author: Hekrick, J.:

text:
    ALEXANDER CHACE, Respondent, v. JAMES M. LAMPHERE, Appellant.

      Will — intention of testator — designation of land, in a will construed in the light of testator’s understanding as to its occupation— damages recoverable for withholding real property— Code of Civil Procedure, sea. 1531.
    A testator, at the time of his death, owned two adjoining farms, one known as the Homestead farm, consisting of about 143 acres, the other, known as the Wooley farm, of about 170 acres. In the 170 acre tract was a lot of about twenty-seven acres, which had been occupied by one Lamphere, in connection with the Home, stead farm, for several years preceding the testator’s death, making the land occupied by Lamphere about 170 acres, while one Chace had occupied for the same period the remainder of the Wooley farm, about 143 acres.
    The testator devised to Lamphere “ all my said farm * * * containing about 140 acres of land, with the appurtenances thereunto belonging, being the farm on which said Lamphere now resides; ” and he devised to Chace “ all my said farm * * * containing about 1744 acres of land, called the Wooley farm, , which I purchased of Sherman Griswold, and on which farm said Chace now resides.”
    After the testator’s death Chace brought an action against Lamphere for the possession of the twenty-seven acre lot. The trial judge found that Lamphere’s use and occupation of the lot in question was, upon the understanding and agreement "between Chace and the testator, that it should continue to be regarded as a part of the Wooley farm on which Chace resided.

      EM, that, in ascertaining the testator’s intention, the character of the occupancy of the twenty-seven acre lot by Lamphere was a controlling factor, and that, in view of the above finding on that question, it was to be deemed that the testator intended it to be included in the devise to Chace.
    The “ term not exceeding six years,” for which, under section 1531 of the Code of Civil Procedure, damages for withholding the premises may be recovered in an action to recover real property, applies only to time prior to the commencement of the action, but interest on such damages may be recovered from the commencement of the action to the rendition of judgment.
    Appeal by the defendant, James M. Lamphere, from a judgment of the Supreme Court, entered in the office of the clerk of Columbia county on the 1st day of August, 1892, in favor of the plaintiff, Alexander Chace, on a decision rendered upon a trial at the Columbia Circuit by the court without a jury.
    The action was brought to recover possession of certain land in the town of Austerlitz, Columbia county, New York, and damages for the unlawfully withholding of the same. The plaintiff and defendant each claimed title to the disputed lot under the last will and testament of Smith Shaw, deceased, who died in 1878.

      H. W. MeClellcm, Orin Ga/m/pbeU and James K. Amrill, for the appellant.

      A. Frank B. Ohaee, for the respondent.
   Hekrick, J.:

This case has been before this court once before upon appeal (51 Hun, 524) and the legal questions in the case disposed of, so that there is no need of reviewing them at this time. The testator possessed about 314 acres of land, consisting of two farms, one known as the Homestead farm consisting of about 143 acres, and another that he had purchased of one Sherman Griswold, consisting of about 170 acres of land; Griswold had purchased some 153 acies of such farm from a man named Wooley, and the whole tract of 170 acres conveyed by Griswold to the testator was generally known and spoken of in the neighborhood as the “ Wooley farm.” The 170-acre tract embraces the land in dispute.

The tract of land in question adjoins the Homestead farm and consists of a little over twenty-seven acres, and had been occupied by the defendant in connection with the Homestead farm upon which he resided from sometime in the year 1871 down to and at the time of the death of the testator; the remainder of the farm purchased of Griswold by the testator had been occupied and resided upon during the same time by the plaintiff.

The testator disposed of these farms by his will in the following language:

Second. I give, devise and bequeath a life estate in the farm of land now occupied by James M. Lamphere to my said sister, Happy Shaw, during the life of my said sister; and I further give to my ■said sister fifty dollars each year during her natural life, and said fifty dollars each year, as aforesaid, to be and is hereby made a charge against and to be paid from the farm occupied by said Chace as an annuity therefrom, to which said farm is hereby made subject to the payment of, as aforesaid, to my said sister.

Third. I give and bequeath four hundred dollars to Abby Hold-ridge, of Spencertown, to be paid her one year after my death from the farm occupied by said Lamphere, which farm I charge with the payment of said sum to said Abby Holdridge.

Fourth. I give and bequeath four hundred dollars to Helen Hold-ridge, to be paid her one year after my death from the farm occupied by s^id Chace, which farm I charge with payment of said sum to said Helen Holdridge.

Fifth. I direct my executors, hereinafter named, to erect a suitable monument of the value of four hundred dollars over my remains, for myself and my said sister Happy, the expense of which is made & charge equally against my said two farms occupied by said Lam-phere and Chace, and to be paid from each said farm, two hundred dollars from each.

Sixth. I give, devise and bequeath to James M. Lamphere, his heirs and assigns forever, all my said farm situated in the town of Austerlitz, Columbia county, N. Y., and containing about one hundred and forty acres of land, with the appurtenances thereunto belonging, being the farm on which said Lamphere now resides, to have and to hold the same to said Lamphere, his heirs and assigns forever, subject, however, to the life estate of my said sister, Happy Shaw, therein, and to the payment of the several sums and legacies hereinbefore charged against the same.

Seventh. I give, devise and bequeath to Alexander Chace, his heirs and assigns forever, all my said farm situated in the town of Austerlitz, Columbia county, N. Y., and containing about one hundred and seventy-four and three-quarters acres of land called the “Wooley farm,” which I purchased of Sherman Griswold, and on which farm said Chace now resides, together with the personal property now on said farm, to have and to hold the same, to said Chace, his heirs and assigns forever, subject, however, to the payment of the annuity of fifty dollars each year to my said sister, Happy Shaw, with which said farm is hereinbefore charged, and is hereby charged, and also subject to the payment of the several sums and legacies hereinbefore charged against said 'farm.

It will be observed that the farms are spoken of as “ occupied ” or “ resided ” upon by the plaintiff and defendant respectively.

The acres devised to each do not correspond with the number occupied by each. If the land in dispute, and which was occupied by the defendant, is held to have been devised to him by the terms of the will, then instead of taking about 140 acres of land under the will, he will take about 170 acres, and the plaintiff instead of taking about 174 acres, under the will, will take about 143 acres.

When the case was here before, the court said: “We are persuaded that the case can be decided upon the ascertained intention of the testator as deduced from the provisions of the entire will, construed in the light of the facts and circumstances proper, to be considered in connection with such instrument.”

The intention of the testator was a matter of fact to be found by the trial court. The character of the occupancy by the defendant, of the piece of land in dispute, whether the testator intended to' make it a part of the so-called Homestead farm, or whether he intended it to be and remain a part of the so-called “ Wooley farm,”' were, of course, important questions in determining the intention of the testator.

Hpon the trial the court found the following, as matter of fact, in relation to the strip of land in question : “ These lands, at the time of the death of Shaw, and prior thereto, during the residence of the defendant upon the one hundred and forty-three acre farm, a period of about eight years, had been occupied and used by the defendant in connection with said one hundred and forty-three acre farm, but sucb use and occupation was upon the understanding and agreement between Sbaw and tbe plaintiff that the same should continue to be regarded as a part of the farm of one hundred and seventy acres above mentioned, upon which plaintiff resided, and of the whole of which he had been in the actual use and occupation up to that time.”

While from the evidence, as it appears in the printed case, my impression would lead me to a contrary conclusion, yet, the learned trial justice heard the living witnesses, witnessed their demeanor, and could better determine what credence should be given to their testimony ; and there being testimony to sustain his finding, I do not feel at liberty to reverse it. As the case presents itself to me, the character of the occupancy of the land in question by the defendant, whether as a part of the Homestead farm, or with the understanding that it should still remain and be considered a part of the Wooley farm, is a controlling factor in the case and, so believing, I am forced to agine with the finding of the trial justice that “by the sixth clause of the will the testator intended to and did devise to the defendant the farm of about one hundred and forty-three acres above mentioned, and did not include in said devise the land and premises in dispute in this action. By the seventh clause of the will, the testator intended to and did devise to the plaintiff the farm purchased by him of Sherman Griswold, including the land in dispute in this action.” And it follows from such findings that the plaintiff is entitled to recover.

I think, however, the court erred in permitting the plaintiff to recover damages for withholding the premises for a period of six years prior to the commencement of the action, and also from the time of the commencement of the action down to the rendition of the judgment, making about twelve years. The damages were estimated and allowed at the rate of forty-five dollars per annum, and the plaintiff was allowed $580.62. I think he is only entitled to recover for the period of six years. (Code of Civil Pro., § 1531; Gas-Light Co. v. Rome, W. and O. R. R. Co., 51 Hun, 119.) He would, I.think, however, be entitled to interest upon such damages from the time of the commencement of the action, which, in all, would amount to $362.66, and to that amount the recovery should be reduced.

If plaintiff: consents to reduce bis recovery for damages to tbe sum of $362.66 and to pay tbe appellant tbe costs of this appeal, then let tbe judgment as so modified be affirmed, otherwise let tbe judgment be reversed and a new trial granted, costs to abide tbe event.

