tentions of the parties to this action; the plaintiff maintaining that the decedent met his death solely through the carelessness of defendant's servants, and the defendant contending that the negligence of the plaintiff's intestate contributed to the injury, and also that the accident was caused wholly by the recklessness of Murphy. Upon this conflicting evidence the learned trial justice submitted the question of defendant's negligence and the decedent's contributory negligence to the jury, who found a verdict in favor of plaintiff for $3,000. There was sufficient evidence to sustain a finding of negligence on the part of the defendant's servants and of no contributory negligence on the part of the decedent, and the appellate court cannot disturb the verdict on the ground that it was not warranted by the evidence.

The trial justice was requested to charge the jury that if the negligence of the driver of the cart caused the accident the plaintiff could not recover. That request was refused. The justice, however, charged that the plaintiff could not recover if the acci dent was caused exclusively by the negligence of the driver of the coal cart. Neither the refusal to so charge as requested nor the charge as made is erroneous. It is well settled by an abundance of decisions that for the injuries caused by the concurrent negli gence of two or more persons any or all are liable. Booth v. Boston & A. R. R. Co., 73 N. Y., 38; Webster v. Hudson R. R. R. Co., 38 id., 260.

The trial justice charged the jury that if they believed the stationing of the flagman by the defendant to warn persons of approaching danger was sufficient for that purpose, negligence could not be imputed to defendant because of its failure to provide other means for the same end. But he declined to instruct the jury, as requested, that in considering the sufficiency of provision by flagmen the fact that it does not appear that at any time previous an accident had occurred at that precise place must be taken as conclusive proof of such sufficiency. No error was committed in that declination to instruct the jury. The question under consideration was the negligent conduct of the defendant's servants at the time of the accident to the plaintiff's intestate, and the fact that there was no proof of any accident at that same place prior to the one resulting in his death does not appear to be either relevant or material to the determination of the question at issue.

An exception was also taken by defendant to so much of the charge as stated that if a sudden and instinctive effort on the part of the coal cart driver, Murphy, to escape impending danger after receiving warning thereof resulted in the accident, there not being sufficient time to form an intelligent and deliberate judgment as to the best means of escape, negligence was not imputable to him. This charge was proper and is well sustained by authority. Lowery v. Manhattan El. Ry. Co., 99 N. Y., 158.

It was proper for the trial justice to submit to the jury the question of decedent's contributory negligence in remaining within, or partly within, the rails of the westerly track at the time of the approach of the train from the north. If the plaintiff's version of the accident be true, the decedent's position was one of

safety to himself, the westerly track being obstructed by defendant's cars and not otherwise in use, and being at such a distance from the main down track, upon which the collision occurred, as to render it practically impossible for the decedent to receive injury from the approaching train without the intervention of negli gent conduct on the part of defendant's servants or others. Hence, under such circumstances, contributory negligence could not be imputed to him as a matter of law. It was not unlawful for him to be upon the westerly track upon the public highway, to the use of which he was as much entitled for the purpose of transit as was the defendant for the operation of its road. It was incumbent upon him to use proper care and caution in traveling upon the public highway, so that the risk of injury to himself might be avoided, and whether he did so or not was eminently a question of fact to be determined by the jury. Neither did the statement of the learned trial justice, that the crossing was a dangerous one, amount to a misdirection. It was at most a statement of his opinion upon the evidence. The charge fairly and impar tially left all facts necessary to support a verdict to be passed upon by the jury, and the mere statement of his opinion by the trial justice concerning the evidence, not involving an instruction to the jury that they must accept as true a fact concerning which there was conflicting evidence, when the charge directed all essential facts to be determined by the jury, was not subject to a valid exception. Massoth v. The President, etc., of D. & H. Canal Co., 64 N. Y., 534.

And though the particular portion of the charge excepted to may have in effect amounted to an assumption of a fact which should have been left to the jury, the exception to it would be, nevertheless, insufficient unaccompanied by a specific request that the fact assumed be disposed of by the jury, and there is no such request before us. Mallory v. Tioga R. R. Co., 3 Abb. Ct. App. Dec., 139.

