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SECOND DEPARTMENT, JULY TERM, 1903.
day of July, 1902, setting aside a verdict in favor of the plaintiff and granting a new trial unless the plaintiff stipulate to reduce the amount of the verdict.
Hector M. Hitchings, for the appellant.
Eugene Frayer, for the respondent. WOODWARD, J.:
, The learned justice presiding at the trial of this action has granted a inotion made by the defendant, under the provisions of section 999 of the Code of Civil Procedure, setting aside the verdict of the jury and granting a new trial unless the plaintiff should stipulate to accept the sum of $75 in place of $400, which the jury found. The action was brought for conversion and the defendant offered judgment for $100, which the plaintiff declined to accept. This appeal brings up the question of the authority of the trial court to make this conditional order and, incidentally, the question of costs.
From an examination of the evidence in the case we are persuaded that the learned court has not erred in granting a new trial. Section 999 of the Code of Civil Procedure provides that the "judge presiding at a trial by a jury may, in his discretion, entertain a motion, made upon his minutes, at the same term, to set aside the verdict,” etc. This evidently contemplated a judicial discretion, an abuse of which might be corrected on appeal, and yet it is peculiarly a discretion vested in the trial judge, and it ought not to be interfered with except in a case where the ends of justice imperatively demand action. (Lund v. Spencer, 42 App. Div. 543.) In this case there was evidence to support the verdict up to the amount of seventy-five dollars, and there was some testimony from which an inference might be drawn in support of a larger amount. We find no authority in this State which holds that in such a case the trial justice, having the power absolutely to set the verdict aside and grant a new trial, may not name conditions upon which the valid portion of the judgment may be sustained, provided the plaintiff is willing to accept the terms. In Lawrence v. Church (128 N. Y. 324) the verdict for the plaintiffs was reversed by the General Term unless the plaintiffs would consent that a certain amount should be deducted from the same, “ without prejudice to a future action to
SECOND DEPARTMENT, JULY TERM, 1903.
recover” the amount deducted. Commenting upon this state of facts the court say: “If the General Term did not desire to grant a new trial unconditionally, the alternative should have been a modification of the judgment by the deduction of the amount regarded as erroneous, without any privilege of again suing for the same. Such a modification, when assented to by the plaintiffs and resulting in the affirmance of the judgment as modified would, upon the facts in this case, have operated as an abandonment by plaintiffs of the amount deducted. If the plaintiffs were not satisfied with such an affirmance, they could refuse to avail themselves of the privilege offered, and go back for a new trial upon the whole issues involved in the case.” This is, we think, fairly the doctrine of Whitehead v. Kennedy (69 N. Y. 462) when read in full, and we find nothing to suggest that this rule is confined to negligence cases. (See the Whitehead Case, supra, 468, and authorities cited; also, Van Beuren v. Wotherspoon, 164 N. Y. 368, 376, 377, and authorities there cited.) The doctrine is well established that the Appellate Division cannot dispose of a jury case on the reversal of a judgment; it may set the verdict aside, but it must give the defeated party a new opportunity to go to the jury (McDonald v. Metropolitan Street R. Co., 167 N. Y. 66, 70), and that is the power confided to the trial justice, but there is no objection to his permitting the plaintiff to elect, where there are particular items in the case which are supported by the evidence, between a new trial and a reduction of the verdict. The latter is a favor extended to the plaintiff, and affords no ground for complaint. The only question to be determined in respect to such an order is whether the discretionary power has been so far abused as to warrant the conclusion that injustice may result if a new trial is had. If not, then any concessions which the order may make to the plaintiff can give the latter no rights upon appeal. He refuses to accept the terms suggested in making the appeal, and the order is then in effect one setting aside the verdict unconditionally, and as such it must be considered here.
The order should, we think, be modified, imposing the costs of the trial upon the defendant. The error in this case is the error of the jury, and under such circumstances this court is committed to the practice of requiring the party asking the favor to pay the costs of the trial as a condition of making the grant. The order should
SECOND DEPARTMENT, JULY TERM, 1903.
be modified as in the case of Helgers v. Staten Island Midland R. R. Co. (69 App. Div. 570), and as so modified affirmed.
GOODRICH, P. J., BARTLETT, HIRSCHBERG and JENKS, JJ., concurred.
Order modified by imposing the costs of the trial upon the defendant, and as modified affirmed, without costs.
THE UNITED STATES OF AMERICA ex rel. JAMES MCALLISTER and Others, Respondents, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Appellant, Impleaded with JOSEPH J. CAUROHYARD, Defendant.
Surety — agreement that the principal would pay all persons supplying "labor and
materials in the prosecution of the work” — it does not cover the services of a steam lighter used on the work in question and two other works.