Matham, P. J., and PutNAM, J., concurred.

Judgment reversed, and a new trial ordered, costs to abide event; unless plaintiff reduces recovery to $362.66 and pay defendant’s costs of this appeal, in which event, judgment, as modified, affirmed.


source: Caselaw Access Project

author: HerricK, J.: PutNAM, J.

license: Public Domain

text:
    JAMES WALSH, Infant, by SARAH WALSH, his Guardian Ad Litem, Appellant, v. THE FITCHBURG RAILROAD COMPANY, Respondent.

      Negligence — child injured while playing on a turntable — liabilitg of the railroad company.

    A railroad company maintained on its own premises a turntable, suitable for tbe purposes for which it was constructed, but which was liable to inflict injury when in motion, was easily movable, and had no appliance to keep it stationary when not in use, or to stop it.
    The premises were open to the public and used as a thoroughfare, and frequented by children from the vicinity, who had played with and upon the turntable from time to time, some turning it and others riding upon it.
    A child, about five years and nine months old, while playing and riding upon the turntable with other children, one of whom, a lad about fifteen years old, was turning it, was injured by his leg catching between the revolving turntable and the rail of the road-bed, and brought an action against the railroad company for damages on the ground of negligence.
    Held, that a case for the jury was presented, it being for the jury to say whether^ under all the circumstances, the defendant had invited, allured or enticed the plaintiff upon its premises or to play with the turntable, and, if it had, whether the turntable was left in such a condition as to charge the defendant with any resulting injury. (Putnam, J., dissenting.)
    Appeal by tbe plaintiff, James Walsh, an infant, from a judgment of the Supreme Court, entered in tbe office of tbe clerk of Rensselaer county on tbe 2d day of June, 1890, in favor of the defendant, on tbe dismissal of tbe complaint, by direction of tbe court at the Rensselaer Circuit, in an action brought to recover damages for a personal injury alleged to have been caused through the defendant’s alleged negligence in leaving a turntable unguarded.

      Henry T. Hason, for the appellant.

      T. F. Hamilton, for the respondent.
   HerricK, J.:

The defendant, for the purpose of turning its engines around, constructed a turntable upon a large vacant piece of property belonging to it, a block of ground surrounded by streets; one side of the lot within which the turntable was located was open and unfenced for a distance of over 500 feet; the other sides were fenced or partially so, but the fences had openings in them through which people could pass and repass, and people had, for sometime prior to the accident in question, been accustomed to go through the premises, using it as a short cut from one street to another; it was a place also frequented by children, and to a considerable extent overgrown with grass and weeds.

The turntable was a suitable one for the purpose for which it was constructed, but had no lock, catch, bolt, bar, fastening or appliance to hold it fast when not in use, or to stop it when in motion, or to prevent strangers from using it. It moved easily. Children from the vicinity had played with it and upon it from time to time before the occurrence of the accident, which is the foundation of this action, some turning it, others riding upon it.

The flagman’s house was in sight of the turntable ; it could be seen by the flagman and other employees of the defendant. The plaintiff resided in a house about 300 feet distant from the turntable.

The plaintiff, a boy about five years and nine months old, was, at the time of the accident, playing with and upon the table in company with several other children; one, a lad, about fifteen years of age, was turning the table; some other boys were upon the table riding, among them the plaintiff. It seems that, by the revolving of the turntable, the plaintiff’s leg was caught between the fixed rail of the road-bed and the rail upon the turntable, and the flesh badly mangled and torn. I think the case should have been submitted to the jury.

In an action for an injury founded upon negligence, contributory personal negligence cannot be attributed to a child of very tender years; there must also be concurring negligence on the part of the parents or guardians; and it is not per se negligence to allow children to play in the street; it may or may not be negligence, depending upon circumstances. It is for the jury to determine. (Kunz v. City of Troy, 104 N. Y., 344.)

As to the liability of the defendant, it appears to me that the case of Lynch, v. Nurdin (1 Adol. & Ellis [N. S.], 29) is, in principle, applicable to this case, although there*are some points of difference. In that case, the defendant’s servant left his horse and cart in the open street at the door of a house, within which the servant remained for about half an hour. After the servant had been in the house about a quarter of an hour, the plaintiff, a child between six and seven years of age, with several other children, came along and began to play with the horse, and to climb into the cart and out of it; while the plaintiff was getting down from the cart another boy made the horse move, in consequence of which the plaintiff fell from the cart, one of its wheels passing over his leg, and he was seriously injured.

The court, in that case, among other things, said: “ It is urged that the mischief was not produced by the mere negligence of the servant, as asserted in the declaration, but, at most, by that negligence, in combination with two other active causes — the advance of the horse in consequence of his being excited by the other boy, and the plaintiff’s improper conduct in mounting the cart, and so committing a trespass on the defendant’s chattel. On the former of these two causes no great stress was laid, and I do not apprehend that it can be necessary to dwell at any length. For if I am guilty of negligence in leaving anything dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first.”

The court, in discussing the distinction between the willful act done by a person who deliberately plants a dangerous weapon in his grounds with the design of deterring trespassers, and the mere negligence of a servant in leaving bis cart in the open street, says: “ But, between willful mischief and gross negligence, the boundary line is hard to trace; I should rather say impossible. The law runs them into each other, considering such a degree of negligence as some proof of malice. It is, then, a matter strictly within the province of a jury deciding on the circumstances of each case.”

They would naturally inquire whether the horse was vicious or steady, whether the occasion required the servant to be so long absent from his charge, and whether, in that case, no assistance could have been procured to watch the horse, whether the street was, at that hour, likely to be clear or thronged with a noisy multitude ; (5) especially, whether large parties of young children might be reasonably expected to resort to the spot. If this last-mentioned fact were probable, it would be hard to say that a case of gross negligence was not fully established.”

So far as I know the principle of that case has never been overruled. While in the case referred to the cart was left in the public street, and in the case at bar the turntable was upon the private property of the defendant, yet, the defendant had permitted the public to use it as a thoroughfare, people passed and repassed through it; teams went upon it; children played in it. In Barry v. New York Central and Hudson River Railroad Company (92 N. Y., 289), where the public had for a long time been in the habit of. crossing the tracks of the defendant to reach points beyond such tracks the court said: There can be no doubt that the acquiescence of the defendant for so long a time in the crossing of the tracks by pedestrians amounted to a license and permission by the defendant to all persons to cross the tracks at this jioint. These circumstances imposed a duty upon the defendant in respect to persons using the crossing, to exercise reasonable care in the^ movement of its trains.

The mere fact that the turntable was on private property does not, it seems to me, determine the question. Private property may be so situated as to invite people upon it; it may have that in or upon it that will allure or entice people to enter it, and if so, the owner must see to it that by no negligence of his are the people he invites or entices upon his premises, injured.

I think there are no cases where the owner of property has placed it so as to invite or entice people to enter or use it, and bas not been held liable for injuries resulting from a want of care on bis part-in tbe management, control or efficient guarding of anything thereon, calculated to produce injury.

McAlpin v. Powell (70 N. Y., 126) was a case, where a child went out of a window upon the platform of a fire-escape, and the trap-door in the platform being insecurely fastened, gave way, the child was precipitated below and killed.

The court said the deceased had no right to go upon the platform and was there for no legitimate purpose. The proof showed that-children were not accustomed to go there. It bore no indication that it was designed for general use, and furnished no invitation or attraction to young children any more than the roof of a stoop or piazza, which projects under the window of a dwelling-house, and is easy of access to persons in the vicinity.

The court speaking of the case of Lynch v. Nurdin, says: “ But-there is a clear distinction between such a case where the infant was-lawfully in the highway which it has the right to travel and use, and when the blameable carelessness of the defendant tempted the child to amuse himself with an empty cart and a deserted horse, and a case where he is palpably invading the premises of another and is a mere trespasser.

The case of Larmore v. Crown Point Iron Company (101 N. Y., 391) turned upon the principle that a person owes no legal duty to-one who comes upon his premises without authority or invitation which required him to keep machinery in repair.

Miller v. Woodhead (104 N. Y., 471), where a child, who was-with its mother visiting at the time, crawled out of a window and fell through a skylight and was injured. The court said the roof or skylight was not a dangerous structure, and the defendant had given no invitation and issued no license, express or implied, to the plaintiff to go upon the roof.

In Splittorf v. State (108 N. Y., 205) the State had erected a bridge upon its own lands for the use of persons navigating the canal. It was not dangerous in itself. It was sufficient and safe for the purpose for which it was intended. No enticement or allurement to people generally to pass over the bridge was held out. The statute made it a misdemeanor for citizens not navigating the-canal to use tbe bridge. In all these cases it will be observed that the question of invitation, enticement or allurement was absent.

The question of how one can use his own property, what he can place upon it, and whether adequate precautions have been taken to protect people from injury always depends upon circumstances; what may be lawful, what may be safe, what may be adequate care in one ease may not be in another.

