Volume 53 — New York State Reporter

<p>1. Negligence—Ferries.</p> <p>A ferry company, in the management of its business, has the right to assume that passengers will take some care of themselves, and if it conducts, its business with such care and skill as will make the entrance upon its-boats safe for persons of ordinary prudence, it meets the requirements of the law.</p> <p>2. Same.</p> <p>Plaintiff entered the bridge passage way leading to defendant’s ferry„ between four and five o’clock on a winter afternoon, and in stepping on to the boat, which was somewhat lower than the bridge, fell and injured herself. She did not look, and did not see the discrepancy in the height, which, she testified, from her judgment, founded upon the force of the fall, was at least eighteen inches. Held, that her judgment, under the circumstances, did not rise to the dignity of evidence upon which a jury could base a verdict; that plaintifi had the burden of proof to show that defendant was guilty of culpable negligence in permitting the boat to be lower than the bridge, and failed to sustain such burden.</p>

<p>Appeal—Keakgumekt.</p>

<p>Motion for new trial on judge’s minutes.</p>

<p>1. Appeau—Reakgument—Costs.</p> <p>Where the court of appeals grants a motion for reargument and upon the hearing again simply remits the case to the court below with an order annexed repeating the terms of the former adjudication and giving costs in this court, the award of costs relates to the second argument.</p> <p>2. Same.</p> <p>To warrant the supposition that the provisions of the remittitur were altered by the subsequent decision, there should be some language expressive of that result.</p>

<p>1. Contract—Action for breach one of law and not in equity..</p> <p>The complaint alleged a sale of a business and stock of merchandise to defendant; that, as part consideration, a certain sum was to be paid when the net increase of the business reached a certain amount; that the net profit or increase had reached that amount, but defendant refused to pay-said sum. Held, that the allegations of the complaint set forth a cause of action at law for breach of contract and gave plaintiff no claim for equitable relief, although it stated that plaintiff did not know when the requisite amount of profit had been reached, and that plaintiff had requested- defendant to account in respect thereto.</p> <p>2. Same—Pleading.</p> <p>Where the complaint, on its face, does not show any facts on which at claim for equitable relief could be based, it is not necessary for defendant to object, by answer, that plaintiff has ail adequate remedy at law.</p> <p>3. Same—Payment by note!</p> <p>In such a case, it is immaterial that the payment was to have been made in promissory notes; there being a breach, the amount of the notes is the measure of damage.</p> <p>4. Appeal—Judgment on pleadings.</p> <p>Where the judgment is made upon the pleadings, no findings are necessary and no exceptions can be taken, but an appeal may be taken directly from the judgment</p>

<p>Appeal—Correction op judgment by court op appeals.</p> <p>Upon an appeal from an order of the general term denying a motion for a new. trial under §1001 of the Code, after a trial without a jury, where the sole error appearing consists in the allowing of greater relief than the successful party is entitled to upon the facts found, this court may correct the judgment and make it conform to the findings, and is not limited to a reversal of the order of general term and direction of new trial.</p>

<p>Appeal—Judgment—Vacation of on account of unauthorized appearance.</p> <p>The control possessed by courts of original jurisdiction over their judgments and orders, as well as in reference to the fact or the sufficiency of a notice of appearance in the action, is absolute and beyond any review by this court, unless it appears that there was an abuse of discretion.</p>

<p>Divorce—Discontinuance—Appeal.</p> <p>In an-action for divorce on the ground of adultery of the wife, in which the marriage was admitted and the answer consisted of denials of the adultery charged, the court allowed the plaintiff to discontinue on payment of taxable costs after the cause had been placed on the calendar. Held, that the granting of the application and the terms to be imposed rested in the discretion of the court, and such discretion was not reviewable in this court.</p>

<p>Appeal—Conditional dismissal op complaint.</p> <p>A judgment adjudging that plaintiff is not entitled to equitable relief, and directing a dismissal of complaint unless plaintiff, within twenty days from its entry or after entry of order on final appeal, serves notice that he elects to trv the action as one at law for damages, is not a final judgment, and is not appealable to the court of appeals.</p>

<p>Reference—Compulsory—Long account.</p> <p>Where a plaintiff’s bill of particulars consists of ninety odd items, each of which is put in issue and will have to be proved by reference to the books of plaintiff or defendant, a compulsory reference is proper.</p>

<p>Breach of promise—Evidence.</p> <p>Evidence as to the property of defendant’s mother is inadmissible in an action for breach of promise, and its admission, where the jury may have been influenced thereby, is reversible error.</p>

<p>Appeal from order vacating attachment against property.</p>

<p>Appeal—Abatement and bbyivob.</p> <p>An appeal from an order reviving an action will not be entertained where the action has since been tried and the judgment recovered therein affirmed by the general term, and an appeal to the court of appeals is pending, as the court will not decide mere abstract questions from the determination of which no practical result can follow.</p>

Appeal by plaintiffs from an order vacating an order theretofore obtained by them by default, referring the issues to a referee to hear and determine the same.

