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weight would make it contributory negligence is an expression of opinion on the facts of the case. I say to the jury that it would have been contributory negligence for the plaintiff to have stopped off this car with bundles which so incumbered him that he could not exercise or control his movements as well as he could without the bundles." The defendant's counsel excepted to the modification. We think the instruction was more favorable to the defendant than it was entitled to. A person incumbered with small bundles is not able to control his movements in leaving a car as well as he could without bundles. If this instruction is correct, it would be negligent for a person to leave a car with bundles which incumbered him in the least. The plaintiff testified, and in this he was not contradicted, that the bundles were so adjusted that he had the free use of both hands, and that he held on to the rail of the dashboard with his right hand when leaving the car. Whether it was negligent for the plaintiff to step off a moving car, if it were moving, with his bundles, was a question of fact for the jury, depending upon the rate of speed of the car, and the circumstances under which he attempted to alight. The court was asked by the defendant to charge "that no conduct on the part of the driver in any way excuses the action of the plaintiff,” which was declined, and an exception taken. The refusal of the court to charge this proposition needs no defense. To have charged as requested would have been a palpable error. The de. fendant also requested the court to charge "that all the evidence, even the plaintiff's own testimony, is to the effect that the boy fell off while the bundle was being slung over the plaintiff's shoulder.” The court replied: "You have heard the evidence. I do not propose to express an opinion as to it one way or the other.” The defendant excepted. The proposition is not true in point of fact, for the plaintiff testified that he did not fall while engaged in putting the bundles on his shoulder. Besides, this was a mere request to charge on the evidence, not on a proposition of law. The defendant requested the court to charge "that, if the jury believed the plaintiff's own witness, Silverthau, they must find for the defendant." The court replied: “If you believe from the evidence of the plaintiff's own witness, Silverthau, that the accident occurred through the negligence of the plaintiff, then I charge you, you must render a verdict for the defendant. But I do not charge you that if you believe what Silverthau said you must necessarily find a verdict for the defendant." To this instruction the defendant excepted. This exception is not tenable. Silverthau's evidence, if believed in every particular, did not establish that the defendant was free from negligence, or that the plaintiff, by his negligence, contributed to the accident. It was not error for the court to refuse to charge “that it is not any part of the duty of the drivers to assist passengers to alight, and that failure so to do is not negligence." This is a mere abstract question, having no relation to the case, for it was not asserted as a ground of negligence that the driver refused to assist the plaintiff to alight. On
the contrary, the plaintiff testified that he did not ask for and did not need assistance. The foregoing are all of the exceptions to the charge relating to the right of recovery which are discussed by the appellant, and we find no errors. The plaintiff testified that before the accident he earned in his business seven or eight dollars a week, but that since he had been able to earn but little. Upon the question of damages the court charged "that the plaintiff was entitled to be compensated for the pain and suffering which he has endured, and for the financial loss which he has sustained.” The defendant's counsel took the following exception to that instruction: "I except to all that, except the permanent loss." He now seeks to raise the question that the plaintiff's parents were entitled to recover the damages sustained by reason of his diminished ability to earn money during his minority. We think this question is not raised by an appropriate exception. The exception quoted did not call to the mind of the trial judge the point that the parents of the plaintiff were entitled to recover for the diminished earning power of the boy from the time of the accident until he should arrive at majority, nor was any objection made to the reception of the evidence upon which the instruction was based. There is no evidence in the case that the plaintiff's father is living. It appears, however, incidentally, that his mother is living. She is his guardian ad litem, and the plaintiff in his testimony referred to the fact that he lived with his mother, but whether he had been emancipated or not does not appear, and the question that the plaintiff was not entitled to recover for his diminished earning power during his minority cannot be raised for the first time on appeal.