In this case, while the turntable was on the defendant’s own land, yet it allowed the public to use that land for many of the purposes of a highway; while situated in a populated neighborhood it was, so far as ease of access was concerned, substantially uninclosed; it was, to an extent, overgrown with grass and weeds, a place where children of the neighborhood might naturally go for amusement; the turntable was easily handled, and, as demonstrated hy this case and others, was, when in motion, liable to inflict injury; children came there from time to time to play with it; under such circumstances, it seems to me, that it was a question for the jury to say whether, under all the circumstances, the defendant had invited, allured or enticed the plaintiff upon its premises, or to play with the turntable, and if it had, whether such turntable was left in such a condition as to charge it with any resulting injury.

For these reasons the judgment should be reversed and a new trial granted, costs to abide event.

MayhaM, P. J., concurred in the result.

PutNAM, J.

(dissenting):

I am inclined to concur in the views advanced by Justice Furs-MAN in granting defendant’s motion for a nonsuit, believing that those views are sustained by the authorities cited by him. (See, also, Nicholson v. The Erie Railway Co., 41 N. Y., 525.)

In the latter case, a party on defendants premises, by its license, was injured by cars not properly secured, being started by a heavy-wind, and running over him.

In the opinion of Chief Justice Earl (pages 532, 533), occurs the following language: “ The cars were lawfully upon the branch track, and the defendant had the right to have them there. The defendant owed the intestate no active duty. It owed him no duty whatever, except such as every citizen owes another. It had no right intentionally to injure him, and would be liable if it heedlessly or carelessly injured him while performing its own business. It owed him a duty to abstain from injuring him, either intentionally or carelessly, but it did not owe him the duty of active vigilance to see that he was not injured while upon its land merely by permission for his own convenience. If the point where the intestate was killed had been a public highway, * * * or if, in any other way, he had been not only lawfully, but in the exercise of a right at that point, the defendant would have owed him a duty to see that the cars upon the branch track were properly secured, but as it was, they owed him no duty and cannot be charged as to him, with negligence in not blocking or fastening the cars.”

The above quotation shows, I think, the distinction between the case under consideration and that of Barry v. The New York Central and Hudson Hirer Railroad Company (92 N. Y., 289), referred to in Justice Herriox’s opinion, where deceased was injured by acti/oe negligence on the part of the defendant, and between this case and that of Lynch v. Nurdin (1 Adol. & Ellis [N. S.], 28-30). In the latter case, the negligent act was committed by the defendant. on the highway, the plaintiff, at the time of the injury,-being where he had a right to be on a public street. Here, the plaintiff was injured where he had no right to be, on defendant’s premises. He was there merely by its license. The defendant could not injure him by a careless act, although on its premises without right, but owed him no active duty. I think, as to plaintiff it was not bound to lock up its turntable.

I am, therefore, unable to concur in thé views stated in Judge Herriox’s opinion.

Judgment reversed, new trial ordered, costs to abide event.


author: PutNAm, J,:

text:
    TROY MANUFACTURING COMPANY and Others, Appellants, v. STAR KNITTING COMPANY, Respondent.

      Local association of manufacturers — bonds given by the members to obey the constitution— conditions and breaches of — complaint on — camse of action — effect of individual membership in national association.

    The knit goods manufacturers of a certain locality formed an association, under a constitution which provided for the giving of a bond by each member to the others, conditioned for the payment of a certain sum as liquidated damages in case of a failure to observe the requirements of the constitution.
    It appeared that the object and intent of the contract between the parties was to enforce obedience of the members of the association to the decisions of its committees as to prices and as to disputes with each other or their, or either of their, employees, and that there was nothing in the bond importing a covenant on the part of the obligor to shut down his mill on the order of the association because another local association had closed its mills.
    Held, in an action by certain members of such local association against one of the members on his bond, that a complaint, based on allegations of a failure on the part of the defendant to shut down his mill on the order of the association, did not state a cause of action.
    It was claimed by the plaintiffs that by the action of every member of their local association in joining the “National Knit Goods Manufacturers’Association,” and adopting its constitution, an amendment had been effected in the constitution of the local association by engrafting therein a provision of the national association’s constitution, which required the shutting down of mills under the circumstances alleged in the complaint, and which rendered a failure so to do a breach of the bond.

      Held, that if the constitution of the unincorporated local association could be changed by its members individually, by their joining the national association, and without associate action (which is doubted), it was for the plaintiffs to show some provision in the local association’s constitution under which such an amendment could be effected, the bond in suit having been executed before the alleged amendment, and being, in effect, conditional on a failure to obey the constitution as it was at the time, or as it should be, lawfully amended or changed.
    Appeal by tbe plaintiffs from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of Albany county on tbe 8tb day of December, 1891, in favor of the defendant for costs, on tbe dismissal of tbe complaint, ordered on tbe opening of counsel at the circuit; also an appeal from the order, entered in said clerk’s office December 8, 1891, dismissing tbe complaint.
    Tbe action was ■ brought upon a bond to recover a penalty of $5,000 as liquidated damages.

      Charles <F. Doyle, for tbe appellant.

      E. W. Douglas and Edwin Countryman, for the respondent.
   PutNAm, J,:

At the trial on the opening by plaintiffs counsel, the complaint was dismissed on the ground that it did not state a cause of action, and the question for consideration is whether -the trial judge reached a correct conclusion in his construction of the pleading.

The facts stated in the complaint, as far as necessary to detail them, are as follows: The plaintiffs and defendant, manufacturers of knit goods, doing business in Cohoes and Waterford, in January or February, 1886, formed an association called “Knit Goods Manufacturers’ Association of Cohoes and Waterford,” and adopted a constitution and by-laws of which two articles are set out in the complaint, viz: “ Article II. Its object is by union and concert of action to protect and advance the interests of its members. Article X. Each manufacturer, firm or corporation shall execute a bond to the other members of this association in the sum of $5,000 as liquidated damages, with the condition that they will abide by the requirements of this constitution.”

Thereupon plaintiffs and defendant executed each to the other the bond or writing, a copy of which is contained in the complaint. It recites the formation of said association and its purposes which were to advance the interests of all said parties in said business, the interests of the employers and employees, and for the purpose of settling any dispute between any of the members or as between them or any of them and their employees; in case of any dispute between the parties or any or either of them and their employees said parties agree to submit such differences to the committee of the said association. The covenants and agreement of the parties contained in said bond are as follows, viz: “ That they and each of them will stand to and abide by the constitution of said Knit Goods Manufacturers’ Association of Cohoes and Waterford, and any amendments, alterations and additions that may be lawfully made thereto,, or any constitution that may be substituted in place of the original and first one adopted, and will stand to and abide by and conform to the prices to be paid for various work and labor in our milla and ■ business as determined now or hereafter by said association, and will stand to and abide by and carry out the decision of any and all matters which may be passed upon and decided by the standing committee of arbitration of said association, or such committee of arbitration as may be selected under and by virtue of the constitution of said association as between ourselves or us and our employees, or each of us and our employees, or by our said committee of abitration (either standing or selected as above), and any other committee of arbitration or otherwise which may be authorized to act by and for our and each of our respective employees after the same shall be adopted by said association in the manner provided for by its constitution.”

The contract further provided that, in case either party failed to perform the covenants in said contract, the parties so failing will forfeit to the others the sum of $5,000 as liquidated damages, to recover which sum this action was brought.

Shortly after the organization of the “ Knit Goods Manufacturers’ Association of Cohoes and "Waterford,” the plaintiffs and defendant also become members of The National Knit Goods Manufacturers’ Association,” composed of the members of said local association of Cohoes and Waterford, and the members of the local association of Stillwater, Amsterdam, Schenectady and other places. The national association adopted a constitution which was duly signed by the parties hereto. Section 4 of article 5 thereof is as follows:

Section 4. Whenever a strike or lockout shall occur in any mill, and a closing of all the mills in the local association to which such firm or corporation belongs shall be ordered by such local association, a meeting of the national executive committee may immediately be called by such local association at such place as may be designated by the chairman of the National Executive Committee, and this committee shall prepare a statement of the facts and causes of the strike or lockout and certify such statement to the other local associations, •who shall at once proceed to vote whether they will sustain such lockout by shutting down their mills, or otherwise, as may be satisfactory to the parties or locality affected during its continuance, and a vote of two-thirds of their members (voting according to sets represented by the local association), such votes, properly authenticated, shall be returned to tha National Executive Committee, whose business it shall be to count said votes, and if it is found that two-thirds of all the sets of machinery, as represented in the National Association, voted in favor of the proposition submitted, the same shall be binding upon all; and any individual members refusing to stand by the same shall forfeit his bond to the local association of which he is a member, the same as though the local association had ordered it.”

A strike occurred in Amsterdam on September 29, 1886, and the local association of that city ordered a closing of all the mills therein. At a subsequent meeting, called by the executive committee of the national association, and after due proceedings it was resolved that all the mills represented therein, including those of plaintiffs and defendant, should be shut down on October 16, 1886. The local association of Cohoes and Waterford (hereafter called the “ Cohoes Association”), by resolution, duly passed, directed that the mills operated by plaintiffs and defendant should cease work at the time mentioned. Defendant, however, refused to shut down its mill, but, on the contrary, continued to operate the machinery therein and to manufacture knit goods.

