author: PutuaM, J.: MayhaM, P. J.

text:
    EMILY WAGNER, Appellant, v. THOMAS J. DALY, Respondent.

      Trade-mark in a cigar-box label — want of novelty and invention.

    /Vagner, a cigar manufacturer, sought to restrain the use by Daly, also a cigar manufacturer, of a cigar-box label, consisting of a picture of a pug dog, with the words “Pug Cigars,” on the ground that it was an infringement of Wagner’s right to a trade-mark, acquired by priox use, in a label consisting of the same picture with the words “ Wagner’s Pug.” It appeared that Wagner procured his labels from a label manufacturer, who had introduced the label, originally with the words “ Friend Pug,” in which form he had offered it to the trade generally, and had sold at least one lot of labels to a cigar-box manufacturer before the sale to Wagner of his labels.

      Held, that Wagner was not the inventor of the word and symbol in question, nor the originator of their use as a cigar-box label, nor was such use by him new, and, therefore, that he was not entitled to their exclusive use as a trade-mark.
    (Mayham, P. J., dissenting.)
    Appeal by the plaintiff, Emily Wagner from a judgment of the Supreme Court, in favor of the defendant, entered in the office of the clerk of Montgomery county on the 19th day of September^ 1892, on the decision of the court dismissing the complaint, rendered -on a trial by the court without a jury at the Montgomery Circuit, in an action brought to restrain the infringement of a trade-mark and for damages.

      Charles S. PTisbet and Hcm'vey Booh, for the appellant.

      Thomas A. Murray and Z. S. Westbrook, for the respondent.
   PutuaM, J.:

In Schneider v. Williams (14 N. J. Eq. [17 Stewart], 391), to which we are referred by appellant, it is held that one, to acquire title to a trade-mark, “ must adopt some mark not in use to distinguish goods of the same class or kind already on the market belonging to another trader.” In Van Beil v. Prescott (82 N. Y., 630) it is held that to make an exclusive right to use a name or symbol as a trademark, such use must be new ; if ever before used as applicable to a like article, it cannot be exclusively appropriated.” In Selchow et al. v. Baker et al. (93 N. Y., 59) it is determined that where a manufacturer has invented a new name consisting either of a new word or words in common use, which he has applied for the first time to his own manufacture, * * * he is entitled to be protected.”

Plaintiff was not the inventor of the alleged trade-mark in question. She commenced using it on November 7,1883. It was invented by Wischt & Smidt, engravers, on August 14, 1883, as a cigar label. On September 11, 1883, said firm sent samples of said label all over the country to the cigar trade. They sold the first labels to plaintiff on October 19,1883, but prior to that time had sold ten labels to one Pople, a cigar-box manufacturer, of Newark. It also appeared by the evidence of the witness Wischt that from the time said firm originated this label and offered it to the trade, they had sold quite a number of such labels to other parties or other cigar-box makers for use in the cigar trade.

Hence, while plaintiff was not the inventor of the word and symbol in question, neither was she the originator of such word and symbol as a cigar-box label. When she commenced using them they were on sale to the cigar trade in the country as cigar labels, and at least one lot of such labels had been sold to a cigar-box manufacturer. Therefore, under the case of Van Beil v. Prescott (supra) I do not think it appears that plaintiff’s use of the symbol and word in question asa cigar-box label was new. They were used before her adoption of tbem as applicable to a like article. Therefore, the plaintiff fails to make out a case showing herself entitled to the excl ve use of the said alleged trade-mark.

The plaintiff, in fact, in this action seeks to prevent the inventors and originators of said device from having the benefit of their invention. Of course, if purchasers from Wischt & Smidt of the labels in question cannot use them, the firm are prevented from a further sale thereof.

I think the trial court made a proper disposition of the case, and that the judgment of the court below should be affirmed, with costs.

Heebice, J., concurred.

MayhaM, P. J.

(dissenting):

This action was prosecuted by the plaintiff, a cigar manufacturer, against the defendant, also a cigar manufacturer, for an alleged infringement by the defendant of plaintiff’s trade-mark, used in her business as a cigarmaker.

The device consisted of the picture of the head of a pug dog, on which was printed the words “Wagner’s Pug,” pasted upon plaintiff’s cigar boxes, and the alleged infringement consisted of a similar picture, on which were the printed words “Pug Cigars,” which defendant pasted upon his cigar boxes.

The proof showed that the plaintiff first used this device or brand upon her cigar boxes on the 7th of November, 1883, and that her sales of that brand of cigars increased from 7,000 in that year yearly, until in 1891, her sales reached the sum of 225,000. The defendant commenced using this device, with the words “ Pug Cigars,” on his boxes in February, 1892. The proof shows, and the trial judge found, that one Sammons, a cigar-box manufacturer, supplied the plaintiff with cigar boxes from 1883 to the time of the commencement of this action, and that in October of that year, he procured from Wischt & Smidt, manufacturers of cigar-box labels, samples, among which was one, in all respects, like the one used by plaintiff, except that over the device was printed the words “ Friend Pti£,” and that, at the request of the plaintiff, Sammons procured of Wischt & Smidt the same kind and device, except that in the place of “ Friend,” the word “ Wagner’s ” was substituted, and this device, with the words “Wagner’s Pug,” was pasted on the boxes sold by Sammons to plaintiff, and by her filled with cigars and sold to her customers.

The testimony also showed that Wischt & Smidt originated this device in August, 1883, with the words “ Friend Pug,” printed ,over the picture, and on the eleventh of September of that year, sent samples of the same to cigar dealers all over the country, and sold some to customers before the sale in October, 1883, to Sammons, and that the business of Wischt & Smidt was that of engravers, lithographers and color printers and publishers of cigar labels, and they had sold several millions of the “Friend Pug” label, but had never sold any of the “Wagner Pug ” labels, except to Mrs. Wagner’s box maker.

The defendant commenced the use of this device with the words “Pug Cigars” about the year 1888, and his box maker procured his label from Wischt & Smidt, the same lithographers from whom plaintiff’s box makers procured her lable. Wischt & Smidt labels were not registered or copyrighted under the United States statutes and the plaintiff had never registered her device as her trade-mark.

Two leading propositions' must be established by the plaintiff before she is entitled to maintain this action.

First. That she had so far used and appropriated this device as to constitute it her trade-mark so as to give her the exclusive right to the use of the same.

Second. That the use by the defendant of the device, which he placed upon his boxes, was such an adoption and use of the plaintiff’s device as to constitute an unlawful interference or infringement of the plaintiff’s trade-mark.

The legislature of this State, in the adoption of the Penal Oode, have furnished a recent and, I think, correct definition of a trademark, which may be safely followed in the determination of the civil rights and remedies of parties upon that subject.

Section 366 defines it as follows: “ A trade-mark is a mark used to indicate the maker, owner or seller of an article of merchandise and includes, among other things, any name of a person or corporation or any letter, word, device, emblem, seal, stamp, brand, wrapper, ticket, stopper, label or other mark lawfully adopted by him, and usually affixed to an article of merchandise to denote the same was imported, manufactured, produced, sold, compounded, bottled, packed or otherwise prepared by him.” * * *

To acquire title to a trade-mark, as above defined, the person using and adopting the same must adopt some mark or device, not in use, to designate goods of the same class or kind already on the market belonging to some other trader. He must also apply his mark to some article of merchandise or traffic and must put his article thus marked, with his intended trade-mark, on the market. (Schneider v. Williams, 44 N. J. Eq., 391.)

It does not seem to be necessary that the plaintiff to acquire property rights in a trade-mark should describe the device adopted by her on the face of the label, as her trade-mark; adopting it, attaching it to specific articles of merchandise and putting the merchandise on the market for sale is a sufficient notice to the public to give exclusive right to its use as to the particular kind of merchandise to which it is attached.

But in order to establish such property right the plaintiff must show that he was the first to establish and use the device attached to the particular kind of goods which he has put upon the market.

It must, in the language of Upton on Trade-Marks, be “thename, symbol, figure, letter, form or device adopted and used by a manufacturer or merchant in order to designate the goods that he manufactures or sells and distinguish them from those manufactured and sold by another ; to the end that they may be known in the market as his, and thus enable him to secure such profits as result from a reputation for superior skill, industry or enterprise.” (Upton’s Trade-Marks, 9.) In Newman v. Alvord (51 N. Y., 193) Earl, J., says . “ The trade-mark must be used to indicate, not the quality, but the origin or ownership of the article to which it is attached. It may be any sign, mark, symbol, word or words which others have notan equal right to employ for the same purpose.”

The long and uniform use made by the plaintiff of this device upon the boxes in which she sold her cigars to the general public was, we think, sufficient evidence of her adoption of this'device as her trade-mark and established her title to the same, provided she had such priority of adoption, use and sale of the same as is required by law to vest in her a property right in it as a trade-mark. '

■ But it is insisted by tbe learned counsel for tbe respondent that tbe plaintiff was not tbe first to adopt tbis device, and that, therefore, tbe plaintiff acquired by its use no exclusive right to tbe same.

It is true that the evidence discloses that tbe lithographer and originators of tbe pug dog design bad sold to one person, for wliat use or purpose does not appear, some of these lithographs, differing only from plaintiff’s in having tbe w®rd Friend ” in tbe place of “Wagner’s” on them, but it does not appear that they were used by tbe purchaser as labels on cigar boxes, which alone would make their sale and use such a prior use as to deprive tbe plaintiff of tbe right of adoption and use upon cigar boxes as her trade-mark. Nor was the printing and sale' of this device by tbe lithographers any adoption of tbe same by them as a trade-mark, and their sale of tbe same to plaintiff’s box makers imposed no restraint upon tbe plaintiff which prevented her from adopting it, provided there had been no prior adoption of the same by some other person as a trade-mark for the sale of cigars.

