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two-thirds of the members present at a meeting regularly constituted for the transaction of business. Twenty-five members present constitute a quorum for the transaction of business. In this aspect the vote was sufficient. But, if it did not require two-thirds of all the members of the association at the time of the passage of the resolution, the relator failed to establish by competent proof that 42, the number which voted for his expulsion, were insufficient to constitute such two-thirds.

The order should be affirmed, with $10 costs and disbursements.

(4 Misc. Rep. 429.) WILSON y. CUMMINGS.

(Superior Court of New York City, General Term. July 3, 1893.) TROVER AND CONVERSION-POSSESSION BY DEFENDANT-EVIDENCE.

In an action for conversion of mirrors claimed by plaintiff under a chattel mortgage, it appeared that the mirrors were in different apartments of a building occupied by tenants of defendant's predecessor in title, defendant having purchased the building at a sale under a mortgage. Afterwards, some of the tenants moved out, and defendant, with notice of plaintiff's claim, relet the apartments, with the mirrors in them, to other tenants. Held, that it was error to dismiss the complaint on the ground that plaintiff did not show that defendant was in actual possession of the mirrors.

Appeal from jury term.

Action by James G. Wilson against Richard Cummings. From a judgment dismissing the complaint on the merits, and from an order denying a motion for a new trial, plaintiff appeals. Reversed.

F. Forbes, for appellant.
Arnoux, Ritch & Woodford, for respondent.

FREEDMAN, J. The complaint having been dismissed at the trial upon plaintiff's proof, and by reason of the failure of the plaintiff to establish that the defendant was in the actual possession of the chattels, for the conversion of which this action has been brought, the dismissal, if otherwise proper, should not have been upon the merits. A review of the whole case has satisfied me, however, that the complaint should not have been dismissed at all. Under the chattel mortgage, plaintiff's title and right to immediate possession of the mirrors were complete. The mirrors were simple chattels, and the foreclosure sale of the real property to the defendant conveyed to him no right to or interest in the said mirrors. McKeage v. Insurance Co., 81 N. Y. 38. Moreover, the plaintiff gave public notice of his claim at the foreclosure sale. Now, it may be conceded that the defendant did not become liable for a conversion of the mirrors simply because he purchased the premises, and subsequently refused to deliver up the mirrors on plaintiff's demand. Plaintiff was bound to prove, as part of his case, that, prior to the demand made, the mirrors, or so many of them as he sought to recover for, had come into the possession of the defendant, or that

the defendant had wrongfully taken them prior to the commencement of the action. At the time the defendant acquired title to the premises the mirrors were in different apartments in the building, occupied by tenants to whom the apartments had been let by defendant's predecessor in title together with the mirrors, and these tenants attorned to the defendant as their landlord. As long as these tenants remained in possession during their respective unexpired terms, the defendant could not, and in fact did not, acquire possession of the mirrors. If, therefore, the proof ended here, there would be no liability on the part of the defendant. But there was evidence to the effect that some of these tenants shortly thereafter removed from their apartments, and that thereupon the defendant, through an agent, relet the said apartments to other tenants, together with the mirrors in them. Further evidence which plaintiff desired to give upon this point was excluded by the trial judge, against plaintiff's exception. It must therefore be assumed that, if he had been permitted, the plaintiff would have fully established the point. The proof would then have been sufficient to show that the defendant took possession of the mirrors of these particular apartments, and assumed and exercised control and dominion over them, to the exclusion of plaintiff's rights, although he had notice of them, and to this extent a conversion would have been established, within the authorities, irrespective of the demand which was made upon the defendant. The judgment and order should be reversed, and a new trial ordered, with costs to appellant, to abide the event.

(4 Misc. Rep. 433.) DONOVAN V. SHERIDAN et al.

(Superior Court of New York City, General Term. July 3, 1893.) 1. SHIPPING–CHARTER OF VESSEL-IMPLIED WARRANTY.

Where a boat drawing seven feet of water is chartered by plaintiff tu. defendant to run to a certain point on a river, and defendants state to plaintiff that the channel of the river is more than ten feet deep, when in fact it was not more than six feet deep, the doctrine of implied warranty

of fitness does not apply. 2. BREACH OF CONTRACT—WHEN ACTION MAY BE BROUGHT.

