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also that the top deck was not well lighted. So he went down the ladder at hatch No. 4 into this upper between-deck, and, walking forward, reached hatch 3, stepped on it, and walked on, and right into the opening at the fore section, falling down into the ship's hold. There as no testimony that any drinking water was then down in hatchway No. 2, that defendants had exercised any control over hatch No. 3, or had any reason to suppose that plaintiff's duties would take him about this hatchway in the night.

[1, 2] Stevedores have no general duty to guard, light, or give warnings as to underdeck hatchways, where their men are not working, especially in decks where no cargo operations are going on. Indeed, the shipowner himself is not under such a duty, unless the opening is so near the work, or the path of an employe's duty, as to call for special precautions. Andersen v. New York & Cuba M. S. Co., 13 App. Div. 218, 43 N. Y. Supp. 213. In like manner, a trapdoor in a building, when left open, is no breach of duty towards an employe. who, knowing where it was, also knew that it was likely to be opened. Young v. Miller, 167 Mass. 224, 45 N. E. 628. A contracting steve dore, like these defendants, has no control of the parts of the ship in which his work does not lie.

[3] Plaintiff had worked several years as longshoreman. During 1906 he had been employed by the Ward Line, and since that for different contracting stevedores. He was therefore chargeable with notice that the hatchways in the underdecks are generally left open while the ship is in port. Andersen v. New York & Cuba M. S. Co., supra. See The Saratoga (D. C.) 87 Fed. 349, and cases cited. The darkness in this between-deck was obvious to the plaintiff from the fact that the ship's lights there were each directed into the hatch way being worked. No breach of duty by the defendants appears (Droge v. Robins Co., 123 App. Div. 537, 108 N. Y. Supp. 457), and, on the facts now shown, plaintiff was himself negligent.

Hence the judgment should be reversed on the law and on the facts, and a new trial granted; costs to abide the event.

MOOREHEAD v. REALTY ASSOCIATES.

(Supreme Court, Appellate Division, Second Department. March 19, 1915.)

CONTRACTS 131-LEGALITY-PUBLIC POLICY-BROKERAGE CONTRACT.

Where plaintiff reported defendant's property for assessment, and, pending defendant's protest and hearing thereon, went to its tenant and tried to secure an offer to buy it at its assessment valuation, and there. after recommended a reduction in such valuation, which was adopted, and then obtained alleged authority from defendant's officers to nego: tiate a sale of the property on fixed terms, the brokerage contract, if any, arose from plaintiff's activities ex colore officii, and was invalid as against public policy.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. $8 591-607; Dec. Dig. Om 131.] For other cases see same topic & KEY-NUMBER in all Key Numbered Digests & lodexes

Appeal from Trial Term, Kings County.

Action by Thomas A. Moorehead against the Realty Associates. From a judgment dismissing his complaint, plaintiff appeals. Affirmed.

Argued before JENKS, P. J., and THOMAS, CARR, STAPLETON, and PUTNAM, JJ.

Henry L. Scheuerman, of New York City, for appellant.

Henry M. Dater, of Brooklyn (Jay S. Jones and Edward J. Fanning, both of Brooklyn, on the brief), for respondent.

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CARR, J. The plaintiff brought an action against the defendant to recover the sum of $8,700, with interest, as commissions alleged to have been earned by him as a broker in procuring a purchaser for real property owned by defendant. The complaint was dismissed at the close of plaintiff's proofs.

The defendant owned a piece of property on Fulton street, near Flatbush avenue, which was occupied by the Woolworth Company as a tenant. The plaintiff was a deputy tax commissioner in the borough of Brooklyn, and the property in question was within the district assigned to him for the performance of his official duties as a public officer. He reported to the board of tax commissioners that the property should be assessed at the sum of $870,000 for the purposes of general taxation, and it was assessed for such purposes at the valuation reported. The defendant protested against this assessment, and claimed that the property in question, land and buildings, was worth considerably less money. A hearing was had before the tax commissioners, as provided by statute. Decision was reserved. In the meantime the plaintiff went to the tenant of the building, the Woolworth Company, and endeavored to secure an offer from that corporation to buy the property in question at the valuation which he had reported officially for assessment. One of the individuals connected with the Woolworth Company stated to plaintiff that he was willing to make an offer to buy the property, but that his corporation itself was not interested, and that negotiations as to a sale were then going on. Shortly thereafter the plaintiff again reported to the tax commissioners, recommending a reduction in the assessed valuation to the sum of $819,000. His recommendation was adopted, and the original assessment reduced. After this, he went to a Mr. Greve, an officer of the defendant corporation, and likewise to Mr. Bailey, an officer of the same corporation, and, as he claims, he obtained from them authority to negotiate a sale of the property in question if he could produce a proper purchaser at the terms fixed. Apparently he produced a willing purchaser, whose name was Griffin, to call on Bailey to buy the property, but Bailey declined to consider the matter at all. Thereupon this action was brought. Griffin represented the individual sought out by the plaintiff.

