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which were in force when this judgment was obtained, provided that a motion to open a default could only be made within 20 days after the entry of the judgment, no subsequent legislation could give the defendant the right, nor the court the power, to vacate the judgment eight years after its entry. “A law is never to have a retroactive effect, unless its express letter or clearly manifest intention requires that it should have such effect." R. R. Co. v. Van Horn, 12 N. Y. 473, and cases cited.
The argument of the respondent that chapter 750, p. 1871, of the Laws of 1894, does not apply, as the judgment in this case is void for want of personal service of the summons upon the defendant, is not based upon the facts. It appears from the return filed upon this appeal that on the adjourned day “the parties appeared in person and by their respective counsel.” The defendant, by appearing in person without objection, waived any defect of the service of the process upon him. If we are to believe the statement in the moving affidavit that "it appears from the judgment roll * * * that the defendant was never personally served with the summons in this action, nor appeared herein, except that M. L. Goldman, who was said Babcock's real estate agent, did appear, * * * and that there was no other appearance in this action whatsoever," in preference to the record, nevertheless it is conceded that Goldman did appear for the defendant Babcock, and, "unless the contrary is shown by proof, the appellate court will assume that a person appearing for a defendant was duly authorized to do so as his attorney or agent.” Oakley v. Workingmen's Union Ben. Soc., 2 Hilt. 487; People ex rel. Allen v. Murray (Super. N. Y.) 21 N. Y. Supp. 797. In either event there was an appearance by the defendant. The order appealed from must be reversed.
Order reversed, with $10 costs and disbursements. All concur.
MCAULIFFE v. NEW YORK CENT. & H. R. R. CO. (Supreme Court, Appellate Division, Fourth Department. November 17, 1903.) 1. RAILROAD'S NEGLIGENCE-EVIDENCE-SUFFICIENCY.
Where, in an action against a railroad for injuries to plaintiff by a train at a crossing, the evidence of plaintiff's witness tended to show that the train ran by the crossing at a high rate of speed, in violation of a city ordinance, and that the customary signals were not given, and that no gates were provided, the jury were justified in finding the defendant negli
gent. 2. SAME-CONTRIBUTORY NEGLIGENCE.
Where, in an action against a railway for injuries to plaintiff at a crossing, it appeared that the headlight of the approaching train must have been in plain view of plaintiff at the time he went upon the track, and less than 200 feet from him, though the train did not give the customary signals, and though plaintiff looked in the direction of the train, but testified he did not see it, he was guilty of contributory negligence. Appeal from Trial Term, Onondago County.
Action by Matthew D. McAuliffe against the New York Central & Hudson River Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.
and 118 New York State Reporter Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.
A. H. Cowie, for appellant.
SPRING, J. The plaintiff, a man 29 years of age, while crossing Washington street at its intersection with Walnut street, in the city of Syracuse, on the evening of February 6, 1902, was struck and injured by a west-bound passenger train on the defendant's road. Two of the defendant's parallel tracks pass along Washington street, and their course for some distance is substantially east and west, and they cross Walnut street at grade. Plaintiff was familiar with this crossing, and at the time of the accident was employed in a saloon at the northeast corner of Washington and Walnut streets. About half past 6 in the evening he crossed to the south side of Washington street, and walked a short distance to the east along the south side of the street, returning along the same course. While on his return, a freight train of 8 or 10 cars was going east on the south-bound track. When plaintiff reached the street curb, he stopped, and waited for the freight train to pass, and remained standing there until it had gone 100 to 150 feet beyond him, when, as he testified, he looked toward the east, but saw no train except the rear lights on the freight train which had just passed. He then walked along the crossing, and when at the south rail of the south track again looked to the east, but discovered no train coming. He continued over the south track, the space intervening the two tracks, and when on the south track was hit by a passenger train going west at the speed of 25 miles an hour, and sustained injuries from which he still claims to be suffering. The view toward the east was entirely unobstructed for over 1,100 feet to the plaintiff, from the curb. The distance from which an approaching train from the east could be observed at this crossing increased as one neared the north-bound track. There are trees along the south side of Washington street, but they do not hide an oncoming train from a pedestrian after he has reached the street curb. The headlight was lit on this train, but the electric light at the street intersection may have been out at the time of the collision.
The jury were justified from the evidence in imputing negligence to the defendant, in that it failed to operate its train properly as it approached this street crossing. The testimony of the plaintiff and his witnesses tends to show that the train ran along this street in the populous part of the city at a high rate of speed, in defiance of the city ordinance, which limited the rate to a mile in eight minutes; that the ordinary signals were not given as it approached this crossing, although no gates or flagman were provided to protect travelers. From these circumstances the evidence is ample to establish the negligence of the defendant.
