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and 121 New York State Reporter wrong was complete, and the driver, when he made the statement, was only endeavoring to account for what he had done.” The same observation might just as truly be made of the evidence in the case at bar. In Whitaker v. The Eighth Avenue Railroad Company, also above cited, the plaintiff was allowed to prove that after the defendant's car had struck him and thrown him into an excavation near the track, the driver of the car said, “Damn him, let him fall in and be killed.” It did not appear whether this remark was made at the moment when the car passed the plaintiff or how long subsequently. The Commission of Appeals held that the reception of the evidence of the declaration was a fatal error, and reversed the judgment in favor of the plaintiff. “While one is engaged in an act, and the intention with which he is acting is a proper subject of inquiry, his declarations, made at the time, may be given in evidence to characterize the act”; but he pointed out that the declarations which had been proved were not shown to have been made at the time of the alleged act of negligence. The Sherman Case was to the same effect, holding that a narrative of the cause of a past occurrence is not admissible as part of the res gestæ. The phrase "res gestæ" in cases of this character implies substantial coincidence in time, “but, if declarations of third persons are not in their nature a part of the fact, they are not admissible in evidence, however closely related in point of time." Butler v. Manhattan Railway Co., 143 N. Y. 417, 423, 38 N. E. 454, 456, 26 L. R. A. 46, 42 Am. St. Rep. 738. The doctrine enunciated in the cases to which I have referred, and in scores of other decisions in this state, was plainly violated upon the trial of the present action, and we have no choice, under the circumstances, except to reverse the judgment.

The only case cited upon the brief for the respondent is Brand v. Borden's Condensed Milk Co., 89 App. Div. 188, 85 N. Y. Supp. 755No such question as that which is presented here arose upon that appeal, and the circumstantial evidence there was ample to warrant the inference that the accident was caused by the negligence of the defendant's servant.

Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event. All concur.

COLLARD v. BEACH (Supreme Court, Appellate Division, First Department. April 22, 1904.) 1. COURTS-JURISDICTION-REFUSAL TO ASSUME-CONTROVERSIES BETWEEN NON


In an action between nonresidents for a tort committed by one upon the other in the state of which both parties were residents, that no objection to the jurisdiction was made on the first trial of the action, and that by the pendency and trial of the action and the former appeal plaintiff had incurred large expenses, were insufficient grounds for the retention

of jurisdiction. 2. SAME.

The calendars of the courts being so congested that it is difficult to administer speedy justice to litigants who are obliged to sue therein, it is proper that the courts should refuse to assume jurisdiction over actions for tort committed in another state by one resident of that state upon

another resident thereof. 8. SAME-PRIVILEGES OF CITIZENSHIP.

It is not one of the privileges of a citizen of the United States to bring an action in any state against any person upon whom service can be had, regardless of residence, or of the nature of the cause of action, or where it arose.

Appeal from Special Term, New York County.

Action by George W. A. Collard against Frederick C. Beach. From an order denying a motion for a dismissal of the complaint, defendant appeals. Reversed.


William H. Lyons, for appellant.
Robert E. De Forest, for respondent.

LAUGHLIN, J. Upon a former appeal herein we pointed out the impropriety of the Supreme Court entertaining jurisdiction of this action, owing to the fact that the cause of action is for tort, and arose in another state, of which both parties were and are residents and citizens. 81 App. Div. 582, 81 N. Y. Supp. 619. We, however, refrained from a dismissal of the complaint, for the reason that the question was not raised at the trial, and the circumstances might have changed in the meantime. There is no controversy over the facts, and no objection was raised to the disposition of the question by motion at Special Term, rather than deferring it until the trial of the action. The complaint is on a cause of action for negligence which arose in the state of Connecticut, and it appears that both parties were there, ever since have been, and now are, citizens and residents of that state. No special fact or circumstance is shown upon which it is claimed that the court should retain jurisdiction, except that the objection was not raised by the defendant or by the court upon the first trial, and that by the pendency and trial of the issues and the former appeal the plaintiff has incurred large expenses. These facts all appeared or might have been presumed when our former opinion was written, and they are clearly insufficient. Collard v. Beach, 81 App. Div. 582, 81 N. Y. Supp. 619; Johnson v. Dalton, i Cow. 543, 13 Am. Dec. 564; Burdick v. Freeman, 46 Hun, 138; Wertheim v. Clergue, 53 App. Div. 122, 65 N. Y. Supp. 750; Belden v. Wilkinson, 44 App. Div. 420, 60 N. Y. Supp. 1083.

