the board of supervisors examined and reported upon and approved the sinking fund account so kept.

      “ 12th. In the year 1884 the supervisor of the town of 'Fenner ascertained his rate per cent, without deducting the value of the railroad property from the assessed valuation of the town, and for that reason no greater sum was raised that year than was needed for State, county and town expenses; nevertheless, the treasurer of the comity placed to the credit of said town, in sucli sinking fund account, the precise amount of taxes that were paid to him that year by said railroad company, as the tax levied against its property, and applied the same to the purposes of such sinking fund, thereby creating a deficiency in the taxes needed for that year; such deficiency was supplied by borrowing, and the following year a tax was levied against the town of Fenner to repay the same.”
    As matter of law it was decided that “ all the facts contained in the foregoing fifth to the fifteenth findings of fact, both inclusive, should be presented to the court, and the submission in that respect is insufficient and defective,” and did not fully and fairly leave to the decision of the court all of the facts which fix and determine the rights of the respective parties.
    The material portions of the fifth to the fifteenth findings of fact are above stated.

      llemry B. Oomcm, for the appellant Maine.

      John E. Smith and Charles A. Hitchcock, for the appellant board of supervisors.

      C. D. Prescott, for the respondent.
   Merwin, J.:

In Talcott v. City of Buffalo (125 N. Y. 280), it was held that the provision of the Code of Civil Procedure (§ 1925), authorizing an action by a taxpayer to prevent waste of or injury to the property of a municipality as supplemented by the acts of 1881 and 1887, is confined to cases where the acts complained of are without power, or when corruption, fraud or bad faith amounting to fraud is charged. This was approved in Ziegler v. Chapin (126 N. Y. 342), and it is said by FiNch, J. (p. 348): “ If the officer is honest and faithful no suit against him is needed. The taxpayer may explain to him the facts, and discover to him the fraud, and the courts are open for his protection, and the means of redress are at hand. It is only when, in the face of explanation and knowledge, he still refuses to act, and persists in carrying out the wasteful contract, that an action against him is needed ; and then it rests upon his misconduct, upon bis collusion and fraud, wbicb must be alleged and proved.”

Under these cases and the finding at Special Term that the defendants acted in good faith, and in the belief that the submission contained a full, fair and truthful statement of all the facts upon which the controversy between them depended, and that there was no intent or purpose on their part to injure or defraud any taxpayer of the county, the present action is not maintainable, unless the acts complained of were beyond the authority of the board, and wholly illegal and void. (Ziegler Case, 126 N. Y. 349.)

It is not claimed that the board had no power to make a submission of the controversy, but that the facts were not so stated as to present all the questions in the ease.

The submission stated that the taxes against the railroad company were duly collected from the company by the collectors and paid over by the collectors to the county treasurer; that they were paid out by him for general county purposes, including State taxes, and no part has been applied by the county treasurer to the creation of a sinking fund for the payment of the town bonds; that in each of the years in question there was raised by taxation upon the taxable property of the town a sum equal to the railroad’s share of the entire tax in excess of the amount required to be raised by the town for ordinary expenses, and those sums were set apart by the county treasurer for a sinking fund for the payment of the bonded debt, and were so applied.

The facts as found by the Special Term are that the railroad company paid its taxes directly to the county treasurer before the treasurer received from the collector any portion of the taxes collected by him ; that upon receiving such taxes from the railroad company the county treasurer credited the town in the sinking fund account with a sum equal to and identical in amount with the tax levied against the company, and stated in such account that it was the railroad tax from such railroad^ and that the amount so credited was used and applied in the sinking fund account; that thero was raised by the town each year (except one, and then the deficiency was afterwards collected) an excess eqiral to the railroad’s share of the entire tax as stated in the submission, and the amount credited to the sinking fund each year was exactly equal to this excess; that the moneys credited by tlie treasurer to tbe sinking fund account were not kept in separate deposit, but were deposited in bank in his general account as county treasurer.

The act under which the sinking fund was created (§ 4, chap. 907 of the Laws of 1869, as amended by chap. 283 of the Laws of 1871) does not provide for the payment directly from the railroad company to the county treasurer. It provides that the taxes collected ” upon the assessed valuation of any railroad, etc., shall be paid over to the county treasurer. This recognizes the idea that the moneys are supposed to go through the hands of the collector. The submission, therefore, when it stated that the moneys were collected by the collector and paid over by him to the treasurer, stated the legal effect of the transaction. So it is to be observed that if the moneys paid in by the railroad company were set apart to the sinking fund, there was no separation of funds by the county treasurer. So that, when the excess raised by the town came in, the county had the benefit of the full amount of the tax levied against the town, and the town had no benefit from the application of the railroad taxes. It in effect made up to the county the deficiency occasioned by the application of the railroad taxes as the law required. In regard to such a case, it is said in Bridges v. Board of Supervisors, etc. (92 N. Y. 580) : “ The county is neither entitled to these moneys nor to an equivalent amount from the town of Liberty. It is entitled to receive from the taxpayers of that town only that proportion of such amount which its assessed valuation bears to the aggregate valuation of the taxable property of the whole county, and this amount is collectible only through the general tax levy.” It would, therefore, seem if the county received and used the excess, so called, it received and used an amount it was not entitled to have' from the town, and this amount was exactly equal to the tax against the railroad company.

It is quite manifest that whether we take the facts as stated in the submission, or as found at the Special Term, the county received from the town the same amount that it was not entitled to have, or would not have had, if the law had been carried out. The whole was raised under one warrant, and the one important fact was whether the county had too much.

The counsel for the plaintiffs, however, claims that the facts, as found by the court upon the trial, raise a new and material question which should appear by the case upon submission, and that is, when a town has'had the benefit of the railroad taxes, as provided by the statute, and by its own independent act has provided for and paid any deficit arising thereby, can it recover such amount from the county ?

In other words, the town has voluntarily raised and paid to the county more than it was bound to pay, and, therefore, it is argued, it cannot recover it back, although the county lias had the full benefit of it.

The first mistake was made by the board of supervisors when, in making the apportionment of State and county taxes among the several towns, it failed to deduct the assessed valuation of the railroad property. (Bridges v. Board, etc., supra.) This mistake, it might be argued, induced the action of the town, and, if so, there would at least be a strong equity in favor of the town.

In Woods v. Supervisors, etc. (136 N. Y. 403, 411), which was a submission like the present, it is said that it cannot be doubted that the board of supervisors could have most effectually waived the defense of the Statute of Limitations by honestly and without collusion refusing to plead it. If so, can it here be doubted that the board had power to waive the defense, if it existed, that the payment by the town was voluntary, it being found that there was no fraud or collusion, and the county having had the benefit of the moneys ?

In substance, taking the facts as claimed by the plaintiff, there was no controversy between the town and county on the subject of the voluntary payment, but on other questions which then seemed of more importance than they do now by reason of subsequent decisions of the courts. We are, in effect, asked to compel the county, if it makes any submission at all, to make it in a way that will raise a defense and litigate a question that it does not care to raise and litigate. It seems to me that we cannot fairly say that the board acted beyond its power, or that its action was illegal or fraudulent.

The court to which the submission was to be made was only to be called on to pass on the questions raised by the facts as agreed on. It was immaterial to it whether the county raised all the defenses possible.