The verdict, $9,000, is a large one, and the interest upon it at the legal rate produces $540 per year, which is much more than the earning power of the plaintiff, according to his own testimony. How much he might be able to earn in the future had he not been injured cannot be ascertained, and there is no legal presumption that he would have continued to earn as much as he testified he was earning at the time of the accident. Phillips v. Railway Co., 5 C. P. Div. 291. His ability to earn an income or acquire property might be wholly destroyed or diminished by sickness, by accident, or by some of the vicissitudes of life; and his damages should not be assessed upon the theory that he might engage in the future, had he not been injured, in a more lucrative vocation than the one in which he was employed at the time of the accident. Railroad Co. v. Elliott, 149 U. S. 266, 13 Sup. Ct. 837. In a sense, no sum of money is adequate compensation for the loss of a leg, and the suffering incident thereto. Notwithstanding the amount must be limited otherwise, the consequences of the negligence of servants might be ruinous to defendants. I think the verdict is larger than should have been given under the evidence in this case, and that it should be reduced; but, as my associates differ with me on this question, although agreeing on all the others, the judgment must be affirmed, with costs.
ROSS v. WILLETT et al.
(Supreme Court, General Term, First Department. February 16, 1894.) 1. PARTNERSHIP_DEATH OF PARTNER-RIGHTS OF SURVIVORS.
Where it was agreed between defendants and plaintiff's intestate that intestate should purchase goods, taking the legal title to them in his own name, defendants to have one-fourth of the profits, and to bear one-fourth of the losses, the title to the goods, not being in the partners, did not, on the death of intestate, devolve on the survivors, but on his legal repre
sentatives. 2. SAME-ACTION TO DETERMINE LIABILITIES.
Where defendants refused to pay their share of the losses, plaintiff's remedy was by an action in equity to determine the amount thereof, and an action at law could not be maintained.
Appeal from special term, New York county.
Action by Frank Ross, as ancillary administrator of James G. Ross, against Wallace P. Willett and Nathaniel P. Hamlin, for an accounting of all dealings and transactions under certain agreements between defendants and said James G. Ross, deceased, and of the moneys received and paid out by said James G. Ross, by plaintiff and by defendants, respectively, in regard to the same; that defendants be adjudged to pay plaintiff, as administrator as aforesaid, any sum which, upon the taking of said accounts, appears to be due to plaintiff as administrator; and that plaintiff have such further or other relief as to the court may seem just. From a judgment in favor of plaintiff, defendants appeal. Affirmed. .
For former reports, see 11 N. Y. Supp. 621; 13 N. Y. Supp. 102, 103; and 14 N. Y. Supp. 192.
Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
Theodore F. Sanxay, for appellants.
Wilcox, Adams & Green, (George B. Adams and Herbert Green, of counsel,) for respondent.
FOLLETT, J. The court found, and we think the evidence re. quired the finding, that James G. Ross and the defendants were engaged in two joint adventures, by which Ross purchased two cargoes of sugar, taking the legal title to them in his own name, under an agreement between him and the defendants that they should have one-fourth of the profits, if any, and should bear onefourth of the losses, if any. These facts are established beyond doubt by the defendants' letters and telegrams. One of these cargoes—the Cornelia Smit—was purchased in April, 1880, and was held until June 17, 1889, when it was finally sold at a large loss. The other—the Phineas Pendleton-was purchased in December, 1880, and was held until July 2, 1889, when it was also sold at a large loss. During the time that these cargoes were held-between eight and nine years—the defendants were repeatedly asked, but always refused, to pay one-fourth of the cost of the cargoes and the accrued expenses, though they never denied their interest in them, nor their liability for one-fourth of the loss. Ross
offered to deliver to the defendants one-fourth of the sugar if they would pay one-fourth of its cost and its expenses, which they refused to do. October 1, 1888, James G. Ross died, and on the 25th of April, 1889, ancillary letters of administration upon his estate were issued to the plaintiff by the surrogate of the city and county of New York. On the 17th of June, 1889, the plaintiff in this action sold the Smit cargo, and July 2, 1889, he sold the Pendleton cargo.
On the 30th of April, 1890, he brought this action to recover one-fourth of the loss arising from the adventures.