The appellant contends that by virtue of the statutory law of Connecticut the courts of that state would entertain jurisdiction of a cause of action for tort, arising in New York, where both parties were citizens and residents of New York, and that as a matter of comity, therefore, we should do likewise. No decision by any court of the state of Connecticut is cited in support of respondent's construction of the statutes of Connecticut, and we are not convinced that his construction is correct. But, however that may be, the calendars of the courts of this state are congested, and, it being difficult to administer speedy justice to litigants who are obliged to submit their controversies to our courts and have no other forum, it is eminently proper that we should and 121 New York State Reporter refuse jurisdiction over actions for tort that properly belong in another forum.

There is no force in the contention that it is one of the privileges of a citizen of the United States to bring an action in any state against any person upon whom service can be made therein, regardless of their or his residence, or of the nature of the cause of action, or where it arose. The assumption of jurisdiction in most cases would ordinarily be of such infrequent occurrence as not to materially interfere with the transaction of business by the courts; but in the metropolis of the country, toward which and in close proximity other states having large cities and thickly populated communities converge, and where there are almost countless people engaged in business who reside in other states, it would impose an undue burden upon the courts of our state if the practice were established of assuming jurisdiction in such cases.

It follows, therefore, that the order should be reversed, with $10 costs and disbursements, and motion granted, without costs. All concur; INGRAHAM, J., in result.


(Supreme Court, Appellate Division, Second Department. April 29, 1904) 1. WHARF-RIGHT TO COLLECT CHARGES.

The owner of a wharf in the city of New York may collect charges for its occupation by merchandise for less than 24 hours, notwithstanding Greater New York Charter, $ 862 (Laws 1901, p. 372, c. 466), providing that the owner of a wharf may collect charges on merchandise after it bas been

left there over 24 hours, and they shall be a lien thereon. Appeal from Municipal Court, Borough of Brooklyn, First District.

Action by the International Hide & Skin Company against the New York Dock Company. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.


Joseph Fitch (Joseph R. Swan, on the brief), for appellant.

Charles E. Hotchkiss (Julien T. Davies, Jr., and Ward W. Pickard, on the brief), for respondent.

WILLARD BARTLETT, J. This action is brought to recover the amount of certain charges which the defendant compelled the plaintiff to pay for the occupation of the defendant's wharf by the plaintiff's goods for a period of less than 24 hours. The demurrer raises the question whether, under section 862 of the Greater New York Charter (Laws 1901, p. 372, C. 466), an owner or a lessee of a wharf in the city of New York is prohibited from collecting any compensation for the occupation of such wharf by merchandise landed thereon from a vessel and left there, until after the expiration of 24 hours from the time when the goods are thus landed. The charter provision cited is as follows:

"It shall be lawful for the owners or lessees of any pier, wharf, or bulkhead within the city of New York, to charge and collect the sum of five cents per ton on all goods, merchandise, and materials remaining on the pier, wharf, or bulkhead owned or leased by him, for every day after the expiration of twenty-four hours from the time such goods, merchandise, and materials shall have been left or deposited on such pier, wharf, or bulkhead, and the same shall be a lien thereon.” Laws 1901, p. 372, c. 466, § 862.

I think that the question presented by this demurrer must be deemed settled in favor of the defendant by the decision of the Court of Appeals in the case of Woodruff v. Havemeyer, 106 N. Y. 129, 12 N. E. 628, where the court had under consideration section 2 of chapter 320, p. 800, of the Laws of 1872, the provisions of which are now found in section 862 of the Greater New York Charter. It was pointed out that the enactment "does not in terms prohibit wharfingers from entering into special contracts for the use of their wharves for the storage or deposit of goods thereon during the first twenty-four hours," and it was expressly declared that the statute could not be construed “to prohibit the owner of a private wharf from entering into a contract for the landing and deposit of goods upon his wharf upon such terms as may be agreed upon between himself and the owner of the goods, nor can it be construed as requiring him to store goods for any period of time without compensation.” From the last proposition, it follows that when a wharf in the city of New York is used for less than 24 hours for the deposit of merchandise, and there is no express agreement as to the measure of compensation, “the contract is implied, and the proprietor is entitled to recover what is just and reasonable for the use of his property and the benefit conferred.” See Ex parte Easton, 95 U. S. 68, 24 L. Ed. 373. From the facts stated in the complaint, the existence of such a contract must be inferred, and there is no allegation that the charges which the defendant required the plaintiff to pay were unreasonable in amount. The complaint does not state a cause of action, and the demurrer was properly sustained.