The remarks of Judge Andrews, in Osterhoudt v. Rigney (98 N. Y. 232), are in principle quite pertinent: “ Whether the claim is a proper town or county charge, in a case where it is doubtful and rests upon disputed evidence, and what amount shall be allowed, when not fixed by statute, are questions which the statute commits to the determination of the board of audit, and however much it may err in judgment upon the facts, so long as it keeps within its jurisdiction and acts in good faith, its audit cannot be overhauled, but is final as well as to the taxpayers as to the claimant. (Supervisors v. Briggs, 2 Den. 26; People ex rel. Johnson v. Supervisors, etc., 45 N. Y. 196, 200.) It would be intolerable to permit a taxpayer, upon a mere allegation of error in the course of the proceedings of boards of audit in matters within their jurisdiction, to compel the Supreme Court in a collateral action to re-examine claims allowed upon their merits, and to approve or reverse the proceedings upon its own view of the justice or equity of the claim. The adjudication of a board of audit, proceeding regularly within its jurisdiction, establishing a claim against a town, although the allowance may be excessive, or although it may err in its conclusion upon the facts, does not constitute waste or injury to the property of the town, within the act of 1812.”

The foregoing considerations lead to a reversal.

HabdiN, P. J., concurred.

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


text:
    Thomas O’Brien, Respondent, v. David K. McCarthy and Another, as Executors, etc., of James A. O’Hara, Deceased, Impleaded with William O. Fiske and Others, Appellants.

      Foreclosure of a mechanic's lien — application of payments — omission to allege in the answer that an adequate remedy existed at law — waiver of a right of trial by jury,

    In an action brought for the foreclosure of a mechanic’s lien, it appeared that the defendant Fiske contracted with the plaintiff to erect a certain building on the former’s lot of land, and that one O’Hara also entered into a contract with the plaintiff to erect a building on a lot belonging to O’Hara, adjoining that of Fiske. The buildings formed together a single block, and were built pursuant to a single plan, the respective portions being substantially alike, except for a slight difference in the shape and size of the lots. The specifications for the whole were made by one architect employed by O’Hara, as a single plan in pursuance of a common design to erect a uniform and similar building. The block was connected by partition walls, and was erected at the same time, and by the same parties as builders and contractors, the work upon each part going on simultaneously. The architect from time to time made estimates upon the work in bulk without reference to the work performed on either part, which estimates were reported to O’Hara, and he made payments thereon to the plaintiff to the amount of §3,000, the last payment being on December 31, 1889. On December 36, 1889, O’Hara died. On October 34, 1890, the plaintiff filed a notice of mechanic’s lien on Fiske’s part of the real estate for the alleged balance due on his contract, in which notice it was stated that Fiske claimed he should be credited with $1,500 of the amount paid by O’Hara. The complaint in such action stated that the executors of O’Hara were made parties in order to determine whether the payments should be applied as claimed by Fiske.
    Evidence was given at the trial tending to show that the amount of the payments made was all that the plaintiff was entitled to at that time on the whole work. Statements were shown to have been made by O’Hara that he intended to foot the bills himself; that he was paying the bills on the block until such time as Fiske could make a loan. Fiske apparently made no payments before O’Hara’s death. Fiske was O’Hara’s nephew, and there was evidence that O’Hara said that he was going to assist his nephew in building the block. The plaintiff testified that he applied one-half of the amount received by him on each contract.
    The referee, before whom the action was tried, found that §1,500 of the amount paid by O’Hara was paid by him on Fiske’s contract, and was so received and credited by the plaintiff, and that such money was furnished to and paid for Fiske by O’Hara.

      Held, that the evidence authorized such conclusion;
    That under the circumstances the plaintiff had a right to apply one-half of the amount so received on each contract.

      Whore, in such an action, the answer does not allege that the plaintiffs had an adequate remedy at law, and prays that the question as to the applicability of the payments be adjudicated, and no question as to the right of trial by jury is raised until a witness is sworn and examined on the trial, the defendants are not in a position to raise the question as to their right to a trial by jury, and by their delay have waived such right if it over existed.
    Appeal by the defendants, David K. McCarthy and Dennis McCarthy, as executors of the last will and testament of James A. O’Hara, deceased, from that part of a judgment of the Supreme Court in favor of the plaintiff, entered, after a trial at the Onondaga Special Tenn, in the office of the clerk of the county of Onondaga on the 28th day of April, 1892, confirming the referee’s report and findings, and adjudging that of the sum of $3,000, paid by James O’Hara in his lifetime, $1,500 thereof was properly applied by the plaintiff upon the contract of the defendant William O. Fiske, and the remaining $1,500 only was properly applied by plaintiff upon the contract of James O’Hara, deceased, and from every part of the decree which grants any relief against the defendants David K. McCarthy and Dennis McCarthy, as such executors.
    The action was brought' for the foreclosure of a mechanic’s’lien, and was tried before a referee, and his findings and report were confirmed by the court and judgment was entered as above indicated.

      Louis Marshall, for the appellants.

      O. G. Baldwin, for the respondent.
   Merwin, J.:

On the 21st of August, 1889, the defendant William O. Fiske, being the owner of a lot on Madison street in the city of Syracuse, made a contract with the plaintiff, by which the plaintiff agreed to perform certain kinds of work and furnish the materials therefor, in the erection of a building or block on said lot. The consideration was $6,200.16, and payments were to be made eighty-five cents on the dollar on estimates of the architect as the work progressed. James A. O’Hara owned a lot adjoining Fiske’s on .the same street, and he at the same date made a similar contract with plaintiff, the consideration being $5,498.84, and payable in the same way. These buildings, forming together a single block, were constructed pursuant to a common or single plan, the respective portions being substantially alike, excepting a slight difference in the shape and size of the lots. The specifications for the whole were made by the architect, Mr. Carroll, as a single plan and in pursuance of a common design by the said O’Hara and Fiske to erect a uniform and similar building, and the block was connected by partition walls under the same plans and specifications, and was erected at the same time and by the same' parties as builders and contractors. The plaintiff, in pursuance of his contracts, went on and furnished labor and materials, the work upon each part going on simultaneously, and the architect from time to time made estimates upon the work in bulk without reference to the work performed on either part. These estimates were reported to O’Hara, and he made payments thereon to plaintiff to the amount of $3,000, the last payment being December 21, 1889. O’Hara died on the 26th of December, 1889. On the 24th of October, 1890, the plaintiff filed a notice of mechanic’s lien on Fiske’s part of the real estate for a balance due on Fiske’s contract, and in this notice it was stated that Fiske claimed that he should be credited .with $1,500 of the amount paid by O’Hara. This action to foreclose such lien was commenced November 21, 1890, and in the complaint the claim of Fiske as to these payments is stated. It is also stated that the executors of O’Hara are made parties in order to determine whether payments should be applied as claimed by Fiske. The referee found that $1,500 of the amount paid by O’Hara was paid by him on Fiske’s contract and was so received and credited by plaintiff, and that this money was furnished to and paid for Fiske by O’Hara.

The appellants claim that this action cannot be maintained in equity to determine whether or not this money was or should be applied on Fiske’s debt, on the grounds that the appellants would thereby be deprived of the right of trial by jury, and the plaintiff has an adequate remedy at law.

The appellants, in their answer, do not allege that there is an adequate remedy at law, and they are not, therefore, in a position to raise the question. (Town of Mentz v. Cook, 108 N. Y. 508.) Besides, they claim in their prayer for relief that this very question as to applicability of the payments be adjudicated upon. No question as to their right of trial by jury was raised until after the trial was entered upon and a witness for plaintiff sworn and examined. By this delay the defendants waived their right to a jury trial if they had any such right. (Kenney v. Apgar, 93 N. Y. 539.) The action as to the payments in controversy was in the nature of an inter-pleader, and I see no good reason why it could not properly be disposed of in the present action.