The action, it must be remembered, was brought upon the sealed instrument claimed to have been executed by defendant to the plaintiffs, a copy of which is contained in the complaint, the covenants on the part of defendant, and the other parties thereto, contained therein being hereinabove set out.

The alleged breach of the conditions of said bond, on account of which the action was brought, was the refusal of defendant to shut down its mill during the strike of the operatives of Schuyler & Blood, of Amsterdam. It will be observed, however, by a careful examination of the contract, that the defendant does not therein covenant to shut down its mill on the order of a national or local association, or otherwise, on account of any strike. The covenants in the bonds are, we ” will abide by the constitution of the association, and any lawful amendment or alteration thereto or any substituted constitution, and will conform to the prices to be paid for work established by the association, and will abide by and carry out any and all matters decided by the standing committee of arbitration, or such committee of arbitration as may be selected, as between ourselves or us and our employees, or by our committee of arbitration, and any other committee of arbitration which may be authorized to act by and for our, and each of our, respective employees.

I think the trial judge was correct in holding that plaintiffs in the complaint failed to show any breach by defendant of any covenant made by it in said contract. The only provisions of the constitution of the Knit Goods Manufacturers’ Association, of Cohoes and "W aterford, set out in the complaint, are the two articles above quoted. The complaint does not allege or show any breach by defendant of the covenants contained in the bond as to said two articles or any other article of the constitution. It is not alleged that defendant has not conformed to the prices for labor established by the association, or has failed to obey its decisions as to any matter between the members, or between the members, or either of them, and their employees. In fact, I am unable to find any breach alleged in the complaint by the defendant of the covenants contained in the contract and sealed instrument on which the action is brought.

By a cai’eful reading of the recitals as to the purposes for which the association was formed, contained in the bond in question, it will be seen that the object and intent of the contract was to enforce the obedience of the members of the association to the decisions of its committees as to prices, as to disputes with each other, or their, or either of their, employees. There is nothing in the bond looking like a covenant on the part of the defendant that it would shut down its machinery on the order of the association because a local association of Amsterdam had closed the mills of that city.

As I understand plaintiffs’ position, however, it is not strenuously urged that any breach of the condition of the bond on the part of the defendant is shown under the constitution and by-laws of the Cohoes association, in force when said bond was executed. But it is insisted that as every mernber of the Cohoes association subsequently became members of, and adopted the constitution of the national association, such adoption effected an amendment of the constitution of the former, and had the effect of engrafting section 4 of article 5 (supra) thereon, and that hence, for a refusal of defendant to shut down its mill under the direction of the national association, as provided in the said section, this action can be maintained as for a breach of the covenants contained in said bond.

I think this position of plaintiffs is untenable. The Cohoes association is an unincorporated body of manufacturers, acting together, with a constitution and by-laws adopted for its government. It is clear, in my judgment, that to amend its constitution and by-laws, there must be a vote of its members, associate action in the way pointed out by its constitution and by-laws. It is also evident that the action of the ■mdwidual members of the association in joining as individuals and adopting the constitution of the national association, composed of said individuals and members of other local associatibns • in Schenectady, Amsterdam, Stillwater and other places, could have no effect whatever, upon the constitution. That constitution could' only be changed by associate action. The action of its members in another association is not associate action.

If, however, the constitution of the Oohoes association could ie changed by its members joining the national association, in an action against defendant on its bond previously executed, it was for plaintiff’s, in their complaint, to allege and show some provision in the said constitution under which such an amendment could be effected. Defendant is only liable on the covenants contained in its bond. In substance, it agrees to pay, as liquidated damages, $5,000 if it fails to obey the constitution as it was at the time the bond was executed, or as it should be lawfully amended or changed. As we have seen, it does not appear that defendant has failed to obey the constitution as it was when he executed the bond. It was incumbent on plaintiffs to allege in the complaint facts showing that said constitution could be lawfully, amended by the adoption by the individual members of the association of the constitution of another and different association. The plaintiffs, in their complaint, fail to set out any such facts. In the absence of such allegations, it is to be presumed that the constitution of the Cohoes association could only be amended in the usual way, by associate action.

Other objections might be suggested to the above-considered position of plaintiffs, but I think it requires no further discussion.

Without considering, therefore, the claim asserted by defendant that the bond in suit is void as contrary to public policy; also because it was made in restraint of trade; also because the defendant corporation had no power to execute it, I think the trial judge was right in dismissing tbe complaint for tbe reasons above stated, and, therefore, that the judgment should be affirmed, with costs.

MayháM, P. J., concurred; HebeicK, J., not acting.

Judgment affirmed, with costs.


author: May¿aM, P. J.:

text:
    FRANCIS H. KITTLE, Respondent, v. ISRAEL HUNTLEY, Appellant.

      Executors amd administrators — liability for burial expenses — the wholesale price of an article of merchandise not evidence as to its retail value.

    An executor or administrator is liable for the suitable and reasonable burial expenses of his decedent if he has assets sufficient for the purpose; and if, by reason of absence or neglect, the executor or administrator fails to furnish a suitable and reasonable burial in the first instance, he is liable to the person who incurs the expenses therefor, so far as he has assets of the deceased in his hands.
    Where an article of merchandise has a market-value, as fixed by the trade, as between a retailer and his customers, evidence as to the cost price between the manufacturer or wholesale dealer and the retailer is not competent on the question of retail value, that value must be measured by the retail market-price as regulated by competition and the law of supply and demand.
    Appeal by the defendant, Israel Huntley, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of Eensselaer county on the 13th day of May, 1892, on the report of a referee.

      Robert II. MoOlellcm, for the appellant.

      William H. Hollister, for the respondent.
   May¿aM, P. J.:

The complaint in this action alleges, in substance, that the plaintiff is an undertaker alid, as such, took charge of and superintended the burial of Eoxanna Duel, deceased, and performed the work and furnished necessary materials, an'd paid, laid out and expended moneys necessary for and connected with such burial services, all of which were worth the sum of $127.

The complaint alleges also that the deceased left a last will and testament, wherein she named the defendant as sole executor, and that such will was duly proved, and the defendant was duly appointed as executor thereof, and duly qualified as such, and entered upon the discharge of his duties as executor, and that, as such, he received personal assets belonging to the estate of the deceased of the value of $700, and that the plaintiff, before the commencement of this action, demanded of the defendant, as executor, the payment of his claim for such burial service while the defendant held such funds as executor, and payment was refused or neglected.

The answer admits the allegations of the complaint as above, in substance, set forth, but alleges that the plaintiff acted at the instance and by the employment of one Sarah Yallee, and alleges that the burial expenses were extravagant and too expensive, considering the circumstances of the deceased.

The only real questions prese nted by this appeal are: First "Whether the defendant is liable, under the circumstances of this case, for the funeral expenses of the testator ? Second. Whether the amount allowed by the referee was sustained by legal evidence ? Third. Whether, on the trial, the referee committed errors which prejudiced the legal rights of the defendant ?

The law seems well settled that an executor or administrator of a deceased person is liable for the suitable and reasonable burial expenses of the testator or intestate, if he have assets sufficient for that purpose, and if such personal representative, by reason of absence or neglect, fail to furnish such burial in the first instance, he is liable to the one who incurs such expenses, so far as he has assets of the deceased in his hands. (Patterson v. Patterson, 59 N. Y., 583, 584, and the cases there cited.)

We think all the essential facts to fix the liability upon the defendant for the payment of reasonable and suitable burial expenses in this case is conceded and admitted by the pleadings, unless it can be claimed that Mrs Yallee incurred the expense and was charged by the plaintiff with it.

This the referee refused to find, and we think his determination upon that point fully sustained by the evidence and correct. We are also of the opinion that the finding of the referee as to the amount which the plaintiff should be allowed is fully sustained by-the evidence in this case, and the burial expenses were not unreasonable in amount in view of the estate left by the deceased, and her station in life, as appears by the evidence.

The remaining question is whether the referee committed any error in receiving, retaining or rejecting evidence under the objection, motion or offer of the defendant for which this judgment should be reversed.

It is insisted by the learned counsel for the appellant that it was competent for him to inquire into the price of casket as between the manufacturer or wholesale dealer, and the undertaker or retail dealer, and that the witnesses should have been compelled to answer that inquiry, or their testimony given on the part of the plaintiff stricken out.

We are not prepared to subscribe to that doctrine, as applied to this case where the article of merchandise, as in this case, has a market-value, as fixed by the trade, as between the undertaker and his customers. The cost-price between the manufacturer and the undertaker would not in such a case furnish a correct criterion as to the price between the undertaker and his customers, and an inquiry into it would lead to unsafe and unprofitable speculation on the part of the court or jury as to the rate of profit which should be charged by the undertaker, and would not be evidence of the market-value between the last-named parties; that value must be measured by the market-price between the undertaker and his customers as regulated by competition, and the law of demand and supply.

