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president of the corporation, and a stockholder therein. It was intended by the plaintiff to institute supplementary proceedings against Frame, and third-party proceedings had actually been begun against the corporation. The defendant, Klock, was the attorney for Frame. The plaintiff's attorney represented to Klock that he was going to take steps to reach the interest that Mr. Frame had in the corporation. Klock then said that he was unwilling that that should be done,
for the reason that the corporation had a valuable lease which it in.tended to sell to the landlord, as it was understood that the building was to be torn down and a new one was to be erected, and that the lease had a surrender value. Thereupon the plaintiff's attorney told the defendant that he was willing to be trustee, and could get the corporation and all the people interested “to consent to execute a declaration of trust”; that is, Klock to execute the declaration of trust, and they to assign the lease, so that the proceeds should be in Klock's hands; then the plaintiff's attorney would consent to Klock being a trustee. Subsequently Klock showed to the plaintiff's attorney an executed assignment of the lease. The plaintiff's attorney also testified that he was told by the defendant that he had the money, and that he held it pursuant to the terms of the trust agreement. He also testified that he saw the original draft of that trust instrument, and that the instrument in its present shape, as offered in evidence, was the result of conferences between him and the defendant.
It is apparent from the testimony of the plaintiff's attorney that it was contemplated between the parties that this individual debt of Mr. Frame should be paid out of the property of the corporation upon the consent only of all persons interested in the corporation, to be evidenced by the execution of an instrument authorizing the payment to be made. That instrument was prepared, and was between creditors of the corporation, including the plaintiff, the corporation itself, and all the stockholders of the corporation; it being shown that the persons named in the agreement as stockholders were the only stockholders. The funds of the company were not to be appropriated to the payment of a debt of a third party without the full consent of the stockholders, as well as of the corporation, and that consent was to be testified to by the execution of a written agreement. That agreement never was executed by the stockholders. It was an incomplete instrument. It was only signed by Frame, by Lee, by the Standard Importation Company, by Frame, as president, and by Klock. The trust never was constituted. The stockholders never consented to the appropriation of their money to the payment of an individual debt of one of the company's officers.
This action is brought specifically to compel Klock to account for the proceeds of the sale of the lease, and to pay the plaintiff's claim in pursuance of the terms of a trust; and, as no trust was constituted, the funds of the corporation cannot be diverted to the payment of Frame's debt to the plaintiff. Whatever other rights plaintiff may have as against Klock, it is not necessary now to consider.
The judgment should be affirmed, with costs. All concur.
and 118 New York State Reporter
(87 App. Div. 320.)
MULLIGAN V. THIRD AVENUE R. CO. (Supreme Court, Appellate Division, First Department. November 6, 1903.) 1. STREET RAILROADS-INJURIES TO PEDESTRIANS-NEGLIGENCE-QUESTION FOR
In an action for injuries to plaintiff by a street car as she was crossing the track at a regular street crossing, held, that the question of the motorman's negligence was for the jury.
Van Brunt, P. J., and Ingraham, J., dissenting.
Appeal from Trial Term, New York County.
Action by Mary Mulligan against the Third Avenue Railroad Company. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial on the minutes, and from an order granting an additional allowance, defendant appeals. Affirmed.
Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.
Arthur Ofner, for appellant.
LAUGHLIN, J. The action is brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. The principal contention on the part of the defendant is that there is no evidence of the defendant's negligence, and that the plaintiff was guilty of contributory negligence. This is the third verdict rendered in favor of the plaintiff in this action. The case has been twice before this court. Mulligan v. Third Ave. R. R. Co., 39 App. Div. 663, 57 N. Y. Supp. 424; Id., 61 App. Div. 214, 70 N. Y. Supp. 530. On the first appeal the judgment in favor of the plaintiff was reversed, this court expressing the opinion that there was not sufficient evidence of negligence on the part of the defendant to take the case to the jury, but held that, assuming that the plaintiff established a prima facie case, the court erred in instructing the jury on a proposition of law. On the second appeal the judgment in favor of the plaintiff was reversed, and a new trial granted, four members of the court concurring in the proposition that an error was committed in the reception of evidence, and the majority expressing the opinion that there was no negligence shown on the part of the defendant, but two dissenting from that view, and expressing the opinion that the evidence required the submission of the case to the jury.