The appellants further claim that the finding of the referee, that O’Hara intended to have his payments to the extent of $1,500 apply on Fiske’s contract, and that they were so made by O’Hara and received by plaintiff, is not sustained by the evidence.

The payments, aggregating $3,000, were five in number. There is evidence tending to show that each payment followed and was based upon an estimate of the architect made upon the work under the two contracts as a whole, and that each payment was the amount that the plaintiff was entitled to at that time on the whole work. Statements are shown to have been made by O’Hara that he intended to foot the bills himself; that he was paying the bills on the block until such time as Fiske could make a loan. Fiske appears to have made no payments before O’Hara’s death. The work upon the two parts went on together; there was but one architect, and he was employed by O’Hara. There was but one plan, and the separation of the contracts was treated as matter of form. Fiske was the nephew of O’Hara, and there is evidence that O’Hara said he was going to assist his nephew in building the block. It is not likely that O’Hara intended to pay more than was due on his own contract, and yet this apparently is what he did if the appellant’s theory is correct. The plaintiff, in receiving an amount equal to what was due on both contracts as a whole, upon an estimate on the whole, had a right to believe that he was only receiving what was due him, and that he had a right to apply, as he testifies he did apply, one-lialf on each contract. Presumptively upon the evidence the work under each contract was substantially equal.

The evidence, I think, authorizes the conclusion that O’Hara intended to have his payments apply on Fiske’s contract equally with his own, and that in effect they were so made by O’Hara and received by plaintiff. It would follow that the conclusion of the referee should not be disturbed.

Hardin, P. J., and Parker, J., concurred.

Judgment, affirmed, witn costs.


text:
    Mary A. Tinker, Appellant, v. The New York, Ontario and Western Railroad Company, Respondent.

      Appeal from a judgment of nonsuit — presumptions in plaintiff’s favor — when a servant is engaged in his master’s business — objects on a highway calculated to frighten a horse — deposit of timbers on the side of a highway by a railroad company.

    In reviewing a judgment entered upon a nonsuit, the plaintiff is entitled to the benefit of every fact the jury could have found from the evidence, and to every legitimate inference warranted by the proofs.
    It cannot be said, as a msitter of law, that the employees of a railroad company, whose business it was, apparently, in addition to their other duties, to see that refuse was properly disposed of, are not engaged in their master’s business within the scope of their employment when they are employed in placing timbers, previously used by the railroad, upon land in a highway the fee of which is owned by the company.
    It is a question of fact for the jury whether weather-beaten timbers (about ten feet long and twelve inches square), lying side by side in a ditch, and partially concealed therein, on the side of a highway near the traveled portion thereof, are calculated to frighten horses of ordinary gentleness, notwithstanding the fact that the railroad owned the fee of the highway.
    Whether the employees of such a company had a right to so deposit such timbers temporarily, while engaged in the repair of its road, depends upon whether there was a reasonable necessity for such deposit, and is a question of fact depending upon all the circumstances of the case.
    The fact of the company’s owning the fee to the part of the highway where such timbers were deposited does not relieve it from liability in the premises.
    Appeal by the plaintiff, Mary A. Tinker, from a judgment of the Supreme Court dismissing the complaint, entered, after a trial at the Chenango Circuit, in the office of the clerk of the county of Chenango on the 23d day of September, 1891.

      George W. Bay and George P. Pud/tney, for the appellant.

      Edward B. Thomas and Howard D. Newton, for the respondent.
   Merwin, J.:

On the morning of September 6, 1890, the plaintiff, with her husband and two daughters, was riding in a two-horse carriage along a highway that ran nearly east and west, and which the railroad of the defendant intersected at about right angles at a point called Nearing crossing about one mile south of the station at Smyrna. As they proceeded westerly across the railroad track at this crossing and just after they crossed, it, the team became frightened and suddenly turned to the left, running one wheel of the carriage up on the bank at that point, which operated to raise one side of the carriage to such an extent that the plaintiff was thrown out on the road. Ry the fall she received a somewhat serious injury, and this action is brought to recover damages arising from such injury. Her claim is that the horses were frightened by two sticks of timber that lay in the ditch on the right hand or northerly side of the street, and that the sticks were placed there by the defendant wrongfully and negligently, and were of such a character as likely to frighten horses of ordinary gentleness. The defendant claims that the timbers were not placed there by it or by its servants in the course of its business, and that if they were, still the defendant was the owner of the land where they lay, and the act was not a negligent one, and, therefore, the defendant was not liable.

In reviewing a judgment entered upon a nonsuit, the plaintiff is entitled to the benefit of every fact that the jury could have found from the evidence given and to every legitimate inference warranted by the proofs. (McNally v. Phænix Ins. Co., 137 N. Y. 389.)

The timbers were each about ten feet long and twelve inches square, and were about twenty feet westerly of the railroad track, and lay side by side in a ditch on the northerly side of the highway, and about ten feet from the center of the traveled part, and about fifteen or twenty feet from the fence on the northerly side of the highway. The ditch where they lay was from one to two feet deep. They were weather beaten and dark colored, one witness saying: “ Not necessarily black, not any more than ordinary weather-beaten sticks of timber would be * * * there might have been some oil and engine grease on them,” and another witness says: They were dark colored, pretty nearly black with oil and stuff on them, nearly black.” The place where they lay was within the eighty feet taken by the defendant for the uses of its road, and at that point the defendant owned the fee of the eighty feet, subject, of course, to the highway. The timbers were placed where they were during the afternoon of September fourth, by the employees of the defendant. Hpon that day the section men of the defendant who had charge of the section that included this crossing took out the cattle guards upon each side of the crossing and put in new ones. The timbers taken out on the north side were put on the company’s side of the fence, that is, outside of the highway. The timbers on the south side of the crossing were taken out onto the highway, at first being laid on the south side of the highway, one on each side of the railroad track and near to it, and then, after the cattle guard was fixed so that trains could pass over, they were removed by the section men to the place where they were at the time of the plaintiff’s injury. This removal was by the direction of one of the section men, a brother of the foreman, who said he wanted them for wood. They remained there until the second day after the accident, when they were thrown over the fence onto the company’s land by the same section men, including the foreman, and there they remained until the summer following.

The first question that naturally arises is whether the defendant is responsible for the timbers being placed at the point where they were at the time of the accident. They were there on the company’s land, and so, in a measure at least, in its custody. They were placed there by its employees, whose business it was apparently not only to properly fix the cattle guard, but to see that the refuse was properly disposed of. In Phil. & Read. R. R. Co. v. Derby (14 How. [U. S.] 482, 486), it is said: The rale of ‘ respondeat superior,’ or that the master shall be civilly liable for the tortious acts of his servant, is of universal application, whether the act be one of omission or commission, whether negligent, fraudulent or deceitful. If it be done in the course of his employment, the master is liable, and it makes no difference that the master did not authorize, or even know of the servant’s act or neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant’s employment.” In Quinn v. Power (87 N. Y. 537), the rule is said to be that the master is liable for the negligence or misfeasance of the servant while the latter is acting in the master’s business and within the scope of the servant’s employment, and a violation of the master’s instructions or a departure from the strict line of duty to him from the servant does not necessarily make the latter alone liable. (P. 540.) In Dwinelle v. N. Y. C. & H. R. R. R. Co. (120 N. Y. 117, 124), which was an action to recover damages for the tortious act of the porter of the sleeping car, it is said that the question in such cases whether the servant was engaged in the performance of his duties as a servant of the company is for the determination of the jury. The case of Mulligan v. N. Y. & Rockaway B. R. Co. (129 N. Y. 506), cited by defendant’s counsel, is materially different from the case in hand. In Pittsburgh, F. W. & C. Railway Co. v. Maurer (21 Ohio St. 421), the question whether the servant was in the course of his employment was left to the jury. In Dells v. Stollenwerk (78 Wis. 339), the acts of the servants were after they had quit work for the day.

