(97 Misc. Rep. 13) SOBEL v. LEVY et al. (Supreme Court, Appellate Term, First Department. October 25, 1916.) DAMAGES 182-JOINT NEGLIGENCE-SATISFACTION FOR INJURY EVIDENCE. In an action for personal injuries arising out of the alleged joint negligence of the employés of a provision company and of another company in the operation of two automobiles, where it appeared that the action had been discontinued as against the latter company, the exclusion of evidence as to whether any money was paid or promised to the plaintiff under the agreement of discontinuance was competent, in view of the conceded rule that plaintiff could have but one satisfaction for the injury. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 473, 500; Dec. Dig. 182.] Appeal from City Court of New York, Trial Term. Action by Helen Sobel against Bernard Levy, doing business as the Bronx Provision Company, and George A. Hearn and others, copartners under the firm name of James A. Hearn & Son. From a judgment of the City Court of the City of New York in favor of plaintiff entered upon the verdict of a jury, Bernard Levy, etc., appeals. Judgment reversed, and new trial granted. Argued October term, 1916, before GUY, BIJUR, and SHEARN, JJ. Sidney J. Loeb, of New York City, for appellant Levy. Breitbart & Breitbart, of New York City (George F. Hickey, of New York City, of counsel), for respondent. BIJUR, J. Appellant Levy and James A. Hearn & Son were sued for damages for personal injuries arising out of an alleged joint tort, namely, the negligence of their respective employés in the conduct of two automobiles. It developed at the trial that the action had during the course thereof been discontinued as against Hearn & Son. Appellant Levy was permitted to ask plaintiff's counsel whether the discontinuance was under an agreement with the attorney of Hearn & Son, to which an affirmative answer was given. He then asked: "Will you tell us whether under that agreement any sum of money was paid or promised to be paid to plaintiff?" An objection to this question was sustained and appellant's counsel excepted. Objections to two other questions to the same general effect were similarly sustained. As I understand respondent's brief, he concedes that plaintiff could have but one satisfaction for his injury. He does not answer appellant's claim that the amount, if any, received from one of the joint tortfeasors, should be taken into account by the jury in its award of dam ages. It is evident, therefore, that the testimony excluded was relevant, material, and competent, and that its exclusion constituted such important error as that the judgment must be reversed and a new trial granted, with costs to appellant to abide the event. All concur. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes BYERS v. FLUSHOVALVE CO. (Supreme Court, Special Term, Bronx County. October, 1916.) NEGLIGENCE 27-LIABILITY FOR INJURIES TO REMOTE PURCHASER. The handle of a valve used to flush toilets is not so reasonably certain to place life and limb in peril when negligently made as to subject the manufacturer to a duty to make it carefully under penalty of liability to persons other than the immediate purchaser for injuries caused by failure to perform such duty through using defective material. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 25; Dec. Dig. 27.] Action by William Byers against the Flushovalve Company. On plaintiff's motion for judgment on the pleadings. Motion denied, with leave to plaintiff to amend. Charles E. Rudolph, Jr., of New York City, for the motion. GIEGERICH, J. The plaintiff, a mechanic, received an injury to his hand through the breaking of a knob at the end of the handle of a valve used to flush toilets. It is alleged that the knob was made of defective and unfit material. The defendant demurred to the complaint, and the plaintiff has moved for judgment on the pleadings. The question is whether the case comes, as a matter of law of course, within the principle of MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, Ann. Cas. 1916C, 440, and similar cases. In the case just cited it was held that, if the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger, and that, if it is known that the thing will be used by persons other than the immediate purchaser and used without new tests, then, irrespective of contract, the manufacturer of such thing of danger is under a duty to make it carefully and is liable to persons other than his immediate purchaser for his failure to perform that duty. In this case it seems to me the article in question should be held as a matter of law not to be a thing of danger within the principle stated. The difference is manifest, without any attempt at argument, between poisons, and defectively made scaffolds and elevators and steam boilers and automobiles, on the one hand, and such harmless things as valve handles on the other hand. It cannot be said that a valve handle is any