An action for breach of a contract will lie at once, on a positive refusal to perform, though the time specified for performance has not arrived. Appeal from jury term.

Action by Patrick Donovan against Thomas Sheridan and JamesByrne. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. Affirmed.

Argued before MCADAM and GILDERSLEEVE, JJ.
Arnold, Greene & Patterson, for appellants.
Leavitt & Keith, for respondent.

MCADAM, J. The action was brought upon an agreement whereby the plaintiff chartered to the defendants the passenger steam

tug Annie & Maggie for 150 days at $20 a day. The tug was delivered to and accepted by the defendants. The answer was a general denial, nothing more; and, the jury having found that the contract was made unconditionally as alleged, their determination ought seemingly to end the controversy. But the defendants insist upon several matters of defense not specially pleaded:

1. That when the owner of a vessel charters her or offers her for freight he is bound to see that she is seaworthy, and suitable for the service in which she is to be employed. Work v. Leathers, 97 U. S. 379; The Director, 34 Fed. Rep. 57; McAdams v. Leverich, 35 Fed. Rep. 305; Abb. Shipp. (Edition of 1892,) p. 389. There was no evidence given or offered that the boat was unseaworthy, or unfit for the purpose intended. There was proof that the vessel drew seven feet of water, and that the channel to Ellis island, where the boat was intended to ply, furnished only five or six feet; but the plaintiff testified that the defendants told him that there was over ten feet of water in the channel, and that was “according to their contract with him.” The plaintiff also testified that he told the defendants how much water the boat required, so that the trial judge was right when he told the jury that the doctrine as to implied warranty of fitness was true as an abstract proposition of law, but did not apply to the case if they found the facts to be as stated by the plaintiff; and the jury did find the facts to be as testified to by him.

2. That the action was commenced before the 150 days mentioned in the charter expired, and was therefore not maintainable. No such point was made at the trial, and is not enforceable now. But, apart from this, the law is settled that an action for breach of contract will lie at once upon a positive refusal to perform, although the time specified for performance has not arrived, (Burtis v. Thompson, 42 N. Y. 246; Freer v. Denton, 61 N. Y., at page 496; Howard v. Daly, Id. 362; Gray v. Green, 9 Hun, 334; Wetmore v. Jaffray, Id. 140,) and the damages recoverable may continue down to the time of trial, if the contract extends beyond that, (Bruell v. Colell, 1 City Ct. R. 308; Cummings v. Hausen, 63 How. Pr. 351.) The recovery of damages resulting from one and the same cause of action must be assessed and recovered once for all, and should be for the difference between the sum the plaintiff should have received under the contract and that which he has or it is shown might have received elsewhere. The contract expired long before the cause was tried, and at a time when the damages had become fixed and unalterable, and the trial judge carefully limited them to indemnity for the actual loss. No objection was made to the form of the action or of the complaint, and none can be raised for the first time now.

3. That the boat belonged to the plaintiff's daughter, and the action should have been brought in her name. This objection is answered by the fact that the contract was made by the plaintiff, who had authority from the daughter to make any contract he pleased concerning the boat, and she to have none of the earnings. The daughter testified to these facts, and thereby estopped herself from

making any claim upon the defendants, so that the plaintiff was more than the trustee of an express trust. Code, § 449. Indeed, he became the only person interested in the recovery, and qualified to maintain the action. We have carefully examined the record in all its parts, and fail to discover any force in any of the exceptions urged against the recovery. The verdict is satisfactorily sustained by the evidence, and the judgment and order appealed from must be affirmed, with costs.

(4 Misc. Rep. 384.)

SCHULZ v. ROHE et al. (Superior Court of New York City, General Term. July 3, 1893.) INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE.

