Volume 2 — New York Miscellaneous Reports

<p>Demurrer to complaints. The opinion states the case.</p>

<p>Appeal from an order granting a peremptory mandamus directing defendant to audit a certain claim of Amelia Reynolds, referred to in the opinion.</p>

<p>In an action to recover for injuries received by being struck by a passing railroad train at a street crossing, the evidence for plaintiff tended to show that the train was being run at a rapid rate of speed; that no warning of any kind was given of the approach of the train; that the crossing was in a populous part of a city which was much traveled and that the night was quite dark. Plaintiff and his companion were in a one-horse carriage the sides of which were closed with curtains somewhat obstructing their view in those directions. At the crossing, which they approached from the east there were five tracks, the two westerly ones belonging to defendant; and as they approached the first track going west they stopped their horse, looked up and down the tracks and seeing nothing to prevent their crossing the remaining tracks in safety, made haste to cross and were struck and injured on the last track of defendant’s road by a passing train. It also appeared, that the view to the north along the tracks for a long distance from a point about one hundred and fifty feet east of them was unobstructed except as to an electric light near the crossing which it was claimed might have affected the view to some extent, and it was from that direction that the train came which caused the injury to plaintiff. Reid, that whether defendant exercised due care in the running of the train was properly submitted to the jury.</p> <p>Defendant proved that no flagman or other person to give warning was kept at the crossing. Reid, that it could not complain of a charge'that the absence of such a person was a circumstance which the jury might consider in determining whether or not defendant operates the train with due care.</p> <p>While the duty of one crossing a railroad track to look and listen is a continuous one, he is bound to exercise ordinary sense, prudence and capacity and to use his eyes and ears so far as he has opportunity, the circumstances and actual condition of things at the time must be considered in measuring the opportunity.</p> <p>Evidence considered and held, that plaintiff could not be said to have been negligent as matter of law.</p>

Appeal by defendant from a judgment entered upon the verdict of a jury against it, and from an order denying a motion for a new trial.

<p>Appeal from a judgment and order denying plaintiff’s motion to set aside a nonsuit.</p>

<p>Plaintiff’s intestate with knowledge that a certain track in defendant’s yard, where he was employed as a car repairer, was used exclusively for storing crippled cars awaiting repairs, went under a car on said track and while disconnecting a spring required by him, another car was shunted against the one from which he was taking the spring with such violence as to force it over his body, causing injuries. Held, that defendant was not liable.</p> <p>The fact that plaintiff’s intestate was directed to go where he did by a foreman, cannot avail in the absence of evidence justifying a conclusion, ■ that the foreman had authority to change the regulations of defendant as to where plaintiff’s intestate should work.</p>

<p>Before plaintiffs would deliver lumber to W., who was under contract to build a house for defendant’s son, they had a bill of it made out and submitted it to defendant, who approved of it and agreed to see it paid. Held, that a subsequent delivery of the lumber to W., was a sufficient-consideration for defendant’s guaranty.</p> <p>Defendant agreed to pay the bill according to the terms of the contract, which provided that the last payment should be due on the completion. The contractor abandoned the work and it was completed by the owner. Held, that on completion of the contract, no matter by whom, defendant became liable.</p>

<p>Appeal from a judgment entered upon the report of a referee. The opinion states the case.</p>

<p>Appeal by tlie plaintiff from a judgment entered upon the direction of the trial judge, dismissing the complaint.</p>

Appeal by plaintiff from a judgment entered on a verdict in his favor, upon the ground of inadequate damages, and from an order denying a motion for a new trial.

Tlie jfiaintiff, Peter DeLacy, brings this action to compel the specific performance by defendants of an agreement to deliver to him his distributive share of $1,000,000, the capital stock of the defendant Rapid Transit and Bridge Construction Company and the repayment of the sum of $9,500 and other relief.

Appeal by tlie defendant from a judgment, entered upon a decision on a trial before tlie court, without a jury, compelling specific performance of an agreement to devise real estate, and ordering a conveyance from defendant, one of the heirs of the estate of Abraham Korminsky, deceased, to the plaintiffs..

<p>Appeal from judgment, entered on verdict of a jury, and from order denying motion for new trial.</p>

Appeal by the defendants from a judgment entered in favor of the plaintiff upon the verdict of a jury, and from an order denying defendants’ motion for a new trial. The opinion states the case.

<p>In an action against an elevated railroad for past damages to plaintiff’s premises, affecting their rental value, caused hy the operation of the road, the testimony of a former tenant, that he moved away from the premises in question because they were dark and smoky, is competent and material.</p> <p>The objection that evidence admitted on the trial was immaterial, cannot he raised for the first time on appeal.</p>

Appeal by defendants from interlocutory judgment setting aside a certain conveyance or transfer of personal property and ordering an accounting.

