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of trial was served until October, 1903, and until after the motion to dismiss was made. The note of issue filed was ineffectual because the action had not then been noticed for trial. Section 977, Code Civ. Proc. No excuse was given for the delay, except the bare statement that through “inadvertence" the notice of trial was not sooner served. If the mere statement of "inadvertence” is to be treated as furnishing an adequate excuse for a delay of over three years, then section 822 of the Code of Civil Procedure and rule 36 of the general rules of practice serve little purpose. Such a statement alone furnishes no basis whatever for the exercise of judicial discretion. No excuse for the neglect to prosecute the action was given by plaintiff, and for the reasons stated in the opinion delivered in Fisher Malting Co. v. Brown, above cited, the motion to dismiss the complaint should have been granted.

It follows, therefore, that the order appealed from should be reversed, with $10 costs and disbursements, and the motion to dismiss granted, with costs of the action and $10 costs of the motion. All concur.

(92 App. Div. 291.)

KLIMPL V. METROPOLITAN ST. RY. CO. (Supreme Court, Appellate Division, First Department. March 11, 1904.) 1. STREET RAILWAYS-PERSONS DRIVING TEAMS-INJURIES-QUESTIONS FOR

JURY.

In an action against a street railway company for injuries to one driv. ing a team, where the evidence of plaintiff's witnesses was that, before driving across the track at a street corner, he looked, and saw defendant's car in the middle of the block, and, thinking that there was plenty of time to cross, made the attempt, but the car struck the wagon just back of the front wheel, and defendant's evidence was that, as the car was approaching plaintiff, he, without any notice of his intention so to do, turned upon the track immediately in front of the car, and in such close proximity to it that it was impossible to avert a collision, the questions involved were

properly submitted to the jury. 2. SAME-DEGREE OF CARE-INSTRUCTIONS.

The obligation resting on a street railway company to prevent injuries to persons using the street is to exercise that degree of care which persons of ordinary prudence, exercising reasonable care, would use under similar circumstances, and a charge imposing on a street railway the duty of using all the care that the motorman could use at the time imposed on it

too great a responsibility. 3. SAME-CURE OF ERRORS.

In an action against a street railway company for injuries to one driving a team, a charge imposing on defendant the duty of using all the care that the motorman could exercise at the particular time, was not cured by a subsequent charge exonerating defendant if the motorman, “while operating his car with ordinary care," stopped it as soon as he discovered plaintiff, where the court qualified the subsequent charge by giving it "in

connection with the charge already made." Appeal from Trial Term, New York County.

Action by Jacob Klimpl against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, MCLAUGHLIN, O'BRIEN, and INGRAHAM, JJ.

and 121 New York Stato Reporter Bayard H. Ames, for appellant. J. M. Birnbaum, for respondent.

HATCH, J. The plaintiff by this action seeks to recover damages claimed to have been sustained by him on account of injuries received through the negligence of the defendant. It appeared from the testimony that the plaintiff was driving a beer wagon northward along the east side of Third avenue; that as he approached tooth street, he saw a car coming southward about 101st street; that he had occasion then to drive across the track to the west side of the street; that he looked again as he started to cross, and saw that the approaching car was about in the middle of the block. Plaintiff thought that he had plenty of time to cross, made the attempt, but the car struck the wagon just back of the front wheel. He was thrown to the pavement, and sustained quite severe injuries. The defendant, on the other hand, claimed, and gave evidence tending to support the claim, that as the car was approaching the plaintiff, he, without any notice of intention so to do, turned and drove onto the track immediately in front of the south-bound car, and when the car was in such close proximity to him that it was impossible to avert the collision. These several claims were supported by witnesses upon either side, and we have little hesitancy in reaching the conclusion that the evidence was of such a character as justified the submission of the questions involved to the jury.

We are, however, required to reverse the judgment for a fatal error committed in the charge. Upon the subject of care to be exercised by the motorman in the management and operation of the car the court charged:

"It was the duty of the defendant's agents or servants in charge of this car to use reasonable care in going along the street, and it was the duty of the motorman to stop the car, and avoid this collision, provided he had time and opportunity so to do. It was his duty to use care at all times in passing along this street, and if you find that he did use all the care that was required of him, and all the care that he could use at the time, then your verdict will be for the defendant."

