Volume 29 — Jones & Spencer's New York Superior Court Reports

Statement of the Case by the Court. The action is by the plaintiff, as the successor in interest of the landlord of No. 240 East 60th street, against the defendant as tenant, to recover damages, for a breach of the following covenant, contained in the lease of the premises “ that the defendant will at any reasonable hour in the daytime, permit the lessor or his agent to show the premises to such persons as he desires for the purpose of selling or leasing the same, and will…

<p>Appeal from a judgment entered in favor of the plaintiff on the report of a referee, to whom it was referred to determine the issues.</p>

The plaintiff recovered a judgment after a trial at the -equity term of the court, setting aside the cancellation of a policy of marine insurance, and awarding him $6,009.96 damages on the policy. The defendant appeals.

<p> Referee's fees under the Code, when changed by the consent of parties, etc. </p> <p>The stipulation of the parties in writing provided “ That the referee shall not be limited to the statutory fee of six dollars per day for his services in this case, but may charge such fees therefor as he deems proper.</p> <p>The referee’s charges in the ease were objected to on taxation, on the ground that the stipulation failed to specify any specific rate of compensation, and, therefore, was not “ a different rate of compensation fixed by consent of the parties," as provided by the Code. The clerk, as taxing officer, sustained the objection, and the special term judge, on appeal, sustained the clerk’s ruling. Held, that this decision must be affirmed, under the construction of the Court of Appeals in First National Bank v. Tamajo, 77 H. T., 476, and Mark v. City of Buffalo, 87 H. T., 184, although the court in its opinion in this case considers the decision and construction of the Supreme Court in Burt v. Oneida Community, 59 Hun, 234, to be preferable for reasons cited in the opinion of the court, which fully sets forth the facts and points in this case.</p>

<p>Promissory note, defence thereto ; that it was made and endorsed without consideration for the accommodation of one Simmons, and diverted by him from the purpose for which it was entrusted to him, and the evidence fully supported that position and required the plaintiff to show that it paid value for the paper, and the single and main point in the case was whether, upon the evidence, the plaintiff was entitled to go to the jury upon the question as to whether it parted with value upon the faith of the note.</p> <p>Held, that the evidence established that the plaintiff neither paid nor surrendered anything of value on the faith of the note in suit, and there was nothing to go to the jury on any of the questions involved in the action, and the verdict for the defendants was properly directed.</p>

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

There are three actions, the facts in each of which are similar, except, as to date of the obligation, time when due, amount, and parties plaintiff, so that the questions involved in the three cases may be disposed of by the decision of one. The trial judge directed verdicts in favor of the plaintiffs. In the first action for $83,096. In the second for $34,860, and in third for $1,985.40.

Appeal by the plaintiff from a judgment entered upon dismissal of his complaint by direction of the judge presiding at the equity term after a trial thereat.

The trial judge dismissed the plaintiff’s complaint, and directed that the exceptions be heard in the first • instance at genera,! term. The plaintiff moves for a new trial on the exceptions taken.

<p> Negligence, action to recover damages caused thereby. </p> <p>The plaintiff was a passenger on one of defendant’s cars going up-town. At a point on First avenue, between 65th and 66th streets, the track was blocked by a broken-down van or truck, and'the passengers, including the plaintiff, at the request of the conductor, engaged in the work of moving the car from the track and around the obstruction, that it might continue its journey. While thus engaged another car of defendant’s, coming down the avenue, met with the same obstruction, and its conductor and driver proceeded to jump the car around on the east side of the track, and the same side upon which the plaintiff was engaged with the conductor, and thereby the plaintiff was caught between the cars and injured. If the car going down had been jumped to the west, as it should have been, the accident would have been avoided.</p> <p>Held, that the plaintiff was lawfully on the street at the time, by request of the conductor of the up-town car, and had no warning of the danger, and cannot be said to have contributed to the collision or to the bringing on of the injury to himself, and it was for the jury to determine the question of negligence of the defendant in the premises. The motion of defendant’s counsel to dismiss the complaint was properly denied, and the verdict of the jury was sustained by the evidence.</p>

<p>Appeal by defendant from a judgment entered upon the report of a referee.</p>

<p> Action for the breach of a written agreement by the testator of defendants. </p> <p>The agreement provided for the payment of one hundred and fifty shares of capital stock of the Staten Island Water Supply Company, when the water works that the defendants’ testator were building under contract were turned over and accepted by said company. Before the water works had been accepted, and before the completion of the contract in regard to them, defendants’ testator assigned his contract to another party and procured a release from the company.</p> <p>Held, that on the face of the contract, and from extrinsic circumstances, it appears that the acceptance was referred to only as a date or time of payment of the capital stock. It also appears that the testator was solely responsible for the acceptance never taking place. He could not by his own act dissolve the obligation of the contract, and his executors are liable upon it.</p> <p>The facts and points in the case appear in the opinion of the court and the arguments of counsel.</p>

