網頁圖片
PDF
ePub 版

on is hen tit ne FOX

and 118 New York State Reporter the petition, and is the description required by the above-mentioned section of the Code. In fact, the petitioner las used the very word,

landlord,” required by the Code in describing his interest in the premises of which possession is claimed. A landlord is the person whose lands are occupied, and, when the petitioner herein said that he was the landlord, he in effect said that he was the person whose lands were occupied. I am unable to reconcile Fox v. Held, 24 Misc. Rep. 184, 52 N. Y. Supp. 724, and Engle-Heller Co. v. Henry Elias Brewing Co., 37 Misc. Rep. 480, 75 N. Y. Supp. 1080. Moreover, -the tenant, Demetrius Kaziz, admitted in his answer that he had - entered into an agreement (of leasing) "with George W. Loft, the landlord of the premises mentioned and described in the petition." This admission concludes the defendant.

To my opinion, the order appealed from should be affirmed, with costs.

CO 1980: that, ofte in

POMPILJ V. MANHATTAN DELIVERY CO.

(Supreme Court, Appellate Term. June 22, 1903.) 1. CARRIERS-LIMITATION OF LIABILITY-RECEIPT-CONTRACTS.

Where plaintiff directed a delivery company to transport his baggage from a certain place, and paid the charges, a receipt given by an employé of the company when he subsequently called for the baggage to a person who pointed it out to him did not constitute the contract, so as to limit the company's liability for the loss of the baggage to the amount stipulated therein.

Appeal from City Court of New York.

Action by Eugenio Pompilj against the Manhattan Delivery Company. From a judgment for plaintiff and an order denying its motion for a new trial, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

Guthrie, Cravath & Henderson, for appellant.
R. Maggio, for respondent.

FREEDMAN, P. J. In this case the provision of the receipt limiting defendant's liability, and the receipt itself, constitute no contract between the parties, within the rule laid down and enforced in Bernstein v. Weir (decided by the April term of this court) 83 N. Y. Supp. 48. The plaintiff called at defendant's office, and ordered to have his baggage, consisting of a valise, transported from No. II Oliver street to No. 181 Second avenue, in the city of New York, for which service the defendant requested him to pay, and he did pay, at that time and place, 35 or 40 cents. No question was asked, nor was any receipt or paper of any kind then given to him. Subsequently defendant's driver called at the Oliver street house during the absence of the plaintiff therefrom, saw a Mrs. Reagan, and asked her for plaintiff's valise. She pointed it out to him, with the remark, "Here it is." No more conversation passed between them, and no question was asked, according to her testimony, and the driver simply handed her a receipt. This receipt, it now appears, contained a limitation of the liability of the defendant to the sum of $50 in case of loss, at which the property to be forwarded was valued. Mrs. Reagan could neither read nor write, and, according to the finding of the jury, to whom this question was submitted as one of fact, her attention was not called to this clause, and she did not know the contents of the receipt. Upon this state of facts it is idle to contend that the previous oral contract, made and paid for at defendant's office, became merged into the so-called “contract" contained in the receipt. The case discloses no reversible error, and the defendant admitted that the valise and its contents were never delivered to the plaintiff, and that they were stolen from its wagon. No reason appears why the defendant should be relieved from making compensation as found by the jury. Indeed, the verdict only allowed a part of plaintiff's claim.

The judgment and order should be affirmed, with costs. All concur.

STEINMAN v.: INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Term. June 22, 1903.) 1. STREET RAILWAYS—CROSSING ACCIDENT—CONTRIBUTORY NEGLIGENCE.

Where one driving a wagon, when four feet from a street railway track, saw a car approaching on the farther track at the distance of a short block, there being only one house in the block, and he attempted to cross and was struck by the car, he was guilty of contributory negligence. Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by Ignatz Steinman against the Interurban Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

Arthur K. Wing and Wm. E. Weaver, for appellant.
Sel. De Young, for respondent.

GILDERSLEEVE, J. The action is for injuries sustained by plaintiff's horse by reason of a collision with defendant's car. The justice gave judgment for plaintiff in the sum of $225 damages, and costs. Defendant appeals. From the plaintiff's own evidence it appears that at about 4:40 p. m., on August 30, 1902, he drove his horse and wagon down Fifth avenue to Twenty-Fourth street, and then west on Twenty-Fourth street, intending to cross defendant's tracks on Broadway, in order to go to the foot of West Twenty-Fourth street. When he was about four feet east of the easterly track he looked south, and saw no car, and then looked north, and saw a car at the south corner of Twenty-Fifth street and Broadway. He then proceeded to cross the track. He had crossed the easterly track in safety, but when his horse began to cross the westerly track, and and 118 New York State Reporter had got his front legs on said westerly track, the south-bound car struck the horse, and caused the injury for which plaintiff seeks to recover. The horse was struck on the front leg and on the right side by the car, being first struck on the front leg, which shock swung him around, and thus exposed his right side to the car. Plaintiff, on cross-examination, testifies as follows, viz.: “Q. The horse went only that short distance (4 feet), while the car was coming a whole block? A. Yes, sir; the block is very short. That is the shortest block I ever saw, that Broadway block; it is only one house." The plaintiff called no witnesses to corroborate his account of the accident, while the defendant called three—the motorman, the conductor, and a tailor named Nordberg, who was a passenger on the car. But from plaintiff's own statement it appears that he drove at a good trot down Fifth avenue to Twenty-Fourth street; that on approaching Broadway, and while four feet east of the easterly track, he saw a south-bound car already at the crossing of Twenty-Fifth street, which he states was a very short block away—"only one house"; that the car was approaching rapidly, and yet he deliberately crossed the easterly track, and then attempted to cross the westerly track, apparently without paying any further attention to this rapidly approaching car. He miscalculated his chances of getting across before the car reached him. It does not appear that he made a signal to the motorman that he was about to cross, but even if he did, and the motorman was guilty of negligence, it still appears from plaintiff's own statement that his own negligence contributed to the accident,

We are of opinion that the judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.

