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the question which it is considered necessary to review, which is whether there was any evidence upon which negligence could be predicated against the defendants because of the distance between the cars and the platform upon which the passengers alighted. This question has been considered upon various occasions by the courts, and the rule which has been adduced therefrom is that a machine or structure not obviously dangerous, which has been in daily use for years, and has uniformly proved adequate, safe, and convenient, may be continued in use without the imputation of negligence. Applying this rule to the case at bar, it would seem that, in view of the large number of persons passing over the Brooklyn bridge upon the cars running thereon, who had alighted from those cars without accident, the mere existence of an opening of the width described by the witnesses was not of itself negligence. That some opening had to exist is manifest, because the car and the platform could not possibly make a perfectly close connection. The force of this rule was sought to be overcome by showing that upon the elevated railways in this city certain means had been resorted to by which this space was bridged under certain circumstances. But there was no evidence that any such appliance was in general use; and, there being nothing to call the attention of the defendants to the fact that the structure as it stood was insecure or unsafe, there was no duty calling upon the defendants to adopt this peculiar device, which, so far as appears, is only used by one corporation. The principles laid down in the case of Ryan v. Railway Co., 121 N. Y. 126, 23 N. E. Rep. 1131, seem precisely to cover the questions involved in the case at bar. In that case the ground upon which a recovery was claimed was that the defendant had left an improper and dangerous opening in the pathway of its passengers without any necessity therefor; the court stating that the question presented was whether the opening into which the plaintiff stepped was or was not wider than necessary, so much so as to produce danger to the passengers. After alluding to the peculiar conditions attending the case then under discussion, the court said:

"Thousands upon thousands, often in a hurry, and thronging in crowds, have stepped over this opening, without harm or danger."

And the court asked the question:

"How is it possible to say that an opening thus tested by years of use was negligent in its origin or maintenance? Indeed, the plaintiff adds to the force of this fact. She had taken the cars at that point a hundred times or more, and gives unconscious testimony to its safety by seeking to show that on this one occasion a change had occurred, and the opening was wider than usual. Her whole case depends upon that allegation, and its burden rested upon her. She meets it by a guess. In her testimony she estimated by the eye that the width of the opening was 14 to 15 inches. She did not notice the opening at all until just as she was lifted out of it; and was looking straight at the car, and not at the opening, when she stepped in. This was contrary to her habit, and without any apparent reason. No one else stepped into the opening. The other passengers seem to have found no difficulty and encountered no risk. She alone. paying no attention to her steps, went blindly into the opening. If she had exercised even ordinary care, there is no reason to suppose that her safety would have been endangered."

It is sought by the evidence in the case at bar to vary it from that of the case cited, by the claim that the plaintiff was jostled as she was leaving the car, and thus fell into the opening; but this in no way makes the act of the defendants negligence in maintaining the cars and platform in the condition which for a large number of years had been found to be a sufficient provision for the safety of passengers. Thousands had passed over this opening without the slightest inconvenience; and as every passenger, upon alighting from the car, is bound to know that some space must exist between the platform and the car, it is their duty to take some precautions in order that they may not step therein. It would seem, therefore, that the construction of the platform and cars formed no ground for a recovery, and the only evidence upon which a recovery could be had was that the platform was not properly lighted, bringing the case within that of Boyce v. Railway Co., 118 N. Y. 314, 23 N. E. Rep. 304. The defendants requested the court to charge that, if the jury believed that the platform was lighted on the night of the accident with electric lights, testified to by defendants' witnesses, the verdict must be for the defendants. The defendants also requested the court to charge that there was no evidence that the space between the platform of the car and the station was unnecessarily wide, and that the only question which the jury might consider was whether it was properly lighted. It was error for the court to refuse these two requests, as it enabled the jury to speculate upon the duties of the defendants in regard to the running of their cars, and the construction of their platforms, which question should not have been left to it. The judgment should be reversed, and a new trial ordered, with costs to appellant to abide event. All concur.


(Supreme Court, General Term, First Department. June 30, 1893.)

1. ACTION TO CANCEL MORTGAGE-TENDER OF DEBT-PAYMENT INTO COURT. Where the owner of mortgaged property tenders the amount due to the holder of the mortgage, who refuses to accept the amount tendered, an action to cancel the mortgage, at the instance of the property owner, cannot be maintained, unless, at the commencement of the action, he pays the amount of his tender into court.

