and 106 New York State Reporter

SESSELMANN v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Division, Second Department. November 15, 1901.) PERSONAL INJURIES-STREET RAILWAYS-CONTRIBUTORY NEGLIGENCE-INJURY AT CROSSINGS.

Where plaintiff alighted from a south-bound car at a street intersection, and stood for a moment at the corner, awaiting opportunity to cross, and looked in both directions, having an unobstructed view of from 20 to 50 feet, and saw no car except the one from which he had alighted, which was from 20 to 50 feet away, and then started to cross the tracks, and was struck by a car running at a rapid rate, coming from the south, and which gave no warning of any kind, the questions of negligence and contributory negligence should have been submitted to the jury.

Goodrich, P. J., dissenting.

Appeal from trial term, Queens county.

Action by Karl Sesselmann against the Metropolitan Street Railway Company. From a judgment in defendant's favor, and from an order denying a new trial, plaintiff appeals. Reversed.

Argued before GOODRICH, P. J., and JENKS, WOODWARD, HIRSCHBERG, and .SEWELL, JJ.

Charles A. Jackson (John Hetherington, on the brief), for appellant.

Charles F. Brown (Henry A. Robinson, on the brief), for respondent.

WOODWARD, J. This is an action to recover damages for a personal injury sustained by the plaintiff by being struck by one of the cars of the defendant at the intersection of Second avenue and Seventieth street. Upon the trial plaintiff's complaint was dismissed, upon the motion of the defendant, on the ground that the plaintiff had failed to show that he was free from contributory negligence, and that it did not appear that the defendant company was guilty of negligence. The plaintiff, having been nonsuited, is entitled to the most favorable construction which the jury might have placed upon the evidence. McDonald v. Railway Co., 167 N. Y. 66, 68, 60 N. E. 282, and authorities there cited. We are of opinion that the learned trial court erred in the disposition of this case. The undisputed testimony is to the effect that on November 20, 1899, the plaintiff alighted from a south-bound car of the defendant at East Seventieth street and Second avenue, borough of Manhattan, city of New York, and walked to the sidewalk, where he stood for a moment at the southwest corner of those streets, awaiting an opportunity to cross Second avenue; that he looked in both directions before attempting to cross, having an unobstructed view of from 20 to 50 feet of the street; that he saw the car from which he had alighted going down town from 20 to 50 feet away; that he started to cross the tracks, and the next thing that happened "was, a car came like lightning, and threw me down under the wheels, and ran over me. The witness testified that no bell was sounded, that no warning of any kind was given, and that he was upon the cross walk at the street intersection. He is supported in

this testimony by an apparently disinterested witness, who testified that he was in the vicinity, and that he saw a car coming from the south at a rapid rate: "I saw the car. That is all. I didn't hear any bell. And this man happened to cross the street, and he was struck with this car. The fender struck him." This accident occurred at a street intersection, where the rights of the parties were equal. Dunican v. Railway Co., 39 App. Div. 497, 500, 57 N. Y. Supp. 326, and authorities there cited. It is not contributory negligence, as matter of law, for a person to attempt to cross a highway at a street intersection, in a populous city, from 20 to 50 feet in front of an advancing car, even if he has seen it approaching. The duty rests upon the street railway company to have its cars in control at these points, that the equal rights of others may be protected; and the people using the highways for lawful purposes have a right to rely in some measure upon the discharge of this duty. It seems entirely probable that the south-bound car, from which the plaintiff had just alighted, was between the latter and the car which was approaching from the south at the time the plaintiff made his observations; and it was for the jury, taking all of the circumstances into consideration, to say whether the plaintiff had exercised that reasonable degree of care which a reasonably prudent and careful person would or should have used under the circumstances. If the car of the defendant approached this crossing at a high rate of speed, regardless of the rights of pedestrians, without giving any warning of its approach, or without having been reduced to the control of the defendant's servant in charge of the operation of the car, and the jury might have drawn this inference from the evidence,-then there was a neglect of the duty owed to the plaintiff, and he has a right to recover. We think the evidence should have been submitted to the jury upon the issues presented by the pleadings, and that the nonsuit was improperly granted.

The judgment and order appealed from should be reversed, and a new trial granted; costs to abide the event. All concur, except GOODRICH, P. J., who dissents.

