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ending the same successfully in her favor, that an action may lie by her attorney to recover the value of his services. This case, however, does not come within that principle. It is not an action for the value of the services rendered, but to enforce an order whose scope embraces services and expenditures necessary to the future prosecution of the action. The value of the work done by the plaintiff is not up for determination, nor can we say the value is fixed by the order, for it relates to services never performed. The cause of action set forth in the plaintiff's complaint depends wholly upon the order for its vitality. If an order for alimony ends with the action, so also must the kindred order for the payment of money to carry it on lose its force when life departs from the action.
Another objection to the maintenance of this action is that the award pursuant to the section of the Code referred to is to the wife, and upon the assumption that she lacks the means to prepare for the trial. It is not an allowance to her attorneys, and for that reason this action ought not be sustained
The final judgment should be reversed, the interlocutory judgment or order set aside, with costs of this appeal, and the demurrer sustained, with costs, with leave to the plaintiff to plead over upon payment of said costs with the disbursements of appeal.
So ordered. All concur except McLENNAN, P. J., who dissents.
GOLD v. DRY DOCK, E. B. & B. R. CO.
(Supreme Court, Appellate Term. November 18, 1903.) 1. CARRIERS-STREET RAILROADS-PERSONAL INJURIES-INSTRUCTION.
The complaint in a personal injury action alleged that the accident occurred in C. street at or near the intersection thereof with H. street. Plaintiff testified that at the time she attempted to get on the car by which she was injured it stood waiting for her on the north side of H. street, but was contradicted in this testimony by two of her own witnesses. The court was requested to charge that, if the jury found that the car stopped at the north side of H, street only, they must find for defendant. Held, that the refusal to charge as requested was proper. Appeal from City Court of New York, General Term.
Action by Katie Gold against the Dry Dock, East Broadway & Battery Railroad Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.
Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
Henry A. Robinson, Bayard H. Ames, and F. Angelo Gaynor, for appellant.
Alfred & Charles Steckler, for respondent.
FREEDMAN, P. J. The appellant's brief presents but one point, viz., that the court erred in refusing to charge the jury, as requested, that, if they find that its car stopped at the north side of Hester street only, they must find a verdict for the defendant, and, in ruling to
and 118 New York State Reporter leave that question of fact to the jury. The defendant's counsel excepted generally, failing to specify whether he excepted to the refusa! to charge as requested, or to the court's leaving the question of fact to the jury. But even if the exception be deemed to relate specifically to the refusal to charge as requested, it is untenable, under the evidence. The complaint averred the accident to have occurred in Clinton street at or near the intersection thereof with Hester street, and the case did not turn exclusively upon the question as to the exact spot at which the car had stopped. The material issue in the case was whether or not the plaintiff attempted to board the car while in motion, or after it had stopped for the purpose of allowing her to get on board. There was a dispute as to whether the car had to stop on the north or the south of Hester street, and the theory of the defense was that the plaintiff stood on the south side of Hester street; that the car passed her, and intended to stop for her at the north side; that the plaintiff ran after the car, and attempted to get on, and was injured before it could be stopped; and that it was stopped on or near the north side of Hester street. But the plaintiff had testified to the effect that the car had crossed Hester street, and, at the time she attempted to get on, stood waiting for her on the uptown corner of Hester street, which meant the north side. In view of this testimony on the part of the plaintiff, although contradicted by two of her own witnesses, the court properly refused to charge as requested.
The judgment and order must be affirmed, with costs. All concur.
(41 Misc. Rep. 404.)
PEOPLE ex rel. A. HUPFEL'S SONS v. CULLINAN. (Supreme Court, Special Term, New York County. September, 1903.) 1. LIQUOR Tax CERTIFICATE-SURRENDER-REBATE.
Liquor Tax Law, $ 34 (1 Laws 1897, p. 237, c. 312), provides that two convictions of an employé of the holder of a liquor tax certificate shall deprive the holder of any right to any rebate of any portion of the tax paid thereon. Held, that the holder of such certificate does not forfeit
his right to such rebate by one conviction of his employé. 2. SAME-FORFEITURE OF RIGHT.