The defendant excepted to the charge that it was the duty of the motorman to use all the care that he could use. In ruling upon the exception, the court stated, “That does not state the language that I used, but it calls my attention to what you mean.” It is evident, therefore, that the court fully understood the particular point to which the defendant directed its attention. The obligation resting upon the defendant was to exercise that degree of care which a person of ordinary prudence exercising reasonable care would use under similar circumstances. The defendant was not called upon to exercise all the care that he could exercise at the particular time. Such rule would impose the duty of extraordinary precaution, and substitute a more rigid rule of responsibility than tlie law requires of the defendant in the operation of its cars. In Lewis v. L. I. R. Co., 162 N. Y. 52, 56 N. E. 548, the charge was that, if the engineer of the train, which came in contact with a vehicle at a road crossing, "omitted to do any act which might have prevented the collision,” the defendant was guilty of negligence. This was held error, for the reason that it imposed a more enlarged obligation upon the defendant than the law required. In Lconard v. Collins, 70 N. Y. 90, the charge was that, if the defendant could do "anything that could have prevented the accident,” he was guilty of negligence, and such charge was held to be error. In Reardon v. Third Ave. R. Co., 24 App. Div. 163, 48 N. Y. Supp. 1005, in charging upon the subject of the care required in the management of vehicles by each party, the court said: “They were bound to use the same degree of care, the same degree of prudence. Each was bound to look out for, and, if possible, prevent, any accident.” This charge was held to be error calling for the reversal of the judgment which had been obtained in plaintiff's favor, although the charge as made bore as heavily upon the plaintiff as upon the defendant. Such consideration, however, did not mitigate the wrong which had been done to the defendant, as it enlarged his responsibility for his acts beyond what the law required. These authorities are directly in point upon the question involved, and are decisive in showing that error was committed in the charge. This error was not cured by the subsequent charge of the court that, “if the motorman of the defendant's car, while operating his car with ordinary care, stopped his car as soon as he discovered that the plaintiff was about to drive in front of his car, defendant is entitled to a verdict.” Such charge would have cured the previous error if it had been made without qualification. The court, however, said in answer to this request, “I charge that in connection with the charge already made." The effect of this was to leave the charge as originally made to stand, and subjected the defendant to the ruling that it was required to exercise all the care that could be used at the time. Such was the rule of liability upon which the case went to the jury, and, as it imposed a higher degree of care upon the defendant than the law imposed, it was erroneous.

For this reason the judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

(92 App. Div. 187.)

IDEAL WRENCH CO. V. GARVIN MACHINE CO. (Supreme Court, Appellate Division, First Department. March 11, 1904.) 1. CONTRACTS—MANUFACTURED ARTICLES—BREACH-ACTIONS-EVIDENCE-SUF

FICIENCY.

In an action for breach of contract to manufacture and deliver wrenches of a certain kind and quality, evidence held sufficient to justify a verdict

finding the breach. 2. SAME-CONSTRUCTION-CONTRACTS TO MANUFACTURE.

A contract by which defendant agreed to manufacture and deliver wrenches equal in every way to a model submitted, but which was to be improved on by defendant, the wrenches to be made according to the improved model, was a contract to manufacture and deliver, and not a sale

by sample. 3. SAME-BREACH-DAMAGES—INFERIOR QUALITY-ACCEPTANCE-EFFECT.

For breach of a contract to manufacture and deliver articles corresponding with a given model the vendee cannot recover damages because of the inferior quality of the articles delivered, in so far as they have been accepted by him, but he can recover for articles paid for, but returned to the manufacturer as inferior.

and 121 New York State Reporter 4. SAME-FAILURE TO MANUFACTURE.

For failure to manufacture and deliver articles according to contract, the vendee may recover in damages the difference between the market value of the articles, if they have any market value, and the contract price to be paid the manufacturer; or, if they have no market value, then the difference between the value of the articles to the vendee, if they had been

delivered, and the price that he was to pay therefor. 5. SAME-RECOVERY OF DEPOSITS.

On failure to manufacture and deliver articles according to contract, the vendee may recover back a sum advanced by him to be applied on the ar

ticles which were to be last delivered. 6. SAME-COMPLIANCE WITH CONTRACT-QUESTION FOR JURY.

Evidence held to present a question for the jury as to whether tools manufactured by defendant in order to make wrenches for plaintiff's assignor, and which plaintiff's assignor was to pay for, were made in com

pliance with the contract. 7. SAME-RIGHT TO DAMAGES.

Where tools manufactured by defendant in order to make wrenches for plaintiff's assignor, and which plaintiff's assignor was to pay for, were not made in compliance with the contract, and were not accepted by plaintiff's assignor, though they had been paid for, plaintiff was entitled to recover the amount which had been paid for the tools.