<p>Appeal by plaintiff from a judgment entered on the report of a referee.</p> <p>The facts and points in the case appear fully in the opinion of the court. In the trial of the case the referee declined to allow to the defendant the whole of the claim but allowed him one-half, and defendant appealed from such ruling, and the general term sustained the referee (57 N. Y. Super. Ct., 576), and the Court of Appeals modified the judgment by striking out the allowance of one-half made by the referee, Monnet v. Merz, 127 2V. Y., 151. The plaintiff now appeals from the judgment entered upon the report of the referee allowing defendant one-half of said amount.</p>

Cross appeals from a judgment entered upon the report of a referee, whose opinion and supplemental opinion in the case was as follows :—

<p>Appeal by plaintiff from judgment entered for defendant on the verdict of a jury, and from an order denying the motion of plaintiff for a new trial upon the judge’s minutes.</p>

Appeal by defendant from a judgment entered at special term upon findings of the trial judge. The facts in the case and the points contended for, fully appear in the opinions of the trial judge, as follows:

Appeal by plaintiff from an order made at special term staying all proceedings in this action until the trial and determination of an action pending in the Supreme Court. The following opinion was rendered by Judge McAd am at the special term upon which the order appealed from was affirmed.

<p> City Surveyor; Not an office within the meaning of section 55, of the Consolidation Act. </p> <p>This action was to recover the salary of James R. Wardlaw, as assistant engineer, during the interim between the time of his suspension and his final discharge. The defence was that Wardlaw was appointed city surveyor, and his attempt to hold the position of assistant engineer was holding two offices which, under section 55 of the Consolidation Act. prevents a recovery.</p> <p>Held, that defendant might have discharged decedent and relieved itself from all liability, but it could not suspend him without pay. The appointment of city surveyor is not an office within the meaning of section 55 of the Consolidation Act. Office, in the sense there employed, embraces the idea of public station, tenure, emolument and duties, involving the right and duty to execute some public trust. The position of city surveyor has no tenure or salary ; does not exist independently of the incumbent, and does not become vacant by his death, removal or resignation.</p>

Appeal by defendant from a judgment entered for the plaintiff, upon a verdict directed by the court, and from an order denying defendant’s motion for a new trial. The following opinion, upon which the judgment and order appealed from were affirmed, was filed by the trial judge on his denial of defendant’s motion for a new trial.

<p> Partnership, action for the dissolution and appointment of a receiver, etc. </p> <p> —Distribution of estate—Preference of creditors. </p> <p>In this case, after the appointment of a receiver of the co-partnership property, the appellant being a judgment creditor, applied to the court at special term in the original action for an order that the receiver pay out of the funds in his hands the amount of the judgment. The court below denied the petition, and from such denial this appeal was taken.</p> <p>Held, that the application was properly denied. In a case like this the court should consider and determine whether the applicant had a right to a preference over other creditors of the co-partnership. . If it appeared that the estate was certainly solvent, leave might he granted, but if insolvent, and there was nothing in the claim that should give priority or preference, the application should be denied. In this case there was no reason why the appellant should not share equally with the other creditors.</p>

<p>Appeal from a judgment entered upon findings, etc., made at special term.</p>

Appeal by plaintiff from a judgment entered upon tbe verdict of a jury directed by the trial court, and from an order denying a motion for a new trial upon the minutes. The action was brought to recover damages for the alleged wrongful discharge of plaintiff from defendant’s employ before his term of service had expired. The defence was that plaintiff had been guilty of acts of misconduct and insubordination which justified his discharge.

The following opinion, upon which the judgment and order appealed from were affirmed, was filed by the trial judge on his denial of plaintiff’s motion for a new trial.