2. ACCEPTANCE OF TENDER-WHAT CONSTITUTES-CANCELLATION OF MORTGAGE. The owner of mortgaged property tendered the amount due on the mortgages, which was rejected. He then sued to cancel the mortgages, but did not bring the amount of the tender into court. Subsequently, the amount was brought in, by order of court, and defendant thereupon insisted on taking the same, and was allowed to do so by the court. Held that, by such action, defendant accepted the tender, and thereby waived the objection that the money was not paid into court at the commencement of the action.

Appeal from special term, New York county.

Action by James P. Foster against Morris Mayer to cancel two mortgages. From a judgment dismissing the complaint after trial at special term, plaintiff appeals. Reversed.


Argued before VAN BRUNT, P. J., and FOLLETT and PARKER,

E. Schenck, for appellant.

Wolf, Kohn & Ullman, (Sol Kohn, of counsel,) for respondent.

VAN BRUNT, P. J. This action, undoubtedly, was brought upon an erroneous theory; it being supposed that under the rules laid down in Kortright v. Cady, 21 N. Y. 343, and subsequent cases in the same line, where a tender had been made of the amount due upon a bond and mortgage, which tender had not been accepted,the lien of the mortgage being lost, the mortgagor had a right to come into a court of equity, and have the lien discharged of record. This position upon the part of the plaintiff, unless, at the time of commencing the action, he brought the money into court, was entirely untenable, as a court of equity will not, by its decree, grant equitable relief, unless the plaintiff does equity. But it appears that subsequently, in order to obtain equitable relief in this action, the plaintiff brought the money into court, being the amount of principal and interest upon the bond and mortgage, and the defendant insisted upon taking it, and, under the decision of this general term, was permitted to receive it. 20 N. Y. Supp. 487. By such action the defendant accepted the tender, and consequently the plaintiff was entitled to have the bond and mortgage canceled. If the defendant had desired to insist upon the invalidity of the tender, and that the money was not brought into court in time, and that, therefore, he should be permitted to go on with the foreclosure of the mortgage, he certainly should not have insisted upon the receipt of the money deposited in this action pursuant to the order of the court. As has already been stated, the acceptance of such money after it had been paid into court was an acceptance of the tender, and then the only question which remained was upon what terms the plaintiff was entitled to the relief of having the bond and mortgage canceled. If any other rule obtained the result of these proceedings would be that the defendant would have the money represented by the bond and mortgage in his pocket, and still hold the lien represented by the mortgage against the property of the plaintiff, which is certainly not equitable. or proper. The court, therefore, erred in dismissing the complaint, although at the time of the commencement of the action the plaintiff, probably, was not entitled to any relief. The subsequent proceedings, however, acquiesced in by the defendant, gave him the right to have this bond and mortgage canceled upon terms to be fixed. We think, therefore, that the judgment should be reversed, and a new trial ordered, with costs to appellant, to abide the final event. All concur.

(70 Hun, 334.)


(Supreme Court, General Term. First Department. June 30, 1893.)

1. MERCANTILE AGENCIES-FALSE REPORTS-NEGLIGENCE-LIABILITY. Plaintiff and defendant entered into a contract whereby defendant agreed to furnish plaintiff the business standing of a certain number of men for one year. The contract provided that defendant should not be liable for any loss caused by the neglect or other act of any officer or agent of the company in procuring and communicating the information. Plaintiff inquired as to one B., "grocer, 63 Grand River Ave., Detroit, Mich." Defendant reported as to one B., "grocer and saloon, 573 Russell, cor. Ohio, Detroit, Mich." The report contained a provision that the correctness of the same was not guarantied. Plaintiff, without further inquiry, filled an order for goods to 63 Grand River avenue. The goods were never paid for, and plaintiff sued defendant for their value, alleging that defendant did not make proper inquiries of its correspondents at Detroit; but no evidence was introduced in support of such allegation. Held, that the evidence did not show defendant guilty of such gross negligence as would render him liable for the goods.


Plaintiff was guilty of contributory negligence in shipping his goods to 63 Grand River avenue without further inquiry.

Appeal from circuit court, New York county.