In the present case it should not, we think, be said as matter of law that the employees of the company were not then engaged in their master’s business and within the scope of their employment. The foreman then in charge represented there the company, and the timbers were left on the side of the road with his assent, as it might be found, or by his direction, while they all were engaged in the master’s business. They remained on the company’s land, and the knowledge of the foreman that they were so left was imputable to the company. If so, the question of notice thereafter to the company was not important. (Wilson v. City of Troy, 135 N. Y. 102; Dunsbach v. Hollister, 49 Hun, 352; aff'd., 132 N. Y. 602.)

Assuming, then that the defendant may be chargeable with the situation of the timbers, we then come to the question as to what responsibilities might arise therefrom.

An object in a public street which is of such a form or character that it is calculated to frighten horses of ordinary gentleness, is an obstruction in the nature of a nuisance, and anyone who so places or maintains it is ordinarily liable for the consequences likely to arise. (Stewart v. Porter Mfg. Co., 13 N. Y. St. Repr. 220; Eggleston v. Columbia Turnpike Road, 18 Hun, 148, and cases cited ; Wood on Nuisances, §§ 295, 297; 1 Thomp. on Neg. 349; Whart. on Neg. § 983.)

Whether or not the timbers in question, by reason of their form and character, their situation near the traveled part of the highway and partially concealed in the ditch, were calculated to frighten horses of ordinary gentleness was, we think, a question for the jury. It was a matter for inference in regard to which there was room for fair differeirce of opinion among intelligent men. (Wolfkiel v. R. R. Co., 38 N. Y. 49.) In a note to Morse v. Richmond (41 Vt. 435, 446), Judge Redfield says: The case of Chamberlain, v. Enfield (43 N. H. 356), seems to us to place the question upon its true basis, that it must be regarded as a question of fact for the jury, whether an object outside of the traveled portion of the highway is a defect or obstruction to its safe use, by reason of its liability to frighten horses. There is no valid reason apparent to us why this question may not as safely be intrusted to juries under proper limitations, to be defined and fixed by the courts, as any other questions of fact arising in this-class of cases.” The testimony shows that the horses were in fact frightened by the timbers, and the question whether they were ordinarily gentle was a question of fact. There was' evidence tending to show that they were. .

But the defendant claims that, assuming the timbers were placed where they were by its employees in the course of their employment, it was done while they were properly engaged in the repair of the cattle guards, and they had a right to temporarily deposit the sticks there. That, however, depends upon whether there was a reasonable necessity for such deposit, and that was a question of fact. (Callanan v. Gilman., 107 N. Y. 360.) In Flynn v. Taylor (127 N. Y. 596), it is said the obstruction must be reasonably necessary for the transaction of business, and it must not unreasonably interfere with the rights of the public, and whether a particular use of a street is an unwarrantable use or not, is a question of fact depending on all the circumstances of the case.

The fact that the defendant was.the owner of the fee does not relieve it from liability, if the use was not reasonable and necessary. (Dygert v. Schenck, 23 Wend. 446 ; Babbage v. Powers, 130 N. Y. 281; Wood on Nuisances, § 297.) .Even if the deposit in the street was reasonably necessary, a question might arise whether the defendant in the exercise of its right was negligent. (See Piollet v. Simmers, 106 Penn. St. 105.)

The foregoing considerations lead to the conclusion that the case should have been submitted to the jury, and that the nonsuit was improperly granted.

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

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


author: Merwin, J.

text:
    Nellie E. Yale, Respondent, v. William R. Curtiss, Appellant.

      Breach of promise of marriage — no formal language is necessmy to constitute the contract — admission of incompetent evidence owed by subsequently striking it out— evidence admissible in such an action — exceptions to a cha/rgenot mailable upon a/ppeal.

    No formal language is necessary to constitute a contract to marry, rp.or in an action brought to recover damages for a breach of promise of marriage is it necessary to prove in so many words that the defendant promised to marry the plaintiff.
    In such an action it appeared upon the part of the plaintiff that in December, 1885, the defendant sought and obtained an introduction to the plaintiff, and at the next interview he told her that he had long been wishing to make her acquaintance. For a period of two years and upwards thereafter, he frequently went home with her from church or prayer meetings and occasionally took her to public entertainments. In March or April, 1888, he went home with her nearly every Sunday from church and nearly every Thursday evening from prayer meeting. Often on these occasions he stopped at her home and visited with her until ten or eleven o’clock and sometimes later. She usually -entertained him alone in the parlor. In June or July, 1887, there was a conversation about a trip to Europe, from which the plaintiff might have inferred that the defendant was contemplating a trip to Europe with the plaintiff as his wife. Upon one or more occasions he spoke of building a house and asked what building lot she preferred. In May, 1888, the plaintiff told him that she had heard the remark that all he went with her for was to please himself and see how big a fool he could make of her. The defendant earnestly-denied making such a remark, and, among other things, said he had admired her from the very first; that he had never met a young lady that he regarded more highly, and said several times he longed to make her happy ; he also said that he would always protect her. She told him the most she wanted to know was if he was true, and he replied that he had said all he could find language to express that he was true, and just before he left he said, “If I live I will make you happy.” Prior to that time he had several times told plaintiff that he did not believe in long engagements. During the time defendant was paying attention to plaintiff, she did not receive attentions or visits from other young men.
    Upon the part of the defendant much of this evidence was denied, and other circumstances shown, from which it was argued that there was no promise to marry in substance or intent, and that the plaintiff did not suppose or have any right to suppose that an engagement was made or offered.
    Upon the trial the jury brought in a verdict for the plaintiff.

      Held, that the case was properly submitted to the jury and its conclusion should not be disturbed.
    When a court inadvertently commits an error in receiving evidence, but before the witness leaves the stand recalls the ruling and strikes out the objectionable evidence, there should not, in any ordinary case, ho. any presumption of injury by reason of the erroneous ruling.
    In such a case, it is not error for the mother of the plaintiff to testify that she knew her daughter was making preparations for getting married, nor is evidence as to the plaintiff’s condition of health after and in consequence of the, breach of the promise of marriage improper.
    On the trial the plaintiff was asked what her business was, and how she gained her livelihood, which question was objected to as incompetent and improper; the objection was overruled, and an exception taken, and the answer was, by giving music lessons.

      Held, that it was proper to ask the witness what was her occupation and business ; and that if the balance of the question was improper, the objection, to be available upon appeal, should have so specified.
    Where, at the conclusion of a trial, the court is requested to charge nine propositions, but declines to charge the same, other than as it has before charged, an exception to the refusal of the court to charge as requested, is not sufficiently definite to be available upon appeal.
    Appeal by tbe defendant, William R. Curtiss, from a judgment of tbe Supreme Court in favor of tbe plaintiff of tbe 30tb day of April, 1890, entered in the office of the clerk of tbe county of Chenango, upon a verdict for $3,000, rendered at tbe Chenango Circuit, and from an order made at tbe Chenango Special Term, denying tbe defendant’s motion for a new trial, made upon a case and exceptions, and entered in said clerk’s office of Chenango county on tbe 26th day of January, 1893, as of tbe 5th day of September, 1892.