<p>Appeal from order denying plaintiffs’ motion to strike cause from equity calendar.</p>

<p>Plaintiff's husband died, leaving a will, in and by which he gave to her, in lieu of dower, all his property, “to be enjoyed by her to her own use during her natural life,” with remainder to them daughter, her heirs and assigns forever. Plaintiff was sole executrix of the will, and had full power to sell the real estate and invest the proceeds thereof for the benefit of said daughter. After the death of testator, the daughter died leaving issue. Thereupon plaintiff contracted with defendant for the sale of the real estate. Thereafter the latter refused to take title on the ground that the death of the daughter deprived plaintiff of the power of sale. Held, that the power of sale was intended to he exercised for the benefit of both plaintiff and the daughter; that it was coupled with an interest in plaintiff and did not lapse with the death of the daughter.</p>

<p>Appeal from order made at Special Term denying a motion made by the defendants for an inspection of a paper writing in the possession of the plaintiffs.</p>

<p>In an action for money "loaned and advanced” the defendants, a copartnership firm, the answer admitted the partnership and denied the other allegations of the complaint. A verdict having been rendered for plaintiffs, defendants appealed and contended that the money was borrowed by their agent for an illegal purpose. Held, that such a defense was in the nature of new matter, avoiding a contract, and should have been pleaded.</p>

Appeal by the defendants from a judgment entered on a verdict rendered in favor of the plaintiff, and from an order denying a motion made by the defendants for a new trial. The opinion states the case.

Motion by plaintiff for a new trial, after the dismissal of Ms complaint at trial term, where the trial judge ordered the exceptions to be heard in the first instance at General Term.

Appeal by defendant from interlocutory judgment and final judgment restraining him from making, selling or otherwise dealing in a certain sideboard.

<p>To review an error of fact, the case must purport to contain all the evidence.</p> <p>To review an error of law, such certificate is unnecessary.</p>

Appeal by the defendant, Frederick Wood, from an order of the Special Term of this court denying the motion for a new taxation of costs. He had appealed to the General Term from an order of reference, and the order was affirmed “ with costs.” The respondent proceeded to tax before the clerk of the court a bill of costs (ten dollars) and disbursements (nine dollars and six cents) amounting together to nineteen dollars and six cents.

<p>Defendant repaired for the owner, a buggy upon which plaintiff held a chattel mortgage, duly filed, containing a clause that the buggy should not be removed from a certain barn, but the mortgagor was to have the possession and use of the buggy. The owner not paying for the repairs, defendant kept the buggy. The mortgagee demanded the buggy by virtue of his mortgage, and defendant refused to deliver it, claiming a " lien for the repairs and also for storage after the demand of payment. In an action of replevin by the mortgagee, held, that defendant’s lien for the repairs was superior to x>biintiff’s mortgage, as in the circumstances it must be assumed that plaintiff imxtiiedly authorized the repairs, and was estopped from asserting that the lien of his mortgage was superior to that of plaintiff for repairs; but held, further that the claim for storage was subordinate to plaintiff’s mortgage for the reason that no implication arose that plaintiff consented to or was bound to take notice of such charge.</p>

<p>Plaintiff andE. contracted for the purchase of certain premises, assuming a mortgage thereon. There was some interest due on the mortgage. Plaintiff furnished the money to consummate the contract, and by mistake paid the interest to defendant and was obliged to pay the mortgagee the amount of said interest. After the purchase plaintiff acquired all of E.’s interest in the property, and demanded of defendant a return of the interest money, which was refused. In an action to recover the money, plaintiff was nonsuited on the ground of a defect of parties. error; that the matter being independent of the real estate transaction, plaintiff alone was entitled to the money.</p>

<p>Appeal from a judgment rendered in favor of defendant hy the Municipal Court of Buffalo. The opinion states the case.</p>

<p>Where the original verified complaint filed in an action brought in the Municipal Court of Buffalo demands judgment for a greater sum than does the copy of the complaint served on the defendant, who appears and defends, plaintiff upon proof, is entitled to a judgment for the amount demanded in the original complaint</p>