<p>Appeal by defendants from a judgment entered upon the decision of a judge at special term. The action was brought to secure an injunction and incidental damages against the defendants’ elevated railroad with respect to the plaintiff’s premises in Park Bow.</p>

<p> Practice—Notice of appeal from an order must state the substance of the order correctly. </p> <p>On the 30th day of April, 1892, an order was duly entered in this action (ex parte) declaring the plaintiff’s “case on appeal” abandoned. The plaintiff obtained an order to show cause why the order of 30th of April declaring “ the appeal ” abandoned should not be vacated. This motion was heard by Judge McAdaji, and on the 23d day of May, 1892, an order was entered denying the motion to vacate the order of April 30th. The plaintiff served a notice of appeal from an order denying a motion to vacate an order declaring the “ appeal herein ” abandoned, and this is the appeal before the court.</p> <p>Held, there was no such order granted as the notice of appeal described (declaring the appeal abandoned). The original order of April 30, 1892, declared the case on appeal abandoned, which left the plaintiff free to prosecute the appeal on the judgment roll. This order was duly made and entered, and has not been appealed from. There was no order made in this action declaring the appeal abandoned, and no order entered denying a motion to vacate such an order.</p> <p>Held also, on the merits, that the plaintiff had not sufficiently excused his default.</p>

<p> Referee, decision of, upon conflict of testimony, must be final. </p> <p>In this case the conflict between the witnesses of the respective parties was quite marked, and the result depended upon the credibility of the witnesses in the judgment of the referee. Upon the case as presented on this appeal the court would not be justified in interfering with the decision of the referee on the ground that his findings were against the weight of evidence. Nor is there any merit in the claim that some of the facts found by the referee are not supported by the evidence. The facts being so found from the evidence, they support the conclusion of law based thereon, in conformity with which the judgment was entered.</p>

<p> Injunction—Lease, and agreement to lease, partly in writing and partly by parol—Parol testimony in regard to written documents and in explanation thereof. </p> <p>Upon the trial of the issues the trial judge, after hearing part of the testimony offered by the plaintiffs refused to hear the remainder, and dismissed the complaint upon the ground that the lease did not give the exclusive use of the entrance and hallway to the stairway leading to the premises leased to the plaintiffs, and did not prohibit the cutting and use of a door by the defendant, from the hallway into the saloon. This ruling was erroneous, as it was based upon the theory or conclusion of the judge that the lease itself constituted the whole contract between the parties, and that inasmuch as the lease did not in terms grant to plaintiffs the exclusive use and control of said hallway, evidence of a prior or contemporaneous oral agreement concerning said hallway was inadmissible, and so far as such evidence had been permitted to be given it must be disregarded.</p> <p>The general rule which excludes conversations, negotiations and parol agreements, prior to the execution of a written agreement relating to and springing out of such conversations, negotiations, etc., does not apply to this case. (1) When the original contract, although verbal, yet was entire, and only a part of it was reduced to writing, then all the part not so reduced can be proved by parol. (2) When the consideration, or a consideration further than that expressed in the writing, does not appear in the writing, the consideration or the further consideration may be proved by parol. Parol evidence is always admissible as to the meaning which the parties themselves attached to a particular word or phrase in the contract. Such evidence does not contradict or vary the terms of the written contract, but is simply explanatory thereof.</p> <p>The lease in question was for six lofts above the first floor, “ together with the appurtenances." These words gave to the plaintiffs whatever was attached to or used with the premises as incident thereto, and convenient or essential to the beneficial use and enjoyment thereof, and the plaintiffs took thereby any easement or servitude used or enjoyed with tlie leased premises ; and, as the appurtenances were not specified, parol evidence was admissible to show that the parties, preparatory to the execution of the lease, met and discussed their character and extent, and agreed that the appurtenances should include all that they appeared to include, and that the defendant would not make a change in such appearances in derogation of his grant ; and that in strict reliance upon the promise of the defendant, not to change the appurtenances as they then existed and were understood, the plaintiffs executed the lease.</p> <p>Parol evidence to this effect was partly given and partly offered to be given, but rejected. The plaintiffs did show that before the lease was executed the defendant proposed that, by express terms in the lease, he should reserve the right of cutting a door from the hall into the saloon, to which plaintiffs strenuously objected, and defendant expressly waived the point in plaintiffs’ favor. It must be assumed in this case that if the plaintiffs had been permitted to give in all the evidence competent under the issues, within the rules stated, they would have made out a prima facie case entitling them, in the absence of evidence to the contrary, to relief against the injurious use of the hall leading to their premises, or of the side door that was cut from said hall into the saloon.</p> <p>Por the reasons stated the dismissal of the complaint constituted error.</p>

<p>Appeal from a judgment entered upon a dismissal of the complaint at the trial.</p>

<p>The trial judge directed a verdict for the plaintiffs in this case for amount claimed in the complaint, ordering the exceptions to be heard in the first instance at the general term.</p>

<p>Appeal by defendants from a judgment entered upon the report of a referee in favor of the plaintiff. The facts are sufficiently stated in the head-note. For record of former appeals see 15 J. & 8., 38; 17 lb., 238; 22 lb., 557; 25 lb., 343; 26 lb., 585.</p>

Appeal by defendants from a judgment, entered on the verdict of a jury, in favor of the plaintiffs, and from an order denying defendants’ motion for a new trial.