'While a wide range of inquiry should be allowed on the cross-examination of a witness as to the value of property when its value is in dispute, we think it should be confined to the market-value which is actually the subject of inquiry between the parties when sold at retail, and not the price as between the wholesale dealer and the retail dealer as was sought to be proved in this case.

But if there be doubt as to the correctness of this mle we think that there was sufficient evidence of an unobjectionable character to sustain the finding of the referee as to the value of the materials and services furnished and rendered to uphold the report and judgment, and that no error was committed by the referee for which this judgment should be reversed.

PutNAM and HeeeioK, JJ., concurred.

Judgment affirmed, with costs.


author: PutNAm, J.:

text:
    ROBBINS M. WITHERBEE, Appellant, v. CHARLES R. PARIS, as Administrator of the Personal Estate of AUGUSTUS HALE, Deceased, Respondent.

      Liability of the oupier of a vessel for cha/rges incurred by the masten' — canal boat.

    Tlie doctrine that the master of a vessel is tire agent of its owner, and, as such, can hind the owner for necessary supplies furnished to enable the vessel to proceed on its voyage, is applicable to canal boats.
    If, however, in fact, the master of a vessel does not contract as agent of the owner, but obtains repairs or supplies under a special contract on his own credit, or on the credit of some person other than the owner, the owner is not bound.
    Appeal by the plaintiff, Robbins M. Witherbee, from a judgment of the Supreme Court, entered in the office of the clerk of Washington county on the 8th day of August, 1892, in favor of the defendant, on the report of a referee, dismissing the complaint.
    The action was brought to recover $100 and interest. The complaint alleged that on or about August 15, 1890, the defendant was running a canal boat belonging to the personal estate of Augustus Hale, deceased, of which estate the defendant was administrator, and transporting a cargo of ice through the Champlain canal; that at the request of the master of the boat, and to enable him to proceed through the canal with the cargo of ice, the plaintiff advanced to the master for the purpose aforesaid, according to the custom and upon the usual terms, the sum of $100, to be repaid upon the completion of the voyage and the discharge of the cargo; and that, although duly demanded, the said sum had not been repaid.
    The answer denied all the allegations of the complaint, except those as to the administratorship of the defendant and the demand.
    The referee found, in effect, that during the winter or spi’ing of 1890 Augustus Hale, late of Sandy Hill, Washington county, New York, and William Guindon were partners in the business of storing ice for sale at or near St. John’s, Canada. That Augustus Hale died in June, 1890, intestate, and the defendant was appointed administrator of his personal estate June 30, 1890. That at the death of Augustus Hale there was a certain quantity of ice on hand at St. John’s owned by him and Guindon. as partners, and Guindon took exclusive possession thereof as surviving partner, and the ice mentioned in tbe complaint was tbe property of Guindon, individually, as surviving partner. That tbe canal boat “ Henry Iioyle ” was a part of Augustus Hale’s personal estate, and was in tbe custody of Joseph Hale, as its master, at tbe death of Augustus Hale, and Joseph Hale thereafter continued to navigate the boat with the consent of the defendant. That Joseph Hale, as master of tbe boat, proceeded with it to St. John’s in August, 1890, and loaded tbe boat with a portion of the ice belonging to Guindon, individually, and as surviving partner, and undertook to carry tbe same to New York, as tbe agent of Guindon. That when tbe boat arrived at Whitehall, on its voyage to New York, tbe master bad no funds with which to pay the towing, and was in need of money with which to pay for towing and supplies and other expenses, in order to enable the boat to continue the voyage. That, at Whitehall, on August 5,1890, the plaintiff advanced to Guindon the sum of $100 at bis request, and tbe money so advanced was received by tbe master of tbe boat, as agent of Guindon, for tbe purpose of enabling the master to pay for tbe towing and other necessary expenses of tbe voyage, and was so expended.

      J. Sanford Potter, for tbe appellant,

      D. J. Sullivan, for tbe respondent.
   PutNAm, J.:

Tbe position of tbe appellant, that tbe master of a vessel is the agent of its owner, and, as such, can bind the owner for necessary supplies furnished to enable the vessel to proceed on its voyage, is, I think, correct. (Thomas v. Osborn, 19 How. [U. S.], 22; Macy v. Wheeler, 30 N. Y., 240.) Therefore, ordinarily, plaintiff could recover from defendant, as tbe owner of tbe canal boat in question, tbe $100 be furnished to Joseph Hale, its captain, said sum being advanced to pay necessary expenses to enable tbe boat to continue its voyage to New York. But tbe authority of a captain of a vessel to bind its owner for repairs and necessary expenses of tbe voyage is based on bis actual or presumptive agency. If, in fact, he does not contract as agent, but obtains repairs or supplies under a special contract on bis own credit, or on tbe credit of some person other than the owner, the latter is not bound. The doctrine applicable in such a case is well stated in James v. Bixby and Others (11 Mass., 39) as follows: “Where labor is performed upon a ship or any other chattel, the presumption would naturally and legally be that it was done not only for the benefit, but at the request of the owner; and an implied promise to pay would arise, which, in law, would charge the owner for a reasonable compensation for the work and labor performed.”

“But the implication of law may be avoided by showing that there was an express contract for the work and the compensation, or that the work was done upon the credit of another person, with-, out any intention of resorting to the owners.” (See Warner v. Miller, 13 Hun, 654)

In this case, the referee found that the $100 — to recover which, this action was brought — was loaned to William Guindon; that Joseph Hale, the master of the boat, received it as his agent, and that said money was not advanced to or for the use of defendant.

If this finding is sustained by the evidence it is a defense to the action within the authorities above cited. I think the evidence clearly sustains the conclusions of the referee. The plaintiff charged the $100 to Guindon, presented a claim to him for it, and testified that he had loaned Guindon money before. Hale, the master, testified that he obtained the money in Guindon’s name.

Stockwell, plaintiff’s clerk, testified that arrangements had been made with Guindon to advance the money. In fact, it is difficult to see how the referee could have reached any other conclusion than he did.

The judgment should be affirmed, with costs.

MayhaM, P. J., and .Hebbioe:, J., concurred.

Judgment affirmed, with costs.


author: PutNAM, J.:

text:
    MARVIN LANE, as Administrator, etc., of SARAH A. LANE, Deceased, Respondent, v. THE TOWN OF HANCOCK, Appellant.

      Personal injuri a rising from a defective highway - absence of fenders at the edge of an embankment - notice - neglihence - of highway commissioner - want of funds.

    A highway, in which the road-way, only eleven feet wide, slopes rapidly to a steep embankment, with a water-bar running diagonally across the road, by which water is suffered to flow over the road and freeze, and on which a loaded sleigh, however properly driven, would be likely to slip and be thrown over the embankment, and which has been in such a condition for several years, with no barrier on the sides, presents, in an action for an injury to a traveler at that point, caused by his sleigh slipping off the road and overturning, a state of facts which requires the submission to the jury of the question as to the negligence of the, highway commissioners of the town to which such highway belongs.
    In an action brought to recover damages for a personal injury caused by a defect in a highway, the fact that no accident had occurred before at the place in question, although some evidence tended to show that that point in the road was not dangerous, is not conclusive in that regard, especially where the plaintiff’s evidence strongly indicates an unsafe condition of the highway.
    Where a highway has been in an obviously dangerous condition for seven years, the officers of the town in which it is situated must be deemed to have had notice of its condition.
    Where a road, as originally built, has fenders on the sides of an embankment, but subsequently becomes filled in with earth higher than the fenders, and an accident thereafter occurs through a sleigh slipping off the embankment, which would not have occurred if there had then been a fender there, the jury is justi- - fled in finding, in an action brought against the town to which the highway belongs to recover damages for such accident, that the accident occurred, not on account of any defect in the plan of the road as adopted by the town officers, but on account of the road being allowed to become out of repair.

      Semble, that, in such an action, want of funds on the part of the highway commissioners to repair the highway is a defense, to be asserted and proved by the defendant town, and the existence of funds need not be alleged or shown by the plaintiff as part of his cause of action.
    Where, in such an action, it appears that it would have required only a small sum, as, e. g„ twenty dollars, to repair an obvious defect in a highway, which had needed repair for several years, the jury can properly determine that the highway commissioners were negligent in failing to take steps to provide the necessary funds, if they did not, in fact, have means on hand to make the repair.
    Appeal by tbe defendant, the Town of Hancock, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of Sullivan county on the 11th day of January, 1892, upon a verdict rendered at the Sullivan Circuit; and from an order denying the defendant’s motion for a new trial made upon the minutes, which order was entered in said clerk’s office on the 25th day of August, 1892.
    The action was brought by IVIarvin Lane, as administrator of Sarah A. Lane, deceased, under chapter 700 of the Laws of 1881, to recover damages resulting from the death of the intestate, alleged to have been caused by a defective highway in the town of Hancock, Delaware county.

      Wesley Gould, for the appellant.