This being so, the device adopted by the plaintiff, and pasted upon her cigar boxes, became her trade-mark, and any unauthorized use of the same by another was a violation of her property rights for which an action would lie.

The remaining question is, was the device used by the defen dant an infringement of the plaintiff’s trade-mark; or, in other words, was it such an imitation as to mislead the public into the belief that the cigar boxes on which it was placed bore the trade-mark of the plaintiff, so as likely to promote the sale of the defendant’s cigars under the mistaken belief that they were of the plaintiff’s manufacture.

To constitute a violation of the plaintiff’s right in the unauthorized use by another of her trade-mark, it is not essential that the device so used, is, in all respects, a fao simile of the plaintiff’s trademark ; a counterfeit or imitation so nearly resembling the genuine as to mislead, with the apparent object of producing, and likely to produce upon the mind of the purchaser the belief that the article offered for sale bears the trade-mark of the plaintiff, may produce all the injurious consequences to the plaintiff the same as the use of the device itself, or an exact fao simile.

TJpon this subject we may again refer, with profit, to the legislative definition of a counterfeit of a trade-mark.

A criminal counterfeit of a trade-mark is defined by the Penal Code, section 368, as follows: “An ‘ imitation of a trade-mark ’ is that which so far resembles a genuine trade-mark as to be likely to induce fhe belief that it is genuine, whether by the use of words or letters, similar in appearance or in sound, or by any sign, device or other means whatsoever.”

In Clark v. Clark (25 Barb., 76) the plaintiff’s genuine trademark on spool cotton consisted of four concentric circles on the end of the spool, the inner one in gold; the next in silver; the next in black with the letters in gold; the next in silver; the whole 'bound in two concentric black lines. Within the inner circle was the number, in the next were the letters and words “ J. Clark, Jr, & Co.,” at the top and at the bottom, “ Mile End Glasgow.” The imitation by the defendant, which was alleged to be in violation of the plaintiff’s right, consisted of spool cotton with concentric circles on the end of the spool precisely like that of plaintiff, and the number in the middle, and at the top of the circle the words “ Clark & Co,” and at the bottom of the circle were words in the same position as in the plaintiff’s, but'.the words there were “Seed Hill Paisley,” differing entirely from those in a similar position on plaintiff’s spools.

Both spools contained the same name as agent, and the court held that the defendant, by the use of such partial imitation, had violated the plaintiff’s rights in his trade-mark, and Mitchell, J., in delivering the opinion of this court in New York General Term, Davis and Rosevelt concurring, uses this language: “ The effect of this imitation must be, that all, except very cautious purchasers would be deceived.”

It will be observed that the difference between the plaintiff’s trade-mark in that case was more marked than in this case at bar.

In the case before us the pug dog picture is the leading and marked characteristic of the plaintiff’s trade-mark. The whole lithograph of both labels are exactly alike, one a reprint of the other, except that in the place of the words “Wagner’s” on the plaintiff’s the word “ Pug ” appears on the defendant’s.

If so slight a difference can relieve the defendant from all responsibility for the use of another’s trade-mark, the law upon the subject of trade-marks will serve no useful purpose and one party may avail bimself of and appropriate to bis own use tbe .well-earned reputation of another, with all the profits and advantages which the law adjudges to be the property of the latter.

We think that the plaintiff made out a valid cause of action against the defendant upon the evidence and for that reason the judgment should be reversed and a new trial ordered, costs to abide the event.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: PUTNAM, J.:

license: Public Domain

text:
    DANIEL J. GORMAN, Respondent, v. PATRICK J. McARDLE, Appellant.

      Mre-escapes on factories — substantial compliance with the law — means of escape as’ a substitute — liability of a manufacturer to an operative for negligence — incident of employment — vested right of action not extinguished by a repeal of a statute.

    Where the owner or occupant of a manufacturing establishment of the class designated in section 10 of chapter 409 of the Laws of 1886, as amended by chapter 462' of the Laws of 1887, and 560 of the Laws of 1889, has neglected to provide a. fire-escape, as prescribed by that statute, he will be liable in damages to one of’ his operatives injured in consequence of such neglect, unless he has provided, • in place of the statutory fire-escape, some safe way of escape for his operatives, in case of fire.
    Whether the means furnished for the escape of operatives from a factory in case of fire, in the absence of a statutory fire-escape, is, in effect, a suitable and safe-fire-escape, and, therefore, a substantial and sufficient compliance with the statute, is a question of fact for the jury.
    It cannot be said that an operative, for whom a mode of escape from the fourth floor of a factory was furnished, by means of a window in the room where he-was employed, opening on to a flat roof of an adjoining building from which there was access to the street through a scuttle which was easily seen, and -by means of which almost all of his fellow operatives escaped at the time of a fire, was guilty of contributory negligence, as matter of law, in omitting to use that; mode of escape, when he and others testified that they did not know of that way of escape, and the room was full of smoke at the time, and there was much confusion.
    In an action for damages, brought by an operative against a manufacturer, for negligence in not maintaining a fire-escape, the burden is on the defendant to-show that the risk of working in a room not provided with a fire-escape was-voluntarily assumed by the plaintiff as incident to his employment.
    Whether the attention of an operative, whose duties do not call him to the outside: of the factory, has been called to the absence of an outside statutory fire-escape,. and Jience whether he assumed, as incident to his employment, the risk of injury from a fire, arising from its absence, is a question of fact.
    Such a case is distinguished from those of accidents arising from some danger in an employee’s employment on a machine used by him, or some apparent danger in the room where an employee worked, incident to his employment, and is within the principle that those dangers which are known and can be mitigated or avoided by the exercise of reasonable care and precaution on the part of the master, are not incident to the business; and from such dangers it is the duty of the master to protect his servants wherever it can he done by reasonable care.
    The repeal, by chapter 398 of the Laws of 1890, of the statutory provisions making it the absolute duty of a manufacturer to maintain fire-escapes, does not extinguish a right of action for an injury caused by negligence in omitting to provide fire-escapes under the law as it stood at the time of the injury.
    Appeal by tbe defendant, Patrick J. McArdle, from a judgment of the Supreme Court, entered in the office of the clerk of Albany county on the 17th day of May, 1892, on a verdict for $2,000, in favor of the plaintiff, Daniel J. Gorman, rendered at the Albany Circuit; and also from an order denying a motion for a new trial, entered in said clerk’s office on May 31, 1892.

      Edward Gountryma/n, for the appellant.

      Eugene BurUngame, for the respondent.
   PUTNAM, J.:

This action was brought on account of injuries received by plaintiff on September 9, 1889, in jumping from a fourth story window of defendant’s manufacturing establishment, where he was employed, during a fire which consumed the building — defendant having negligently omitted to provide a proper fire-escape. In fact, there was no fire-escape as prescribed by statute, but a window in the room where plaintiff was employed opened on to the flat roof -of defendant’s adjoining 'building and from this roof through a scuttle there was, as defendant claimed, a proper and safe access to the street for his employees and a proper escape from fire.

It is not seriously denied that defendant was carrying on a manufacturing establishment within the meaning of chapter 560, Laws of 1889 (amending chapter 409 of the Lawstof 1886, as amended by chapter 462, Laws of 1887), or that the provisions of that statute applied to him, although a lessee and not the owner of the building in question.

Appellant having neglected to provide a fire-escape, as prescribed by the aforesaid act, if plaintiff received the injury complained of in consequence of such neglect, he was entitled to recover, unless defendant provided some safe way of escape for his operatives in case of fire in place of the statutory fire-escape.

The case of Pauley, as Administrator v. Steam Gauge and Lantern Company (131 N. Y., 90) holds that the act above referred to imposed a duty on the owners or occupants of the prescribed class of factories, for an omission to perform which, operatives injured, because thereof, may recover damages. In the case cited the owners of the factory had provided a proper fire-escape, under the statute, to the floor on which plaintiff’s intestate was at work, but, • instead of providing statutory stairs or a ladder on the inside, from the upper story of the building to the roof, as provided by the act, they conducted the fire-escape on the outside up to the roof by stairs thus affording, as the court held, as safe and convenient an access to the roof as a ladder or stairs on the inside. The outside stairs to the roof, although not a literal compliance with the statute, was held by the Court of Appeals sufficient. The effect of this decision, therefore, is to determine that only a substantial compliance with the statute is necessary. Kence in the case before us, although defendant failed to place a fire-escape on the outside of the building according to the terms of the statute, if he, in fact, provided for the operatives working in the room on the fourth floor where plaintiff was employed an equally safe and convenient escape in case of fire over the roof of the adjoining building, he is not negligent and not liable in this action.

This view was taken by the trial judge, and on examining his. charge carefully I am unable to discover any error in his presentation of the case to the jury. There was testimony tending to show that operatives on the fourth story were told of the way of escape, in case of a fire, over the roof of the adjoining building, plaintiff and some others, however, testifying that they never received such information. Whether they did or not was a question of fact. If they were told of this way of leaving the building in case of fire, it was then a question of fact whether it was as safe and convenient as the statutory fire-escape, a copy of the statute in reference to fire-escapes being also posted in the room as the law provides. The judge fairly submitted these questions to the jury. lie said: “ If tlie defendant did, through that window in the south end of that building, provide a suitable and safe fire-escape — if he rendered reasonably safe exit to the people engaged in that room, in his employment, to escape from that building through that window and the scuttle on the roof to the floor below, then he has performed the full measure of his statutory duty.” An d then again he was requested to charge by counsel for defendant, and did charge, “ that, if the jury believe the escape through the window onto the adjoining roof of the Parsons building and thus through the scuttle holes, was easily accessible, unobstructed and safe for that purpose to the employees on the fourth floor, then that is a sufficient compliance with the •statute.”