PAWSON v. MILLER.

(Supreme Court. Appellate Division, Second Department. November 15, 1901.)

1. TROVER-CONVERSION-CHECK.

A judgment debtor gave his check to a constable in full settlement of the judgment. On the constable's return with the check to rectify a variance between the marginal amount and the amount stated in the body thereof, the debtor took the check and destroyed it. Held, that this was a conversion, for which trover would lie.

Where a debtor, in payment of a judgment, gave his check, and on receiving the check for rectification of an error therein converted it, the measure of damages was the value of the check, shown by the bank's offer to pay the amount written in the body thereof.

Appeal from Westchester county court.

and 106 New York State Reporter

Action of trover by Laura V. Pawson against August Miller for conversion of a check. From a judgment for defendant, plaintiff appeals. Reversed.

Argued before GOODRICH, P. J., and JENKS, WOODWARD, HIRSCHBERG, and SEWELL, JJ.

Arthur Rowland (F. X. Donoghue, on the brief), for appellant. John C. Harrigan, for respondent.

SEWELL, J. There is no dispute as to the facts of this case. The plaintiff recovered a judgment against the defendant for the suni of $205. An execution was issued, and delivered to Thomas E. Lee, a constable, who made a levy upon the defendant's property. Some time thereafter the defendant gave a check to the constable in settlement of the judgment, fees, and expenses. When the constable presented the check at the bank where it was payable, it was discovered that "two hundred and 95/100 dollars" was written in the body of the check, and $210.95 in the margin. The cashier offered to accept the check and pay the amount stated in the body of the check, but refused to pay the amount stated in the margin. The constable took the check to the defendant, and asked him to rectify the mistake. He testifies that the defendant said: "Will you let me have a look at it?' I took the check out, and held it with both hands. Before I could show the error, he snatched it out of my hands, and tore it up, and destroyed the check." From these facts it appears that the defendant converted the check to his own use. "The action of trover is founded on the right of property and possession, and any act of a party other than the owner which militates against this conjoint right in law is a conversion." Mahaney v. Walsh, 16 App. Div. 601, 44 N. Y. Supp. 969.

It is insisted that the check had no value, and therefore the plaintiff sustained no damage by the action of the defendant. The answer to this is that the bank offered to pay the plaintiff $200 for the check. Again, it cannot be held that the check was of no value because non constat that it was available for an action thereon against the defendant. While not money, a check is a thing of value. Hunter v. Wetsell, 84 N. Y. 549, 38 Am. Rep. 544. It represents a certain sum of money which the drawer of the check intends that the payee shall in fact have (Pickslay v. Starr, 149 N. Y. 432, 44 N. E. 163, 32 L. R. A. 703, 52 Am. St. Rep. 740), and an action of trover can be maintained for its conversion. Lawatsch v. Cooney, 86 Hun, 546, 33 N. Y. Supp. 775, and cases cited. We think defendant's action was a conversion, and nothing else, and that the damages are the value of the check converted.

In Potter v. Bank, 28 N. Y. 641, 86 Am. Dec. 273, Thayer v. Manley, 73 N. Y. 305, and Griggs v. Day, 136 N. Y. 152, 32 N. E. 612, 18 L. R. A. 120, 32 Am. St. Rep. 704, it was held that in an action to recover damages for the conversion of a promissory note, the amount appearing to be unpaid thereon at the time of the conversion is prima facie the measure of damages, but that the defendant has the right to show in reduction of damages the insolvency

of the maker, or any fact, to invalidate or affect the value of the note. Our conclusion is that the learned county judge erred in dismissing the complaint.

The judgment should be reversed, and a new trial granted; costs to abide the event. All concur.

PEOPLE ex rel. NEW YORK CENT. & H. R. R. CO. v. BOARD OF RAILROAD COM'RS OF NEW YORK.

(Supreme Court, Appellate Division, Third Department. November 13, 1901.) RAILROADS-ONE ROAD CROSSING ANOTHER-BOARD OF RAILROAD COMMISSIONERS-DECISION-ALLOWANCE OF CROSSING-CERTIORARI-FAILURE TO APPEAR-WAIVER-REVERSAL.