It is claimed in the points for appellant that the evidence is the same as that upon the former appeal, but the reverse of this is claimed by counsel for respondent. The learned trial justice states in a memorandum denying the motion for a new trial that "the case presented by the plaintiff is here appreciably stronger than on the former appeal.” The evidence in favor of the plaintiff, as presented by this record, appears to be materially stronger than that presented on the former appeals, judging from the statements of facts found in the former opinions of this court. The plaintiff was a teacher in a public school on Eighty-Fourth street between Madison and Park avenues. On the 20th day of April, 1896, a pleasant, but somewhat cloudy, day, she left the school about 12 o'clock to go to her luncheon at the southeasterly corner of Seventy-Eighth street and Second avenue. She passed along the southerly side of Eighty-Fourth street, and was crossing Third avenue on the southerly crosswalk when she was struck and injured by a north-bound car. She testified: That when she arrived at Third avenue she saw some trucks passing downtown on the south-bound track. That a car was following behind them. That, after waiting for them to pass, she attempted to cross right behind the car. That she had crossed the downtown track in safety, and was just about to cross the uptown track-had in fact placed her foot upon the westerly rail of the uptown trackand just then she saw a car approaching from the south very rapidly, and it appeared to be about 24 or 25 feet away. That, deeming herself in danger, she stepped back, and turned one side to see if she could retrace her steps, and just then she saw a large, clumsy, heavy truck coming down the easterly wheels being about 14 inches east of the easterly rail of the downtown track, and when she turned to retrace her steps "the horses seemed to be right at me. The truck reached me-just reached me; and I tried to stand between the upgoing car and the downgoing truck, which was a very small space. I do not know how much. I tried my best to stand in the center as well as I could. The next thing I was struck by the car and thrown over-struck on the right side, and thrown over on the left side." That the car did not lessen its speed, but, on the contrary, increased its speed. That it was not after she stepped on the track that she first saw the car. That she saw the car, and stepped on the track, and then saw that it was coming so rapidly that she turned or stepped back, and glanced quickly to see if she could retrace her steps. That she had not seen the north-bound car or the truck which was approaching on the south-bound track before she reached the north-bound track. That she did not see the upcoming car on account of the trucks and car that were going down. That as she was passing in the rear of the south-bound car, and before she stepped on the northbound track, she did not hear any gong rung; and that after she had passed the south-bound car there were no obstructions between her and the approaching north-bound car. The testimony of the plaintiff was in the main corroborated by the testimony of a disinterested eyewitness, who further testified that he did not hear any gong rung, and that the car that struck the plaintiff did not stop until it passed over Eighty-Fourth street. Evidence was also given in behalf of the plaintiff showing that this was a cable line; that the speed of the cable on the day in question was the usual speed of eight or nine miles an hour; that the track between Eighty-Third and EightyFourth streets was substantially level; and that, under the circumstances existing at the time in question, a car running at the speed of the cable could be stopped at this point within 15 or 20 feet. The and 118 New York State Reporter motorman, called in behalf of the plaintiff, testified that at no time was the plaintiff actually upon the track upon which this car was approaching; that the car was going at three-quarters the speed of the cable; that, upon seeing the plaintiff come from behind a truck which was going down the south-bound track, he immediately released the grip and put on the brake; that he rung the bell, and went past her at about half speed; that the speed of the car was not increased within 25 feet of the crossing; that the front of the car did not strike her; that as he passed her she was standing between the tracks; that he saw her between the tracks, and saw the approaching truck, the wheels of which, he says, were in the grooves of the rails of the track; that he saw "the position that she was in," and made no attempt to stop the car until after she was struck; that on the first trial he testified that he approached the crossing at full speed; that after the front of the car passed the plaintiff about 15 feet he received three bells—a signal of danger, and he stopped on a line with the north crossing; that he considered that she had plenty of room to stand between the truck and the car; that his car had been approaching at full speed, but was going at only three-quarters speed when he first saw the plaintiff, which was when he was within 10 or 12 feet of her; that a car going at the full speed of the cable cannot be stopped within 15 feet; that as he passed the plaintiff the horses of the approaching truck were trotting, but they had not "got on a line with her at that time.” The conductor, who was a witness for the defendant on the last preceding trial, was not called this time. A passenger on the car, called by the defendant, testified that it was an open car, and the plaintiff was struck by the second or third stanchion; that the plaintiff was standing between the truck passing south and the car; that the plaintiff passed "within two feet of the truck, and when she came up she wanted to go back, and she could not go on account of the truck was right behind her, and at the same time she was struck on the head.” An experienced motorman called testified that the shortest space in which a car running at the speed of the cable could be stopped was about 30 or 35 feet.