It will thus be seen that the coiu’t su^mitied the question to the jury in the language and as requested by counsel for defendant. I am unable to see any error in the submission of these questions of fact to the jury.

There was some evidence that, at the time of the fire, the only door leading to the room on the fourth floor where plaintiff was employed was locked, and that plaintiff and others were unable to escape through it. There was a conflict of evidence in this regard, which was properly submitted to the jury. The court remarked that it was the “ stafottory” duty of the defendant to keep the door unlocked at all times during business hours. Perhaps the use of the word “ statutory ” was not correct. But clearly it was defendant’s duty, while his employees were at work in the room on the fourth story, to keep the door unlocked, and I fail to see how the use of the word ‘'statutory” in the charge could have injured defendant. However, the judge afterwards fully explained the matter to the jury —that to make defendant liable in consequence of the door being locked, if they should determine it was locked, they must find that, if unlocked at the time of the fire, plaintiff could have escaped through that way. Hence no error was committed to the injury of the defendant.

It is urged by the appellant, that plaintiff, having a mode of escape provided for him onto the roof of the adjoining building, easy to be seen, and over which almost all the operatives employed in the room at the time of the fire escaped, was guilty of contributory negligence in omittiug to use that way of escape, and, hence, cannot recover. I do not regard this as one of those exceptional cases where the question as to plaintiff’s contributory negligence could be taken from the jury and passed upon by the court as a question of law. Plaintiff and others testified that they did not know of the way of escape over the roof of the adjoining building. It was shown that after the first alarm of fire, the room rapidly filled with dense smoke. There was much confusion. It was for the jury to say whether or not the plaintiff knew of the mode of escape through the window and roof of the adjoining building. Also, if he did know and failed to find and use the window in the dense smoke and confusion, and, under all the circumstances, whether or not this was contributory negligence on his part. The plaintiff, being called on to act suddenly, should not be held to a most rigid accountability in ¡massing on the question as to his contributory negligence. (Bucher v. N. Y. C. and H. R. R. R. Co. 98 N. Y., 132, 133.)

It is claimed that plaintiff, knowing that no fire-escapes were provided, voluntarily, and with knowledge of that fact, continued at work, and hehce assumed the risk of an accident by fire as incident to the employment. This position does not appear to have been taken upon the trial, and hence it is questionable whether it should be considered on this appeal.

The burden was on the appellant on the trial to show that the risk of working in the room not provided with fire-escapes was voluntarily assumed by plaintiff as incident to his employment. (Mayes v. The Chicago, R. I and Pacific R. R. Co., 63 Ia., 566.)

My attention has not been called to any evidence showing certainly that plaintiff knew there was no fire-escape, or that his attention was ever called to that subject. The risks that an employee assumes as incident to his employment are such as he knows of or as are apparent. Plaintiff’s employment was within the defendant’s room on the fourth story. The fire-escape should have been on the outside of the building. Plaintiff’s employment did not call him on the outside, and while it is not unlikely that he might have examined to see whether fire-escapes were provided outside, it is not certain that he did so. He was not bound to so examine, and could properly rely upon the defendant performing his statutory duty. (Willy v. Mulledy, 78 N. Y., 315.)

Therefore, although plaintiff had been employed by defendant for a year it was not certain that his attention had been called to the absence of fire-escapes, and hence whether, as incident to his employment, he assumed the risk of injury from a fire caused by such absence, was a question of fact. The case would have been ■different had an accident occurred on account of some danger in plaintiff’s employment on a machine used by him in the business, •or some apparent danger in the room where plaintiff worked incident to his employment. There is, I think, a distinction between cases referred to by appellant and this case.

Gibson v. Erie Railway Company (63 N. Y., 449) was an action to recover damages for the death of a brakeman, who, riding on the top of a car, was struck and killed by the projecting roof of defend-íante depot building. There the employment of the deceased was ■on the top of freight cars drawn from day to day by the projection .in question. The deceased brakeman’s attention was necessarily ■called to the projection on the building as a risk incident to the ■business he was carrying on. It was the same as if he had been ■called on to work in a room where a dangerous piece of machinery, as, for instance, a circular saw was placed. Each of the other ■authorities, commented upon by counsel for appellant in his brief, are similar to the case last cited, and cases where the risk the injured party was held to have assumed was one immediately connected with the business in which he was engaged; a risk that was plainly apparent and necessarily assumed.

In this case, however, plaintiff was engaged in the business of picking and assorting rags in the defendant’s building on the fourth floor. His business was on the inside and he had no connection with the fire-escape. He was not called upon to examine the outside of the walls. It is not proved that his attention was ever called prior to the fire to the question of the fire-escape.

I will not attempt to discuss tlie many authorities that might be considered on the subject of the risk assumed by an employee as incidental to his business. It has been held that the risk so assumed does not include risks caused by the negligence of his master in failing to furnish him a safe place to work in. I think the principle stated in McGovern v. General Vermont Railroad Company (123 N. Y., 280), applies to this case. It is there held that “ those dangers, however, which are known and can be mitigated or avoided by the exercise of reasonable care and precaution on the part of the master, are not incident to the business, and it is the duty of the master to protect his servants therefrom in all cases in which it. may be done by reasonable care. "When, therefore, the master directs the performance of work by his servant at a place which may become dangerous and such danger may be foreseen and guarded against by the exercise of reasonable care, it is the master’s duty to exercise such care and adopt such precautions as will protect the servant. (And see Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y., 376; Buckley v. Port Henry Iron Ore Co., 17 N. Y. St. Rep., 436; Benzimg v. Steinway & Sons, 101 N. Y., 551-552; Freeman v. Glens Falls Paper Mill Co., 61 Hun, 132 ; Cullen v. Norton, 52 id., 12.)

I think the position of appellant, that the repeal by chapter 398, Laws of 1890, of the statute requiring fire-escapes, prevents plaintiff from maintaining the action, is not sound. It is true, that when a statute gives a penalty, or expressly creates a cause of action, a repeal of such statute may extinguish any right of action existing thereunder. But section 10 of the act requiring fire-escapes, created no right of action, and prescribed no remedy to be recovered in an action. It made it the duty of the proprietor of a manufacturing establishment to maintain fire-escapes, and a failure to perform this statutory duty has been held by courts to be a negligent act, and that an employee injured by such negligent act may maintain an action for damages. The repeal of the statute does not extinguish plaintiff’s right of action for an injury caused by defendant’s negligent omission to provide fire-escapes as prescribed by the statute. The authorities cited by defendant are where a penalty is given, or a cause of action expressly created' by statute, in which cases it is held that a repeal of the statute extinguishes a right of action thereunder. Plaintiff, in this case, did not claim a penalty or sue for a cause of action created by a statute, but for a negligent act of the defendant under the law as it stood when he was injured, and the repeal of that law does not effect his vested right of action. (Van derkar v. Rens. and Sar. R. R. Co., 13 Barb., 393; Steamship Company v. Joliffe 2 Wall., 450; Butler v. Palmer, 1 Hill, 325.)

The judgment should be affirmed, with costs.

Mayham, P. J., concurred; HeeRICK, J., not acting.

Judgment affirmed, with costs.


author: Putnam, J.:

text:
    SALIE STRAUS, Respondent, v. DAVID STRAUS, Appellant.

      Divorce and sepa/ration — false charges of unchastity — cruel treatment — allowance to wife for expenses of action.

    False and repeated accusations of unchastity addressed, without reasonable cause, by a husband to his wife, constitute cruel and inhuman treatment sufficient to justify a judgment of separation.
    Acts of cruelty committed by a husband towards his wife, after condonation of' prior acts, revive the condoned offenses.
    An allowance to the wife for counsel fee or expenses of the action, cannot be awarded in a final judgment of divorce or separation. (Code of Civil Pro., §§ 1766, 1769.)
    Section 1769 of the Code of Civil Procedure does not empower the court to award, by either final judgment or order before judgment, an allowance to the wife for past expenses in an action for divorce or separation.
    Appeal by the defendant, David Straus, from a judgment and decree of the Supreme Court, entered in the office of the clerk of Montgomery county on the 28th day of September, 1892, upon a. decision, rendered at the Clinton County Special Term, confirming-the report of a referee in favor of the plaintiff, Salie Straus, in an. action for limited divorce and separation from bed and board.

      Edvoard J. Maxwell, for the appellant.

      Z. S. Westbrook, for the respondent.
   Putnam, J.:

I am unable to see how we could properly disturb the findings of the learned referee upon the questions of fact submitted to him. It was a case of conflicting evidence, and we feel concluded by his-decision. There was sufficient testimony given to sustain his conclusions upon the facts, and such being the case the plaintiff was entitled to a judgment of separation.

The testimony shows, and the referee found, that defendant, without reasonable cause, falsely and repeatedly accused plaintiff with being an unchaste woman; with having had unlawful intercourse with one Solomon Levi and with other men. I think such an accusation constituted cruel and inhuman treatment of plaintiff by defendant sufficient to justify a judgment of separation, if no other ground of complaint existed. Such a charge, if false, and made without sufficient cause, as found in this case, is more cruel than blows or any mere physical violence. The duty devolves upon a husband to protect his wife — not only her person, but also her reputation ; and when, instead of fulfilling that duty, he cruelly traduces her character, the court can properly protect her by a judgment of separation.