      Ed'wo/rcl B. Thomas and Howard D. Newton, for tbe appellant.

      George W. Bay, for tbe respondent.
   Merwin, J.

This action is brought to recover damages for a breach of promise of marriage, alleged to have been made by tbe defendant to tbe plaintiff on or about tbe 15th of May, 1888. Whether there was such a promise was tbe main issue at the trial. Tbe finding upon that issue in favor of the plaintiff is challenged by the defendant upon the ground that the evidence was not sufficient to authorize it.

There is no evidence that the defendant in so many words promised to marxy the plaintiff. That, liowevei’, was xxot necessaxy. No formal language is necessary to constitute the contract to marry. If the conduct and declarations of the parties clearly indicate that they regard themselves as engaged, it is not material by what means they have arrived at that state. (Homan v. Earle, 53 N. Y. 267, 272.) The meaning and intention of the parties may be inferred from their acts and declarations. (Id. 271.)

Upon the part of the plaintiff, it appears that in December, 1885, the defendant sought and obtained an introduction to the plaintiff, and at the first interview soon thereafter told her he had long been wishing to make her acquaintance. Thereafter for a period of two years and upwards he frequently went home with her from church or prayer meeting, and occasionally took her to public entertainments. In March or April, 1888, he went home with her nearly every Sunday from church, and nearly every Thursday evening from prayer meeting. Often on these occasions he stopped at her home and visited with her until ten or eleven o’clock in the evening and sometimes later. The plaintiff usually entertained him alone in the parlor. Upon one of these occasions, in June or July, 1887, there was a conversation about a trip to Europe, from which the plaintiff might have inferred, whether properly or not would be for the jury to say, that the defendant was contemplating a trip to Europe with the plaintiff as his wife. Upon one or more other occasions he spoke of building a house, and asked her what building lot she preferred. At an interview about the middle of May, 1888, the plaintiff told him she had overheard the remark that all he went with her for -was to please himself, and see how big a fool he could make of her, and she asked him if that was true. The defendant earnestly denied it, and among other things said he had admired her from the very first; that he had never met a young lady that he regarded more highly, and several times said he longed to make her happy. lie also said he would always protect her. She told him the most she wanted to know was if he was true, and he replied he had said all he could find language to express that he was true, and just before he left he said, “ If I live I will make you happy.” Prior to this time he had several times told her that he didn’t believe in long engagements. During the time the defendant was paying these attentions to the plaintiff she did not receive attentions or visits from other young men.

Upon the part of the defendant, much of this evidence was denied, and other circumstances were shown from which it is argued by the counsel for the defendant that there was no promise to marry in substance or intent, and that plaintiff did not suppose or have any right to suppose that an engagement was made or offered.

We are of the opinion that a case was presented such as was proper to be sent to the jury for determination, and that their conclusion on the subject should not be disturbed. It was for them to say whether or not there was in substance a promise to marry. This depended upon inferences which it was the province of the jury to draw. It was for them to say whether the statements were made as claimed by plaintiff in May, 1888, and if so, then, in the light of the previous conduct and declarations of the parties, it was for them to say what was the meaning and intention of the parties. That, as held in the Homan case, was to be inferred from their acts and declarations. In that case, of a matter somewhat similar it is said : “ What the parties intended by these acts and declarations, what is the correct translation of them, is for a jury and not a court; it is a question of fact and not of law. They are capable of a construction tending to corroborate the plaintiff’s evidence, that while he did not say in words that he would marry her, she had a right to expect he meant it. If he did not mean that, what did he mean ? It was for the jury to say.” In Button v. McCauley (1 Abb. Dec. 282), it is said that a statement by defendant to plaintiff that he would make a good home for her tended to prove the alleged contract of marriage.

Our attention is called to several exceptions to rulings upon the admission or rejection of evidence. We, however, do not find in them any sufficient cause for reversal. The evidence of the conversation as to the trip to Europe was proper. It related to the subject in controversy and its bearing and effect were to be considered along with the other evidence in the case. The same may be said as to the conversation about going to New York. After the plaintiff had narrated the conversation as to the trip to Europe she was asked the question: Now, you may state how you understood that at the time.” This was objected to by the counsel for defendant as incompetent and improper, and as a conclusion and opinion, and the objection was overruled and exception taken. The witness partially answered, when, on motion of defendant’s counsel, the answer so far as made was stricken out. The following then occurred: “ The court. What did you understand he meant by that ? Answer. I thought he meant that he wished me to accompany him when he went abroad. Q. As what? A. As his wife. Defendant’s counsel. I move to strike that out as improper and incompetent, and as a conclusion and opinion. The court. The motion is denied.” Exception was taken. Shortly afterwards, before the direct examination of the witness was closed, she was asked a similar question as to what she understood by the saying of the defendant, “ I will always protect you.” This being objected to, the court said: “ I think upon consideration that the proper rule is not to allow a party to testify how she understood it; but allow the fact to be put in, and the jury to say what would be the fair meaning of the phrase. I will strike out the evidence which was given before as to how she understood the expression that she was asked about which she testified to; I will exclude this.” The defendant objected and excepted to the striking out of the evidence as he might lose the benefit of his previous exception. The error, if any, in receiving and refusing in the first instance to strike out the previous evidence was, we think, cured, within the rule laid down in Gall v. Gall (114 N. Y. 109), and approved in Holmes v. Moffat (120 id. 162). The court not only struck out the evidence, but in substance said to the jury it was for them and not for the witness to say what was the meaning of the phrase. If a court inadvertently, in the hurry or confusion of a trial at Circuit, makes an error in receiving evidence, but before the witness leaves the stand recalls the ruling and strikes out the objectionable evidence, there should not, in any ordinary case at least, be any presumption of injury by reason of the erroneous ruling. It should rather be presumed that the jury disregarded the objectionable evidence, as they are presumed to disregard a great many other assertions in the course of a trial that are not evidence.

It was not error to receive the evidence of the mother of plaintiff, that she knew of her daughter making preparations for getting married. (Wilcox v. Green, 23 Barb. 639.) The plaintiff had already testified to the same thing without objection. It was at least competent on the question of damages. And so was the evidence of the condition in health of the plaintiff after the breach and in consequence thereof. The information which led the plaintiff to ask explanation of the defendant in May, 1888, was derived by plaintiff from her mother. It was not material from whom the mother received the information. Nor was the talk between her and her father or her counsel before the commencement of the suit. The plaintiff, at the commencement of her evidence, was asked the question, “What is your business now, and how do you gain your livelihood ? ” This was . objected to as incompetent and improper, and objection overruled and exception. The answer was, “ By giving music lessons.” It was proper to ask the witness what was her occupation or business. If the balance of the question called for improper evidence as to her property, that objection should have been specified, and not being so, is not available. (Simson v. Chadwick, 20 Wkly. Dig. 35 ; Hochreiter v. People, 2 Abb. Dec. 363.) In Vanderpool v. Richardson (52 Mich. 339), it was held proper for the plaintiff to show she had no property.