This evidence presented a question of fact for the consideration of the jury. It could not be said, as matter of law, either that the plaintiff was guilty of contributory negligence or that the defendant was free from negligence. Plaintiff was crossing the street at a regular crossing, where those driving vehicles and operating street cars were bound to take notice that pedestrians might be passing, and to recognize their equal rights. After plaintiff had crossed the southbound track, and was about to step on the north-bound track, this car, according to her testimony, was 24 or 25 feet south of the crossing, a sufficient distance, if the car was operated with care and caution and the motorman had had it under control, as he should have had on approaching a crossing, to have enabled her to pass in safety; but upon taking her first step upon the track she discovered that the car was approaching rapidly, and that its speed was accelerated, and, fearing that she could not cross in safety, she attempted to retrace her steps. Upon stepping or turning back and looking around she found that a vehicle was rapidly approaching her from the south on the southbound track, and so close that she could not pass it. She decided to remain between the car and the vehicle. The motorman, according to his own testimony, saw the situation as it existed, including the position of the approaching vehicle with reference to the plaintiff. According to her testimony, the jury were justified in finding that there was not room for her to stand in safety, in the exercise of reasonable care, between the vehicle and the car, as the lefthand wheels of the vehicle were between the inner rails of the tracks. In these circumstances, the jury were justified in finding that the motorman should either have afforded her an opportunity to pass in front of his car, or have passed her with the speed reduced, so that she would not be terrified, and he would be able to control his car and look out for her safety. This he did not do, but proceeded, as he admitted, at half the speed of the cable, and paid no attention to her after the front of the car passed. Nor can it be said that the evidence preponderates in favor of the defendant. Very little evidence on the main issue was introduced in its behalf, and, in our opinion, this court would not be warranted in setting aside this verdict of the jury as against the weight of the evidence.
The exceptions taken by the defendant and presented upon the appeal have been examined, but we think they present no error.
It follows that the judgment and orders appealed from should be affirmed, with costs.
PATTERSON and HATCH, JJ., concur.
INGRAHAM, J. I dissent from the affirmance of this judgment. On the two former appeals (39 App. Div. 663, 57 N. Y. Supp. 424; 61 App. Div. 214, 70 N. Y. Supp. 530) this court, upon substantially the same testimony, held that there was no evidence to justify the jury in finding that the defendant was negligent, and upon the third appeal it is proposed to reverse these two considered judgments, and sustain a verdict based upon the negligence of the defendant. On the last appeal (61 App. Div. 214, 70 N. Y. Supp. 530) the reasons that sustain that conclusion are stated.
VAN BRUNT, P. J., concurs.
(87 App. Div. 275.) AMERICAN AUDIT CO. V. INDUSTRIAL FEDERATION OF AMERICA.
(Supreme Court, Appellate Division, First Department. November 6, 1903.)
1. JUDGMENTS-ORDERS-ENTRY-RECITAL OF PAPERS FILED-RESETTLEMENT.
Defendant, on an order to show cause, moved to vacate an attachment on affidavits filed. On hearing of the motion an order was entered not reciting the filing of any papers, but stating that "the plaintiff appearing, and by way of preliminary objection making it known to the court that the above-entitled action had been discontinued before the appearance