<p>In an action to recover wages, plaintiff was charged by defendant with tampering with the cash register so as to defraud defendant of the receipts. It appeared that the register had been opened and that others had access to the register equally with the plaintiff. The court charged that the jury must find that plaintiff took any goods corruptly and wrongfully. Held, no error.</p> <p>The court charged, on request, that there was no evidence that would justify a finding that plaintiff took any money wrongfully. Held, no error; that as the charge of the court did not accompany the return it could not be said with the request standing alone, that it was not modified by the court in its charge to the jury.</p> <p>Defendant after testifying that he had never found any mistake made by the cash register, was asked “ whether it was an accurate machine?” The court refused to allow him to answer. Held, no error ; his opinion was incompetent.</p>

<p>W., a member of a benefit society, on June third, paid fifty cents for five months’ dues, up to June first. On June fifth he died. The by-laws did not require dues to be paid in advance, but provided that any member being three months in arrears should not be considered “ in benefit,” until one month after he was olearon the books, and also that no member three months in arrears for dues, should be eligible to receive a funeral benefit of fifty dollars. Held, that W. was entitled to a funeral benefit.</p> <p>The by-laws further provided that new members were not eligible to receive a funeral benefit until six calendar months had elapsed after initiation. Held, that it appearing that W. was a member at the time of his death, it was matter of defense to show that he had not been a member the required length of time.</p>

<p>A municipal charter authorized its common council to license and regulate hawkers, peddlers, etc., and to regulate the sale of meats, fish and vegetables. Held, that an ordinance prohibiting the peddling of fruit, garden or farm products in the public streets between five o’clock in the morning and one o’clock in the afternoon was valid.</p>

Upon the trial, defendant obtained the verdict of a jury, which plaintiff moves, upon the minutes of the court, to set aside.

<p>Where from a referee’s report it is evident what are the terms of the judgment to which a party is entitled, there is a compliance with section 1022 of the Code of Civil Procedure.</p>

<p>Prior to the creation of a debt against a manufacturing corporation, and while defendant was a stockholder, the provision of law that stock issued for the purchase price of property necessary for the use of the corporation was exempt from liability for the debts of the company, was repealed. Defendant held such stock. Held, that at the time the indebtedness arose, defendant’s stock was not exempt from its payment.</p> <p>The legislature has power to impose a future liability upon a stockholder where before, by- express provision of law, he was exempt from liability.</p>

<p>Appeal from judgment for plaintiff entered on the verdict of a jury directed by the court. The opinion states the case.</p>

<p>Appeal from a judgment in favor of plaintiff. The opinion states the case.</p>

<p>Appeal from an order made December 2, 1892, requiring the defendant, J. IT. Rurber Co., to furnish a bill of particulars.</p>

<p>A judgment debtor is guilty of contempt if after service upon him of the usual order in supplementary proceedings, he borrows money and pays the same to creditors.</p>

<p>in an action against partners for goods sold and delivered, the evidence of one partner that he purchased the goods for the firm, corroborated by another witness for plaintiff, justifies the direction of a verdict for plaintiff, although the other partner testifies that the goods were not so purchased but were put into the firm by his partner as part of the capital stock.</p>

<p>The holder of a promissory note cannot recover against the indorser when he does not prove that notice of dishonor was given to the defendant, and seeks to bring himself within the statutory exceptions, unless he alleges and proves the facts necessary to constitute the exception.</p> <p>In an action against an indorser of a promissory note, the complaint alleged due notice of demand of nonpayment and protest was given defendant. The answer denied the allegations. Held, that evidence to prove excuse for failure to protest was inadmissible in the absence of an averment of that character in the complaint.</p>

<p>Appeal by plaintiff from judgment dismissing the complaint as against defendant McArdle.</p>

<p>Appeal by plaintiffs from an order of the Special Term vacating order of arrest.</p>

<p>Appeal by defendant from order of Special Term on motion to review clerk’s taxation of costs.</p>

<p>Upon the question of the value of an attorney’s professional services it is error to read in evidence the opinion of the appellate court affirming a judgment against the client, if objected to; it is also error to incorporate an extract of the opinion into a hypothetical question to be put to an expert witness as to the value of the services.</p>

<p>Plaintiff’s contract of employment with defendant, for five years, stipulated that defendant might terminate it at any time on payment of §8,000, and that upon breach of the agreement by either party, he should forfeit §3,000 to the other as liquidated damages. At the end of two years defendant closed the business and dismantled his factory. In an action to recover the §3,000, held, that plaintiff was entitled to recover, and that his obedience of defendant’s instructions to shut down and dismantle the factory was not a waiver or release by him of defendant’s obligations under the contract.</p> <p>Defendant afterwards went into another business and offered plaintiff employment for the remainder of his term of service. Reid, that plaintiff was not bound to accept it.</p>

<p>A husband is not liable for attorney services rendered his wife in proceedings prosecuted by the people against him for nonsupport.</p>