<p>Liability of defendants to repay the bank, plaintiff, moneys received by them,from one Sanford, a former cashier of the bank, in the shape of cashier’s checks, on account of Sanford’s personal stock speculations.</p> <p>Between June, 1SGG, and July, 1869, plaintiff made pinchases and sales of stocks, securities and gold, through the defendants, as brokers, and these dealings were managed and directed by Sanford, who gave all orders to defendants that were brought to their office by plaintiff’s clerks or messengers, and defendants were constantly receiving cashier checks, drawn by W. H. Sanford, cashier, upon the plaintiff, which were paid by plaintiff in the usual course of business through the clearing house. The defendants received in such dealings upwards of one hundred such checks, aggregating half a million of dollars, and no question or objection to the payment of these checks was ever made until July 1, 1809, when Sanford absconded after appropriating to his own use stocks, securities and moneys, of plaintiff and its customers. This action seeks to recover from defendants the amount of fourteen of the checks, selected out of the one hundred checks by plaintiff’s counsel, on the ground that the money represented by these checks, and so paid to defendants, "were for use in Sanford’s private stock speculations, and that defendants knew actually or constructively what Sanford was doing. After Sanford’s defalcation the plaintiff called upon defendants and was permitted to see Sanford’s accounts, as kept by defendants, and then informed the latter that Sanford had been speculating on his own account. After receiving this information, defendants discovering certain balances in favor of Sanford with other brokers, they brought an action against him and recovered about $2,000, by default, upon the theory that the transactions in question were with Sanford individually, and that he was their customer and not the plaintiff. Plaintiff’s counsel claimed that this action by defendants against Sanford, and the judgment entered and enforced against Sanford’s individual property, constituted an election by defendants to consider Sanford as their customer in these transactions, and precludes the defendants from insisting that the plaintiff and not Sanford was their customer in these transactions in question, and that such act precludes them from contesting that question in this action.</p> <p>Held, that this legal proposition of the plaintiff’s counsel cannot be sustained either by principle or by authority. The doctrine invoked is “ the election of remedies.” This doctrine cannot be invoked and made available beyond the point of precluding the defendants, after suing Sanford on the account, from proceeding against the plaintiff to recover any balance not realized in judgment against Sanford. Such action on the part of the defendants cannot create a remedy in favor of the plaintiff that did not exist before the action. The relations between the bank and defendants existed and were fixed before Sanford absconded, and if the dealings before that time were with the hank, nothing that plaintiff’s president said to defendants, and no action taken by the defendants in consequence thereof, could change the previous existing relations. The cases cited by counsel do not sustain the proposition he seeks to establish in this case. They do not go further than to hold that where the plaintiff has two inconsistent remedies and adopts one of them he cannot afterwards resort to the other. The referee’s conclusion upon the whole case, and the judgment entered in pursuance thereof, are correct.</p>

<p>Option for the purchase of mining property claimed by defendant as owner and sold. Plaintiffs claim ajoint interest with defendant in said option and the proceeds of sale thereof, and demand an accounting, etc.</p> <p>This appeal is from a judgment entered upon the order of the court at special term, after an exhaustive trial, dismissing the complaint.</p> <p>Held, that the complaint sets forth a good cause of action, and the right of the plaintiffs to recover depended entirely upon the evidence, and the most that can be said on behalf of plaintiffs is that there was a conflict of evidence. The trial court, on the questions of fact, found adversely to plaintiffs, and its conclusions are fully sustained by a preponderance of evidence, and the judgment appealed from is affirmed.</p>

<p> Judgment, motion to vacate, and to suppress the deposition of a witness improperly obtained. </p> <p>The motion was founded upon affidavits. The court below held that such a motion should he made upon a case and exceptions, as well as the affidavits, and therefore denied the motion with leave to renew upon such case. Held, that the court below correctly indicated the practice to he followed in such a case, and that the order was properly granted.</p>