The serious infirmity in the plaintiff's case is his own want of care in going over this crossing. He was an active man, in full possession of his faculties. He was thoroughly familiar with the crossing, and knew the north track was used by west-bound trains. He testified that, after the freight train had passed him 150 feet, he looked toward
the east, and then started to cross over. When he reached the south rail of the east-bound track, he looked toward the east again, and saw the lights of the outgoing train, but did not observe the approaching train. He then went across this track and the intervening space, and was hit while on the west-bound track. The distance from the south rail of the first track to the corresponding rail of the adjacent track was less than 12 feet, and when he was at the south rail the approaching train was probably less than 200 feet from him. In any event, it must have been in plain view. This affords another illustration, which has become quite common, of a traveler at a crossing looking directly at the flaring headlight of an approaching train, and still be unmindful of its presence. We apprehend a traveler approaching a railroad crossing knowing that a train is liable to pass at any time does not fulfill the obligation resting upon him to exercise care and caution by "looking,” but not seeing. As was said by this court in Swart v. N. Y. C. & H. R. R. R. Co., 81 App. Div. 402, 407, 80 N. Y. Supp. 906, 909:
"It cannot be that 'look' simply means that a person with his eyes open shall turn his head in a particular direction. The word, as used and understood in the decisions, must mean that he looked' intelligently, and in such manner that what his vision disclosed might influence his action or conduct."
While the fact of the defendant's failure to give the customary warnings at a street crossing, and the reliance which a traveler may be expected to place upon their being given, must inevitably enter somewhat into the consideration of the question of the freedom of the traveler from fault, the duty is still present with him to be cautious and vigilant when he approaches a railroad crossing realizing that a train may pass at any moment. The plaintiff apparently appreciated the necessity of vigilance, but urges that he lived up to it in full measure by looking directly at the train, even though he did not see it. This perfunctory performance of the vigilance required of him was not sufficient. Fiddler v. N. Y. C. & H. R. R. R. Co., 64 App. Div. 95, 71 N. Y. Supp. 721 (a case closely akin to the present one in its facts); Daniels v. S. I. R. T. Co., 125 N. Y. 407, 26 N. E. 466. The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.
Judgment and order reversed, and new trial granted upon questions of law only, with costs to the appellant to abide the event. All con
LAROE et al. v. SUGAR LOAF DAIRY CO. (Supreme Court, Appellate Division, Second Department. November 13, 1903.) 1. ACCORD AND SATISFACTION--ACCEPTANCE OF CHECK.
Plaintiffs contracted with an alleged agent of defendant for the sale of milk at a certain price, and were subsequently notified by the defendant that the agent was without authority to make such contract, and that they would pay for the milk only a certain smaller price, which they had hitherto paid and were paying to persons in the same vicinity. Plaintiffs delivered the milk, and, at the time agreed for payment, defendant sent a check, accompanied by a statement showing the amount due at the
11. See Accord and Satisfaction, vol. 1, Cent. Dig. $8 76, 78.
and 118 New York State Reporter price as claimed by defendant, and balanced with the words, "To check in full.” Plaintiffs took the check to defendant's purported agent, and stated to him that it did not pay the bill in full, but nevertheless kept the check. Held that, by keeping the check, defendant adopted the condition of the tender, and could not, therefore, maintain an action for the balance
which they claimed to be due. 2. SAME-LIQUIDATED CLAIM.
Where defendant in good faith disputed the amount due under a con tract with plaintiffs, plaintiffs' claim was not liquidated, so as to prevent the acceptance of a check, sent with a statement that it was to be in
full, from operating as a satisfaction of plaintiffs' entire claim. 8. SAME-KNOWLEDGE OF CREDITOR.
Where a creditor had actual knowledge that a check sent by the debtor was regarded as in full satisfaction of the debt, the fact that the creditor did not read a statement to that effect, sent with the check, did not pre
vent acceptance of the check from operating to discharge the entire debt. Appeal from Trial Term, Orange County.
Action by James B. Laroe and John G. Laroe against the Sugar Loaf Dairy Company. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiffs appeal. Affirmed.
Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
A. H. F. Seeger, for appellants.
HIRSCHBERG, J. The plaintiffs are copartners engaged in dairy farming at Sugar Loaf, in Orange county. For some years immediately preceding the transactions which occasion this litigation they have sold their milk to the defendant, a domestic corporation, at a discount from New York market prices. They claim to have made an oral agreement with N. S. Knapp, defendant's secretary, in September, 1901, to sell and deliver their milk to the defendant from October 1, 1901, to April 1, 1902, at the market price, free from discount. They did deliver the milk during the months referred to, and have received payment therefor at the old price, and this action is brought to recover the amount of the discount retained by the defendant. At the close of the plaintiffs' case the court directed a verdict in favor of the defendant upon the ground that the plaintiffs had accepted a check for each month's delivery for the less amount in full, and the accuracy and soundness of this direction are under review upon this appeal.
It may be conceded that there was sufficient evidence to establish the making of the agreement, and that Knapp had authority to make it. The defendant, however, denied the authority of Knapp to bind it by such an agreement, and such denial was made early in the course of the dealings which are the subject of the controversy, and the denial was made in apparent good faith. The agreement was made on the plaintiffs' behalf by the plaintiff John G. Laroe, a brother-in-law of Knapp, and he knew at the time that the defendant was paying ta its other customers only the market price less the discount. By the terms of the agreement, payment for the milk delivered each month was to be made on the 20th day of the month following each month's delivery; the first payment accordingly coming due on November
20, 1901. A day or two before November 7, 1901, John G. Laroe had a conversation with the defendant's president, Mr. Sanford, and was informed by him that Mr. Knapp had no authority from the defendant to make an agreement binding it to pay the market price. On November 7, 1901, the defendant served upon the plaintiffs a written notice that the price which the company would pay for their milk would be only “the price fixed by said company to be paid to all other producers and shippers of milk at Sugar Loaf, N. Y.”; that the agreement which the plaintiffs claimed to have made with Knapp was wholly without authority; and that “the said company will not recognize any such agreement, or pay any money on account thereof, in excess of said price, in any month, from the ist day of October, 1901.” To this communication the plaintiffs replied in writing on November 12, 1901, stating, in effect, that they claimed a valid contract at the New York market price, without any deduction, and that, if less was paid them, they would give the defendant credit for the amount received, and hold it for the balance. On November 20, 1901, the defendant sent the plaintiffs a check for the October milk, accompanied with a statement showing the amount of milk delivered, and the price computed with the disputed discount, and balanced with the words, "To check in full.” On receiving this statement and check, Mr. John G. Laroe took the latter to Mr. Knapp, saying, “Now, this check don't pay this bill in full.” Mr. Knapp replied, “That is all that Sanford said he would pay on this bill.” On each succeeding month a statement was sent to the plaintiffs, balanced by check in full, and accompanied with a corresponding check, and all the checks were retained and used by the plaintiffs without any further protest or opposition.
It would seem that the plaintiffs are foreclosed from further claim. They knew that their claim was disputed by the defendant, and that it was disputed, not in denial of the making of the agreement, but of the authority of the agent to bind his principal. With this knowledge, they elected to accept the amount which the defendant tendered in full, and with full knowledge, or the means of knowledge, that it was so tendered. In such circumstances, it has been frequently held that the acceptance adopts the condition of the tender, and that no disclaimer by the creditor will avail to reserve a right of further recovery. People ex rel. McDonough v. Board of Managers, etc., 96 N. Y. 640; Fuller v. Kemp, 138 N. Y. 231, 33 N. E. 1034, 20 L. R. A. 785; Nassoiy v. Tomlinson, 148 N. Y. 326, 42 N. E. 715, 51 Am. St. Rep. 695; Logan v. Davidson, 18 App. Div. 353, 45 N. Y. Supp. 961, affirmed in 162 N. Y. 624, 57 N. E. 1115; Wisner v. Schopp, 34 App. Div. 199, 54 N. Y. Supp. 543; Lewinson v. Montauk Theater Co., 60 App. Div. 572, 69 N. Y. Supp. 1050; Whitaker v. Eilenberg, 70 App. Div. 489, 75 N. Y. Supp. 106; Genung v. Village of Waverly, 75 App. Div. 610, 77 N. Y. Supp. 581; Brown v. Symes, 83 Hun, 159, 31 N. Y. Supp. 629; Reynolds v. Empire Lumber Co., 85 Hun, 470, 33 N. Y. Supp. III; Freiberg v. Moffett, 91 Hun, 17, 36 N. Y. Supp. 95.
The claim of the plaintiffs cannot be regarded as liquidated, within the meaning of that term as applied to the subject now under consideration. There was a genuine dispute between the parties as to the amount of the valid indebtedness, and it is only an undisputed liquidat