<p>Appeal from an order. The opinion states the case.</p>

<p>Appeal from an order made on the 9th day of December, 1892, requiring defendant to serve a further and additional bill of particulars.</p>

<p>Action to recover for personal injuries alleged to have been sustained by the plaintiff, by reason of defendant’s driver running into the wagon of plaintiff, and was heard before the court and a jury. The jury rendered then’ verdict for the plaintiff on the 25th day of October, 1892, for the sum of five hundred dollars (§500). Judgment was entered thereon on the 26tli day of October, 1892. An order was entered denying defendant’s motion for a new trial. From said judgment and order defendant appeals.</p>

Appeal by plaintiff from judgment entered upon an order dismissing complaint at trial term. The opinion states the case.

<p>Appeal from judgment, entered on a verdict of a jury, and from an order denying motion for a new trial.</p>

<p>At the trial, defendant obtained leave to withdraw a juror upon paying the costs and disbursements of the action up to date. These costs were paid, and the answer amended. Final judgment was obtained by plaintiff.. Held, that plaintiff could not include in his bill of costs the costs paid as a condition of obtaining leave to amend; that the order allowing amendment was an adjudication that the costs imposed belonged to plaintiff, and that they could not be again taxed in favor of either party.</p>

<p>In an action for admeasurement of dower, defendant denied plaintiff's claim that she was the lawful widow of defendant’s testator, one J. H., deceased. Plaintiff, in pursuance of an order, served a hill of particulars, alleging that the allegation of widowhood, in the complaint, was founded upon a nonceremonial marriage, and giving the place and date thereof, and the parties present thereat. In an application by defendants for an additional hill of particulars, held,, that the hill previously given was sufficiently comprehensive.</p>

This action was originally brought by Robert W. Milbank, the present plaintiff’s assignor and intestate, to recover $5,000 and interest. The defendant’s answer is a general denial. The case was first tried in November, 1888, resulting in a verdict for defendant. The plaintiff appealed to the General Term o£ the Superior Court, where he met with an affirmance ; he then appealed to the Court of Appeals and obtained a reversal. Reported in 127 N. T. 370.

<p>Appeal by defendant from a judgment entered on a verdict in favor of plaintiff. The action was brought to recover damages for injuries resulting from alleged negligence of defendant’s servants by which the plaintiff when alighting, or being about to alight, from a Broadway car, fell under the wheels and was run over. Plaintiff was conveyed to a hospital, and the police officer who had talked with plaintiff shortly after the accident made report thereof at the police station, all of which was entered on the police blotter.</p>

<p>In an action for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant’s servants, it appeared that at the time the injuries complained of were received and at the date of the bringing of the action, the plaintiff was a resident of Brooklyn, the defendant a foreign corporation and that the cause of action accrued in the state of New Jersey. Held, that this court had jurisdiction as to both subject-matter and parties.</p>

<p>Where the defendant fails to controvert by answer the allegations of the complaint, such failure is to be taken as an admission of their truth.</p> <p>For the purpose of determining the basis of a cause of action for damages for the nondelivery of goods agreed by defendants to be delivered to plaintiff, the allegation of the answer of a contract of other terms or of a different character, has no function or effect.</p>

<p>■ Appeal from an interlocutory judgment overruling defendant’s demurrer. The opinion states the case.</p>

<p>In 1887, B. and wife, to secure advances of money by defendant for the benefit of B., assigned to him an endowment policy of insurance on B.’s life for the benefit of Ms wife, issued in August, 1873, for the period of fifteen years. In 1885, B. and wife commenced an action to obtain judgment declaring the assignment void. The judgment in the action, rendered in June, 1887, directed a redelivery of the policy to B.’s wife. The husband survived the period of fifteen years. Held, that the interest of the wife in the policy having ceased before judgment, the same should bo modified by striking out the direction that defendant deliver the policy to her.</p>

Appeal by defendants from an order that denied defendants’ motion to disallow certain direct interrogatories, proposed by plaintiff to be attached to a commission in the taking of testimony in Pennsylvania.