Under Liquor Tax Law, $ 25 (1 Laws 1897, p. 225, c. 312), providing that a person against whom no complaint or prosecution is pending may surrender his tax certificate and receive a rebate, does not prevent one, the door to whose premises had been left open on Sunday, from obtaining such rebate, where no complaint or prosecution in regard to such violation of the law was pending.
Application by the people, on the relation of A. Hupfel's Sons, for writ of mandamus to Patrick W. Cullinan. Writ granted. Guggenheimer, Untermyer & Marshall, for relator. H. H. Kellogg, for respondent.
GREENBAUM, J. The relator moves for a mandamus requiring the respondent to issue two orders-one on the State Treasurer, and the other on the comptroller of the city of New York-for the payment of the rebate alleged to be due upon the surrender of a liquor tax certificate issued to one Joseph F. Florence, relator's assignor. The answer interposed to the petition, in effect, sets up as grounds for the denial of the motion, first, a conviction of an employé of said Florence, arising out of a violation of the provisions of the liquor tax law, by reason of the sale of liquors on Sunday, September 14, 1902, on the premises mentioned in the liquor tax certificate; and, secondly, a violation of subdivision “g," § 31, of the liquor tax law (1 Laws 1897, c. 312, p. 233), in “having open and unlocked a door and entrance from the street, alley, yard, hallway, room and adjoining premises to the room in said premises where liquors were sold," on said 14th day of September. The parties have stipulated, for the purposes of this motion, to concede that the foregoing allegations may be deemed true. It is admitted that the petitioner holds an assignment of the tax certificate; that the tax certificate was surrendered to the special deputy commissioner of excise, with a petition for the cancellation thereof, and for the payment of the rebate for the unexpired term; and that, in compliance with the provisions of the statute, the amount of rebate then due upon the certificate for the unexpired term was computed, and duplicate receipts therefor were issued. It also appears that in the printed form of application for a surrender of certificate prepared by the excise commissioner, and used in this case, there is a statement that the holder of the certificate "had not violated, nor been arrested nor indicted for violation of, the liquor tax law”; and the respondent contends that this statement, in view of the concession made in the stipulation, was false, and that the petitioner's claim to the rebate is thereby defeated. Section 25 of the liquor tax law provides that if a person"Holding a liquor tax certificate and authorized to sell liquors under the provisions of this act, against whom no complaint, prosecution, or action is pending on account of any violation thereof * * . and before arrest or indictment for a violation of the liquor tax law, cease to traffic in liquors during the term for which the tax is paid under such certificate, such
* person * * * may surrender such tax certificate," etc. Then follow the provisions, among others, following: "If within thirty days from the date of the receipt of such certificate by the state commissioner of excise, the person surrendering such certificate shall be arrested or indicted for a violation of the liquor tax law, or proceedings shall be instituted for the cancellation of such certificate, or an action shall be commenced against him for penalties, such petition shall not be granted until the final determination of such proceedings or action, and if the said petitioner be convicted, or said action or proceedings determined against him, said certificate shall be cancelled and all rebate thereon shall be forfeited, but if such petitioner be acquitted and such proceedings or action against him be dismissed on the merits," then it is provided that the rebate shall be paid.
Section 34 of the liquor tax law expressly provides that two convictions of an employé of the holder of a liquor tax certificate shall deprive the principal "of any right to any rebate of any portion of the tax paid thereon.”
Respondent argues that the conviction of the employé for a violation is equivalent to the conviction of the principal, and is sufficient to defeat the right to the rebate under section 25. A proper construction of a given provision of the liquor tax law requires a readand 118 New York State Reporter ing of all parts of the act bearing upon the matters involved in such provision. The special provision of section 34, declaring not only a forfeiture of the certificate, but a deprivation of the right of the principal to a rebate in case of two convictions of a servant, would seem to show a clear intention not to deprive the right of the holder of the certificate in case of but one conviction of a servant; and this sufficiently explains why no special mention is made in section 25 to the case of a conviction of a servant, agent, bartender, or employé. If respondent's construction prevail, then what necessity was there for explicitly declaring in section 34 that the principal was not entitled to a rebate? It would have sufficed to have merely stated that the certificate was forfeited in case of two convictions, inasmuch as no rebate is allowed, under section 25, excepting upon a voluntary surrender of the certificate. As meaning should be given to the deliberate use of words in a statute, where possible, it would seem proper to hold that, if the law deliberately declares that two convictions of an employé will defeat the right to a rebate, it thereby intended to declare that said right shall exist in case of but one such conviction.