Joseph J. Churchyard had three separate contracts with the United States gove
ernment for the erection of certain buildings, one of which was a marine barracks at Coaster's Harbor island. The contract for the construction of the latter building provided that Churchyard would “provide, furnish and deliver, at his own risk and expense, at Coaster's Harbor Island, Rhode Island, all the necessary materials, labor, tools and appliances for the construction and
completion, in all respects, of a barracks.” As security for the performance of this contract, Churchyard gave a bond sub
ject to the provisions of an act of Congress passed August 13, 1894, which provides that the sureties shall assume an obligation that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such
contract." The bond was conditioned that Churchyard should “promptly make payments
to all persons supplying him or them labor and materials in the prosecution of
the work provided for in the aforesaid contract.” Churchyard chartered a steam lighter with a crew of six men and the necessary
supplies to transport lumber and materials used in the performance of the
three government contracts. Held, that the surety upon Churchyard's bond was not liable for any sum due
from Churchyard for the use of the steam lighter, even to the extent that such lighter was used in delivering materials to be used in the performance of the particular contract, to secure the performance of which the bond was given.
SECOND DEPARTMENT, JULY TERM, 1903.
APPEAL by the defendant, the Fidelity and Deposit Company of Maryland, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 14th day of August, 1902, upon the verdict of a jury, and also from an order made on the 26th day of June, 1902, denying the defendant's motion for a new trial made upon the minutes.
James Russell Soley (Gordon M. Buck with him on the brief], for the appellant.
Nelson Zabriskie, for the respondents.
In the year 1899 the defendant Churchyard was engaged in several building operations in the vicinity of Newport, R. I., among them being three separate and distinct government contracts. One of these was with the War Department for the construction of a hospital at Fort Adams; the second was also with the War Department, and was for the construction of a fort at Dutch island, while a third was with the Navy Department for a marine barracks at Coaster's Harbor island, and the defendant, the Fidelity and Deposit Company of Maryland, became the surety for Churchyard upon the latter contract, subject to the provisions of an act of Congress passed August 13, 1894 (28 U. S. Stat. at Large, 278, chap. 280, $ 1), which provides that the surety shall assume an obligation “that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract.” The real plaintiffs in this action, James McAllister, James P. McAllister, William McAllister and Daniel McAllister, were and are copartners, doing business as such in the city of New York, under the firm name of McAllister Bros., and on or about October fourth they made a proposition to the defendant Churchyard to furnish him a steam lighter, the Columbia, with a crew of six men all told, and coal, water and necessary supplies to run from Newport, Fall River and Providence, for the sum of $1,800 per month. If the boat was used forty-five days, it was proposed to charge at the rate of $55 per day, and if for sixty days, then at the rate of $50 per day. This proposition was accepted in behalf of Churchyard, and on the
App. Div.) SECOND DEPARTMENT, JULY TERM, 1903. sixth of October the boat was put in cominission and was used by Churchyard in transporting lumber and materials to the three government jobs for a period of thirty-seven days, at a total agreed expense of $2,220, on which he has paid $1,750, leaving a balance still due and owing of $470, for which the plaintiffs seeks to hold the defendant Fidelity and Deposit Company in common with Churchyard liable. Upon the trial the learned justice presiding permitted the jury to find that the Fidelity and Deposit Company were liable for the indebtedness of Churchyard for the hiring of this lighter to the extent that it was used in delivering materials to the work at Coaster's Harbor island, the evidence tending to show that it was employed about one-half of the time for which the plaintiffs claim and jury has found for the plaintiffs.
The question presented by this appeal on behalf of the Fidelity and Deposit Company is whether its obligations as a surety upon
the bond of Churchyard for the construction of marine barracks at Coaster's Harbor island extend to the general contract between the plaintiffs and Churchyard for the use of the former's lighter in connection with the transportation of lumber and materials to the three works which Churchyard had under construction at the time? Does the statute, and the contract made in pursuance of the provisions of the law, contemplate such a liability? The contract of a surety is to be strictly limited to the provisions of the contract, and we see no reason why this rule should be enlarged in the case of a surety required by the statute, which in this case guarantees that the contractor or contractors “shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract.” The plaintiffs in furnishing a boat to transport materials to the works at Coaster's Harbor island have not furnished any material used in the prosecution of the work provided for in the contract, any more than a common carrier might be said to furnish materials by transporting them to the point where they were to be used. Churchyard might have hired the plaintiffs to transport his materials as freight, and it would hardly have been suggested that under the statute the plaintiffs would have had a lien for materials furnished in performing the contract, and we are unable to discover any reason why they have a stronger claim because Churchyard choose to hire the means