<p>In an action to recover for the value of services rendered by plaintiff for defendants in obtaining for them a contract to erect a house, there was a conflict of evidence both as to the nature and value of the services and of the agreement to pay plaintiff for his introduction of defendants to the owner of the house. 'The jury found in favor of plaintiff. Held, that the court on appeal would not interfere as there was sufficient evidence to justify the verdict.</p>

<p>A street railroad company has the paramount, not exclusive, right to the use of its tracks.</p> <p>One who temporarily obstructs the tracks of a street railway when necessarily engaged in the prosecution of a lawful business, and is injured by the negligence of the railway company, may maintain an action for damages if he himself is without fault.</p> <p>Plaintiff was engaged with other workmen in the employ of a city in laying water pipes near defendant’s railway track. One of the workmen had necessarily placed the hub end of a pipe against the track when one of defendant’s cars came along at the rate of six miles an hour, and the step struck the hub end of the pipe, which whirled around and struck and injured plaintiff who was standing with his back to the car. A watchman had been placed by defendant at this point to see that no obstacles were in the way, hut at the time of the accident he was absent. Held, that the jury were warranted in concluding that plaintiff was free from1 contributory negligence and that the driver was guilty of negligence.</p>

<p>Plaintiff’s intestate, a child between five and six years of age, was sitting on a curbstone with her feet in the gutter; on the approach of defendant’s wagon, she ran towards the other side of the street, but was knocked down by the horse, and received injuries from, which she died. The court stated the law on the rights of infants sui juris and non sui juris, and charged that “the child had a perfect right to be in the street there, and that the parents were not guilty of negligence in allowing it to be there.” Defendants did not object to the charge or to any part of it on the same subject. The question whether the plaintiff, in case the infant was non sui juris, was bound to show that there was no negligence of the parents, was not called to the attention of the court.</p> <p>At the close of plaintiff’s case a motion to dismiss on the ground that there was no negligence on the part of defendants, and that the child was whereit was unreasonable to expect a child of her agoto be, was denied. Meld, no error; that if it referred to a want of negligence of defendant’s driver because he had no reason to expect that a child should be where the intestate was at the time of the accident, and that were so, plaintiff had a right to ask a verdict that the driver saw the child while she was in peril and might by proper management have prevented the accident. If it referred to negligence for which the child was responsible, it singled out a fact not of itself decisive.</p>

<p>In an action against a common carrier to recover damages for an injury to a piano shipped by plaintiff at Bridgeport, Conn., to Rochester, FT. Y., it appeared that the contract was a special one by which defendant was released from its common-law liability; that at the time of shipping, a receipt therefor was received; that the piano was boxed in a secure and workmanlike manner, and that at the time of delivery at B., it was in first-class order; that from the time of its delivery to the truckman in R. until it was delivered at plaintiff’s house, it was carefully handled, and when opened it was found in a broken and damaged condition. Eb explanation as to how the injury happened was given by defendant. A verdict was rendered in favor of plaintiff. Held, proper; the relation existing between plaintiff and defendant was contractual, and proof of the injury, as established by plaintiff, was at least prima, fade evidence of negligence on the part of defendant, and its failure to explain it was sufficient to make it liable.</p>

<p>Demurrer to the second count of defendants’ answer.</p>

<p>Action for partition of real property.</p>

<p>While a trustee of a corporation cannot deal with the property thereof, or make a profit out of such dealings, without incurring the condemnation of a court of equity, and being called upon to account therefor, it is not a part of Ms duty as such to advance Ms personal money to relieve it from financial embarrassment.</p>

<p>Appeal from order of Special Term denying defendants’ motion to have a judgment satisfied of record.</p>

<p>Appeal from judgment of trial term, entered on verdict of jury, and from order denying motion for new trial.</p>

Appeal taken by James J. Treanor, Frank P. Treanor and the Yale Safe and Iron Company, three of the defendants, from judgment entered in favor of the plaintiff, upon report of referee to whom it was referred to hear, try and determine the issues, the defendant, Mehrhoff, not joining in such appeal.

<p>Appeal from judgment for plaintiff on demurrer to complaint.</p>

<p>Appeal from judgment of Special Term.</p>

Appeal by defendant from judgment entered in favor of the plaintiffs, upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

<p>Appeal from an order of the Special Term, striking out part of answer.</p>

<p>Appeal from a judgment dismissing plaintiff’s complaint -entered upon findings of fact, etc., made by a judge at Special Term.</p>

<p>Appeal from an order denying a motion by plaintiff for a new trial, made at Special Term, upon an affidavit and upon the case as settled.</p>

<p>Appeal from an order vacating and setting aside the' summons herein, and service thereof upon defendant.</p>

<p>Appeal by defendant from judgment entered in favor of the plaintiff on a verdict of a jury and from order denying new trial.</p>

<p>This action was brought to foreclose a mechanics’ lien for balance due on contract and for extra work, and judgment was entered in favor of the plaintiffs for the sum of two hundred and eighty-five dollars ($285) for extra work, upon the findings of fact and conclusions of law made by the trial justice, at an equity term of this court.</p>