<p>Associations—Membership—Waiver of notice of charges.</p> <p>Although a member of an association, according to its by-laws, may be entitled to be served with notice and a copy of the charges before expulsion, yet it is competent for him to waive these requirements; and by attending the meeting and making no objection on any such ground, and by proceeding to defend himself on the merits and speaking in opposition to the resolution of expulsion, he does waive them.</p>

Action for breach of contract by which plaintiff agreed to sell certain personal property to defendants, to be paid for by conveyances of real estate by two of the defendants, and a payment of $10,000 in satisfactory value by the other. The complaint alleged that plaintiff delivered the personal property, but that defendants failed to complete the contract, to his damage $7,500.

<p>1. False imprisonment—Damages.</p> <p>The damages to be awarded in cases brought to recover damages for wrongfully causing plaintiffs arrest and setting on foot criminal prosecution must in the nature of things be left largely to the experience and sound judgment of a jury.</p> <p>2. Same.</p> <p>In such an action, plaintiff, an elderly man, was awarded §500, -while his son, in a similar action, was awarded six cents. Held, that the verdict of §500 would not be disturbed on appeal.</p> <p>3. Same.</p> <p>The court ought not to interfere with the assessment of damages by a jury further than to see that they have not abused the trust reposed in them or violated some settled rule of law.</p> <p>4. Same—Charge.</p> <p>Taking an elderly man into custody and marching him through a crowded thoroughfare, in charge of an officer, depriving him of his liberty, away from friends and facilities for bail, putting him on trial, causing fear and suspense, are acts sufficient to call for substantial damages, and in an action for damages for such wrongful act, the court may properly charge the jury that if they find for the plaintiff they must award substantial damages.</p> <p>5. Same—Railroad—Duties of conductors.</p> <p>It is the duty of an assistant conductor of a train to keep the conductor informed as to the collections made, that demands may not be made twice of the same passenger, and the implication of knowledge comes from the duty imposed of communicating it.</p> <p>6. Same.</p> <p>In a case where plaintiff had been allowed to complete his journey, and was then arrested for stealing a ride, the court was requested to charge by defendant that “ the plaintiff, when applied to by the conductor, was bound to produce a proper and valid ticket as evidence of his right to ride upon the train, or pay his fare.” The court replied: “If he could do so, he was. If he had had a ticket, and lost it, it was a subject of explanation. It was his duty either to produce a proper ticket or pay his fare, or make some reasonable explanation why he didn’t do it.” Held, that the charge was a proper answer to the request.</p> <p>Same—Malice.</p> <p>A charge in such case that if the conductor made the complaint for the sole purpose of collecting a debt, and to prove himself right, the jury must find malice, is correct.</p>

Appeal by defendants, the railroad companies, from a judgment entered upon the report of a referee. This action was commenced on April 2, 1889, by Shepard Knapp, as trustee for Andrew S. Hamersley, to restrain the operation of the elevated railroad of the defendants-appellants herein in front of No. 116 Pearl street, in this city, and for damages sustained by reason of the construction and operation of said railroad in front of said premises.

<p>1. Master and servant—NEaiuaENCE.</p> <p>In an action by an employe against his employers for damages for personal injuries caused by a defective machine, the complaint was dismissed on the ground that plaintiff was guilty of contributory negligence for the reason that he worked on the machine after he knew it was out of order. Plaintiff swore that he thought it had been fixed, having heard defendants’ foreman direct the engineer to fix it on the Sunday previous to the accident, and the engineer say he would do it, and that the machine seemed to work all right on the Monday following and up to the time of the accident. Held, that the question of plaintiff’s contributory negligence should have been left to the jury.</p> <p>3. Same.</p> <p>In such case plaintiff had a right to assume that defendants, knowing of the defective condition of said machine, would adopt all necessary precautions, and he did not neglect a duty in not ascertaining whether the repairs had, in fact, been made, and this also because he was called suddenly to operate the machine, it not being his regular work.</p>