Judgment of the Municipal Court affirmed, with costs. All concur.


(Supreme Court, Appellate Division, Second Department. April 29, 1904.) 1. LANDLORD AND TENANT-PROVISION OF LEASE-RECOVERY OF RENT.

Where a lease contained a provision that, in case of default in any of the covenants, the landlord might resume possession, and relet the premises for the remainder of the term for the account of the tenant, who should make good any deficiency, where the defendant defaulted in the payment of rent, and moved out of the premises on July 1st, and the landlord relet the premises on September 1st, before the expiration of the term, the landlord is entitled to recover the rent for the month of July without

waiting until the expiration of the term to ascertain the deficiency. Appeal from Municipal Court, Borough of Brooklyn, First District.

Action by Simon J. Harding against Henry W. Austin. On a judgment in favor of plaintiff, defendant appeals. Affirmed.


and 121 New York State Reporter C. E. Sutherland, for appellant. Harrison C. Glore, for respondent.

WILLARD BARTLETT, J. This is an action for rent. The complaint set out the execution of a lease between the parties whereby the plaintiff rented to the defendant an apartment in the borough of Brooklyn for $324 a year, payable in equal monthly payments of $27 each, in advance, on the ist day of each and every month during the term of the letting, which was one year from October 1, 1902. It further alleged that on July 1, 1903, the sum of $27 became due and payable under such lease for rent from that date until the ist of August following, and that no part of such sum had been paid. Judgment therefor was accordingly demanded. The answer pleaded (1) a surrender of the premises, and the acceptance of such surrender by the plaintiff, on or about July 1, 1903; (2) that, under a defeasance clause contained in the lease, no rent was due or payable unless it appeared that there was a deficiency, which could not be ascertained until the end of the term; and (3) that the defendant was induced to enter into the lease by false representations in regard to the character of the premises. The plaintiff has recovered judgment for the $27 rent which was payable in advance, under the terms of the lease, on July 1, 1903.

The proof did not sustain either the first or third defense set up in the answer. The only important question raised upon the trial, or presented by this appeal, relates to the effect of the sixth covenant in the lease, which reads as follows:

“That in case of default in any of the Covenants, the Landlord may resume possession of the premises, and relet the same for the remainder of the term, at the best rent that

can obtain for account of the Tenant, who shall make good any deficiency, and any notice in writing, of intention to re-enter, as provided for in the third section of an act entitled 'An Act to Abolish Distress for Rent, and for other purposes,' passed May 13th, 1846 (Laws 1846, p. 369, c. 274), is expressly waived."

The defendant moved out of the premises on July 1, 1903, and the plaintiff, on the ist of the September following, two months after the defendant had left, and one month before the expiration of the lease, relet the apartment. It is contended in behalf of the defendant that this conduct on the part of the plaintiff precludes him from maintaining any action upon the lease until the expiration of the term. This position is not tenable, so far as the rent payable in advance July 1, 1903, is concerned. This rent had become due before the plaintiff re-entered the premises, and while the lease was in full force, and the right to recover the amount is in no wise affected by the plaintiff's subsequent entry under the defeasance clause. McCready v. Lindenborn, 172 N. Y. 400, 406, 65 N. E. 208. That re-entry put an end to the relation of landlord and tenant. In the case cited the defeasance clause authorized the lessor to relet the premises, and required the lessee to pay any deficiency in equal monthly payments, as the amount thereof should be ascertained from month to month; and it was held by the Court of Appeals that while, under this contract, no further rent, as such, could accrue, a separate and independent cause of action arose every month, when a deficiency had been ascertained in the manner provided. There is no provision for the monthly ascertainment of any deficiency, or

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