The testimony in this case shows that defendant not only cruelly and repeatedly aspersed the character of his wife, but also assaulted and otherwise ill-treated and abused her.

If there was any condonation by plaintiff, subsequent acts of cruelty committed by defendant revived the condoned offenses.

Hence the judgment, as far as it provides for a separation of plaintiff from defendant, must be affirmed.

The defendant objects to the allowance of $500 awarded to plaintiff in the judgment “ for a further reasonable and necessary counsel fee and allowance in this action for the costs, expenses, services and disbursements of her attorneys and counsel herein, expenses incurred and to be incurred to entry of the judgment.”

This objection raises two questions. Can any extra allowance or allowance for expenses of counsel be properly awarded in the final judgment in an action for divorce and separation ? And if so, can such an allowance be made for past expenses ?

The only authority for the allowance of alimony, expenses of the action or costs contained in the Code is found in sections 1766 and 1769. The former section is silent on the subject of costs and expenses, but provides for an allowance for support and maintenance of the wife in the final judgment. Section 1769 provides for the payment of alimony and the expenses of the action during its pendency and for a judgment in favor of the successful party, with costs, evidently referring to the ordinary costs of an action. This section, which is the only authority for an order directing the payment of the expenses of the wife for counsel in the action, evidently means that such direction shall be given in an order and not in the final judgment.

This construction of section 1769 has been given in several cases. Thus in Percival v. Percival (14 N. Y. St. Rep., 255-256) it is held “ that expenses pendente lite, if they are to be awarded at all in an action for divorce, must be awarded upon special application and cannot properly form a part of the final judgment.” To the same effect is Williams v. Williams (25 N. Y. St. Rep., 186); and see, Stampfer v. Stampfer (38 id., 807).

I think, therefore, that no allowance can, in the final judgment, be properly made to the wife for expenses of the action. The case of McBride v. McBride (119 N. Y., 519), to which the respondent refers, merely holds that an action may be deemed pending for the purpose of allowing expenses to the wife, both before and after judgment, if an appeal is taken, evidently contemplating an allowance by order and not as a part of the final judgment. The case of Percival v. Percival (124 N. Y., 637), to which the court below referred, merely determined that in the judgment, past expenses of the wife for support cmd mai/ntena/nce can be provided for; but such an allowance is authorized by section 1766 of the Civil Code, which does not provide for the costs or expenses of the action.

If, however, a provision could be properly made in the judgment for expenses of the wife in an action, such an allowance, I think, could not, under section 1769 {supra), be made for past expenses, those already incurred by the wife, as it appears was done in this case. (Beadleston v. Beadleston, 103 N. Y., 402.)

The opinion at Special Term suggests that, although the court, on a motion before judgment, has no power to order the husband to pay past expenses of counsel in the action, as determined in Beadleston v. Beadleston (supra), yet the same court has such power in the final- judgment. I am unable to see how section 1769 of the Civil Code can be properly so construed, or that it can be deemed to give a court power in rendering final judgment to allow for past expenses, which it could not provide for in an order before judgment. Tbe court possesses no more power when rendering judgment than when making an order before judgment.

As I have suggested, in Percival v. Percival, to which, the court below referred, the allowance for support and mcdntencmce was made under the provisions of section 1766 {supra), which section is silent on the subject of costs and expenses of the action.

The allowance to plaintiff, therefore, in the judgment for the expenses of counsel incurred and to be incurred was unauthorized» The motion for the allowance was made at the same time as the motion for judgment, and when the proceedings in the action were substantially ended, and it is not claimed that the $600 counsel fee, as far as it provided for the payment of past expenses, was necessary in order to enable plaintiff to further carry on the action. The action being determined when the judgment or order making the allowance was entered, such could not be the case. Nor can the allowance be sustained under McBride v. McBride (supra), because it provides for the payment of the expenses of counsel up to the entry of judgment, and not expenses upon an appeal.

The allowance in question is, doubtless, a reasonable and fair pro. vision, and I have examined the case with the desire to sustain it.

But, in my judgment, it is unauthorized, and, therefore, the judgment should be modified by striking said allowance therefrom, and, as modified, affirmed, without costs of appeal to either party.

MayhaM, P. J., and Heebice, J., concurred.

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


author: MayhaM, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE HAMILTON PARK COMPANY v. EDWARD WEMPLE, as late Comptroller, and FRANK CAMPBELL, as Comptroller of the State of New York.

      Cancellation of tax sales l>y the Comptroller — on application of an owner of lamd — right of the purchaser to object — measure of review, by certiorari, of proofbefore the Comptroller— tax void for want of jurisdiction — limitation, in chapter 448 of 1885, ina/pplicahle.

    By force of the provision, of chapter 217 of the Laws of 1891, which empowers the State Comptroller to hear and determine applications for the cancellation of tax sales, made by “ any person interested in the event thereof/’ the power and right is conferred upon the original owner of land sold for taxes to apply to the Comptroller to cancel the sale.
    Since the purchaser of land at a tax sale, takes it subject to the contingency of the sale being canceled by the Comptroller as provided by statute, on proof that the tax was illegally assessed or has been paid, he cannot object to such a cancellation, on the application of the original owner, on the ground that he is thereby divested of his title against his will, without a day in court, and that he is thus deprived of an opportunity of defending his title.
    On review, upon certiorwri, of the action of the Comptroller in canceling a tax sale the court will not pass upon disputed questions of fact, but will examine the record to ascertain whether there was evidence before the Comptroller to support his conclusion that the tax was illegal and void.
    Certified searches of title, verified by affidavit, may be received and acted upon by the Comptroller as evidence of the original ownership of the land sold for taxes.
    Where a railroad company, the original owner of land sold for taxes, applied to the Comptroller to cancel the sale, on the ground that its lands had, under an act of the legislature, become exempt from taxation on the completion of its road:

      Meld, that a report of the State Engineer and a decision of the Attorney-General, to the effect that the act had been complied with, warranted the Comptroller in deciding that the land was exempt from taxation, and that the tax for which it had been sold was consequently void.
    The fact that a tax was not extended by or under the direction of the board of supervisors of the county, but by each individual supervisor after the final adjournment of the board, renders the tax void.
    When a tax sale is void for want of jurisdiction an application by the original owner of the land to the Comptroller to cancel the sale is not bailed by the lapse of time, fixed by chapter 448 of the Laws of 1885, for the Comptroller’s certificate of sale becoming presumptively conclusive.
    Writ of certiora/ri issued for the purpose of reviewing tbe action •of the late Comptroller of the State of New York, in canceling three several tax sales, and the certificates and deeds issued and made in pursuance thereof under which the relator claims title to a large tract of land in township 36, in Hamilton county.
    The writ is directed to Edward Wemple, as late Comptroller, and to Frank Campbell, the successor of Wemple, and the present Comptroller of the State, and was allowed April 28, 1892, pursuant to an order of that date made at the New York Special Term.

      Charles JR. JUa/rdy and JEsek Cowen, for the relator.

      Arthur JL. Andrews, for the Comptroller.
   MayhaM, P. J.:

The Comptroller, in the year 1811, sold for unpaid taxes accruing from 1861 to 1870, inclusive, in township No. 36, in Hamilton county, 17,245 acres of land, more or less, being all that remained of the township after deducting certain exceptions as described in, the certificates of sale, and by his deed, thereafter made dated January 29, 1884, conveyed the same to Charles W. Durant.

The Comptroller also, in 1881, sold for unpaid taxes of 1871 to-1876, inclusive, in the same township, 20,954 acres of land, more or less, being the land not under water, of all that remained of that township after making certain exceptions described in the certificates of sale; and on the 29th day of January, 1884, gave his deed, as Comptroller, to Howard M. Durant for the same.

In 1885, the Comptroller sold for unpaid taxes of 1877 to 1882, inclusive, the same lands that were sold by him in 1881 in that township, and executed therefor a Comptroller’s deed dated April 9, 1889, to Howard M. Durant.

The return shows that the relator succeeded to the title acquired by Charles W. and Howard M. Durant after the conveyances to them by the Comptroller, but at what precise time the record on this certiorari does not disclose.

On December 9, 1885, the Adirondack Railroad applied to the Comptroller to cancel the tax sales of 1877, 1881 and 1885, on the-ground that they covered property belonging to the company, and which, under the laws of the State, were exempt from taxation. On the application, the Comptroller held that the former owner of the land is not a proper party to apply to the Comptroller to cancel a. tax sale, and denied tbe application. And bis decision was dated June 23, 1888.

On tbe 27tb of December, 1889, an application was made by Janet L. Durant, Edward L. Molineux and tbe legal representatives of the Adirondack Railway Company to tbe Comptroller to cancel tbe tax sales for tbe year 1885. That application was made on the ground that tbe taxes for tbe years for which it was made, were not extended by tbe board of supervisors of tbe county, but by tbe individual supervisor of tbe town.

On tbe 17th of November, 1891, an application was filed in the office of tbe Comptroller by tbe Adirondack Railway Company and certain of its grantees, asking for a rehearing of the application filed December 9, 1885.