STEINHARDT et al. v. EISEN et al.

(Supreme Court, Appellate Term. June 22, 1903.) 1. PLEADINGS-AMENDMENT-DEFENSE OF USURY.

Municipal court act (Laws 1902, p. 1542, c. 580, & 166), providing that the court must on application allow a pleading to be amended at any time if substantial justice will be promoted thereby, requires the municipal court to allow an amendment to defendants' answer by setting up the defense of usury.

Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by Louis H. Steinhardt and another against David Eisen and others. From a judgment for plaintiffs, defendants appeal. Reversed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

Steuer, Hoffman & Wahle, for appellants.
H. J. Hindes, for respondents.

PER CURIAM. At the close of the plaintiffs' case, and again at the close of the whole case, the defendants asked leave to amend the answer by setting up the defense of usury. This was denied by the trial court. Municipal Court Act, § 166 (Laws 1902, p. 1542, C. 580), provides “that the court must, upon application, allow a pleading to be amended at any time, if substantial justice will be promoted thereby." This proposed amendment should have been granted, upon such terms, however, as the court might deem proper. The defense sought to be interposed has sometimes been termed an unconscionable one, and not to be encouraged, but it is a legal one nevertheless, and if proven no recovery can be had. The judgment must therefore be reversed.

Judgment reversed. New trial ordered, with costs to appellants to abide the event.

MEYEROWITZ v. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Term. June 22, 1903.) 1. STREET RAILROADS-PASSENGERS-INJURIES-NEGLIGENCE-SUFFICIENCY.

Evidence that while plaintiff was attempting to board a street car, which had stopped in response to his signal, the car started, and plaintiff fell on the street, without showing in what manner the car started, and without showing that plaintiff's fall was caused by the starting of the

car, was insufficient to show negligence on the part of defendant. Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by Abraham Meyerowitz against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

Morris Cukor, for respondent.
Henry A. Robinson, for appellant.

FREEDMAN, P. J. This is one of the ordinary actions for personal injuries aileged to have been caused by the negligence of the defendant. The only evidence given by the plaintiff, who was the only witness sworn in his behalf, as to the occurrence, was that one of the defendant's cars stopped in response to his signal, and that plaintiff "stepped with the right foct on the car, and then I was holding. I wanted to get on, and the car started, and I fell off, and the car went right along, and I fell on the street." This is no evidence of negligence on the part of the defendant. The mere starting of a car is not negligence. How or in what manner the car in this case was started does not appear, nor was it shown that the plaintiff's fall was caused by such starting of the car.

Judgment reversed. New trial ordered, with costs to the appellant to abide the event. All concur.

and 118 New York State Reporter

MULLER V. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Term. June 22, 1903.)

1. STREET RAILROADS—CROSSING ACCIDENT-NEGLIGENCE-CONTRIBUTORY NEG

LIGENCE-JURY QUESTIONS.

Evidence in an action for injuries by the driver of a wagon struck by defendant street railway company's car at a crossing held to justify the submission to the jury of the issues of defendant's negligence and plaintiff's contributory negligence.

MacLean, J., dissenting. Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by Christian Muller against the Interurban Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

H. A. Robinson (Arthur K. Wing and Wm. E. Weaver, of counsel), for appellant.

Joseph I. Green, for respondent.

GILDERSLEEVE, J. The action is for personal injuries. While the plaintiff may have been somewhat confused on cross-examination, still his evidence shows that when his horses got onto the west track of defendant he saw the car a block away on the same track. He was driving slowly. He had his horses over the west track, onto the east track, when he looked again, and saw the car half a block away. Before he could get the hind part of his wagon over the west track, the car struck the wagon, and caused the injuries complained of. The evidence was such that the question of the negligence of defendant's servant in charge of the car and of the plaintiff's contributory negligence was a proper one for the jury. The charge of the learned justice was a correct statement of the law applicable to the case. We can find no reason for disturbing the judgment.

Judgment affirmed, with costs.

FREEDMAN, P. J., concurs.

MacLEAN, J. (dissenting). The plaintiff, driving an empty twohorse stone truck easterly through inith street, was struck on Second avenue by a south-bound car of the defendant, and in this action charged his injuries upon the defendant. That he looked and saw the car before he got upon its track is clear, but not his direct testimony to where and when. Upon his cross-examination he testified that he saw the car at 112th street as soon as he came out from the house line; that the distance from the first rail to the edge of the street was 43 feet, and he saw the car when he commenced to drive the 43 feet; that his horses were walking, and the car was coming extremely fast, and he kept right on, watching it all the time, and if the motorman did not stop the car he knew he would get struck. The collision occurring at a point where the parties had similar rights and

« 上一頁繼續 »