Where the board of railroad commissioners, acting under Railroad Law, § 68, determined that a street railway might cross the tracks of a railroad company, and, on certiorari by the railroad company to review the decision, the street railway company was made a party on motion, but did not appear on the argument, or file a brief, though given an opportunity so to do, such conduct was a waiver of the authority granted by the commissioners, and the decision will be reversed.

Certiorari by the people on the relation of the New York Central & Hudson River Railroad Company to review a determination of the board of railroad commissioners allowing the Niagara Falls Street Railway Company to cross the tracks of the New York Central & Hudson River Railroad Company in the city of Niagara Falls. Determination of the board reversed.

Argued before PARKER, P. J., and KELLOGG, EDWARDS, SMITH, and CHASE, JJ.

Ira A. Place, for relator.

PER CURIAM. This is a writ of certiorari to review the determination of the board of railroad commissioners, made October 15, 1900, under section 68 of the railroad law, determining that the railroad of the Niagara Falls Street Railway Company should cross at grade the tracks of the New York Central & Hudson River Railroad Company at or near the intersection of Second and Niagara. streets, in the city of Niagara Falls. Upon motion the Niagara Falls Street Railway Company has been made a party to the proceedings for the purpose of responding to this appeal. Upon the argument the respondent did not appear. It has since been given an opportunity to file a brief herein, but has failed to do so. Under all the circumstances of this case we think the default of the respondent should be deemed a waiver of the authority granted by the railroad commissioners, and for this reason should cause a reversal of their determination.

Determination of the board of railroad commissioners reversed.

and 106 New York State Reporter

ARMSTRONG v. BORDEN'S CONDENSED MILK CO. et al.

(Supreme Court, Appellate Division, Second Department. November 15, 1901) 1. MECHANIC'S LIEN-ASSIGNMENT FOR BENEFIT OF CREDITORS-PRIORITIES. Lien Law (Laws 1897, c. 418) § 4, provides that if labor is performed for or materials furnished to a contractor, the lien shall not be for a sum greater than that earned and unpaid "at the time of filing the notice of lien" and any sum subsequently earned thereon, and in no case shall the owner be liable to pay, by reason of all liens created pursuant to such article, a sum greater than the value of the labor and materials remaining unpaid at the time of "filing notice of such liens." Section 11 de clares that at any time after filing the notice of lien the lienor may serve a copy of such notice on the owner, but until service of the notice has been made an owner, without knowledge of the lien, shall be protected in any payment made in good faith to any contractor or other person claiming a lien. Laws 1877, c. 466, § 2 (General Assignment Act), provides that a general assignment for the benefit of creditors, when executed and delivered as required, takes effect, and the title to the property passes to the assignee. Held, that the execution and delivery of a general assignment of a building contractor will prevent a subcontractor from obtaining a right to a mechanic's lien under a notice filed subsequently thereto.

8. SAME-STATUTES-APPLICATION.

Laws 1897, c. 418, § 15, providing that no assignment of a contract for the furnishing of materials for the improvement of real property or money, or any part thereof, due or to become due therefor, shall be valid until the contract, or a statement containing the substance thereof, and such assignment, or a copy of each, etc., be filed in the office of the county clerk of the county wherein the real property improved is situated, does not apply to a general assignment for the benefit of creditors, so that the execution and delivery by a contractor of such an assignment in accordance with Laws 1877, c. 466 (General Assignment Act), is sufficient to give the assignee a preference over subsequent liens claimed by subcontractors on the money due from the owner.

Appeal from special term, Kings county.

Action by James Armstrong against the Borden's Condensed Milk Company and others to foreclose a mechanic's lien. From a judgment in favor of plaintiff, the Otto E. Reimer Company appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and SEWELL, JJ.

John T. Sackett, for appellant.

Henry De Forest Baldwin (William R. Barbour, on the brief), for respondents.

WOODWARD, J. There is no dispute as to the facts in this case. In August, 1899, the defendant Borden's Condensed Milk Company, being the owner of the land described in the complaint, contracted in writing with the defendant Robinson, under his business name of Robinson & Wallace, for the construction of a building thereon. The defendant (appellant) Otto E. Reimer Company was a subcontractor under this contract, and furnished to Robinson materials for the building of the value of $2,799.54, no part of which has been paid. The plaintiff, Armstrong, was also a subcontractor under Robinson, and furnished materials and labor of the value of $3,