The defendant’s counsel also claims errors in the court refusing to charge certain requests. The record shows that, at the close of the charge, the defendant’s counsel requested the court to charge nine propositions, which are set out. At the end of these the following appears: “The court. I decline to charge the requests made by the defendant’s counsel other than I have charged. Defendant’s counsel excepted to the refusal of the court to charge as requested.” This exception is not sufficiently definite to be available within the ruling in many cases. (Smedis v. Brooklyn, etc., 88 N. Y. 14 ; Magee v. Badger, 34 id. 247.) Many of the requests were in substance charged; others referred to detached portions of the evidence, and asked for a charge upon the effect of those alone. The court, in its charge, laid dowm the law of the case fully as favorably .to the defendant as he was entitled to have it. In the refusals to charge we find no error prejudicial to the defendant.

The foregoing considerations lead to an affirmance of the judgment.

HaediN, P. J., concurred.

Judgment affirmed, with costs.


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    Alanson S. Page and Another, Respondents, v. Anton G. Methfessel, Appellant.

      Principal and agent — evidence as to who is the principal — charge of an account against an agent, as such, when a sufficient charge against his principal — laches in allowing hills to accumulate — referee’s decision conclusive as to his minutes — power of a referee to open a case upon terms.

    In an action brought against one Methfessel to recover the value of goods sold and delivered to one “Philip Michel, Agent,” it was claimed, on the part of the plaintiff, that the defendant was the principal, and Michel the agent. It appeared that before the 29th of April, 1886, the business of manufacturing and decorating window shades at defendant’s factory was commenced under the name and style of “ Philip Michel, Agent,” and business was carried on under that name until after-June 9, 1891, during which time Michel was the principal shadcmaker and managing agent for the business, and the defendant was the office man and bookkeper, and had charge of the finances thereof.
    On April 29,1886, Michel, as agent, had a negotiation with a salesman of the plaintiffs, with reference to the purchase of goods from them, to be used for the purpose of manufacturing and decorating in such factory. The salesman inquired of Michel as to his financial responsibility, and Michel replied that he had a friend who would advance him money to do business, and thereupon Michel took him to the defendant’s house, introduced him to the defendant and left. After Michel left, the salesman asked the defendant whose agent Michel was, and the defendant said that Michel had been unfortunate and could not use his own name; that he was ready to assist him according to his ability, and that he
    [ would be responsible for all the orders received from Michel, countersigned by him. The defendant then, at the salesman’s request, wrote, signed and delivered to him a memorandum declaring himself to be responsible for all orders sent by Michel, as agent, to the plaintiffs, if the same were countersigned by him. On the same day and occasion an order was delivered to the salesman, signed by Philip Michel, agent, and countersigned by the defendant. The goods were shipped as directed, and thereafter the plaintiffs received from the defendant, by mail, his individual check for the amount of the order, less a discount allowed for payment within thirty days. The next order was, apparently, made about May twenty-fifth, and, by reason of the defendant’s absence, it was not countersigned by him.
    On June 21, 1886, the defendant wrote the plaintiffs, inclosing an order, requesting the sending thereof to Philip Michel, agent, at their earliest convenience, and inclosing his check for the amount of seven bills, from May twenty-fifth to June fourteenth. In this letter he also said, “ Our intention is to pay always cash, and if we did not do it this time, it is because I was absent on a trip west, and we thought that the goods bought of you on the first days of May would last until my return. Orders, however, coming in earlier and larger than we expected, Mr. Michel applied to you for more goods, which you sent without my guarantee, thereby doing us a favor, for which we feel grateful. I send the full amount of those seven bills, trusting that you will allow all the discount you possibly can, and deduct the same from the amount of next bill.”
    After the first order none were, in form, countersigned by the defendant. Some were sent by the defendant himself, and many letters of the defendant were put in evidence, from which it might be inferred that the defendant had a personal interest in the business. The goods, however, were mainly ordered by “Philip Michel, Agent,” and all were shipped and charged in that form. All of the goods ordered and shipped down to October 3, 1890, were paid for by the individual check of the defendant, inclosed in letters written by him to the plaintiffs.
    The orders since that time were the items involved in this suit. All the goods sent by the plaintiffs were used at such factory, and all the proceeds of sales thereof, excepting a small amount, were turned over to and received by the defendant, and were deposited by him, with other moneys of his, in his bank account.
    On the part of the defendant it was shown that Michel was, in fact, the agent of his wife, and employed the defendant as his bookkeeper and cashier; that the defendant kept an account of the moneys received, and checked them out as directed by Michel, all of which was, however, unknown to the .plaintiffs.
    The referee, before whom the case was tried, decided that the defendant held himself out as the principal engaged in the business, and was liable to the plaintiffs for the amount of the unpaid bills, to recover which the action was brought.

      Reid, that the evidence warranted the conclusion that the condition in the writing of April 39, 1886, to the effect that the orders should be countersigned by the defendant, was waived by him, and that the judgment should be affirmed; That the accounts charged to Philip Michel, agent, were a sufficient charge against the defendant;
    That as the defendant presumptively knew all about the orders sent to the plaintiffs, and knew that the bills in suit were not paid, there was no defense to such an action in the fact of plaintiffs’ laches in allowing the bills to accumulate.
    It is for a referee to determine whether the minutes taken before him are correct, and his decision of that question is conclusive.
    In such an action, the referee has discretionary power to open the case upon terms as to the costs of the motion to open the case, and the further attendance before him and the expense of rebutting testimony.
    Appeal by the defendant, Anton G. Methfessel, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Oswego on the 25th day of July, 1892, upon the report of a referee, with notice of an intention to bring up for review upon such appeal the order made by the referee herein, dated June 4, 1892. ■

      The referee found, as conclusions of law, that the defendant, prior to the purchase of said goods in suit, to wit, prior to October 8,1890, held himself out to and represented himself to the plaintiffs as a principal engaged in the business so carried on under the name of Philip Michel, agent, and the plaintiffs believed, and sold and delivered said goods upon such representation. That, as between the parties hereto, the defendant purchased of the plaintiffs, and the plaintiffs sold and delivered to the defendant upon his request and promise to pay therefor, the goods, wares and merchandise aforesaid, at the times, for the prices, and upon the terms aforesaid. That the defendant, prior to the purchase of the goods in suit, to wit, prior to October 8, 1890, held out the said Philip Michel to the plaintiffs as his agent, and represented to them that said Michel was his, the defendant’s, agent for the purchase of said goods in suit, to wit, the bills of goods from and including October 8, 1890, to and including June 9, 1891; that the plaintiffs believed and relied upon, and sold and delivered said goods upon such representations, and the defendant is liable to the plaintiffs for the said purchase price thei’eof, less freight, together with interest, and less a credit with interest for goods returned; and that the plaintiffs are entitled to recover of the defendant the following sums, with interest, as hereinafter stated, less a credit of thirty-nine dollars and thirty-eight cents, with interest thereon from April 1, 1891, to wit:
    In the complaint, it is alleged that at divers times between October J, 1890, and June 10, 1891, the plaintiffs, at the request of defendant and on his promise to pay therefor, sold and delivered to him goods at prices agreed upon and payable in sixty days, amounting to and of the value of $4,018.90. The answer denies, in substance, all the allegations of the complaint, except that the defendant admits he has been requested to pay certain moneys to plaintiff.

      Van Hoevenberg <& Holt, for the appellant.