The theory of the trial court in dismissing the complaint was that the alleged contract of employment between plaintiff and defendant was against public policy, and should not be enforced by the courts, No opinion was written below, but there is an interesting, and to us

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a satisfactory, statement of the trial court's position in the colloquy hat arose on the motion to dismiss. If there was any contract oi brokerage between the parties, it was one that arose from the plaintiff's activities ex colore officii. He held a quasi judicial office. As a deputy tax commissioner, within his assigned district, he was a person oi official power and importance. We must view the world as it is, and the common law has always been keen to see human nature, without glamour or apotheosis. The plaintiff injected himself between the defendant and its tenants, let us grant, through official zeal and without any then idea of personal gain. But the result of his conduct was that he found that the defendant might sell the property for the amount of the original assessment. Yet, with this knowledge, he recommended to his official superiors a reduction of the assessment in a substantial amount. Then he went to the owner, no longer as a public officer, as he says, but as a private individual, after the assessment had been fixed, and sought employment from the owner in regard to the very property as to which he had just acted officially and as to which he might act again officially. While he may have gone as an individual, yet the panoply of his public office went with him. The rules which control the courts in declaring contracts void as against public policy are necessarily loosely defined. Every case is one unto itself. As to public officers, the courts will not enforce contracts between them and private individuals which have been brought about ex colore officii, and which are of such a nature, however brought about, that tends to interfere with the absolute duty of the officer to his official trust, then or thereafter. We think this contract of brokerage falls within the scope of this rule of law.

The judgment is unanimously affirmed, with costs.

(166 App. Div. 557)

PILLMORE et al. v. WALSWORTH et al.

(Supreme Court, Appellate Division, Fourth Department. March 10, 1915.)

1. MORTGAGES 127_CONSTRUCTION.

Where one of two tenants in common conveyed his interest to the other, and the grantee thereafter gave the grantor a mortgage on all that parcel of land situated, etc., “being the same premises” conveyed by the grantor to the grantee, the mortgage applied only to the half interest originally conveyed, particularly as the security was sufficient.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. $ 249; Dec. Dig.

Om 127.] 2. ESTOPPEL Cw91-EQUITABLE ESTOPPEL—How ARIBING.

Where a mortgage on an undivided half of a parcel of land was fore closed, the failure of the owner of the fee of the other half who was present at the sale, where it was sought to sell the whole parcel, to assert his title, does not estop him from afterwards asserting it.

[Ed. Note.-For other cases, see Estoppel, Cent. Dig. 88 245–247, 276. 284; Dec. Dig. Om91.) 3. ESTOPPEL C98-EQUITABLE ESTOPPEL—How ARISING.

The owner of land mortgaged an undivided half interest therein. Thereafter the mortgage was foreclosed, the whole tract purporting to be For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

sold. The widow of the mortgagor accepted a portion of the surplus in lieu of dower. Held, that her act did not estop the owner of the fee of the other half of the premises from asserting his title.

[Ed. Note.—For other cases, see Estoppel, Cent. Dig. $ 290; Dec. Dig.

Om98.) 4. DOWER 50_EQUITABLE ESTOPPEL TO ASSERT.

As the widow accepted the money in lieu of her dower “in the premises sold,” there was no estoppel barring her from asserting her dower in the other half of the premises.

[Ed. Note.-For other cases, see Dower, Cent. Dig. $ 99; Dec. Dig.

-50.] 5. JUDICIAL SALES @ 30_-PURCHASERS—NOTICE.

A purchaser at a judicial sale is charged with notice of whatever an examination of the record title would reveal.

[Ed. Note. For other cases, see Judicial Sales, Cent. Dig. 88 90–94, 96; Dec. Dig. Om50.]