In an action for personal injuries to a servant, caused by a defective machine, it appeared that the machine was known by all to be defective, and that the foreman ordered the engineer to fix it on the following Sunday. Plaintiff worked on the machine all the Monday following, when it appeared to be in good order. The accident happened on the next day. Plaintiff's regular occupation at the machine was not a dangerous one, but on the day of the accident he was ordered to take the place of a man who was absent, and while so engaged he was injured. Plaintiff testified that he thought the machine had been repaired. Held, that it was error to dismiss the complaint on the ground of contributory negligence, as plaintiff had a right to assume that the machine had been repaired on Sunday. Appeal from jury term.

Action by Henry Schulz against Charles Rohe and others. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

Shaw & Fisk, (James M. Fisk, of counsel,) for appellant.

Deyo, Duer, & Bauerdorf, (Robert E. Deyo, of counsel,) for respondents.

GILDERSLEEVE, J. This action was brought to recover for personal injuries received by plaintiff while working in the employment of defendants on a defective machine supplied by defendants. The complaint was dismissed at the close of the plaintiff's testimony on the ground of contributory negligence. The machine in question was used in stuffing sausages, and was operated by steam power. It required the services of four men; two, called “fillers," to fill the cylinders with chopped meat, and two, called "linkers," to assist in filling the skins and removing. The defect in the machine was hidden, and its exact nature unknown. By reason of the imperfect working of the steam valve, due to some cause which was not apparent, the machine would start suddenly, and, without warning, push the piston head into the meat cylinder, where the fillers were sometimes obliged to put their hands; .and the fillers were, by reason of the defective condition of the machine, exposed to the danger of having their fingers crushed. The plaintiff's regular employment was that of linker,-a position of no danger, even while the defect in the machine existed. The plaintiff had orders,

however, to take the place of a filler, when one of the regular fillers was absent. It was in such an emergency, while the plaintiff was temporarily discharging the duties of a filler, that the accident occurred. While the plaintiff was filling the cylinder with meat, with his hand inside, arranging the meat, as he was required to do, the machine started, without warning, and the piston head caught the plaintiff's hand in the cylinder before he could withdraw it, cutting off the fingers of the left hand, and pulling out the nerves and muscles therefrom up to the elbow. On the Thursday or Friday next before the accident, which happened about 5 o'clock P. M. on Tuesday, the defect was known to all; and the foreman, in the hearing of plaintiff, told the engineer "to fix the machine on Sunday, because he cannot fix it the working days,-it is so hot;" and plaintiff heard the engineer say that he would repair it on the Sunday named. The plaintiff worked on the machine all the Monday following the Thursday or Friday on which the instructions to repair the machine were given, as aforesaid, and up to about 5 o'clock the next day, (Tuesday,) during which time the machine seemed to work all right. During these two days the plaintiff worked in his capacity of linker, but about 5 o'clock on Tuesday afternoon one of the fillers went away, and the plaintiff was ordered to take his place, and he had not filled the cylinder many times when the accident occurred.

Inasmuch as the complaint was dismissed upon the plaintiff's case alone, all the evidence of the plaintiff and his witness must be considered as true, and the inference most favorable to plaintiff must be drawn from the testimony. Flynn v. Harlow, (Super. N. Y.) 19 N. Y. Supp. 705. The court below dismissed the complaint on the ground that the plaintiff was guilty of contributory negligence, for the reason that he worked on the machine after he knew it was out of order. But the plaintiff swears that he thought the machinery had been fixed, and the inference to be drawn from the testimony indicates that he had reason so to think, inasmuch as he heard the foreman direct the engineer to fix it on the Sunday following the day on which the defect was discovered, and he had afterwards heard the engineer say that he would fix it on the Sunday named, and on the Monday following the said Sunday the machine seemed to work all right. Aside from the plaintiff's uncontradicted testimony, it is a fair inference to be drawn from the testimony that plaintiff believed the machine had been mended; and, as we have said, the inference most favorable to plaintiff must be accepted. Furthermore, the plaintiff had a right to assume that the defendants had done their duty. To be sure, it may be urged that there is no positive testimony that the machinery was not properly repaired on the Sunday; but it is hardly possible to draw an inference from the evidence that the machine was properly repaired on the Sunday, and that, with no fault of the defendants, it broke again on Tuesday, so that it was a risk incident to the business which plaintiff assumed on entering into the employment. The more reasonable inference is that, if repaired, it was not properly repaired, or it

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