<p> Motion to vacate a judgment and to suppress the deposition of a witness taken by commission made upon a case and exceptions and affidavits. </p> <p>This is the ease reported ante, page 278, the motion being renewed on a case and exceptions, as well as affidavits, at the special term, as suggested in the decision of the former motion.</p> <p>Held, that the action of defendant in regard to the execution of the commission, taking the testimony of one Battelson in the case, indicates a disregard of the proprieties that all honorable men observe in the conduct of any litigation, however bitter, and is a trespass upon the code of ethics, which should control under such circumstances, and calls for severe condemnation by this court. The conduct of the defendant in this respect is inexcusable. But from a careful examination of all the evidence it does not appear that such action was a wrong from which defendant derived any benefit, and, therefore, his conduct does not afford sufficient ground or reason to entitle the motion to prevail.</p> <p>Held, that the plaintiffs are estopped from the relief sought, by reason of their negligence and laches. The testimony of the witness was not controlling, it was only cumulative, and there is enough in the case, without the testimony of this witness, to sustain the judgment. A new trial cannot be obtained either for the purpose of furnishing new and additional cumulative evidence, nor for the purpose of destroying the cumulative evidence of the successful party. This rule is well settled, that if a witness examined on commission is instructed by the party in interest how to testify, the commission will be suppressed at the instance of the adverse party, on the ground that such conduct is xuejudicial to him, corrupting to the witness, an abuse of process and a fraud on the court, interfering with pure administration of justice. But suppressing a commission in advance of the trial and granting a new trial after judgment, are quite different things. A judgment is intended to terminate a litigation and to conclude the parties as to every question raised or which might have been raised before the final result was reached, and rights so lost may never be regained.</p>

<p> Certiorari, writ of, reviewing the proceedings of fire department on trial of relator. </p> <p>Relator was a member of the fire department of the city of New York. On charges preferred against him for assault on a superior officer, he was tried before the board of fire commissioners, found guilty and dismissed from the force.</p> <p>On the review on appeal, Held, that the respondents had jurisdiction to make the order. They complied with all the formalities required by the statute. The preponderance of evidence indicates that the relator was guilty of an act of insubordination and breach of discipline and “ conduct injurious to the public peace and welfare,” that sustains the con- * elusions of the commissioners as to his guilt, and for which, under section 440 of the Consolidation Act he could be dismissed from the force. Section 2141, of the Code of Civil Procedure, authorizing the court, upon a hearing on return to a writ of certiorari, “ to make a final order annulling or confirming wholly or partly, or modifying the determination reviewed ” do not authorize the review or modification of the determination of inferior jurisdiction, in matters within their jurisdiction, which are confided to their discretion.</p>

<p> Life insurance, policy of—Application for insurance and statements therein and the by-laws referred to in the policy and ma.de a part thereof, must be considered as one instrument with the policy. </p> <p>This action was brought to recover from defendant the sum of $10,000, upon a policy of insurance upon the life of Charles H. Hyde, payable upon his death to the firm of Studwell, Sanger & Co., of which firm plaintiffs are the sole surviving partners.</p> <p>The application for insurance, and the statements therein, and the by-laws of respondent, by the terms of the policy were made a part of the contract of insurance between Hyde and the defendant. The defence was based upon alleged misrepresentations in the application for insurance or the suppression of facts therein which should have been stated. In the application Mr. Hyde made this declaration: “ That the foregoing application and this declaration, together with the answers and explanation given to the above various questions, and inclusive of those propounded by the medical examiner on the within pages hereof, shall form the exclusive and only basis of the agreement of the above-named applicant and the Mutual Benefit Life Association of America, and that if any misrepresentations or fraudulent or untrue ansvjers or statements have been made, or if any facts which should have been stated to the association have been suppressed therein, * * * or should the applicant fail to comply with any of the terms of this agreement, or with any of the conditions and agreements contained in the certificate of membership, * * * then this agreement shall become null and void, and all mdneys which shall have been paid shall be forfeited to the said Association for its sole benefit.” At the conclusion of the statement made to the medical examiner, Mr. Hyde further says: “I hereby further declare that I have read and understand all of the foregoing questions put to me by the medical examiner, and the answers thereto, and that the same are warranted by me to be true.” In the application for insurance this question was asked of Mr. Hyde : “ What amounts are now insured on your life, and in what companies ? A. $10,000 1 Family Fund.’ ” The plaintiffs’ proofs of death submitted to the defendant show that Mr. Hyde had $10,000 insurance in the “ Mutual Life Insurance Company of New York.” Defendant’s “Exhibits B, C, E and F” are conclusive evidence of the falsity of this statement. They show that on January 30, 1868, and several years prior to the application made to the defendant, Mr. Hyde took out two policies of insurance in the “Mutual Life Insurance Company of New York” for $5,000 each, and that the same were in full force right along up to the time Mr. Hyde died, and that the amounts insured by said policies were actually paid to Mr. George H. Studwell, one of the plaintiffs in this action, on the 24th day of January, 1890. These policies were offered and received in evidence, and the fact that, in addition to the insurance mentioned by Mr. Hyde in his application, he was also insured at the time of that application for the sum of $10,000 in the “ Mutual Life Insurance Company of New York” is not disputed. The answer upon its face appeared to be complete, and it does not, therefore, come within the rule of those cases which hold that where an answer is manifestly incomplete upon its face, the insurers will be deemed to have waived the right to a more complete answer if they make no further inquiry in relation thereto. This answer was complete and full upon its face, and there was nothing in it which could have possibly required, induced or provoked further inquiry in relation to the subject matter of this particular question.</p> <p>At the conclusion of the evidence defendant moved to dismiss the complaint upon the ground, among others, that Mr. Hyde, in his answers made and contained in the application, suppressed the fact that he was insured in the Mutual Life Insurance Company for $10,000, and the trial judge dismissed the complaint solely upon that ground.</p> <p>Held, on apiieal, that the policy in suit and the application therefor constituted the contract for insurance between Charles H. Hyde and defendant. The evidence disclosed, and it incontestably appeared, that a material fact had been suppressed which should have been stated to the association under the contract, and there could be no other reasonable conclusion than that he knew of the existence of the policies from the Mutual Life Insurance Company and intentionally suppressed the fact. It would be unreasonable to call upon defendant, years after these policies had been issued and the facts that had transpired leading to their issue had occurred, to give positive and direct proof of the intentional omission on the part of the insured of a fact which by the terms of the contract the insured had agreed to place in defendant’s possession, and it follows that plaintiffs were not entitled to recover, and the dismissal of the complaint did not constitute error.</p>