It is insisted in behalf of the appellants that no partnership ex. isted as between James G. Ross and themselves, but, if there were, that his administrator did not succeed to the legal title to the property, and he had no right to sell it. A joint adventure is a limited partnership; not limited in a statutory sense as to liability, but as to its scope and duration; and under our law joint adventures and partnerships are governed by the same rules. Hubbell v. Buhler, 43 Hun, 82-84. It cannot be denied that it is entirely legal and competent for persons to agree that they will share the profits and losses arising from the purchase and sale of goods, though, as between themselves, one of them retains the legal title to the goods. In case A. and B. agree that the former shall purchase certain articles at an agreed price for the purpose of speculation, and that they shall share the profits and losses arising from the venture, they do not, as between themselves, become partners in the goods, but are such in respect to the profits and losses. Moore v. Huntington, 7 Hun, 425; Ward v. Thompson, 22 How. 330; Smith v. Watson, 2 Barn. & C. 401; Meyer v. Sharpe, 5 Taunt. 74; Story, Partn. $ 27; Lindl. Partn. (3d Eng. Ed.) 19, 20,
Under the facts proved in this case it is clear that James G. Ross held the legal title to the two cargoes of sugar, and that the defendants had the right to one-fourth of the profits, if any were made, and were bound to bear one-fourth of the loss, if any accrued. Under such circumstances, the title to the cargoes of sugar not being in the partners, it did not devolve upon the surviving partners, at the death of Ross, but upon his legal representatives, who had the right to make a sale of the property. The evidence shows that he consulted with these defendants in respect to the time and mode of sale, and that they refused to consent that a sale should be made, and declined to advance the one-fourth part of the sums expended in the venture. It is further shown that the plaintiff sold these cargoes at a time when they brought a larger price than could have been obtained for them at any time subsequent to the death of his intestate, and there is no claim that the sale was not an advantageous one. There being a part: nership as to profits and losses, an action in equity to determine their amount was the appropriate remedy, and an action at law to recover one-fourth of the sum conld not have been maintained. Attwater v. Fowler, 1 Hall, 180. The profits or losses of one or two joint adventures can no more be adjusted and recovered in a legal action than can those of a general partnership, the same principles being applicable to both. The fact that the defendants admitted in their answer (divisions 8 and 9) that the items constituting the account and set forth in the plaintiff's bill of particulars were correct, did not deprive the court of equity of it, jurisdiction of the action.
It is urged that this plaintiff was not duly appointed ancillary administrator of the estate of the decedent. Section 2696 of the Code of Civil Procedure provides that “in cases where the decedent, at the time of his death, resided without the United States, upon the presentation to such surrogate's court of satisfactory proof that the party so applying * is entitled to the possession in the foreign country of the personal estate of such decedent, the surrogate's court to which such copy of such foreign letters, so authenticated, or such proof is so presented, must issue ancillary letters of administration in accordance with such application except in the following cases." The exceptions have no relation to the case in hand. The evidence shows, and the court found, that James G. Ross was a resident citizen of the province of Quebec, in the dominion of Canada, where he died October 1, 1888, and that by certain judicial proceedings known as "verification of heirship," had in that province, and by virtue of certain powers of attorney, the plaintiff in this action acquired the legal right to the possession of all the personal estate of James G. Ross, deceased. The proof was clear and undisputed that when the plaintiff was appointed ancillary administrator by the surrogate of the county of New York, and when this action was tried, he was entitled to the possession, in the province of Quebec, of the personal estate of James G. Ross, which brings the case precisely within the provisions of the section of the Code above quoted, and authorized his appointment. His authority to act in the province of Quebec had not at the time of the trial been revoked or annulled, and his right to maintain this action was perfect.
Many exceptions were taken on the trial to the admission and rejection of evidence, some of which related to the mode of prov. ing the items of account, about which there was no real controrersy, and the other exceptions in no way affect the merits, and they do not deserve consideration. After a careful examination of the evidence contained in this record, we are satisfied that there is no real merit in the defense to this action, and that the judgment should be affirmed, with costs. All concur.
DORNEY et al. v. THACHER et al.
(Supreme Court, General Term, First Department. February 16, 1894.) 1. ASSIGNMENT FOR BENEFIT OF CREDITORS ACCOUNTING GENERAL OBJEO
On an accounting by an assignee, a general objection to items of the account for counsel fees and disbursements alleged to have been made in the administration of the estate is sufficient Heywood v. Thacher, 19 N. Y. Supp. 321, 64 Hun, 639, distinguished.