The only exception urged by the defendant to the rulings of the learned trial justice on the admission or exclusion of evidence taken upon the trial is that relating to the defendant's unsuccessful attempt to introduce, as exhibits, the flags alleged to be similar to the one used by the flagman at the time of the accident. The exclusion of these flags, and the testimony relating to them, did not constitute error of so grave a character as to entitle the defendant to a new trial. The flags sought to be introduced were not the only means available to the defendant for the purpose of illustrating the one used by defendant's flagman when the collision complained of occurred; and they cannot therefore be said to have been material and necessary instruments of evidence for the defense.

The judgment should be affirmed, with costs to the respondent. BOOKSTAVER, J., concurs.

ROBERT DEELEY et al., Pl'ffs, v. JOHN DWIGHT et al., Def'ts.

(New York Common Pleas, General Term, Filed June 16, 1890.) CHATTEL MORTGAGE.-VALIDITY.-BONA FIDE PURCHASER.-ESTOPPEL.

Defendants entered into an agreement with one G, by which he was to procure and sell to them certain machinery, and thereafter, on representations as to its nature, paid G. therefor. G. engaged plaint ffs to manufacture the machinery, and gave them a note and chattel mortgage in payment before all the machinery was manufactured. The chattel mortgage was not filed for more than a year thereafter. Plaintiffs knew that the machinery was to be set up at defendant's place of business, but did not know it was to be sold to them. In an action for conversion, Held, that the chattel mortgage was valid between the parties; that defendants, having paid before the articles were made, and before execution of the mortgage, were not subsequent purchasers in good faith, and were not made so by their subsequent expenditures in setting up the machinery, and that plaintiffs were not estopped from claiming the machinery under their mortgage.

(DALY, J., dissents.)

MOTION by defendants for judgment favor directed by the court at trial term. in the first instance at the general term. a new trial.

upon a verdict in their Exceptions to be heard Motion by plaintiff for

The action was brought for the conversion of certain machinery which the plaintiffs claimed by virtue of a chattel mortgage executed to them by one Gandolfo in February, 1884. The defendant John Dwight claimed the machinery as purchaser from Gandolfo, and as the plaintiffs' mortgage was not filed as required by statute, the defendants insist that it is void as against John Dwight as a purchaser in good faith, and also claim that the plaintiffs are estopped from asserting their rights under the mortgage. George P. Hotaling, for app'lts; A. P. Ketcham and James A. Seaman, for resp'ts

LARREMORE, Ch. J.-The learned judge who tried this case evidently had grave doubt as to whether or not a correct disposition had been made of it and therefore ordered the exceptions to be heard in the first instance at general term. After reflection and an examination of authorities, the opportunity for which is always limited at trial term, we have concluded that such doubt was well founded. It appears that defendants in or about September, 1883, entered into a contract with one Gandolfo to procure and sell to them certain articles of machinery to be selected by him. Gandolfo engaged plaintiffs to manufacture a portion of such machinery, and they agreed to do so, arranging to take a note and a chattel mortgage from Gandolfo upon the articles to secure the payment thereof. Such note and mortgage bear date and were delivered in February, 1884; but previous to such time, to wit: in December, 1883, upon representations as to the nature of the proposed machinery, Gandolfo had secured payment in full therefor from the defendants to him. This fact must be deemed established for the purposes of this trial. See the admission of the defendant John Dwight. The articles were delivered to Gandolfo, and by him to the defendants, but Gandolfo never

paid plaintiffs for them; and the latter claim in this action for the price thereof under their chattel mortgage. Said mortgage was not filed until May, 1885.

Plaintiffs' cause of action is founded on the mortgage and defendants contend on several grounds that this instrument must be disregarded. It is claimed in the first place, that the mortgage was void, because at the time of its exectuion some of the articles which it then purported to, and which it did eventually, cover were not in existence. But I cannot discover any substantial force in the argument for this view. The situation was, that Gandolfo and plaintiffs made a contract for the manufacture of the machinery, one of the terms of which was that they should retain a lien upon the articles until paid for. I can see no good reason why a purchase money mortgage on chattels should not be equally favored in law with a purchase money mortgage on land. There is of course the distinction that a mortgage on land is theoretically only a lien, while a mortgage on personal property effects a conditional sale.