      John F. Anderson and T. F. Bush, for the respondent.
   PutNAM, J.:

The questions whether the death of plaintiff’s intestate was, or was not, caused by the negligence of the commissioners of highways of the town of Hancock, and whether there was any contributory negligence on the part of said deceased, I think were properly and fairly submitted to the jury by the trial court.

The matters litigated in the action have been passed upon in so many reported cases, and the principles involved are so well settled, that a brief discussion of the case will be sufficient.

There was evidence on the trial showing, or tending to show, that at the point of the highway where the accident happened, the road was about eleven feet wide and sloping considerably from the upper to the lower side, where there was a jaerpendicular descent of several feet, over which the sleigh in which deceased was riding fell. There was a water-bar running diagonally across the road, and the water flowed over this place and was frozen so as to make the road slippery. The sleigh when it came to the point in question, without any negligence on the part of the driver, slipped off the road, was overturned and deceased was killed. The highway had been in this condition for several years and had no barrier on the sides. The testimony given on the trial, as to the condition of this road at the place where the accident occurred, rendered the submission of the question, as to the negligence of defendant’s highway commissioners,, to the jury necessary, within the cases of Ivory v. The Town of Deerpark (116 N. Y., 476); Maxim v. The Tonn of Champion (50 Hun, 88); Bryant v. The Town of Randolph (133 N. Y., 70), and many other cases wbicli it is unnecessary to mention. In fact the evidence of negligence in this case on the part of the officers of defendant was stronger and more conclusive than was shown on the part of the defendant’s commissioners in either of the three cases above cited. In this case there was a road sloping rapidly to a steep embankment with a water-bar running diagonally across it, over which road water was suffered to flow and freeze, and on which a loaded sleigh would be likely to slip and be thrown over the embankment, however properly driven, as was the sleigh on which deceased was riding.

The fact that no accident had ever occurred at the place in question before, if such fact was shown on the trial, although some evidence tending to show that this point in the road where the accident occurred was not dangerous, is not conclusive in that regard, especially in a case like this, where the testimony given by plaintiff so strongly indicates an unsafe condition of the highway. (Maxim v. The Town of Champion, 50 Hun, 93.)

Counsel for defendant compares this case to Hubbell v. The City of Yonkers (104 N. Y., 434) and Glasier v. The Town of Hebron (131 id., 447). A careful examination of the testimony, and consideration of the facts, has led me to the conclusion that this case is not similar to those authorities. In the “ Hubbell ” case the road was thirty feet wide, macadamized and in good condition. The accident was caused by the plaintiff’s horse being frightened, and not by the condition of the highway. Here the road was only eleven feet wide, sloping, without barriers, covered with ice, and in such a dangerous condition that a sleigh passing along the highway would naturally and almost necessarily slip and go over the embankment. And the accident by which deceased lost her life was, in fact, caused' by the sleigh slipping over the embankment on account of the defective condition of the highway. In Glasier v. The Town of Hebron (supra) the road was seventeen feet wide and in good condition. Here, as we have seen, there was evidence to justify the jury in finding that the highway where the accident occurred was in bad condition, and in such a state that said accident might naturally have been anticipated.

•The highway having been in the same state for seven years prior to the death of Mrs. Lane, the officers of defendant must be deemed to have had notice of its condition.

It is suggested by counsel for aj>pellant that the highway being in the same condition as "when accepted by the commissioners, and having been made in accordance with the plan adopted by them, the defect, if any, was incident to the plan adopted, and was an error of judgment of the commissioners. (Urquhart v. City of Ogdensburg, 91 N. Y., 67.)

The testimony in the case, however, does not sustain defendant’s position. It appears that, when the road was built, there were “ fenders ” put at the place where the accident happened. That the road had since become filled in with earth higher than the fenders. Also, there was no water-bar when the road was made. Had there been a fender at the place "where the accident occurred the sleigh on which deceased was riding would not have gone over the embankment. Hence there was evidence in the case justifying the jury in finding that deceased lost her life, not on account of any defect in the plan of the road as adopted by the officers of the town, but on account of its being allowed to become out of repair.

The defendant insists that it was for the plaintiff to allege and show, as a part of his cause of action, that the commissioners had sufficient funds, or the power to procure sufficient funds to repair the highway in question, and neglected to take the proper and necessary steps to obtain such funds. I think the want of funds was a defense to . be asserted and proved by defendant. (Bullook v. Town of Durham, 46 N. Y. St. Rep., 459; Hover v. Barkhoof 44 N. Y., 118; Adsit v. Brady, 4 Hill, 634; Clapper v. Town of Waterford, 131 N. Y., 388, 389.)

Also, the evidence in the case was such that the jury could properly find that defendant’s officers either had the funds, or could easily have procured the small amount ($20) necessary to properly repair the defective part of the highway in question. Without attempting to discuss the question, I will refer to the remarks of Beadlet, J., in Ivory v. The Town of Deerparh (116 N. Y., 484) as entirely applicable to this case. Also, the opinion in Warren v. Clement (24 Hun, 474). The highway had been in the same bad condition for several years. It required only twenty dollars to repair it. The highway commissioners, who must be deemed to have had notice of the condition of the road, had a right to, under the statute, raise the sum of $1,000 for highway purposes each year. The jury could properly haye determined that they negligently failed to take proper steps to provide funds,’ if they did not, in fact, have means on hand to-make the repair that would only cost twenty dollars, at a place on the highway that had needed such repair for seven years. The trial judge submitted the question to the jury as to the possession of funds by the defendant’s officers in a fair charge, to which no exception was taken, and I am unable to see that any error was com-. mitted by him in his instructions to the jury, or rulings in the matter.

Several exceptions were taken by appellant to decisions of the trial judge in receiving or excluding evidence offered, which are urged as grounds for granting a new trial. I have examined and •considered each of said decisions carefully, but do not think they require discussion, or that the trial judge, in either of the rulings so excepted to, made any error that should cause a reversal of the judgment.

The judgment should be affirmed, with costs.

MayhaM, P. J., and Hebeiok, J., concurred.

Judgment affirmed, with costs.


text:
    WILSON I. LETTIS, Appellant, NORMAN HORNING, Respondent.

      Vicious bull — liability of the owner, with knowledge of its vicious propensity, while it is in the possession of a bailee.

    "Where, under a contract to take and work a farm on shares, the tenant takes possession of a bull belonging to the owner of the farm, for the owner’s sole benefit, so that the bull is in his possession, not as a lessee but as a bailee of the owner, and on the bull’s becoming -vicious and dangerous the bailee informs the owner of the fact, who refuses to care for the bull or to consent that proper measures be taken to prevent him from doing mischief, the owner will be liable for an injury thereafter inflicted by the bull, while in the bailee’s possession, upon a third party.
    If, under the contract in such a case, the tenant and owner are tenants in common of the bull, the pwner will also be liable.

      Appeal by the plaintiff, "Wilson I. Lettis, from a judgment of the Supreme Court, in favor of the defendant, Norman Horning,, for costs, entered in the office of the cleric of Montgomery county on the 26th day of September, 1892, on the dismissal of the complaint, by direction of the court at the Montgomery Circuit.

      IT. Dunekél and A. J. JFellis, for the appellant.

      II. JMJ. JEldridge and Z. S. Westbrook, for the respondent.
   PutNAm, J.:

This action was brought to recover damages for injuries received by plaintiff from a vicious bull owned by the defendant. Plaintiff.' was an employee of one William Kelly, who, by written contract,, took the defendant’s farm for one year from March 1,1891, to work on shares. The contract provided that defendant should have twenty cows, now on said farm, one bull, three hogs, etc. Kelly was to work said farm and take good care of the cows and stock.. The milk, butter and cheese to be divided between the parties.. Kelly took possession of the farm, under the contract, on March 1,, 1891, and of the twenty cows and a bull left there by the defendant.

There was evidence that plaintiff was seriously injured by the bull,, and also that defendant knew of the dangerous character of the-animal prior to the injury. The trial judge granted a nonsuit on the ground that, under the contract, Kelly had the sole control of the animal. That it was a proper one when first furnished, and afterwards became vicious. That it was the duty of Kelly to take care pf it. He had the absolute control, and could hamper or shut it up whether the owner consented or not. That while Kelly was-so in possession and had control of the animal, the liability for plaintiff’s injury, if any, was his and not that of the defendant.

It is not clear that the trial judge was correct in stating that it. was conceded that the bull was a proper one when delivered to-Kelly. The occupancy of the latter commenced on March 1, 1891. Testimony was given on the trial showing that during the latter-part of that month the bull was vicious and dangerous. This being so it may be doubted whether the animal was not also dangerous during the first of the same month.

Under the contract between plaintiff and Kelly to work the farm, on shares the bull was not leased to the latter, but was in his possession as a bailee. The trial judge properly held that Kelly “ was paying part of his obligation to Mr. Horning for the lease of the property, by seeing that the cows were properly served with the bull, so that they would come around the ensuing season. Mr. Horn-ing furnished the bull for that purpose.” This is undoubtedly a correct view of the contract and shows that Mr. Kelly kept the animal for the benefit of Mr. Horning.