      H. P. Morehouse, for the respondents.
   Merwin, J.:

All of the goods for which a recovery has been had in this case were ordered by “ Philip Michel, agent,” and were shipped by plain'tiffs to “ Philip Michel, agent,” at Stapleton, Staten Island, and were charged in the same way upon plaintiffs’ books. The referee has-found that the defendant, by his acts and conduct in these and similar prior transactions with plaintiffs, held Michel out to them as liis. agent in purchasing these goods, and that, in reliance upon that and in the belief induced by such acts and conduct that defendant was. the principal behind Michel, they made the sales in question. In other words, it was held that the plaintiffs had the right to treat the-defendant as the principal in the transactions. The question in this case is whether such finding of the referee is sustained by the evidence.

The plaintiffs are manufacturers at Minnetto, Oswego county, of shade cloth, window curtains and fixtures, under the firm name of the Minnetto Shade Cloth Company. The defendant, since April 1,, 1886, has resided at Stapleton, Staten Island, and owned there a factory building for the manufacture and decorating of shade cloth into window shades. During this period, Philip Michel, who is a. practical window shade manufacturer, lived at Stapleton. In the-latter part of April, 1886, and before the twenty-ninth, the business, of manufacturing and decorating window shades at defendant’s factory was commenced under the name and style of “Philip Michel, agent,” and such business was carried on under that name until after June 9, 1891. During this time Michel was the practical shade-maker and managing agent of the business, and defendant was the-office man and bookkeeper and had charge of the finances of the business. On the 29th of April, 1886, Michel as agent had a negotiation with one Gillett, who was a salesman and agent of the plaintiffs, in reference to the purchase of goods from the plaintiffs for the purpose of manufacturing and decorating in said factory. Gil-lett inquired of Michel as to his financial responsibility, and Michel replied: “ I have a friend who will advance me some money to do-business,” and thereupon Michel took Gillett to the house of defendant, introduced him to defendant and then left. After Michel left, Gillett asked defendant whose agent Michel was, and defendant replied, “ He has been unfortunate and cannot use his own name. I am ready to assist Mr. Michel according to my ability. All the orders received from Mr. Michel, countersigned by myself, I will be responsible for.” The defendant then, at Gillett’s request, wrote, signed and delivered to him a memorandum, of which the following is a copy:

“ Stapleton, April 29, 1886.
“ I herewith declare myself to be responsible for all, orders sent by Phil. Michel, Agent, to the Minnetto Shade Cloth Company, if the same are countersigned by me.
“A. G. METHFESSEL.”

After this and on the same day and occasion, an order was signed and delivered to Gillett as follows :

“ Philip Michel, Agent.
“ 1 pc. ea. 18-32-38-62-66-68-64-58.
“ PHILIP MICHEL, Agent, Stapleton.
“ A. G. Methfessel.”

These goods were shipped as directed, and soon thereafter the plaintiffs received in payment thereof from the defendant by mail his individual check on the German American Bank of New York, for the amount of the order less a discount of two per cent allowed for payment within thirty days. The next order seems to have been about May twenty-fifth and not countersigned by defendant by reason of his absence. On the 21st of June, 1886, the defendant writes to the plaintiffs inclosing an order as to which he says, “You will oblige me by sending, at your very earliest convenience, to Phil. Michel, agent.” He also inclosed his check for the amount of seven bills from May twenty-fifth to June fourteenth. In this letter, he also says: “ Our intention is to pay always cash, and if we did not do it this time, it is because I was absent on a trip west, and we thought that the goods bought of you in the first days- of May would last until my return. Orders, however, coming in eai-lier and larger than we expected, Mr. Michel applied to you for more goods, which you sent without my guarantee, thereby doing us a favor, for which we feel grateful. I send the full amount of those seven bills, trusting that you will allow all the discount you possibly can, and deduct the same from the amount of next bill.” After the first order, none were in form countersigned by defendant. Some orders, however, were sent by the defendant himself, and many letters of defendant are in evidence from which it might he inferred that the defendant had a personal interest in the business. For instance, on tlie 25th of September, 1886, he sends an order for certain specified goods, and adds “ we will soon give you larger orders.” The goods, however, were mainly ordered by “ Philip Michel, Agent,” and all were shipped and charged in that form. The dealings were quite large, comprising hundreds of orders, aggregating about $35,000, and continued to June 9, 1891. All of the goods so ordered and shipped down to October 2, 1890, were paid for from time to time by the individual checks of the defendant on the German American Bank of New York inclosed in letters written by him to the plaintiffs. The orders since October 2, 1890, are the items involved in this suit. All the goods sent by the plaintiffs were used at the factory in Stapleton, and all the proceeds of their sale after being manufactured, excepting a small amount, were turned over to and received by the defendant and were deposited by him with other moneys belonging to him in his bank account with the German American Bank.

It is shown on the part of the defendant that Michel was in fact the agent of his wife and employed the defendant as Iiis bookkeeper and cashier, and that defendant kept an account of the moneys received and cheeked them out as directed by Michel. All this, however, was unknown to plaintiffs.

Defendant was in a position to know all the orders sent, and no objection was made by him that they were not countersigned by him, or that Michel did not have authority to bind him.

These are the main features of the case. It seems to me very clear that the evidence warranted the conclusion that the limitation or condition in the writing of April 29, 1886, that the orders should be countersigned by the defendant, was waived by the defendant, or at least that the plaintiffs had a right to believe that it was not required by defendant. In his letter of June 21, 1886, he excused the want of it and treated it as a favor that the plaintiffs •sent the goods without it. And for four years and upwards thereafter he paid the bills without question and without any suggestion that' the countersigning was important. If the limitation was waived, that left the declaration of defendant general that he would he responsible for all orders sent to plaintiffs by Michel as agent. This responsibility was in effect acknowledged by the defendant, so far as the plaintiffs were concerned, from June, 1886, to October, 1890. The plaintiffs were informed of no other person as principal. The defendant himself gave orders and indicated a personal interest in the business. The authority given by the paper of April 29, 1886, was never revoked. The plaintiffs had a right to assume that the authority continued after October, 1890, as it had existed before. (Bodine v. Killeen, 53 N. Y. 93.)

It is suggested that the credit was not given to defendant because the goods were charged to Michel as agent. That form of charge indicated that credit was not given to Michel individually, and there was no other known to plaintiffs to whom credit -would be given except the defendant. The plaintiffs’ agent, before the commencement of the negotiation in April, 1886, was informed that Michel was insolvent, and it is easy to infer that no one intended or expected that credit would be given to him. It is also suggested that the plaintiffs did not testify that they relied on defendant. In such a case it is said in Brown v. Bowen (30 N. Y. 520), that, in the absence of proof of the effect of the admission on the party setting up the estoppel, it is for the jury to say whether on the facts the several essential parts of the estoppel are proved.

In the present case it was a question of fact whether the defendant, by his acts and conduct, held out Michel to the plaintiffs as his agent and whether, from such acts and conduct, the plaintiffs were led to believe and did believe that the defendant was the principal and relied on this in selling the goods in suit. The conclusion of the referee on this subject should not, I think, under the circumstances of this case, be disturbed.

But it is said that the plaintiffs were guilty of laches in allowing the bills in suit to accumulate. Still, the defendant, by reason of his position in the business, presumptively knew all about the orders that were being sent to plaintiffs and knew that the bills in suit were not paid. He was bookkeeper and had charge of the finances, and the proceeds of all the goods sent by the plaintiffs, including these in suit, were turned over to him. He made no suggestion to the plaintiffs that he did not propose to pay any more, or proposed to change the current of the business. A large portion of the goods in suit were ordered before the payments on the prior account were completed. We fail to see any defense on the ground of laches'.

