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Dr. Kittinger, to the effect that, in his judgment as a physician, plaintiff's alleged condition as to nervousness, headaches, and pain after the accident and before and at the trial might or could have resulted from the accident; plaintiff having previously testified that such conditions were the result of the accident. He cites Huba v. Schenectady R. R. Co., 85 App. Div. 203, 83 N. Y. Supp. 157, decided in the Third Department in June, 1903, as sustaining his proposition, and the evidence seems to fall under the condemnation of the authority relied on. With diffidence, I venture the opinion that, on this point, the Huba Case is in direct conflict with the rule laid down in Turner v. Newburgh, 109 N. Y. 301, 16 N. E. 344, 4 Am. St. Rep. 453, has not been followed, and is not controlling here. It is a well-established rule that apprehended future consequences which are merely possible and speculative are not proper to be considered in estimating damages. Strohm v. Railroad Co., 96 N. Y. 305. But, as was said by Gray, J., in the Turner Case, supra:
"It is perfectly competent to furnish the jury with evidence of the present physical condition and bodily sufferings (of the plaintiff) and with the opinions of competent physicians as to whether such could have resulted from the accident."
The Turner Case was not considered in the opinion in the Huba Case. It is, however, cited with approval and followed on this point. in the more recent case of Graham v. Bauland Co., 97 App. Div. 145, 89 N. Y. S. 595, decided in the Second Department in July, 1904. See, also, Hamel v. Brooklyn Heights R. R. Co., 59 App. Div. 135, 69 N. Y. Supp. 166; Quinn v. O'Keefe, 9 App. Div. 68, 74, 41 N. Y. Supp. 116; Bowen v. Railroad Co., 89 Hun, 594, 35 N. Y. Supp. 540. Motion denied.
(121 App. Div. 575.)
HOLLIS V. BROOKLYN HEIGHTS R. CO.
(Supreme Court, Appellate Division, Second Department. October 18, 1907.) APPEAL-ACTUAL CONTROVERSY-REVIEW.
Where, on an appeal from an order denying a motion to amend the answer, the appellant did not contend that the order was erroneous, but asked the court to affirm the order, without costs, in case it agreed with appellant that the order was properly made because the amendment asked for was not needed, and to reverse the order in case it disagreed with such contention, appellant had no bona fide grievance, and the order would be affirmed.
Appeal from Special Term, Kings County.
Action by Edwin J. Hollis against the Brooklyn Heights Railroad Company. From an order denying defendant's motion for leave to amend its answer, it appeals. Affirmed.
Argued before HIRSCHBERG, P. J., and WOODWARD, GAYNOR, RICH, and MILLER, JJ.
D. A. Marsh, for appellant.
Robert Stewart (Ralph G. Barclay, on the brief), for respondent.
and 140 New York State Reporter MILLER, J. The action is brought for personal injuries alleged to have resulted from a nuisance; i. e., the wrongful maintenance of electric wires in a public street. Evidence offered by the defendant to prove authority to maintain said wires in the streets was excluded upon the trial on the ground that such authority was not pleaded in the answer, and upon the defendant's request a juror was withdrawn and the case went over to enable it to move for leave to amend. Said motion was made on an affidavit containing a bare statement of the history of the case, without giving any reason whatever for the failure to allege in the original answer the facts which the defendant desired to plead in the amended answer; hence the motion to amend was denied. The defendant has apparently taken this appeal for the purpose of getting an expression from this court respecting the correctness of the ruling of the trial judge, as it asks us to affirm the order, without costs, in case we agree with it that the order which it is appealing from was properly made for the reason that the amendment asked for was not needed, and to reverse the order in case we disagree with its contention. Unless counsel thinks his client has a grievance, he should not burden this court, as we do not entertain appeals for the purpose of giving instruction.
The order should be affirmed.
Order affirmed, with $10 costs and disbursements. All concur.
(Supreme Court, Appellate Division, Second Department. October 18, 1907.) 1. INSURANCE-LLOYDS POLICY-ASSOCIATIONS-MEMBERSHIP.
In an action to recover a portion of a loss under a Lloyds policy from defendant, evidence held insufficient to prove defendant's connection with
the association. 2. DISMISSAL-DISMISSAL ON THE MERITS.