<p> Negligence of master as distinguished from, negligence of fellow-servants. </p> <p>On or about August 25, 1888, the defendant, as contractor and builder, was erecting and constructing a house on premises in West 83d street, New York City, and plaintiff’s intestate, Charles Flynn, was employed as a day-laborer on this building. His service at the time of the accident was the removal of brick and mortar, contained in hods, from an elevator machine which carried the materials from the ground to the several floors above, and he was engaged on the 4th floor in taking the hods from the elevator and dumping the contents upon a scaffold near the elevator, for use in building the front wall of said house ; and while the intestate was so employed the floor-beams gave away and precipitated the materials that had been deposited near the elevator upon the floor beneath, and carried it and all the other floors below, with their contents, down to the cellar. The deceased intestate fell with the floors and was thereby killed.</p> <p>This action was brought to recover damages for the death of plaintiff’s intestate, on the ground of the defendant’s negligence and want of care and skill in the construction of said building, and in negligently and carelessly overloading the beams and girders of said building with brick and mortar and other building materials. When the plaintiff rested her case, the court below dismissed the complaint on the ground that there was no evidence of any negligence on the part of the defendant, but that whatever negligence there was in the premises attached to the plaintiff’s intestate and his fellow-workmen.</p> <p>Held, that the complaint having been dismissed on defendant’s motion after the close of plaintiff’s case, without any testimony whatever on the part of defendant, all the evidence contained in the record must be taken as true for the purposes of this appeal, and appellant is entitled to have every doubtful fact found in her favor ; also, that the only inference that can be drawn from the evidence, as to the cause of the accident, is that it was occasioned by overloading the fourth story with brick and mortar, which were brought up from the ground and placed upon the floor of the fourth story, under orders from the defendant, or from his foreman and agent with the knowledge of defendant ; that the quantity of the material that could be safely placed upon the fourth and other floors was not a question for decision in the discretion of the laborers, of whom the intestate was one, and, therefore, the overloading of the floor was not an error of judgment on the part of said laborers, who were charged simply with the duty of taking from the elevator the materials sent up by direction of the defendant or his foreman. The defendant and his foreman must be presumed to have known the quantity of brick and mortar that could be safely placed upon the fourth floor. The evidence did not justify the conclusion of the trial judge. It was not due or owing to the want of judgment on the part of the laborers, of whom the intestate was one. The intestate was free from contributory negligence, for he and his fellow-workmen were obeying the orders of defendant, or his agent, and defendant was present and saw the work going on. The intestate was merely carrying out the orders of defendant, who must be presumed to have had a fair and reasonable knowledge of the business in which he was engaged, which includes a knowledge of at least the approximate strength of the floor timbers he had placed in the building, and a knowledge of the approximate weight of twelve or thirteen thousand bricks and the mortar he had accumulated upon that floor. It was the duty of the trial judge to have submitted the case to the jury.</p>