After the evidence before the referee was closed, and before the decision of the case, a motion upon affidavits and notice to plaintiffs was made before the referee to correct the minutes of the referee of the testimony of the defendant as to his answer to a particular question, or that the trial be opened. Affidavits were used by plaintiffs in opposition to the motion, and there was a conflict as to what the testimony in fact was. The motion to correct the minutes was denied, but on motion of the counsel for defendant, leave was given to defendant to recall the witness upon certain terms as to the costs of the motion and the further attendance before the referee and the expenses of rebutting testimony. Nothing further was done, the terms apparently not being satisfactory. Whether the minutes were correct was for the referee to determine, and his decision on that is conclusive. (Tweed v. Davis, 1 Hun, 252.)

The terms for opening the case were within his discretion, and no sufficient reason appears for this court to say that such discretion was abused.

Hardin, P. J., and Parker, J”., concurred.

Judgment and order affirmed, with costs.


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    William Dale, Respondent, v. The City of Syracuse, Appellant.

      Liability of a city for defects in a street created by a street railway company enjoined from citring them — negligence of apa/rty injured by a fall.

    A city is not relieved from its liability to pay damages, for injuries resulting from a fall caused by one of its street crossings being out of repair, by tbe fact that the street was torn up by a street railway company for tbe purpose of laying its tracks, and an injunction bad been obtained by a property owner enjoining such company from interfering with that part of tbe street until tbe further order of the court.
    In such a case it is a question of fact for tbe jury whether tbe plaintiff was chargeable with carelessness when, at tbe moment of the fall, from which be sustained tbe injuries, be did not notice where be was stepping because of bis attention being momentarily diverted.
    Appeal by the defendant, the city of Syracuse, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 26th day of May, 1892, upon the verdict of a jury for $2,000 damages, rendered at tlie Onondaga Circuit, and from an order denying the defendant’s motion for a new trial, entered in said clerk’s office of Onondaga county on the 23d day of May, 1892.

      Chmdes B. Ide, for the appellant.

      Hcmcook, Beach di Devine, for the respondent.
   Merwin, J.:

On the 21th of September, 1890, the plaintiff, in passing over the crosswalk on West Fayette street at its intersection with South Salina street in the city of Syracuse, fell and received a somewhat serious injury upon his head, and the action in this case is for the recovery of the damages sustained by such fall. The jury by their verdict have found that the plaintiff was injured by reason of the negligence of the defendant without any negligence on the part of plaintiff that contributed to the result. The condition of the crosswalk at the time of the fall was at the trial a matter of dispute. In the fore part of the November previous, the greater part of the flagging composing the walk had been torn up by the Syracuse Consolidated Street Railway Company, preparatory to the laying of a curve for the purpose of connecting the track of the company on South Salina street with the line of the company on West Fayette street. Before this was completed, an injunction had been obtained by Mr. Kirk, the owner of the block on the northerly corner, restraining the company, its agents and servants and all other persons acting in aid or assistance of the company, from in any manner interfering with the streets in front of plaintiff’s (Kirk’s) premises, known as South Salina street and Fayette street, or touching or molesting the same, or laying down, constructing or maintaining street railway tracks, switches or curves in, along, upon or in front of plaintiff’s said premises in either of said streets,” until the further order of the court. This injunction was obtained and served on the 28th of November, 1890, and thereupon the company stopped its work, leaving the crosswalk, as the plaintiff claimed, in an unsafe and dangerous condition, with holes between the flagstones or other stones that were there, and that it so remained until after his injury. There was evidence on the part of the plaintiff that sustained this view and supported the verdict in that regard.

The defendant, however, claims that by reason of the injunction, which, continued until after the injury, it had no right to interfere with or repair the crosswalk, and that, therefore, it is not chargeable with its unsafe condition. We are of the opinion that this position is not sound because :

First. The answer of the defendant admits that on the 24th of December, 1890, it was the duty of the defendant to keep that crosswalk in good condition and repair, and free of obstructions and in safe condition, so that the same could be traveled over without endangering the lives and limbs of those attempting to walk upon or across it.

Second. This defendant was not a, party to the injunction suit, nor was it acting in aid or assistance of the railway company. The injunction was not designed to interfere with the duty of the city in keeping its streets and sidewalks in a reasonably safe condition.

The particular defect which, as the plaintiff claims caused him to fall, was a hole or depression in the crosswalk, into which as he came along lie stepped, and which at the time he did not notice, because his attention was attracted to a man on the opposite sidewalk engaged in removing snow in an improper way. The defendant, however, claims that the fall of plaintiff was not occasioned by any hole in the walk, but by a slippery condition of the walk arising from a fall of snow during the night previous. Whether the hole caused the plaintiff to fall was, however, a question for the jury. The condition of the crosswalk as left by the railway company, and as it was on the morning of the injury, was fully described; the plaintiff gave his recollection of how the accident happened, and was exhaustively examined and cross-examined about it. The court charged that if the plaintiff did not fall by reason of the imperfect, irregular condition of the crosswalk he could not recover, and that the city was not responsible for the slippery condition. The jury in effect found fhat the accident would not have happened had it not been for the imperfect condition, as left by the railway company, and permitted by the defendant to remain, although sufficient time had elapsed to bring to the defendant notice of the defects. In this respect we think the verdict should not be disturbed. (Taylor v. City of Yonkers, 105 N. Y. 208.)

It is further claimed that upon the undisputed evidence the plaintiff was guilty of contributory negligence. The argument is based on the testimony of the plaintiff himself, that he was not at the moment looking to see where he- was stepping, but allowed his attention to be attracted away from the crosswalk. The occurrence was about fifteen minutes before seven o’clock in the morning. It was not fully daylight, though light enough to see across the street. The plaintiff was the janitor of the Kirk block, and was coming from his house in the southern portion of the city. He was walking at a moderate gait, and as he came to the crosswalk at the corner opposite the Kirk block, he noticed a man cleaning the ice and snow from the sidewalk in front of the Kirk block, with a spud, in a manner that would deface the walk. He was about to call to him when he fell. It was a part of the duty of the plaintiff to look after the sidewalk that the man was cleaning off. By reason of his attention being called to this, he did not at the moment notice where he was stepping. He was familiar with the condition of the crosswalk. The question is, whether as matter of law it should be said that the failure of plaintiff to constantly look to see where he stepped, was negligence. Was he careless in not stopping still when he looked at the man across the street ? His attention was suddenly attracted to a matter that naturally would for the moment divert his thoughts. The question whether he was chargeable with carelessness was, we think, properly left to the jury. (See Driscoll v. Mayor, etc., 11 Hun, 101 ; Thomas v. Mayor, etc., 28 id. 110.) In Palmer v. Dearing (93 N. Y. 10), it is said: While previous knowledge by a party injured of a dangerous situation, or impending danger, from which a person of ordinary intelligence and prudence might reasonably apprehend injury, generally imposes upon him the dirty of exercising greater care and caution in approaching it, yet the degree of care which should be required of such a person has uniformly been held in this State to be a question of fact to be determined by the jury.”

The cases of McCabe v. City of Buffalo (45 N. Y. St. Repr. 456), and Splittorf v. State of New York (108 N. Y. 205), are clearly distinguishable from the present.

The foregoing considerations lead to an affirmance of the judgment.

Hardin, P. L, concurred; Parker, J., not sitting.

Judgment and order affirmed, with costs.