Kruse, P. J., dissenting.

Appeal from Equity Term, Oneida County.

Action by Charles Pillmore and others against Lavina E. Walsworth, impleaded with others. From a judgment for defendant named, plaintiffs appeal. Affirmed.

Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ.

Ward J. Cagwin, of Rome, for appellants.
E. L. O'Donnell, of Rome, for respondent.

ROBSON, J. The action is brought to determine the rights and interests of the parties in and to a fund of upwards of $2,700, deposited by the state of New York with the Albany Trust Company, which is one of the defendants, being the amount of an agreed award and compensation for the taking by the state of New York for canal purposes of certain lands and premises in the town of Lee and county of Oneida. The interests of the parties to this action in the fund and their several rights to share therein are determined by ascertaining what interests they severally had in the appropriated premises at the time the appropriation was made, except as those rights have been changed by subsequent agreement.

The property in question was known and referred to as the “Delta Mills” property. With some unimportant exceptions hereinafter noted, it was in 1857 owned by Elisha Walsworth. In that year he conveyed by separate deeds, in which his wife joined as a grantor, an equal undivided one-half of the premises to each of his two sons, Henry H. and Elisha A. Walsworth; the consideration for such transfer recited in each deed being $4,000. In 1865 Henry H. Walsworth and wife conveyed to his brother, then the owner of the undivided one-half of the premises, the one-half interest therein which the former then owned. As the decision of this case rests largely upon the reference, made in subsequent conveyances, to the premises conveyed by this deed, I will quote the description so far as it appears in the record, viz. : wwFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

"All that tract or parcel of land situate in the village of Delta, in said town of Lee, being one undivided half of the property known as the Delta Mills property, and is bounded and described as follows, to wit:' And then follow measurements and boundaries."

The consideration in this deed was $3,300. Thirteen years later, that is, on April 1, 1878—Elisha A. Walsworth gave to Henry H. Walsworth a mortgage securing the payment of $1,400. The wife of the mortgagor did not join in this mortgage.

The principal contention as to the several interests of the parties arises upon the construction to be given to this mortgage, depending upon whether it by its terms included the whole premises or simply an undivided one-half thereof. The description of the premises conveyed by this instrument as collateral security for the payment of the mortgage indebtedness is as follows:

"All that piece or parcel situate in the village of Delta in said town of Lee, being the same premises which was conveyed by deed by the party of the second part and Julia, his wife, to the party of the first part on the 1st day of May, 1865, excepting out of the same a corner of the garden since conveyed by deed by the said party of the first part to Charles Elmer; also those two pieces of land described in a deed of said lands made and executed by Charles Elmer and Sarah A., his wife, to the party of the first part on the 24th day of June, 1875."

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The further history of the title shows that Elisha A. Walsworth continued to own the property down to his death in February, 1889. He died intestate, leaving him surviving his widow, Rebecca, and one son, Cyrus M. Walsworth, his only heir. This son was then a nonresident of this state, and appears to have been then burdened with considerable indebtedness, some of which was in the form of judgments against him at that time. About a month after his father's death Cyrus M. gave a quitclaim deed of the property he had inherited from his father to the defendant Thomas S. Nightingale, in which the former's wife, the defendant Lavina E. Walsworth, did not join. In June following, action for the foreclosure of the $1,400 mortgage, above referred to, was begun by the mortgagee, Henry H. Walsworth. Cyrus M. Walsworth and his grantee, Nightingale, were made parties defendant in this action, and the former appeared therein by attorney. Cyrus M. died during the pendency of the action. This action resulted in the usual judgment of foreclosure and sale, followed by a sale of the premises pursuant to the judgment. After the commencement of the action and before the sale therein the mill on the premises burned. At the foreclosure sale the purchasers of the property were two sisters of Elisha A. Walsworth, Sarah A. and Susan E. Walsworth. The purchase price was $2,000, and a surplus of $1,116.15 resulted, which was duly deposited with the county treasurer of Oneida county. After the foreclosure sale, Rebecca, the widow of Elisha A., continued to occupy the premises for more than 20 years, paying no rent therefor and claiming a right as dowress to so occupy the same. She had died before the appropriation by the state. There is little, if any, evidence of possession of the premises taken by the purchasers at the foreclosure sale, though it does appear that they visited the premises occasionally each year during their lives, and that a part of the double house thereon not actually

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