<p> Beal estate broker, commissions of, when earned. </p> <p>Upon a former trial of this action the court held, that two papers introduced in evidence, one a receipt and the other a deposit in escrow, established a contract for the sale of the Kentucky lands from defendant to Wolffe and Millikin, and that all prior negotiations merged in these two papers, and directed a judgment in favor of plaintiff, awarding him his commissions. The defendant insisted, upon that trial, “ that there was an unexpressed condition upon which the writings were delivered,” and asked to prove that condition, and so established what defendant claimed was the whole and complete contract between the parties. This parol evidence offered was rejected by the court on the ground that the writings named were conclusive. When the case reached the Court of Appeals, that court held that this ruling rejecting the parol evidence was erroneous, and for the error reversed the judgment. The Court of Appeals also held that there arose a question of fact for the jury which should have been submitted under proper instructions. Upon the new trial the evidence that had been rejected upon the former trial was admitted, and upon the question of fact that it raised, the jury found adversely to defendant upon sufficient evidence.</p> <p>Held, that whether the transaction was or was not a sale, was upon all the evidence a question for the jury, as was also the question of plaintiff’s instrumentality in bringing it about, and the jury having found these facts in favor of the plaintiff, he became, in law, entitled to his commissions.</p>

<p>Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from an alleged order denying defendant’s motion for a new trial.</p> <p>The facts and points fully appear in the opinion of the court.</p>

<p>Court of Appeals—Remittitur—Entry of judgment in regard to costs— Restitution under the Code, powers of the court below to order the same.</p> <p>This is an appeal from an order made at special term by Judge Gildbbsleeve granting a motion made by defendant to vacate an order heretofore made in the action setting off costs, and amending the judgment so as to make it include the costs to which defendant was originally entitled, hut which were extinguished by the set-off. The complaint stated two causes of action. Upon the trial defendant prevailed upon the first cause of action, and plaintiff upon the second. Each party thus became entitled to costs as against the other. Defendant moved for an order directing that the costs of each party when taxed by the clerk to set off one against the other, and the balance only included in the judgment. This motion was granted by Judge Fbeedmatt, and an order entered February 15, 1887, and it is this order which the order now appealed from has set aside. The costs of each party were taxed in pursuance of Judge Fbeedmait’s order, those of plaintiff at $618.67, and those of defendant at $570.44, and judgment entered in favor of plaintiff for the balance of costs in her favor, $48.23. Both parties appealed from the judgment to the general term, which affirmed it, and both parties then appealed to the Court of Appeals, which court affirmed so much of the judgment as was appealed from by plaintiff and reversed those parts appealed from by defendant, and dismissed the entire complaint with costs. The remittitur was filed, and the judgment of the Court of Appeals made the judgment of this court February 15, 1892. Defendant presented a bill of costs to the clerk for taxation, including in it the amount of the costs of the trial as originally taxed in.February, 1887, and the entire costs of the action, which were allowed by the clerk. Plaintiff appealed against such taxation and Judge MoAdam reversed it, holding that the costs awarded by the Court of Appeals were the costs in that court only, in the following opinion : “ MoAdam, J.—The complaint states two causes of action. One at law to recover $150,000 damages for breach of contract, the other in equity for an injunction and incidental damages. The referee dismissed the first cause of action, but awarded plaintiff judgment on the second. The plaintiff thereupon taxed her costs at $618.67, and the defendant its costs at $570.44. Set-off was allowed and the plaintiff in consequence entered judgment in her favor for the equitable relief, with $48.23, costs (the difference), and the defendant for the dismissal of the first count, without costs (the set-off having absorbed them). Both sides appealed ; the judgment on the first count was affirmed by the general term, and the second count (modified in form) was also affirmed thereat 1 without costs to either party.’ Both sides again appealed, this time to the Court of Appeals, which court expressed its judgment in these words : 1 That said judgment so far as appealed from by the plaintiff be affirmed, and that said judgment, so far as appealed from by the defendant be reversed, and the complaint dismissed with costs.’ The clerk on application of the defendant taxed defendant’s costs in all the courts. This was error. He should have taxed the costs to the Court of Appeals only. In re Water Commissioners, 104 N. Y., 677; Franey v. Smith, 126 27)., 658. The taxation must therefore be reversed, but with liberty to the defendant to move by way of restitution to vacate the order for set-off and for leave to amend the original judgment roll nunc pro tunc by inserting therein in suitable language the costs originally taxed on the dismissal of the first cause of action, to the end that the defendant may not be deprived of them. These belong to the defendant as of right, not by the courtesy of the court but by force of the statute. The judgment made by the Court of Appeals eliminated not only the plaintiff’s recovery but the costs allowed to her which were made the subject of set-off. The new condition, final in its character, seems to warrant restitution to the defendant in furtherance of justice and to prevent abuse. The control which every court has over its own judgments would seem to sustain the power.”</p> <p>The order now appealed from was moved for in accordance with the suggestions contained in the above opinion, and, on granting the motion, Judge Gildebsleeve filed this memorandum : “ The question presented on this motion has been passed upon by my learned associate, Judge Mo Ad am; motion granted without costs; order to be settled in accordance with Judge McAdam’s opinion.”</p> <p>Held, That the court at special term had power to order restitution, and the order should be affirmed.</p>