Hence this case differs from Atwater v. Lowe (39 Hun, 150) and Van Slyok v. Snell (6 Lans., 302). In those cases the cattle had been rented to the tenants for a term of years, and the latter had the sole control and charge and possession of said stock for their own benefit. In this case Kelly was merely the keeper of defendant’s bull for defendant’s sole benefit. Also, the cases of Ryan v. Wilson (87 N. Y., 411); Mellen v. Morrill (126 Mass., 545); O'Brien v. Greenbaum (23 N. Y. St. Hep., 405) cited by defendant were cases in which the real estate in question had been leased by the owners for a period, and it was held that the owner having parted with the possession and control of the property, was not liable for an injury caused by its condition during the period of the tenancy. In this case, as we have seen, while possession of the dangerous animal was given to Kelly, it was given to him for the benefit of defendant, and Kelly took said property not as a lessee, but rather as bailee of Mr. Horning.

Marsh v. Hand (120 N. Y., 315) w^s a case somewhat similar to the one under consideration. In that case one Hand was sued as the owner, and Cumber as the party working the farm on shares, and to whom, under the contract between the parties (which was similar to the contract in this case), the possession of the dangerous animal was given. In that case, in his opinion, Justice Beadley uses the following language: “ He ” (Cumber), “ as well as the Hands, had an interest in the use of the stock and was liable for the injury resulting from the trespass upon the plaintiff’s premises, but inasmuch as the defendants Hand had neither parted with the title to the stock left by them upon the farm, or rented it to Cumber, they were also liable for any trespass committed by such stock upon the lands of another. The relation of Cumber as the bailee, and his duties assumed with respect to it, did not have the effect to relieve them, who were the general owners, from liability.”

I think the learned justice stated the correct doctrine applicable to such a case. The owner of a dangerous animal, having knowledge of its dangerous character, cannot, by delivering possession to his bailee, escape liability for damages resulting from the trespass of such animal. The gravaman of the action is the keeping of the vicious animal with knowledge of its propensities. ’ (Muller v. McKesson, 73 N. Y., 195.) And the owner of the animal keeps it when in possession of his bailee.

In Marsh v. Hund (supra) the defendants were held not liable, only upon the ground that the ram which caused the injury was purchased without authority and without their knowledge or consent.

To hold Kelly in this case solely responsible for plaintiff’s injury would be most unjust. Under the contract defendant was to furnish twenty cows, thin on the place, and one bull. The bull, it will be seen, is not specified as being on the place. The animal delivered, either at the time or soon afterwards, became vicious and dangerous, and defendant was notified of the fact. He refused to consent to have the animal shut up day or night. He declined to take care of it, or to furnish a ring and chain to be put in his nose. It is not consistent with justice that the owner of a vicious animal, in possession of his bailee, who declines to take care of it at the request of the latter, or to consent to proper measures being taken to prevent the animal from doing a mischief, should escape liability for injuries done by it, or that the bailee should be liable for such injuries. The bailee in this case seems to have been blameless. The vicious bull was put in his possession under the contract, and he was bound to receive it. He promptly notified the owner of the dangerous character of the animal, and endeavored to induce him to consent to proper measures being taken to prevent its doing any injury.

I think that defendant, as the owner of the animal, was liable for the ■ injuries caused by the vicious propensities of his bull, if he knew, prior to the attack by the animal upon plaintiff, of his danger, ous character.

If, under the contract, the defendant and Kelly could be deemed tenants in common of the bull (Sheldon v. Skinner, 4 Wend., 525), the former was also liable. (Oakes et ux. v. Spaulding et al., 40 Vt., 347.)

It is claimed by respondent that the action cannot be maintained because the testimony shows that plaintiff was guilty of contributory negligence. I see very little in the evidence indicating any such negligence on the part of plaintiff, but clearly this is not a case where that question could be properly taken from the jury. (Muller v. McKesson, 13 N. Y., 195.)

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

MayhaM, P. J., and Herbiok, J., concurred.

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


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    PETER J. FLINN, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Continued 'injury to a building by the emission of sparles from a locomotive — evidence — improved appliances for railroads — new spark-arrester — negligence in not adopting it on freight engines.

    The evidence, in an action against a railroad company for injuries to a building from sparks emitted from passing locomotives, indicated that the building during a number of years had been repeatedly set on fire by the defendant’s freight engines, and that such engines threw out, for a considerable distance from the track, showers of large sparks that were liable to set the building on fire.

      Held, that there was sufficient evidence to justify the submission of the case to the jury upon the question whether the fires which injured the building were caused by the defendant’s engines, although the same tracks were used by engines of another company, there being evidence from which the jury could properly find that the engines used by the defendant were obviously dangerous.
    "While railroad companies are not bound to adopt an untried machine, or to use every possible prevention which the highest scientific skill might suggest, yet they are guilty of negligence if they fail to adopt the most approved mode of construction and machinery in known practical use.
    A new and improved smoke stack and spark-arrester came into use'in 1879, and was then placed by the defendant company on its passenger engines:

      Held, that the company could, without the imputation of negligence, take a reasonable time within which to place the new appliance on its freight engines, but that whether from 1879 to 1884 was a reasonable time to omit such adoption was a question of fact for the jury.
    That while no recovery could be had for damages to the building in suit prior to 1879, the date when the new spark-arrester came into practical use, by reason of the defendant’s not having adopted the new arrester on its freight engines, still, as there was evidence showing that showers of sparks were frequently-emitted from freight engines and fell upon the building prior to 1879, setting fire to it on several occasions, a request to charge that there was no evidence in the case upon which the jury could find that the defendant was negligent in the use of the appliances it had in use prior to 1879, was properly declined.
    Appeal by the defendant, The New York Central and Hudson. River Railroad Company, from a judgment, entered in the office of the clerk of Albany county on the 2Tth day of January, 1892, in favor of the plaintiff, on a verdict for $1,641 damages rendered at the Albany Circuit, and from an order denying a motion for a new trial made upon the minutes, entered in said clerk’s office on the 25th day of January, 1892.
    The action was brought in December, 1884, to recover damages for injuries alleged to have been caused to a building belonging to the plaintiff on Railroad avenue in the city of Albany, by reason of the negligence of the defendant in laying additional tracks and in the operation of its locomotives. It was claimed that the injuries began when the additional tracks were laid, which was in 1814, and that the premises deteriorated from that time in rental value, and finally became untenantable through a fire caused by sparks cast upon it from the defendant’s engines.

      Matthew Hale, for the appellant.

      H. Countryman, for the respondent.
   PutNAm, J.:

It is conceded that the former decision by the General Term in this case determines that negligence cannot be imputed to defendant for laying its track on any part of the premises referred to in the complaint, however near plaintiff’s building, or in running long and heavy trains thereon. Hence the only questions before us are (1), whether there was sufficient evidence in the case to submit to the jury indicating that the fires which injured plaintiff’s building were caused by sparks from defendant’s engines, and if so, whether the emission of said sparks was due to any negligence on the part of defendant; and (2), whether any exceptions taken on the trial to the rulings of tlie trial judge, to his charge, or his refusal to charge, should cause a reversal of the judgment.

I think there was sufficient evidence that the fires which injured and destroyed plaintiffs building were caused by defendant’s engines.

The plaintiff testified: “ The showers of sparks and smoke would be thrown into the windows, if they were open in warm weather, •and set fire to the carpet; I am speaking what they did; the effect was still greater if they did not pass readily; if they were lodged there, because it was up-grade, and the trains would sometimes become stalled; impossible for the locomotives to do their work, and ■then, if the locomotives were lodged in front of that building, show■ers of sparks would be thrown all about, and, if it were dry weather, the building would take fire, and sometimes when it was not dry it would take fire; the entire roof and alley and all about there would be ■flooded with these live coals; this state of things continued about ten yea/t's ¡ the final result was that the house was destroyed ; these fires ■continued from 1874, the time the additional toack was laid, until the destruction of the building by one of these fires in August, 1884.” ■* * * “ J visited this house immediately after it had been set ■afire; .1 went there to see how much damage had been done, and to ■see about getting it repaired; I have gone there, perhaps, five or six times after these fires, when I would be at home; I can’t give the dates ; perhaps, in 1876,1877 and 1878, along that way; in 1879; I would notice the floor of the building —the cinders, if there had been a hole burned in the roof in a day or so, without being repaired, the hole remained there, then the cinders would come in and around about there; it would be two or three or four inches deep of these large cinders.”

Michael Cantwell also testified as follows : “ Remember the fires to the premises described; these fires seemed to be on the roof when I got there; saw sparks from the engine on the roof; I never measured them; the tenants moved out; I knew about the tenants; I talked with the tenants; I think they were an inch and a half and larger; a chunk of coal probably an inch and a half; have seen fires catch from these sparks; have been in the yard and seen the engines work outside, and the sparks settle on the building and set it on fire, and I extinguished it.”