We have, therefore, a sale to the vendee and a simultaneous conditional sale back to the vendor. Still this was practically the condition of affairs as to mortgages on real estate at common law, and is yet in many states of the Union; and everywhere a purchase money mortgage is one of the securities most jealously protected by the courts. The element of futurity does not operate to take the present case out of the usual rules governing purchase money mortgages; it rather tends to make such rules apply with greater force. A vendor contracts to manufacture certain specific articles, and also contracts for the security of resort to the articles themselves for his compensation. The only possible view to take, under these circumstances, is that the mortgage so given, which describes the articles to be made, attaches to the same as they are successively turned out and delivered to the vendee. See Ludwig v. Kipp, 20 Hun, 265; Willets v. Brown, 42 id., 140; 5 N. Y. State Rep.. 175, and cases there cited; Stevens v. Watson, 4 Abb. Ct. App. Dec., 302; McCaffrey v. Woodin, 65 N. Y., 459; Wisner v. Ocumpaugh, 71 id., 113; Coats v. Donnell, 94 id., 168.

Defendants, however, claim that such mortgage was void as to them, under the statute, because it was not filed until over a year after it was made. The law makes a chattel mortgage, unless filed, void as against subsequent purchasers and mortgagees in good faith; and the question which was principally argued on this appeal is, whether defendants can be held to be "subsequent purchasers in good faith" within the meaning of the act. I think this question has been so decisively answered in the negative by a long line of authorities in this state that little discussion will be required on our part. Van Heusen v. Radcliffe, 17 N. Y., 583; Thompson v. Van Vechten, 27 id., 580; Wood v. Robinson, 22 id., 564; Weaver v. Barden, 49 id., 286; Barnard v. Campbell, 65 Barb., 286; S. C., 55 N. Y., 456; S. C., 58 id., 73; Voorhees v. Olmstead, 66 id., 116; Dusenbury v. Hulbert, 59 id., 541; Kursheedt v. McCune, 20 Abb. N. C., 265; 8 N. Y. State Rep., 440. N. Y. STATE REP., VOL. XXXII. 78

The principle is well established by these cases that a "subsequent purchaser in good faith" is one who parts with value at the time of the transfer of title to or delivery of the identical property, and on the faith of such transfer or delivery. The term cannot be held to include one who receives the property in question either in pursuance of an executory contract of sale, or in satisfaction of an antecedent debt. It is not claimed that any transfer of title, either by constructive delivery or otherwise, was attempted to be made to defendants until the actual delivery of the machinery. On the other hand, it is proved conclusively by the aforesaid admission of one of the defendants that the money which defendants intended for the purchase price was all paid before the execution of the mortgage, and before the greater part, if not all, of the articles were made.

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Defendants did not, as has been argued here, make themselves subsequent purchasers in good faith," by expending various sums in charge of the machinery, and in setting the same up in their factory. Such expenditures, though in one sense made upon the faith of the transfer and delivery of the property, have not the least significance in determining in what character they became purchasers, or whether they became purchasers at all. These expenses would necessarily have been incurred no matter how they acquired the machinery, whether as purchasers or hirers or by gift. The determining factor is: when and upon what reliance was the purchase price paid? Here the purchase price was paid before defendants received the articles, and they relied simply upon Gandolfo's word that he would procure such articles for them. Defendants, therefore, were not subsequent purchasers in good faith within the definition of that phrase given by the authorities above cited, and it follows that, as between the parties to this action, the mortgage was valid and is operative. Van Heusen v. Radcliffe, supra; Thompson v. Van Vechten, supra; Kennedy v. Union Bank, 23 Hun, 496.

We are also of the opinion that plaintiffs may maintain the present action of conversion. Their right is disputed on the alleged ground that they are not entitled to the immediate possession of the chattels. But this is error. We have decided that the mortgage is valid as between the parties to this litigation, and consequently all the rights it purports to confer on the mortgagees are valid. One of such rights is to take possession of and dispose of the mortgaged chattels in case of default in payment of the debt. Plaintiffs are, therefore, entitled to assume immediate possession, and a demand for such chattels having been made, it follows that they may bring an action to recover such damages as they may have sustained by the unlawful detention of the same. Jones v. Graham, 77 N. Y., 628.

The exception should be sustained and a new trial ordered, with costs to abide the event.

BISCHOFF, J.-I concur in the opinion of the chief justice that the payment of the purchase money by the defendant John Dwight to Joseph Gandolfo, under the latter's executory agree