Where plaintiff suffered a dismissal because of lack of proof, and he might be able on a new trial to supply the proof necessary to entitle him to recover, the judgment of dismissal should not be “on the merits," but
"without prejudice to a new action." Appeal from Municipal Court of New York.
Action by August Keuthen against Ernest G. Stache. From a Municipal Court judgment dismissing the complaint on the merits, plaintiff appeals. Modified and affirmed.
Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.
William Otis Badger, Jr., for appellant.
HIRSCHBERG, P. J. I think the plaintiff failed to make proof sufficient to establish his cause of action. The suit was brought to recover on two policies of insurance issued by a certain Lloyds association, known as the Fidelity Insurance Association of New York, of which it is alleged the defendant is an underwriter. The complaint alleges that the manager of said association is a company organized under the name of the Fidelity Surety Company, to which had been given a written power of attorney, by which each of the underwriters authorized the company to carry on the business of fire insurance for them. The complaint further alleges that the said company was, at the time of issuing the policies in suit and for a long time before and after, the general manager and attorney in fact of each and all of said underwriters, referring, however, to the original of the power of attorney to be produced upon the trial for its precise terms. The complaint sets forth the issuing of the policies, the happening of the loss, the amount of the loss, and an allegation that the defendant's liability is 1/32 of such loss. The complaint further alleges that the policies of insurance in question contain a provision as follows:
"It is agreed between the assured and the underwriters herein that, in the erent of any suit to recover any claim hereunder, service shall be made upon the Fidelity Surety Company with the same force as if made upon all such underwriters; and it is hereby agreed by the undersigned that any judgment rendered in such suit shall be binding upon the underwriters hereunder as provided by the present terms of the power of attorney herein referred to, which limits the liability of each underwriter."
The complaint further alleges that an action was brought against the Fidelity Surety Company, and a judgment recovered for the amount of the loss. The answer is a general denial. On the trial the plaintiff placed in evidence the judgment roll and the policies of insurance. The power of attorney was not produced, nor was any evidence given of its contents It was admitted, however, that the defendant's name does not appear on it, nor does it appear in the policies of insurance. In other words, it is apparently conceded by the plaintiff that the defendant did not sign any authorization to the Fidelity Surety Company, empowering it, so far as he was concerned, to act as manager in the conduct of the insurance business, so as to be binding upon him. The only evidence in the case tending to connect him with the Fidelity Surety Company at all is that of a witness to the effect that he (the witness) told the defendant that he had been requested by the treasurer of the company to get underwriting subscriptions; that the defendant consented to take $3,000 and pay 10 per cent. of that amount in cash; and that he did pay the cash, and that he gave his promissory note for the balance, payable to the company. No evidence was given tending to prove that the witness was authorized by the company to solicit or procure subscriptions, or that the officers of the company were cognizant of his acts, or that the cash and promissory note were ever received by the company. No proof was made that the Lloyds association was ever organized or incorporated, or that the defendant was ever in any way connected with it. Nor was any proof given tending to establish the extent of the defendant's liability, assuming that he was one of the underwriters.
The appellant insists that the action is not brought, strictly speaking, upon the policies of insurance, but that it is brought upon the agreement of the defendant to be bound by the judgment against the Fidelity Surety Company. The claim would probably be tenable, if the
and 140 New York State Reporter
defendant's liability as an underwriter had been established. Conant v. Jones, 50 App. Div. 336, 64 N. Y. Supp. 189. The theory of the liability in such a case is that the defendant has agreed to be bound by the result of an action against another party, and thereby puts himself in privity with that party; but it is essential that the agreement should be proven.
I think, however, that the court erred in dismissing the complaint upon the merits. The plaintiff may supply upon a new trial proof sufficient to entitle him to recover a judgment against the defendant, and the dismissal, therefore, should have been for lack of proof. Hoey v. Met. St. R. Co., 70 App. Div. 60, 74 N. Y. Supp. 1113; Levy v. Grove Mills Paper Co., 80 App. Div. 384, 80 N. Y. Supp. 730; Bowen v. Farley, 113 App. Div. 767, 99 N. Y. Supp. 205; Crecelius v. City of New York, 114 App. Div. 801, 100 N. Y. Supp. 314.