There was other testimony given on the trial indicating that the fires which injured plaintiff’s premises were caused by defendant’s engines, -evidence sufficient to sustain a verdict in favor of the plaintiff. (Sheldon v. Hudson River R. R. Co., 14 N. Y., 218; Crist v. Erie Railway Co., 58 id., 638; O’Neill v. N. Y., O. and W. R. R. Co., 115 id., 579.)

It is suggested, however, that the engines of the Boston and Albany Railroad Company also, at the time in question, run over the same track, and that it is impossible to tell whether the fires in question were caused by the engines of the latter company or defendant’s. It must be admitted that the testimony in the case as to the orgin of the fire is not very clear or decisive, but the evidence given by all the witnesses showing the emission of sparks and cinders from engines seems to point to those of defendant. Thus the witness Judge swore that the engines he referred to were those of the New York Central Railroad Company.

Hughes swore he never saw a Boston and Albany engine stalled. Almost all the evidence in the case indicating that plaintiff’s house was injured by sparks point to the defendant’s engines as emitting them. It was, therefore, a question of fact to be submitted to the jury whether or not the defendant’s freight engines caused the injury to plaintiff’s building. (Collins v. N. Y. C. and H. R. R. R. Co., 33 N. Y. St. Rep., 570, 571.)

It will be seen that this case differs from Searles v. Manhattan Railway Company (101 N. Y., 661), and McDermott v. New York Central and Hudson River Railroad Company (8 Week. Dig., 531), to which defendant refers. In this case there was evidence sufficient to submit to the jury tending to show, and which made it probable that the fires in question were caused by defendant’s engines.

It is claimed by defendant that, assuming the injury to plaintiff’s premises was caused by sparks from its freight engines, yet, there is no evidence to show negligence on the part of defendant in causing the emission of said sparks by the use of improper spark-arresters. That railroad companies are not bound to use appliances that have not been tested, although approved by the highest scientific authority. They are required to use only those that have been not only tested, but put in general use. (Steinweg v. Erie Railway, 43 N. Y., 123.) That where an appliance, not obviously dangerous, has been in daily use for years, they may continue to use the same without the imputation of negligence. (Lafflin v. B. and S. R. R. Co., 106 N. Y., 136; Burke v. Witherbee, 98 id., 562.) But, in fact, there was evidence in the case from which the jury could properly find that the engines used by the defendants were obviously dangerous; evidence indicating that plaintiffs house, for a number of years prior to 1884, had been repeatedly fired by those engines, they throwing out, for a considerable distance from its track, showers of large sparks that were hable- to fire the building of plaintiff and others. Therefore, the above cases cited by appellant are not decisive of the question before us. ■

In 1879 or 1880, a new kind of smoke stack and spark-arrester came into use, and was placed by defendant on its passenger engines, but not on those drawing freight trains. On freight engines, the defendant continued to use the old diamond smoke stack. The evidence in the case shows that the new smoke stack greatly diminished the amount of sparks emitted. One witness testified that only one-third as many sparks would issue from the new arrester as from the old diamond smoke stack.

The doctrine is now established that while railroad companies are not bound to adopt an untried machine, or to use every possible prevention which the highest scientific skill might suggest, yet, they are guilty of negligence if they fail to adopt the most approved mode of construction and machinery in known practical use. (Steinweg v. Erie Railway Co., 43 N. Y., 127; Burke v. Manhattan R. Co., 13 Daly, 31; Bevier v. Delamare and Hudson C. Co., 13 Hun, 258; Crist v. The Erie Railway Co., 58 N. Y., 639.)

Although the facts of the case are not alike, I think it, the correct doctrine as applicable to this case, is laid down in Smith v. The New York and Harlem Railroad Company (19 N. Y., 127), viz.: “A railroad company is liable in damages for an injury resulting * * * from its neglect to introduce any improvement in its apparatus which is known to have been tested and found materially to contribute to safety, the adoption of which is within its power so as to be reasonably practicable.”

It was shown that the new smoke stack and arrester was much better than the old diamond stack, it only emitting one-third as many sparks. The defendant could, without the imputation of negligence, take a reasonable time to place tbe new appliance on its freight engines. ’Whether, from 1879 to 1884 was a reasonable period was a question of fact which the judge properly submitted to the jury. If the old engines with the diamond stacks constantly set fire to wooden buildings near its tracks, and the new smoke stack would decrease the sparks emitted two-thirds, and thus greatly diminish the probabilities of fires, the jury might properly have found that the defendant was negligent in. not adopting the new arrester within four or five years. I think, therefore, that the trial judge properly submitted to the jury the question whether the damage to plaintiff’s house was caused by defendant’s negligent omission to place on its freight engines the new smoke stack and spark-arrester.

The appellant put the new smoke stack on its passenger engines in 1880. The appliance, therefore, was then in practical use to the knowledge of the company, and its officers and servants must have known that this new smoke stack materially diminished the risk of fire from sparks from the engines. It was a serious question whether, under the circumstances, the defendant should not, in 1880 or 1881, or prior to 1884, have placed this new spark-arrester on its freight engines. This question was properly submitted to the jury by the trial judge in a fair and impartial charge.

For the reasons above stated the court did not err in declining to charge, as requested, that the jury could not find that the defendant was guilty of negligence in using the old smoke stack and spark-árrester it did prior to 1884; and, also, that there was no evidence in the case from which the jury could say that defendant was negligent in not using some other kind of smoke stack than it did. As we have seen, these were questions of fact for the jury, not questions of law for the court. The defendant might properly have asked the court to charge that the defendant was not guilty of negligence in not adopting the new arrester immediately after its discovery; that it had a reasonable time after such appliance came into practical use within which to adopt it. "Wliat was a reasonable time was a question of fact for the jury to determine.

I think that defendant was entitled to the instruction, that no recovery can be had for damages prior to 1879 by reason of defendant’s not having adopted the new spark-arrester. The trial judge seems not to have understood the request, and his answer was practically a refusal to instruct the jury as requested. But on examination of his charge it will be seen that he had already, in effect, thus charged. There was no dispute whatever in the evidence that the new arrester was first used in 1879 or 1880. The judge instructed the jury as follows: “ It is for you to determine whether the evidence in this case justifies you in saying that they were negligent in refusing to adopt the new appliance that has been spoken of. * * * "Whether, in others words, if they had adopted, in 1879, 1880, 1881, 1882 and 1883, before this fire occurred, * * * the new appliance that h'as been referred to, that then this building would have been destroyed or its rental value depreciated. You will have to find all these things. You will have to find that they * * * negligently refused to adopt the modern appliances which were in practical operation and had received the test of experience.”

It will thus be seen that the court below, in effect, instructed the jury that the negligence, if any, of defendant in failing to use the new appliance was in the years 1879, 1880, 1881, 1882 and 1883. Having so charged the jury he was not called upon to repeat the instruction.

I also think that the court correctly declined to charge that there was no evidence in the case upon which the jury could find, that the defendant was negligent in the use of the appliances it had prior to 1879. "Without considering the evidence of Kirk there was some evidence of negligence on the part of defendant prior to 1879. It is decided in Field v. New York Central Railroad (32 N. Y., 316), that “ the fact that the sparks or coals were scattered at all upon their roadway in such quantities as to endanger property on abutting premises, raised an inference of some weight that the engines were improperly constructed or managed.” (See, also, Bedell v. Long Island R. R. Co., 44 N. Y., 369; O'Neill v. N. Y., O. and W. R. R., 115 id., 583, 584; Shearman and Redfield on Negligence [2d ed.], § 33 ; Sugarman v. The Man. El. R. Co., 42 N. Y. St. Rep., 30; Ruppel v. Man. R. Co., 13 Daly, 11.)

In this case there was abundant evidence showing that showers of sparks were frequently emitted from defendant’s freight engines on plaintiff’s house, setting fire to it on several occasions. This, within the cases above cited, was evidence of negligence on the part of the defendant, justifying the refusal of the court to charge as requested.

I do not think the judge erred in declining to instruct the jury to disregard the evidence of plaintiff that the market-value of his house was $700 or $800, on the ground that the witness, on cross-examination, stated that he understood by the market-ialue of the house what it would cost to replace it. The witness had contradicted himself. He first swore that he meant by the market-value what it would cost to replace it. He was afterwards asked and answered as follows:

“ Q. Do you understand that the cost of rebuilding or replacing a building is the proper test of market-value ? A. No, sir ; I don’t.
“Q. Do you understand that the market-value of a building means what it will bring in the market? A. Yes, sir.
“Q. But in making your answer of $1,200 as the market-value of your building, you say you meant what it would cost to replace it ? A. Yes, sir.”

The witness was not asked whether, in placing the market-value at $700 or $800, he meant what it would cost to replace the house. The meaning of the witness is somewhat doubtful. Under the circumstances, I think the testimony was properly submitted to the jury by the trial judge as weak and inconclusive evidence. '

Other exceptions were taken on the part of the defendant which I do not deem it necessaay to discuss.

I conclude that the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.

      Note.— Reported 58 Hun, 280.