This application was opposed by tbe relator, but was on tbe 30th of December, 1891, granted by tbe Comptroller by tbe following order:

STATE OF NEW YORK;
COMPTROLLER’S OEETCE, ) AlbaNy, Deo. 30, 1891. f

It appearing to my satisfaction that tbe lands described as Hamilton county, Totton & Crossfield’s Purchase, Township 36, N. W. corner, 1,000 A., S. E. corner, 2,000 A., during all of each of tbe years 1876 to 1882, inclusive, belonged to tbe Adirondack Company, its assigns or successors, and that said lands, pursuant to tbe provisions of chapter 236, Laws of 1863, and amendatory and subsequent acts, were then exempt from taxation.

And it further appearing to my satisfaction that tbe board of supervisors of Hamilton county in 1867 to 1882, inclusive, failed to extend any taxes on tbe assessment-rolls of tbe town of Long Lake the cancellation of 1877, 1881 and 1885 tax sales of said lands as well as tbe part of said township subject thereto, in accordance with tbe requirements of chapter 217, Laws of 1891, is hereby ordered.

EDWARD WEMPLE,

Comptroller.

Tbe relator by this writ seeks to review this determination of tbe Comptroller, and insists that that officer wholly misconstrued tbe effect of chapter 217 of the Laws of 1891, under which he assumes to act in vacating these tax sales.

The principal question, or at least the first question, presented for consideration on this certiorari is, whether chapter 217 of the Laws of 1891, confers upon the owners of land sold for taxes the power and right to apply to the Comptroller to cancel a tax sale.

Prior to the enactment of that chapter, it had been held by the Court of Appeals in the case of People ex rel. Wright v. Chapin, Comptroller (104 N. Y., 369), that the owner of the land sold for taxes by the Comptroller was not permitted to test the validity of the sale by an application to that officer to set aside the sale. In that case the court uses the following language in the discussion of this question: “ The owner of the land is not a party to the proceeding, nor is he permitted in this way to test the validity of the sale or tax. In such a controversy the purchaser would have an interest and a right to its protection in the courts by the usual course of legal proceedings.

The statute contains no intimation of a legislative purpose to deprive him of that right. It gives no process to bring him in; confers no power to compel witnesses. In short, it creates no court; provides for a single transaction to which the Comptroller and purchasers are the only parties.”

Acting upon this decision the Comptroller, on the 23d of January, 1888, in disposing of an application of the Adirondack Railway Company for cancellation of certain tax sales of lands in township 36, Hamilton county, used this language: “After a careful consideration of the matter I think that the application must be denied under the authority of Wright v. Chapin, Comptroller (104 N. Y., 369-372). In that case the Court of Appeals held that the former owner is not the proper party to an application to the Comptroller to cancel a tax sale, and has no right and would not be permitted in any way to test the validity of the sale.” Holding that the authority conferred upon the Comptroller to test the validity of tax sales was for the benefit of the purchaser on such sale and concerned no one but the State, the purchaser and the town or county from which the unpaid tax was returned. .

It would thus seem that the law upon that subject was authoritatively settled until the decision of the People v. Turner (117 N. Y., 239), which again seemed to involve the question in doubt. The court,-after discussing the constitutional requirements of notice of tbe time and place at which the taxpayer may be heard before his property can be taken upon tax assessments and tax sales, Huger, Ch. J., uses this language: “ But more than this, after the tax has been returned to the Comptroller, the taxpayer has still the right, both before and after the sale of his property, to appear before that officer and make proof of any illegality in the tax levy and demand that such .tax and any sale made thereon shall be canceled by him.” (Citing sections 83 and 85 of the Laws of 1855.)

“And finally the act of 1885 itself provides for the exercise of the right of the Comptroller to cancel taxes and sales illegally made, where the taxes have been legally paid or where the town or ward had no legal right to assess the land. These rights were not only open to the taxpayer to exercise at any time previous to the act of 1885, but the right of all persons to exercise them was also preserved, in all cases, for six months after the passage of that act.”

This case was decided in November, 1889, and before the enactment of chapter 217 of the Laws of 1891, and it is insisted by the Comptroller that this latter act was passed, in part, to relieve the question from the confusion in which, by the two decisions from which we have quoted, it was apparently involved.

Chapter 217 of the Laws of 1891 amends section 2 of chapter 427 of the Laws of 1855 so as to read as follows: “ The provisions of this act are hereby made applicable to all the counties of this State, except the counties of Cattaraugus and Chautauqua, but shall not affect any action, proceeding or application pending at the time of its passage, nor any action that shall be begun, proceeding taken or application duly made within six months thereafter for the purpose of vacating any tax sale, or any conveyance or certificate of sale made thereunder.

“All applications heretofore or hereafter made to the Comptroller for the cancellation of any tax sale by any person interested in the event thereof, shall be heard and determined by him, and his determination shall be subject to review by certiorari or otherwise.”

The whole question upon this branch of the case is as to the effect to be given to the words “ interested in the event thereof ” in the above-quoted section.

If that language can be construed as broad enough to embrace all persons interested in the land, then the Comptroller was clearly authorized to entertain the application of the original owner to have the tax sale set aside, so that such owner might be reinstated in the land of which by such sale he was deprived.

If, on the other hand, these words only related to the event of the assessment and sale, without reference to the title to be affected by it, then, within the case of Wright v. Chapin (supra), the only persons interested must be held to be the purchaser, the town and the State, through the Comptroller, and the original owner would still be within the disabilities indicated by that case.

But was the original owner of the land sold under a tax sale interested in the event, either of the sale or of the proceedings to set aside, or cancel the sale ? I think he was; and as this language under discussion was not in the Laws of 1855, which are amended by the Laws of 1891,1 think it may be fairly inferred that the legislative intent in the enactment of this amendment was to allow the original owner, as a person interested in the event, to apply for the cancellation of a tax sale of his lands. Clearly the event of a sale and conveyance of the title of the original owner of land would affect his interest.

His title would be beclouded by an apparent government sale,, and while it might not be such a cloud as could be removed by action, if any defect could be found in the proceedings when the-purchaser sought to enforce his title, yet the owner could not be said to be other than interested in the event.

If we are right in this conclusion, then the original owner had aright to apply, under chapter 237 of the Laws of 1891, for a cancellation of this sale, unless the rights of such owner were barred, or in some way waived or lost.

This view is strengthened from the fact that we are asked in this-proceeding to review by eertiora/ri, given by the same chapter and section, the acts of the Comptroller.

As the Comptroller assumed to cancel this tax sale under the provisions of chapter 217 of the Laws of 1891, it is clear that he regarded the law under which he acted in his order of June 23,. 1888, as changed by its provisions.

There is great force in the contention of the learned counsel for relator, that in this proceeding the purchaser of the land under the tax sale is divested of his title against his will without a day in court, and is thus deprived of his opportunity of defending his title.

But, in purchasing under a tax sale, he takes the qualified title subject to the power of the Comptroller to cancel such sale on his ascertaining that the tax for which the sale was made was invalid, or illegally or improperly imposed, or had been duly paid. It seems to follow, therefore, that the title of the relator, acquired under this' special statutory proceeding in derogation of the common law, by which the owner is sought to be divested of his title, is, by the very statute by which the authority to sell lands for unpaid taxes by the Comptroller, subject to be defeated by the Comptroller, under whose authority it was made, when he who is the statutory tribunal to pass upon that question shall determine that the tax was illegally assessed, or has been paid, and the purchaser under such sale takes, subject to that contingency.

But the learned counsel for the relator insists that if it be held that the Comptroller had a right to enteraba the application of the original owner, then this proceeding brings befoi-e this court the question of the sufficiency of the evidence upon which he acted in the cancellation of the tax sales of 1817, 1881 and 1885.

This is in the nature of a demurrer to the sufficiency of the legal proof before the Comptroller to uphold this order as matter of law; and while the court on cerbiorwri will not pass upon disputed questions of fact, it will look into the return to see if the final conclusion of the officer or tribunal whose decision is under review is justified by the proofs. (People v. Board of Police, 39 N. Y., 506; People ex rel. Western R. R. Co. v. Assessors of Albany, 40 id., 154; People ex rel. Wilbur v. Eddy, 57 Barb., 593.)

As disputed questions of fact cannot be litigated in this proceeding, we are only required to look through the record to ascertain whether there is any evidence before the Comptroller from which the conclusion can be reached that these tax sales were illegal and void for want of jurisdiction in the person or persons by whom the tax was assessed and levied by the board of supervisors of Hamilton county against these lands.

It is objected that there was not sufficient evidence before the Comptroller, when he canceled the sales of 1877 and 1881, that the lands were, at the time of the assessment, owned by the Adirondack Railway Company and were exempt from taxation.

If we are to take the certified searches of title presented to and filed with the Comptroller on the application of the Adirondack Railway Company for the cancellation of these sales as competent evidence to be considered by him on that application, his conclusion that that corporation had title to these lands is fully sustained. But it is insisted by the relator that there is no statute making such certified searches evidence in these proceedings, and, hence, that they were not competent evidence of the facts which they contain and that the Comptroller could act only upon the conveyances themselves, and that, as they are not returned, the return contains no legal evidence of the title in the Railway Company.

The practice of receiving proof by affidavit by the Comptroller in proceedings of the character which would not be competent in a common-law action seems to have obtained in proceedings of this character and have received judicial sanction.

In the People ex rel. Ostrander v. Chapin (105 N. Y., 309), which was a proceeding before the Comptroller to cancel a tax sale, the Comptroller declined to act upon proof by affidavit and the Court of Appeals upheld a mandanms to compel the Comptroller to act upon such proof.