<p> Negligence, contributory—Release and settlement of damages. </p> <p>The trial judge held in this case, that the plaintiff’s intestate was guilty of contributory negligence in doing the work that he,-as the apprentice of defendant, was called upon to do in his master’s business; also that the payment of $400 by defendant to Oscar Krause, one of the plaintiffs, might he considered a bar to the action.</p>

Appeal by plaintiff from a judgment in favor of defendant, entered upon a decision sustaining defendant’s demurrer to the complaint, etc. The facts and points of the case appear fully from the following opinion of the judge at special term.

The facts and points in the case appear from the following opinion of the trial judge upon which the judgment and order is affirmed.

<p>Appeal from an order of the special term vacating warrant of attachment.</p> <p>The facts and points in the case appear from the following opinion of Judge MoAdam, upon which the order was affirmed.</p>

<p>Appeal by defendant Mary Lavelle from an order made at special term, denying her motion to stay proceedings. The facts and points in the case appear from the following opinion of the judge at special term upon which this order was affirmed.</p>

The plaintiff complains that while passing the defendant’s place of business, he was struck by an iron bar falling from the elevator lift in front of defendant’s store ; that the blow rendered the plaintiff unconscious, and he was carried into the defendant’s premises and there restored to consciousness by a physician procured by the defendant, and that the plaintiff was thereafter sent home in a cab.

The plaintiffs claim that the action was commenced by the service of a summons on the defendant Smith on July 21, 1868, and on the other defendants on July 24 and 25, 1868. That all the defendants appeared in the action August 4, 1868, by Frank S. Smith, as attorney. The notice of appearance is entitled in the “ Supreme ” Court, and is for “ the defendants ” without naming them. It is dated August 4, 1868.

<p>Appeal from an order of the special term, granting a mandatory injunction directing the defendant to permit a certain horse known as “ Huron ”, the property of the plaintiff, to take part in a race called “ The Futurity,” on the 29th day of August, 1891.</p>

<p>Appeal from order of special term denying motion for an injunction. The points and facts in the case appear fully from the opinion of the court.</p>

Appeal by plaintiffs from a judgment entered upon the report of a referee, dismissing the complaint. The facts and points involved in the case appear fully from the following opinion of the referee, before whom the case was tried, and upon which the court, at general term, affirms the judgment.

Appeal by defendants from a judgment rendered in favor of plaintiff, after a trial before the court at the trial term without a jury. The facts and points in the case appear fully in the following statement and opinion of the court below, upon which the judgment appealed from is affirmed. “ The plaintiff and defendants, were engaged in the business of transporting freight between New York and Philadelphia.

<p> Order of arrest, exception to the sufficiency of hail and proceedings thereon. </p> <p>Held, that this order cannot be sustained. The plaintiff had not waived his right to the examination of the sureties, but had proceeded regularly to enforce it.</p>

<p> Trial before referee—Effect of order of reference entered before-service of amended answer and notice of trial—Waiver of objection by going on with trial instead of moving to vacate proceedings. </p> <p>After the issues herein were referred to a referee, the defendants served an amended answer to which plaintiff served a reply. No notice of trial was served after issue joined on the amended answer. The defendants objected to proceeding before the referee at the opening of the trial, on the ground that the issues to be tried were not made until a date subsequent to the order of reference. The referee proceeded with the trial and rendered a report in the plaintiff’s favor. Held, that defendants were debarred from raising this question by their own laches in not seeking relief by motion to vacate the order of reference and proceedings held before the referee, prior to the presentation of their defence.</p>

<p>Appeal by defendants from judgment entered upon the report of a referee in favor of plaintiffs.</p>

Appeal by defendants from judgment entered upon the report of a referee in favor of Davies & for Sackett & Bennett, for respondents.

Appeal by plaintiff from judgment entered upon the findings and decision of a judge at special term dismissing the complaint.