Action by John F. J. Xiques against the Bradstreet Company. From a judgment dismissing the complaint, entered on a verdict directed for defendant, and from an order denying a motion for a new trial, made on the minutes, plaintiff appeals. Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

Benjamin G. Hitchings, for appellant.
John H. Bird, for respondent.

FOLLETT, J. This action was brought to recover damages occasioned by the alleged negligent performance of a contract entered into between the parties. Since 1884 the plaintiff has been a manufacturer and dealer in cigars in the city of New York. In 1876 the defendant was incorporated under the laws of the state of Connecticut for the purpose of conducting a mercantile agency and collecting and disseminating information in respect to the standing and condition of persons engaged in business within the United States and dominion of Canada. In the course of its business, the defendant for many years has published printed volumes containing the names of persons, firms, and corporations engaged in business, the kind of business in which engaged, and their place of business, and also showing their supposed financial standing and business reputation. The defendant, in the course of its business, delivers a copy of this book to every one of its subscribers. On the 12th of January, 1885, the litigants entered into a written contract, of which the following is a copy:

"(129) Original. For the Bradstreet Company.

"The undersigned hereby employs the Bradstreet Company, from January 12th, 1885, to January 12th, 1886, to procure, to the best of its ability, in

formation concerning the responsibility and character of mercantile persons inquired for within the states represented in the volumes loaned, said inquiries not to exceed 50, except as hereinafter agreed. And in consideration of such service, including the loan of the January, 1885, - 188-, July,

1885, and -, 188-, volumes of its U. S. and Canada Reports, the undersigned hereby agrees to pay the Bradstreet Company one hundred dollars. Pay $50 now and $50 1st July, '85, at the commencement of the said subscription term; and for each inquiry exceeding the 50 before mentioned, thirty-three and one-third cents, on demand. And it is further expressly agreed by the undersigned that all information, whether printed, written, or verbal, furnished by the Bradstreet Company to the undersigned, shall be held in strict confidence, and shall never be revealed to the persons reported; that the undersigned will neither ask for information for the use of other parties, nor permit it to be done; that the said company shall not be liable for any loss or injury caused by the neglect or other act of any officer or agent of the company in procuring, collecting, and communicating said information; that the said company does not guaranty the correctness of the aforesaid information; and that the said volumes to be loaned, as aforesaid, shall be returned to the company, without notice from it, upon the receipt by the undersigned of any subsequent edition of its books, or at the expiration of the subscription term; it being understood and agreed that the company reserves the right to reject, or, upon the return of a pro rata sum of the amount paid, to cancel, this subscription, and recall the volumes. The conditions of this subscription, as set forth above, embody and merge all the agreements and understandings heretofore made or had with said company, or its agent or agents acting in its behalf, either verbal or written.

"J. F. J. Xiques. "Street address: 376 Canal St.

"Dated at Jany. 12th, New York, 188-. P. O. Box "Enter here place at and date when signed."

The volume delivered to the plaintiff contains the following: "Herman Brinker, Grocer, Detroit, Michigan. W. D."

The letters "W. D." indicate that Brinker was estimated to be worth two or three thousand dollars, and that his credit was fair. A copy of the above contract was inclosed to the defendant in a letter, of which the following is a copy:

"Executive Offices, New York, Dec. 31, 1886. Established 1849. Charles F. Clark, Pres. Edward F. Randolph, Treas. Capital & Surplus exceed $1,500,000. The Bradstreet Company. Executive Offices, 279, 281, 283 Broadway.

"New York, Dec. 31, 1888.

"Mr. J. F. J. Xiques, New York, N. Y.: We are to-day in receipt of your subscription, and, having entered its details on our ledger, beg to hand you herewith a verbatim copy of same, that there may be no misunderstanding on your part as to its terms and conditions. We shall spare no efforts to furnish you information promptly in reply to your inquiries, and shall, in return, require at your hands a full recognition of our rights as set forth in the contract.

"Yours, very truly,

Charles F. Clark, President."

In September, 1885, the plaintiff received two letters, of which the following are copies:

"Office of Herman Brinker, 263 Grand River Ave.

"Detroit, Michigan, Sept. 19th, 1885. "Mr. Jose F. J. Xiques, New York-Dear Sir: Please send me by express samples of your manufacture ranging in prices from $25 to $35, and from $45 v.24

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