In the case at bar the correctness of the abstracts of the deed and records referred to in the return were verified by the clerk, in whose custody they were found, and were also verified by the affidavit of Joseph M. Lawson. It is true that this affidavit, as to the abstract being a full and correct abstract of the title of the Railway Company, is on information and belief, but the correctness of the abstract given is positively verified in that affidavit and the completeness of the search being certified by the clerk within the principle of the decision of People ex rel. Ostrander (supra), that certificate may be treated as an affidavit, then we see no defect in the proof upon which the Comptroller assumed to act.

It is quite true that this kind of proof would not be competent in an action of ejectment between the relator an d the Railway Company. (Handley v. Greene, 15 Barb., 601; Baker v. Kingsland, 10 Paige, 366; Lansing v. Russell, 3 Barb. Ch., 325.) But, as we have seen, the courts have sanctioned a different rule of evidence in this class of cases.

But it is further urged by the relator that there is no evidence before the Comptroller that the road was completed as required by chapter 236 of the Laws of 1863, so as to give its land immunity from taxation.

Upon this subject the Comptroller, it appears, relied upon the State Engineer’s report of railroads for 1878, upon the faith of which the United States bonds deposited with the Comptroller had been surrendered.

It is true that the engineer’s report is not set out in Jubo verba, but the year, volume and page being given, I think that a sufficient compliance with the requirements of the writ as to the return of evidence upon which he acted in making the order. Again, the Comptroller refers to the opinion of the Attorney-General upon that subject, in which that officer officially advises the Comptroller, in answer to a question, as follows: “ I think the evidence is sufficient and satisfactory.”

As it had been officially determined by the Attorney-General and a former Comptroller that the act had been complied with by the railway company so as to exempt it from taxation, it would seem that the Comptroller in making the order of cancellation in this case could have relied upon such official acts. If, then, the Comptroller was right in assuming from the evidence that the railway company had immunity from taxation under the act of 1863, and the various amendatory acts thereto, then it must follow that the board of supervisors had not power to levy a tax upon or against such lands, and their acts in doing so were eoram non judiee and void.

It was also established by proof before the Comptroller that the tax on which the sale of 1885 was made was not extended by or under the direction of the board of supervisors, but by each individual supervisor after the final adjournment of the board; such an act would be clearly unauthorized and would be a clear violation of duty because of which the tax would be void.

But it is also insisted by relator that the proceedings were clearly barred, and every error, omission and defect in these tax sales were clearly cured by the provisions of chapter 448 of the Laws of 1885.

By that act the Comptroller’s certificate, in four years after its issue, and after the expiration of two years from the delivery of the Comptroller’s deed, and six months after the passage of the act, is presumptively conclusive. If the defects complained of were mere irregularities, or informalities in levying these taxes by an officer or board having jurisdiction and authority to impose the tax, then, within the letter and spirit of the act of 1885, this application would clearly have been barred by lapse of time between the time of sale to the relator, or its grantor’, and that of making this application, unless the application could be treated as pending at the time of the passage of the act of 1885, or the amendment of 1891, and thus come within the saving clause which exempts pending actions and proceedings from the application of these acts.

But the view we take of this proceeding does not make it material for us to consider whether this order was made as the renewal of a motion which had been denied in 1888, or is to be regarded as an original application.

The defects in the tax sale in this case for which the Comptroller set it aside, related to the jurisdiction of the supervisors to impose a tax upon lands exempt from taxation by statute from 1867 to 1882, inclusive, and the failure of the supervisors to extend the tax during the same time, and that it is claimed that by reason thereof the supervisors and taxing officers never had jurisdiction to impose the tax.

The sale was, therefore, void for want of jurisdiction, and did not, therefore, come within the limitation prescribed by chapter 418 of the Laws of 1885. In Ensign v. Barse (107 N. Y., 329) the court in this class of proceedings recognize a distinction between a case of mere irregularity and one of want of jurisdiction. The irregularity is cured by the lapse of time, and the title vests in the purchaser after the period fixed by the statute.

But in case of absolute want of jurisdiction the rights of the owner by a void sale are not disturbed, and this doctrine would seem to be elementary. In Cromwell v. MacLean 123 N. Y., 474) PeoKhAM, J., says: “ If the proceedings of the taxing power have been so fatally defective on account of a failure to comply with the requirements of the statute, that no title to the property of the taxpayer has passed to the purchaser at the tax sale, I do not think there is any correct principle upon which can be based the claim, that the taxpayer nevertheless holds his property from that time on at the mercy of the legislature, and subject to its power at any time, so far as he is concerned, to validate and give life and effect to the otherwise void sale.” The case of Joslyn v. Rockwell (128 N. Y., 334), is substantially to the same effect.

¥e are, therefore, of the opinion that the order of the Comptroller must be confirmed, and the writ of certiorarri quashed, with fifty dollars costs and printing disbursements to the defendants.

PutNAM and Herrick, JJ., concurred.

Order of Comptroller confirmed and writ of certiorari quashed, with fifty dollars costs and printing disbursements.


author: Mayham, P. J.:

text:
    CHARLES W. LITTLE, Respondent, v. A. BLEECKER BANKS, Appellant.

      Publication of the JYew York Reports —failure of the contractor to furnish volumes to another bookseller — place at which the demand should be made — evidence.
    In an action by Charles W. Little, a law-hook seller, against A. Bleecker Banks, for the recovery of a number of items of liquidated damages of $100 each, under a contract entered into under the statute, in 1877, between the State of New York and Banks for the publication of the New York Reports, whereby Banks agreed that after the publication of any volume he would sell and deliver the same for the price of forty-eight cents a volume to any and all persons desiring to purchase, “at one or more of the regular law-book stores in the city of Albany,” and also that he would “ sell and supply at the designated book stores in Albany, at the contract-price to any and all other law-book sellers, such number of copies of each volume as they shall apply for; ” which contract provided that for any failure on the part of Banks to keep on sale and furnish volumes published by him, at the price fixed, he should forfeit and pay for any and every such failure the sum of $100 as liquidated damages to any person aggrieved thereby:

      Reid, that the questions as to whether a store in Albany at which the plaintiff applied for certain volumes which had been published under the contract was a store designated by Banks for the sale and supply of the books, and whether it was the store at which he kept the volumes on sale under the contract, were questions of fact material to the plaintiff’s case, and that the evidence in relation thereto having been conflicting, such questions should have been submitted to the jury.

      Semble, that for a failure to designate a store for the sale of the volumes, Banks would not be liable for the penalty.

      Appeal by tbe defendant, A. Bleecker Banks, from a judgment of the Supreme Court, entered in the office of the clerk of Albany county on the 26th day of July, 1892, upon a verdict in favor of the plaintiff, Charles ~W. Little, for $1,000, rendered by direction of the court at the Albany Circuit; and from an order, entered in said clerk’s office on the 26th day of July, 1892, denying a motion for a new trial upon the minutes of the trial judge.

      Albert Hessberg, for the appellant.

      JS. Cowntrymcm, for the respondent.
   Mayham, P. J.:

This action is prosecuted to recover ten items of $100 each, termed in the contract under which they are sought to be recovered “ liquidated damages ” for an alleged breach of the same.

The contract upon .which the plaintiff seeks to recover was entered into by and between the State Reporter, Secretary of State and Comptroller, acting for the State, and the defendant as the other party to the contract in his own right, and purported to be under and in pursuance of chapter 448 of the Laws of 1876, as amended by chapters 416 and 422 of Laws of 1877, and provided, among other things, that the party of the second part shall have the publication of said (New York) reports for the term of three years from and after December 14, 1877.”

The contract further, among other things, provided as follows: “ The said party of the second part further agrees that he will, after publication of any volume of said reports, in pursuance of this contract, keep the same on hand for open and public sale, and will sell and deliver the same to any and all person or persons desiring to purchase at and for the price of forty-eight cents per copy for each and every volume, at one or more of the regular law-book stores in the city of Albany, * * * and also that he will sell and supply at the designated book stores in Albany at the contract-price, to any and all other law-book sellers, such number of copies of each volume as they shall apply for, said party of the second part, however, not being required to deliver more than two hundred copies of any one volume to any one applicant or firm at one time or within ten days after the delivering of that number of copies.”

The contract also provided for a forfeiture to the State, by the defendant for any breach of its condition, and stipulated the amount as liquidated damages which the State might recover in an action to be prosecuted by the attorney-general.

It also contained this further provision under which the plaintiff seeks to recover in this action:

“ And it is further agreed that for any failure on the part of the party of the second part to keep on sale, furnish and deliver the aforesaid volumes or any of them, at the price and as hereinabove provided, the said party of the second part shall forfeit and pay for any and every such failure the sum of one hundred dollars hereby fixed and agreed upon, not as a penalty, but as the liquidated damages suffered by the person or persons aggrieved thereby, the same to be sued for and recovered by the person or persons so aggrieved.”

The contract also provided that the copyright of such volumes should' vest in the State.

The plaintiff was, at the times of making the several demands hereinafter stated, a law-book seller in the city of Albany, and on the 31st day of July, 1890, by his agent, demanded at the law-book store of Banks & Bros., 475 Broadway, Albany, of the clerks and employees of that firm, books under this contract and tendered and offered to pay the price fixed in the contract, and from day to day thereafter for ten days repeated such visit and repeated such demand, but no books were delivered to him or his agent on such demand, and for such neglect and refusal to deliver the books demanded the plaintiff claims the right of action accrued to him under this contract!

The first objection urged by the learned counsel for the plaintiff’s, right to recovery is that there is no evidence that the plaintiff applied for the books specified in the contract at the store, in Albany, designated by the defendant for supplying the same, and that a demand at the store of Banks & Bros, and a failure to deliver there was not such a breach of the contract as to put the defendant in default and subject him to an action for damages under its provisions.