The judgment should be modified, by substituting for the words "upon the merits" the words "without prejudice to a new action," and, as modified, affirmed, without costs. All concur.
(56 Misc. Rep. 123.)
PEOPLE v. MCCLELLAN et al.
(Supreme Court, Trial Term, New York County. October 16, 1907.) TRIAL CALENDARS-PREFERRED CASES-STATUTES.
Under Code Civ. Proc. § 791, subd. 1, and section 793, providing for a preference in actions by or against people of the state, where the attorney for the people has given notice at the time of the service of the notice of trial of the particular day in the term at which he will move it, in an action by the people to test the title of defendant to the office of mayor of New York City, where the notice of motion for preference states the particular day on which the Attorney General will move the action for actual and immediate trial, the court should by order name a day of the term on which the case will be moved for immediate trial, but not setting the action down peremptorily for trial on that date, since at that time any good reasons existing for adjournment may be passed upon by the judge having charge of the calendar.
Action by the people of the state of New York against George B. McClellan, impleaded with William Randolph Hearst, to test the title of defendant McClellan to the office of mayor of the city of New York. Motion for a preference granted.
See 105 N. Y. Supp. 844.
William Schuyler Jackson, Atty. Gen., for the motion.
GIEGERICH, J. Motion is made to prefer this action under subdivision 1 of section 791 and under section 793 of the Code of Civil Procedure; the action being brought to test the title of the defendant George B. McClellan to the office of mayor of the city of New York. The notice of motion, among other things, states that the particular day upon which the Attorney General will move the action for actual and immediate. trial will be Monday, October 21, 1907. The motion papers were served on September 23, 1907.
The motion is resisted on the ground, among others, that it was decided in Riglander v. Star Co., 98 App. Div., 101, 90 N. Y. Supp. 772, affirmed 181 N. Y. 531, 73 N. E. 1131, that the provisions of section 793 relating to preferences were unconstitutional. As I construe that decision, however, the court in that case did not decide that the Legislature exceeded its power in providing that a preference should be granted to actions of this kind, but that the unconstitutional feature of the act was in providing peremptorily and unqualifiedly that the cause should be heard on the day for which it might be set, thus taking from the court its constitutional right to exercise discretion in passing upon grounds for adjournment which might exist when the day arrived, and which might be such that to deny an adjournment would virtually deprive the party seeking it of his day in court and deprive him of his property without due process of law. The order to be entered in this case should not set the action down peremptorily for trial on a given date, but should, pursuant to subdivision 1 of section 791 of the Code of Civil Procedure, merely name a day of the term on which the case will be moved for immediate trial. If at that time any good reasons exist for adjournment, those reasons can be passed upon by the judge having charge of the calendar.
I have examined the other grounds urged in opposition to the motion, but can find no cause in any of them why the motion should not be granted to the extent and in the manner above indicated. When the case is moved for trial on the day fixed in the order, some of the reasons urged for denying the motion may have ceased to exist, and such others as are entitled to any weight can be taken into consideration by the justice presiding in the calendar part.
Motion granted, as indicated. Settle order on notice.
(121 App. Div. 519.)
MCGURGAN v. NEW YORK CITY RY. CO.
(Supreme Court, Appellate Division, Second Department. October 18, 1907.)
1. STREET RAILROADS-OPERATION OF CARS-INJURIES TO TRAVELERS.
A motorman, who started a street car from a standing position and ran into plaintiff's vehicle, which was crossing the street at an intersection, without giving a signal and in broad daylight, was negligent.
[Ed. Note.--For cases in point, see Cent. Dig. vol. 44, Street Railroads, § 191.]
2. SAME CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY. .
Where plaintiff started to drive across a street car track at a street intersection in front of a car which w standing, he was not bound to assume that the car would be started up in such a manner as to imperil his safety, and was not negligent as a matter of law.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Street Railroads, § 257.]
3. SAME-NEGLIGENCE OF DRIVER.
Where plaintiff was riding in a buggy, accompanied by his driver, at the time he was injured in a collision with a street car, which was standing when the driver attempted to drive over the track at a street intersec