The respondent further contends that the petition upon the surrender of the certificate was false, in stating that the holder "had not violated the liquor tax law,” in view of the concession by the stipulation of the truth of the allegation in the answer that a door was open and unlocked in violation of subdivision 2, § 31. The quotations from the liquor tax law, to which reference has been made, show that it is not necessary, in applications for a rebate, to state in the petition that the holder had not violated any of the provisions of the liquor tax law, and that it need only appear at "no complaint, prosecution, or action is pending on account of any violation," and that the holder of the certificate ceased trafficking in liquors under such certificate "before arrest or indictment for a violation of the liquor tax law." There was no action or proceeding brought for the violation alleged in the answer, and, as there is no warrant for reading into the act something which does not appear to have been contemplated by the lawmaking power, I am of opinion that it was not intended to take away the right to the rebate for a violation not judicially determined in accordance with the provisions of law. A peremptory writ should issue as prayed for, with costs.
Writ issued, with costs.
(41 Misc. Rep. 451.)
TOLMIE V. FIDELITY & CASUALTY CO. (Supreme Court, Trial Term, New York County. September, 1903.) 1. EMPLOYER'S LIABILITY POLICY-CONSTRUCTION.
An employer's liability policy indemnified the assured against liability for injuries to his employés or the public by the assured or by his workmen, but not those caused by a subcontractor or a subcontractor's workmen. Hell, that such policy could only be enforced by proof that
the injury sued for was not caused by a subcontractor or by his workmen. 2. SAME-ACTION AGAINST INSURED--FAILURE TO DEFEND.
Where, in an action brought by a city against one insured by an employer's liability company on an undertaking given by the assured to
indemnify the municipality against any claim made against it because of injuries, whether groundless or otherwise, the insurance company failed to defend, it does not preclude the company from asserting its freedom from liability under a provision of the policy exempting it from liability if the injury was caused by a subcontractor of the assured, or a subcontractor's workmen, as that fact would be no defense to an action brought by the municipality on the bond.
Action by Mundo Tolmie against the Fidelity & Casualty Company on an employer's liability policy. Judgment for defendant.
Kellogg & Rose, for plaintiff.
GREENBAUM, J. This action is brought by the plaintiff, as surviving partner of the firm of Wood & Tolmie, against the defendant, upon an employer's liability policy issued June 15, 1895, under which, among other things, the defendant agreed to indemnify the assured against liability for damages on account of fatal or nonfatal injury accidentally suffered by any employé or employés of the assured, and, further, by a rider attached to and forming part of the said policy, against liability of the assured to workmen employed by other contractors and to the public, arising out of personal injuries caused by the assured or by the assured's own workmen, “but not caused by a contractor's or subcontractor's workmen." On November 2, 1895, the assured entered into a contract with the city of New York for the construction of a public overlook in Corlears Hook Park. By that agreement the assured undertook to keep the place "properly guarded for the prevention of accidents and at night to put up and keep suitable and sufficient lights." They further agreed to "indemnify and save harmless (the city] against and from all suits and actions of every name and description brought against it and all costs and damages to which it may be put by reason or on account of any injuries or damages to the person or property of another by or from the said contractors, their servants or agents, in the construction of said work or by or in consequence of any negligence in guarding the same, or of any improper material used in its construction, or by or on account of any act or omission on the part of the said parties of the second part, or their agents.” It was further agreed, under said agreement, that the city might retain from moneys due to the contractors such sums as might be deemed necessary by its commissioners "until all suits or claims for damages as aforesaid shall have been settled, and evidence to that effect furnished to the satisfaction of said commissioners.” On the 6th of November, 1895, the assured entered into a contract with M. Kane & Son, under which the latter agreed to do all the excavating, grading, etc., necessary to complete the building known as “Overlook," Corlears Hook Park, on or before the 19th day of November, 1895. In that agreement M. Kane & Son undertook “to be responsible for any accident caused to persons or property through inattention on our part, defective materials or the carelessness or neglect of our workmen while in the performance of this contract, and to be responsible for the violation of any laws or corporation ordinances."