The question presented by this objection for the consideration of this court on appeal is whether there is any evidence in the case tending to prove that the store of Banks & Bros. was the place or one of the places designated by the defendant under the contract at wbicb the plaintiff might apply for and demand the delivery of these boobs and if there was such evidence, whether there was sufficient conflicting evidence in the case to make a disputed question of fact, which should have been submitted to the jury.

The evidence shows that all of the demands for books for which this action was brought were made at the store of Banks & Bros., No. 475 Broadway, Albany, except one, on August 12,1890, which was made at No. 26 Dean street. At that time the plaintiff’s agent was informed that the defendant was absent and that he would not return before the twelfth of September, and that he had no agent at Banks & Bros.’ store and that he would have to go round to Dean street. The witness was then asked :

“ Q. "What did you find when you got around to the rear ? A. I went around to the rear; the door was locked ; we rapped and rang the bell; Fredericks opened the door; Mr. DuBois asked for Sickles Reports 18 and 19, and gave him the money for them ; those were, I believe, 63 and 64 New York; we got these boobs; he asked George Fredericks for New York Reports 77, 78, 79 and 80, and Fredericks shut the door upon him; before he had a chance to finish asking, he shut the Dean street door; we were, outside all the while.”

The evidence shows that Fredericks, Andrews and Huber, of whom these demands were made, were in the employ of Banks & Bros, at their store No. 475 Broadway. This witness also testified that he had repeatedly received these books at 26 Dean street, but thinks not more than a dozen times, and that in 1889 he received Nos. 78 and 79 at No. 475 Broadway.

The plaintiff also put in evidence the Albany City Directory, showing defendant’s place of business from 1877 to 1880, inclusive, was 475 Broadway, and that his residence for the same time was 327 State street.

We have thus given the substance of the plaintiff’s evidence bearing upon the question of the defendant’s place of delivery of these books, which the plaintiff insists establishes the No. 475 as the place designated under the contract for the sale and delivery by him of these books.

The plaintiff also insists that the complaint alleges that the store No. 475 Broadway was the proper place for the demand and delivery of these books, and that that allegation is not sufficiently denied in the answer to put it in use, and, therefore, stands admitted.

But we think the answer clearly takes issue with this allegation, and affirmatively alleges the place of demand and delivery was No. 26 Dean street. The only evidence offered on this point by the defendant was the Albany City Directory, which designated defendant’s place of business from 1881 to 1891, both inclusive, at No. 26 Dean street, and his place of residence during the same time at No. 327 State street, Albany.

Upon this evidence the defendant’s counsel asked to go to the jury upon the question whether these demands were made by the plaintiff for these books at the place designated by the defendant.

We are inclined to hold that here was a disputed question of fact, which should have been submitted to and passed upon by the jury. No personal demand was made of the plaintiff for these books, and the plaintiff’s agent was informed at the time of making the demand that those of whom the demand was made were not the agents of the defendant.

The place of making the demand, therefore, became impórtame. The provisions of the contract, while professing to liquidate the damages for default in the performance, are still in the nature of a penalty, and as the forfeiture can be claimed for every failure to comply with a proper demand, we think the jury should have been permitted to pass upon the question fairly in dispute in this case, whether the demand had been made at the place designated.

It is true, that one demand was made at 26 Dean street, but if that was the proper place a failure to comply would create a cause of action but for one penalty of $100, and would not justify a recovery for $1,000. But it is insisted by the learned counsel for the plaintiff that No. 475 Broadway and 26 Dean street constitute, in fact, but one book store, and it is not quite clear that if the case had been submitted to the jury upon that point, they might have so found, but we do not see how the trial court, or this court' on appeal, can settle, as matter of law, that apparently disputed question of fact. It is also urged by the learned counsel for the plaintiff, that there is no provision in the contract requiring a formal designation of the store at which the books will be kept for sale. The language of the contract on that point is as follows: “ The said party of the second part further agrees that he will, after publication of any volume of said reports, m pursuance of this contract, Tceep the same on ha/nd for open and public sale, and will sell and deliver the same to any and all person or persons desiring to purchase at and for the price of forty-eight cents per copy, for each and every volume, at one or more of the regular law-book stores in the city of Albany, and also in one or more of the regular law-book stores in the city of New York, and that 'the same will be simultaneously placed on sale in each of said law-book stores, and also, that he will sell and supply at the designated book stores in Albany, at the contract-price, to any and all other law-book sellers, such number of copies of each volume as they shall apply for, said party of the second part, however, not being required to deliver more than two hundred copies of any one volume to any one applicant or firm at one time, or within ten days after the delivery of that number of copies.”

It is quite clear that the parties, from the language employed in this provision of the contract contemplated, the designation by the defendant in some form of the store at which he would keep these books on sale, both to the general public and the trade.

It is equally apparent that a failure to so designate would not subject the defendant to the penalty imposed by the terms of the contract for a failure to deliver volumes on demand, and while such designation is a beneficial provision to the State or public which might be compelled in a proper action, until made the party desiring to purchase books would be compelled to demand the book of defendant personally or of his duly authorized agent or at his peril, seek out the book store at which the defendant kept such on sale and demand them there before he could claim the forfeiture under the contract, so that we are brought back to the question of fact, was the book store of Banks & Bros., No. 475 Broadway, or No. 26 Dean street, the store at which the defendant kept these books on sale under the contract ? That question is one of fact to be answered by the jury.

If we are right in this conclusion, the refusal of the learned judge to submit it to the jury was error; and we are, therefore, not called apon to consider the other, and, perhaps, more important questions in this case, presented on this appeal.

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

PutNAM and HebbicK, JJ., concurred.

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


text:
    IDA O. WINNER, Respondent, v. GEORGE H. LATHROP, Appellant.
    F~cza~ c~iuZ surgeom - degree of s1~il~ cend ecere re~uired of Mm - action for cnaZ-practice- burden on p~ainliff to estabhsh want of ordinary slcill.- inspection of injured part a~t the triaZ.
    The law exacts of members of the medical and surgical profession the possession of a reasonable degree of learning and skill, such as is ordinarily possessed by the profession, and snch as is ordinarily regarded by the profession as necessary to qualify a person to engage in it; and it demands of a practitioner the use of reasonable and ordinary care and deligence, in the exercise of his skill and the application of his knowledge, to accomplish the purpose for which be is employed, and requires that he use his best judgment in the application of his shill, but it does not always require the highest order of talent and shill to be found in the profession, nor does it make the practitioner an insurer as to the results or hold him responsible for not restoring a fractured limb, in all cases, to its normal condition or usefulness.
    The burden is on the plaintiff, in an action against a physician or surgeon for the recovery of damages for malpractice, of establishing affirmatively either want of ordinary shill in the defendant or a failure to use his best shill, or some negligence in the care or attention given to the plaintiff's case which resulted in the injury complained of.
    Where a party claiming a physical injury has voluntarily submitted the injured part to the inspection of the jury on a trial, as evidence in his own behalf, he must permit the adverse party to follow up scch examination in the presence of the jury by a personal or professional inspection of such injured part.
    APPEAL by the defendant, George H. Lathrop, from a judgment of the Sullivan County Court, entered in the office of the clerk of Sullivan county on the 23d day of March, 1892, upon the verdict of a jury for fifty dollars, in favor of the plaintiff, rendered on a trial in the Sullivan County Court before the court and a jury; and from an order, entered in said clerk's office on the 10th day of February, 1892, denying defendant's motion for a new trial on the minutes.

      S. M. Maybee and T. F. Bush, for the appellant.

      W. J. Groo, for the respondent.
   MayhaM, P. J.:

This is an appeal from a judgment of the Sullivan County Court, entered upon the verdict of a jury and from an order denying a motion for a new trial upon the minutes of the judge.

The action was for damages claimed to have been sustained by the plaintiff by reason of the alleged unskillfulness or negligence of the defendant as a surgeon in reducing a fracture of the plaintiff’s arm or wrist.

The plaintiff fractured the radius or upper bone in her fore-arm and several hours after the injury called on the defendant to reduce the fracture. At that time the arm was much swollen, but the defendant undertook to, and as he claimed, did, adjust the fractured bone and applied splints and bandages. The defendant by his testimony on the trial described his method of treatment and instructions to the plaintiff, and testified that the same was the approved method known to the profession, and in this he was sustained by the expert testimony in the case.

He was, however, disputed as to the method of treatment by the plaintiff, who testified that he advised bathing the parts with a decoction of wormwood and vinegar, which the expert testimony condemned, but he denied that he gave any such direction. He was not employed to visit the patient, but she visited him at his office on three occasions, at intervals of about two weeks. The medical testimony characterizes this fracture as one of the most difficult to ti’eat, and that in a large per centage of the cases a perfect cure cannot be effected with the most skillful surgical treatment.

The plaintiff’s arm was not perfectly restored to its former usefulness, the wrist remaining to some extent stiff; the rotary motion of the arm obstructed, and the usefulness of the hand was permanently impaired.

The defendant was shown to be a regularly graduated surgeon from a duly organized medical and surgical college, and there is no evidence of neglect on his part to exercise his best skill and attention in treating this fracture at the times the same was submitted to him for treatment.

While there is to some extent a disputed question of fact as to the directions of the defendant to apply wormwood and vinegar which, if important to the result, was for the jury, yet it does not seem to us to be such a departure from approved medical treatment, even if the jury found with the plaintiff on the question, as to justify a recovery against the defendant.'