Laughlin and Hatch, J. J., dissenting.
Appeal from Trial Term, New York County.

Action by the Ideal Wrench Company against the Garvin Machine Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed on condition. See 72 N. Y. Supp. 662.

Argued before VAN BRUNT, P. J., and HATCH, MCLAUGHLIN, INGRAHAM, and LAUGHLIN, JJ.

Henry Schoenherr, for appellant.
Herbert Smyth, for respondent.

INGRAHAM, J. The action is to recover damages caused by the breach of a contract for the manufacture by the defendant of a machine called the "Ideal Wrench." Upon an appeal from a judgment entered upon a dismissal of the complaint on a former trial, it was held that there was a breach of the contract by the defendant, which, in the absence of other proof of damage, authorized the recovery of $500 deposited with the defendant, which was to be applied on the last payment. It was also intimated in the opinion that the plaintiff might be entitled to recover other damages, depending on the proof upon a new trial. 65 App. Div. 235, 72 N. Y. Supp. 662. Upon the new trial the court submitted the case to the jury, who found a verdict for the plaintiff for $2,000.

The contract sued on, dated March 6, 1897, was between Walter C. Stokes (plaintiff's assignor) of the first part, and the defendant of the second part. It provided that, for and in consideration of the sum of $500, the receipt of which was acknowledged, the defendant agreed to "build and deliver” 10,000 wrenches, known as the 'Ideal Pattern,' a mold of which was to be furnished Stokes; that 7,500 of said wrenches, blue finish, were to be manufactured, at 40 cents each, and 2,500, full nickel finish, at 50 cents each, payment for which was to be made within 30 days of delivery, less $500 advanced, which was to be applied on the last payment. The wrenches were to be made in a first-class manner, in every way equal to that of the model submitted. The complaint alleges the making of this agreement; the assignment of the contract, and of all Stokes' rights and claims to damages thereunder, to plaintiff; that Stokes and the plaintiff have made all payments and performed all the acts which by the terms of the said contract were to be made and performed by Stokes, but that the defendant corporation has neglected, failed, and refused to carry out said contract, or to perform the acts therein by it agreed to be performed; that the defendant has failed and refused to build or deliver any wrenches made in a first-class manner, and has failed to build or deliver any wrenches made in every way equal to that of the model, although such model was duly furnished to the defendant; that the defendant failed and refused to deliver any wrenches within a reasonable time, and not until months after the execution of said contract, although frequently and urgently requested to do so; that the defendant, after the month of May, 1897, from time to time, and at long intervals, until the month of October, 1897, delivered wrenches in small quantities, amounting in the aggregate to about 2,000 wrenches, and since said month of October, 1897, has failed, refused, and neglected to tender or deliver any wrenches meeting the requirements of said contract; that all the wrenches tendered or delivered by the defendant were weak and defective, and neither made in a first-class manner nor equal to that of said model; that large numbers of said wrenches, of the number delivered as aforesaid, were delivered in turn and distributed by said Stokes or said plaintiff, and broke with ordinary use in the hands of intending purchasers, and were returned by such purchasers to said Stokes or the plaintiff, to the great damage and detriment of their business, and the defendant failed to deliver any wrenches the parts of which were interchangeable, to the great detriment and loss of plaintiff; that by reason thereof, and of the unreasonable delay in the delivery of wrenches, the failure to deliver any wrenches in accordance with the contract, the failure and neglect to deliver more than 2,000 wrenches in all, and the failure to make the tools necessary for the manufacture of said wrenches, the defendant has caused damage to Stokes and the plaintiff.

1 4. See Sales, vol. 43, Cent. Dig. &$ 1182, 1194

The answer admits the making of the contract, admits that the defendant delivered to the plaintiff about 2,000 wrenches in pursuance thereof, and denies the other allegations of the complaint; and, for a separate defense, it alleges that after the execution of the contract the plaintiff's assignor requested a modification thereof, wishing all the wrenches to be full nickel wrenches; that said Stokes was there and then informed by said defendant that the defendant had already made up and caused to be cast the said 7,500 wrenches, which were to be completed in blue or plain finish, and in order to change the style of finish, and to complete them in full nickel finish instead of the blue finish, as called for by the contract, it would be necessary to grind certain parts of the wrenches so as to receive the nickel plate, and that some of the parts of the wrenches would be necessarily somewhat thinner than the sample; that thereupon the said Stokes changed the con

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