<p>Í. Corporations—Supplies—Authority op purchasing agent to contract por.</p> <p>The by-laws of a railroad company named the purchasing agent among the officers authorized to conduct its business; the by-laws required that the. comptroller of the company should be furnished with copies of alí written contracts for construction, supplies, etc., made by any officer or agent of the company with individuals; the by-laws defined the authority of the purchasing agent, which was to buy all materials and supplies-in general use in every department, excepting such articles the purchase-of which may be especially intrusted to others. Held, that the purchasing agent had authority to make contracts with individuals to supply the-company with stationery.</p> <p>2. Same—Contracts.</p> <p>The bids of an individual to furnish such railroad with all its stationery ■and the notification in writing of an acceptance thereof by the purchasing agent constitute contracts which require the individual to deliver-goods whenever called upon by the railroad’company within the period covered by the contracts, and impose upon the company the duty of ordering from the individual all of the goods covered by the contracts-which it requires and to pay therefor.</p>

<p>1. Conversion—Chattel mortgage.</p> <p>Plaintiff held a chattel mortgage upon certain mantel mirrors in a house which, a few days after the mortgage became due, was sold to defendant on foreclosure oí a mortgage on the realty. At the time of such sale the mirrors were in apartments occupied by tenants who attorned to defendant. Held, that the sale conveyed no right to the mirrors to defendant; but as long as the tenants remained in possession during their unexpired terms, he did not acquire possession of the mirrors and could not be guilty of a conversion of them.</p> <p>3. Same—Re-letting.</p> <p>There was some evidence that some of the tenants had moved out and that defendant had relet the apartments to other tenants together with the mirrors. Further proof on this question was excluded. Held,, that the complaint was improperly dismissed, as if the re-letting was proved a conversion to that extent would have been established irrespective of any demand.</p>

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

<p>Easements—Ancient lights—Right op adjoining owner to darken windows.</p> <p>While an owner of property may place windows in the walls of his . house though they overlook his neighbor’s land; the latter has a right, if he chooses to do so, to build to the extreme end of his land and thus shut off the offending windows, irrespective of the motive with which it is done, or whether the erection consists of poles with sheet iron plates or of solid! brick.</p>

<p>Habeas corpus to obtain the custody of a child of the parties.</p>

<p>Bivokce—Lunacy.</p> <p>An action to annual a marriage on the ground that the defendant is a lunatic cannot be maintained unless it appear that such cause existed at the time of the marriage; a subsequent affliction furnishes no ground for divorce.</p>

<p>1. Mortgage—Construction—Condition against future indebtedness</p> <p>COVERS LIABILITY AS INDORSER.</p> <p>A mortgage conditioned to pay ‘ ‘ all indebtedness of every name and nature now incurred or to be hereafter incurred, or which is now due or may hereafter become due from ” the mortgagor to the mortgagee, not exceeding a certain sum, and any renewals thereof, covers the mortgagor’s liability as indorser upon notes held by the mortgagee.</p> <p>2. Same—Continuing security.</p> <p>Such mortgage is a continuing security and not a security simply for the payment of the first indebtedness to the amount specified which is-incurred.</p>

<p>Appeal—Res ad judicata.</p> <p>Where the court of appeals reverses a judgment dismissing the complaint, and orders new a trial, it must he deemed to have decided that the evidence was sufficient to require the judgment of the jury; and if the evidence on the second trial is the same and the questions are properly submitted, a verdict for plaintiff will not be disturbed.</p>

<p>1. Negligence—Evidence.</p> <p>In an action against a railroad for loss of services of plaintiff’s wife caused by her being injured by the alleged negligence of the 'train guard in closing the car gate so that it struck her, evidence of remarks made by the guard at the time, tending to characterize the act done and explain its quality, is admissible.</p> <p>2. Same—Privileged communications—Waiver.</p> <p>Plaintiff’s wife, on cross-examination, testified that she recognized certain physicians as ones who had treated her at the hospital, and on redirect, that they gave her some medicine for nervousness, and she did not know what statement she made after that; that one of them came to take statements, but she did not recollect what she said. Held, that this did not constitute a waiver of her privilege as a patient, so as to permit the physicians to testify to statements made by her to them.</p> <p>§. Same—Damages.</p> <p>In such action the court charged that plaintiff had a right to recover “for damages arising from the injury and resulting in depriving the plaintiff of prospective offspring.” Plaintiff’s wife was pregnant at the time of the injury, which resulted in a miscarriage. Held, that the instruction was proper.</p>

<p>1. Judgment—Original answer and order allowing amendment no</p> <p>PART OP ROLL.</p> <p>Tlie original answer, which has been superseded by an amended answer, and the order directing the substitution, form no part of the judgment roll, and should not be included therein.</p> <p>3. Same.</p> <p>The fact that the order contains a provision saving the rights of the plaintiff to costs or disbursements occasioned by reason of the original answer does not change this rule, where such order was filed with the county clerk and was not presented to the trial judge.</p>

<p>Appeal from judgment in favor of plaintiffs for damages by reason of change of grade of street, and vacating a special assessment for part of the expenses of regrading the street.</p>