There is no evidence that the limb was not properly adjusted and bandaged, and the evidence does not disclose that the application of the decoction of vinegar and wormwood, if applied, could have injuriously affected the desired cure.

The law exacts of the medical and surgical profession the possession of a reasonable degree of learning and skill; such as is ordinarily possessed by the profession, and such as is ordinarily regarded by the profession as necessary to qualify a member thereof to engage in the profession, and that he will use reasonable and ordi. nary care and diligence in the exercise of his skill and the application of his knowledge to accomplish the purpose for which he is emyloyed; and that he will use his best judgment in the application of his skill. But it does not always require the highest order of talent and skill to be found in the profession; nor does it make the practitioner insurer as to the results, or hold him responsible for not restoring a fractured limb, in all cases, to its normal condition or usefulness. (Carpenter v. Blake, 10 Hun, 358; Wells v. World’s Dispensary Medical Association, 9 N. Y. St. Rep., 459.)

The burden of establishing affirmatively,: either want of ordinary skill or a failure to use his best skill, or some negligence in the care or attention of the plaintiff’s case which resulted to her injury, must be met before she can recover. This, the evidence in this case does not disclose.

The defendant also insists that the trial judge erred in refusing to allow the defendant to examine the plaintiff’s wrist on the trial in the presence of the jury, after she had bared the same and. exhibited it to the jury, and assumed to move it for the purpose of showing its defects. It is quite true, as contended by the learned, counsel for the respondent, that the court has no power to compel an injured party in a case like this to exhibit her injury to tlm defendant before trial for inspection, for the purpose of furnishing evidence for the defendant.

In McQuigan v. The Delaware and Lackawanna Railroad Company (129 N. Y., 50) the Court of Appeals held that the court had no power to compel a party, in advance of a trial for physical injury, to submit to a surgical examination on the application of the adverse party.

But Judge ANDbews, in his opinion, states that: The sole question presented by this record is whether the Supreme Court has power, in advance of the trial of an action for personal and physical injury, to compel the plaintiff, on application made in behalf of the defendant, to submit to a surgical examination; ” any discussion beyond the examination of that precise question in that case would be irrelevant and obiter, and would not, therefore, be authority in a case where, on the trial, the injured party had voluntarily exhibited the injured part to the jury.

The same doctrine was held by the General Term in Roberts v. Ogdensburgh,, etc., Railroad Company (29 Hun, 158), where an order of a Special Term granting such examination before trial was reversed. In this case, as in the case of McQuigan v. Railroad Company (supra), all that the court was called upon to decide was as to the power of the court to compel an examination before trial.

In McSwyny v. Broadway amd Seventh Avenue (7 N. Y. Supp., 459) it was held that a plaintiff might properly refuse to submit to a personal inspection of the alleged injury on the application of the defendant at the trial. But the plaintiff had not in that case voluntarily exhibited the injured part to the jury as done in this. I have been referred to no case nor have I been able to find any in which a party claiming a physical injury has first voluntarily submitted the injured part to the inspection of the jury as evidence, and has refused to permit the adverse party to follow up that examination in the presence of the jury by a personal or professional inspection of such injured part.

Such an examination seems to me to stand upon a different principle frqm that of. a compulsory examination by the adverse party before or at the trial when the injured party has not made profert of the injured part.

It seems to me that it would be unfair and might result in gross injustice to tbe party against whom such evidence was used. In such a case it would be in tbe power of' tbe party, by muscular distortion of tbe injured part, especially an arm or band, to impose upon tbe jury and court, as well as tbe adverse party, and produce upon tbe mind of tbe jury a false impression as to tbe extent of tbe injury.

Tbe member having been put in evidence as a part of tbe direct examination, it is, for tbe purposes of tbe trial, made tbe property of tbe court and opposite party for tbe purpose of a cross-examination. It is difficult to conceive of a species of evidence that is offered by one party in support of bis case which may not, in tbe presence of tbe same tribunal, be examined and criticised by tbe party against whom it is offered. We think, therefore, that tbe inspection and examination of this limb should have been ordered and permitted by tbe court, and, in case of refusal to submit to such inspection by tbe plaintiff, her evidence, so far as that exhibit and explanation of tbe same by tbe plaintiff was concerned, should have been stricken out on defendant’s motion.

Tbe plaintiff bad a right to exhibit this injured limb to tbe jury and tbe defendant bad no power to exclude it. (Hiller v. The Village of Sharon Springs, 28 Hun, 344.) In this case Leabned, P. J., says: But, if the plaintiff’s leg was injured, there was no more certain and unquestionable way of proving that fact to a jury than by showing them tbe leg itself.”

In Mulhado v. Brooklyn City Railroad Company (30 N. Y., 370), tbe court, speaking upon this subject, say: “ Such exhibition certainly tended to make tbe description of tbe injury more intelligible.”

If tbe party injured can offer this evidence, most certainly tbe adverse party should be permitted to cross-examine and criticise such evidence.

For both tbe grounds above discussed we think that this judgment and order should be reversed.

Heebioe, J., concurred; PutnaM, J., concurred in the result.

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


author: Math am, P. J.:

text:
    MARY CAREY, as Administratrix, and AUGUSTUS STUMPFEL, as Administrator, etc., of FRANK CAREY, Deceased, Respondents, v. JAMES J. BROWNE, Appellant.

      Opening a judgment entered, by default — service of the proposed answer.

    While the granting or refusing a motion to set aside a judgment entered by default rests to a great extent in judicial discretion, to be exercised by the Special Term, the exercise of that discretion in favor of the judgment-creditor should not be-without due regard to the protection of the rights of the party who has not had his day in court, and who excuses his default.
    It is not absolutely necessary to serve the proposed answer with the motion papers; to open a default for a failure to appear in an action, if sufficient appears in the affidavit to show the nature of the defense and the court can see the good faith, of the party in asking to defend.
    Appeal by tbe defendant, James J. Browne, from an order, made'at tbe Saratoga Special Term, entered in Montgomery county on¡ the lOtb day of October, 1892, denying tbe defendant’s motion to' open a default taken against him, and to set aside the judgment' entered upon such default, against him and in favor of tbe plaintiffs, in tbe office of the clerk of Montgomery county on tbe 30th day of August, 1892.
    Tbe action was brought in Montgomery county to recover $500,, as damages, being tbe value of a certain oil painting alleged to have belonged to Frank Carey, tbe plaintiff’s intestate, at tbe time of his-death, on January 30, 1890, and to have been wrongfully converted by tbe defendant about January 20, 1892.
    Tbe summons alone was personally served on tbe defendant,. July 13, 1892, at Brooklyn, where he lives, and tbe time for him to appear expired August 2, 1892. Not having appeared, an order for judgment and for a writ of inquiry was obtained by tbe plaintiffs-August 13, 1892, and an inquisition having been bad before a-sheriff’s jury, judgment was entered for $500 and costs on August 30, 1892. Tbe defendant, under an order to show cause,, dated October 3,1892, made a motion at tbe Saratoga Special Term on October 10, 1892, to open the default and set aside tbe judgment, which motion was denied, and from tbe order denying the-motion tbe defendant took this appeal.

      Foley da Wing, for tbe appellant.

      H. Dunkel, for the respondents.
   Math am, P. J.:

The affidavits on this motion disclose that the defendant was served with a summons in this action without a complaint, and that a short time after such service he was taken seriously ill and remained in that condition for about five weeks, during most of the time compelled to remain in a dark room by reason of some disease of his eyes. That while in that condition he lost the summons, and, as soon as he was sufficiently recovered, he wrote to plaintiff’s attorney for a copy of the summons, but got no response until presented by the sheriff with an execution issued upon the judgment obtained by default in the action.

I think the defendant so far excused his default as to entitle him to be let in to defend this action on terms. The defendant in his affidavit states facts, in addition to the affidavit of merits, wdiich show that he purchased this picture and paid for it of the person in whose possession it was, and while on a trial it may turn out that the person of whom he purchased it was not the true owner and had not the right to sell the same, yet, I think he should, if he desire, have the opportunity of litigating that question, and that he has sufficiently excused his default to entitle him to relief under section 783 of the Code of Civil Procedure.

On the whole proof on this motion the title to the picture in controversy is by no means free from doubt, and while the granting or refusing a motion to set aside a judgment is to a great extent a judicial discretion, to be exercised by the Special Term, the exercise of that discretion in favor of the judgment-creditor should not be without due regard to the protection of the rights of the party who had not had his day in court, and who excuses his default. (Fassett v. Talmadge, 15 Abb., 206; Bank v. Gifford, 40 Barb., 659; Ellsworth v. Campbell, 31 id., 134.)

It is not absolutely necessary to serve, with motion papers to open a default, the proposed answer, if sufficient, appears in the affidavit to show the nature of the defense, and the court can see the good faith of the party in asking to defend. (Palmer v. Van Orden, 17 J. & S., 89.)

No injustice can be done tlie plaintiff by allowing the judgment to stand, and at the same time permitting the defendant to come in and defend on such terms as will indemnify the plaintiff for all steps taken by her after the default.

The defendant may answer in this case upon payment of all costs and disbursements after defendant’s default, which are included in the judgment, and ten dollars costs of this motion and printing disbursements, and serving an answer herein within twenty days after the announcement of this decision, the judgment already entered to stand as security, and on compliance with above conditions the order of Special Term appealed from is reversed.

PutNAM and HbReick, JJ., concurred.

Order reversed and default opened on the defendant’s complying with conditions in memorandum of opinion, the judgment to stand as security.