more "reasonably certain to place life and limb in peril when negligently made" than a broom or a shovel or any one of a thousand ordinary implements. Of course, any of those things, if negligently made, may under exceptional conditions place life or limb in peril, but that is not the test. The result must be reasonably certain, not merely possible. If the case were a border line one, then the complaint might be sustained and the question as to the dangerous character of the thing left for the jury to determine; but I do not regard it as near the border line. Motion denied, with $10 costs, with leave to the plaintiff to amend within ten days on payment of such costs. Order signed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes SUPREME LODGE KNIGHTS AND LADIES OF HONOR v. STAPF et al. October 20, 1916.) (Supreme Court, Special Term, Albany County. 1. INTERPLEADER 8(1)—RIGHT-ADVERSE CLAIMS. An insurer standing ready to pay into court the sum admitted to be due on a certificate of insurance to the person legally entitled thereto, and showing that it was claimed by the beneficiary named in the certificates at the death of the insured, and by the insured's heirs at law claiming that the change of beneficiary was void, was not required to establish the validity of the adverse claims, but simply to show that the amount was claimed adversely by the defendants, without collusion on its part, and hence was entitled to interplead, pay the amount into court, and to an order permanently staying all proceedings against it by the adverse claimants. [Ed. Note. For other cases, see Interpleader, Cent. Dig. §§ 8, 11; Dec. Dig. 8(1).] 2. INTERPLEADER 10-DISPUTED CLAIMS-AMOUNT. In such action brought under Code Civ. Proc. § 820a, relating to a debtor's action of interpleader, where the real parties in interest were the defendants as between themselves, the fact that the plaintiff stated the amount involved to be $2,000, and that some of the defendants claimed that interest should be added, did not create such a dispute as to the amount as would require the court to deny the interpleader. [Ed. Note. For other cases, see Interpleader, Cent. Dig. § 12; Dec. Dig. 10.] Action by the Supreme Lodge Knights and Ladies of Honor against J. Philip Stapf and others. Order entered permitting plaintiff to pay into court the sum of money admitted to be due on certificates, with interest to date of payment, with an injunction staying all proceedings on the part of defendants in any other action against the plaintiff with respect to the proceeds of the certificates. Joline, Larkin & Rathbone, of New York City, for plaintiff. C. Bertrand Race, of Albany, for defendants J. Philip Stapf, Rose Stapf, Margaret Hyland, and Joseph Stapf. Daniel H. Prior, of Albany, for defendant Anna S. Schleifer. RUDD, J. [1] The plaintiff asks, under an order to show cause, for an order staying permanently all proceedings in the action of Anna S. Schleifer against the plaintiff herein and for an order permitting the plaintiff to pay into court the sum of $2,000 due under a certain certificate of insurance issued by plaintiff in the sum of $2,000 payable to the beneficiary named therein upon the death of Philip S. Stapf. Prior to the death of the insured, the name of the beneficiary in the certificate was changed. Anna S. Schleifer was the beneficiary named when the insured died. The heirs at law of the insured, Philip S. Stapf, allege and formally claim that the change of beneficiary was void, and that the heirs at law are entitled to the proceeds of the insurance certificate, and that Anna S. Schleifer is not so entitled. The plaintiff stands ready to pay the sum due to the person or persons found legally entitled thereto. Much confusion has heretofore existed. between the respective claimants under claims which have been made, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes but the plaintiff has always stood ready to make payment under the certificate to the legal owner thereof, but naturally is not now, nor has it been, in a position to determine judicially as between the rival claimants. The equity powers of the court should properly be invoked to aid in the prompt solution of such questions as are here presented, to the end that unnecessary litigation may be avoided and multiplicity of actions prevented. The plaintiff does not know, and little cares, who, as between the claimants to this fund, is the one legally entitled to the money, and is not required in the action here pending to "establish the validity of the adverse claims, but simply is required to show that the whole or part of the debt is claimed adversely by the defendants without collusion on the part of the plaintiff." That requirement has been met by the plaintiff. The fund is so claimed by parties adverse one to the other. The plaintiff cannot aid in the solution of the question as to which is the rightful claimant, and ought not to be called upon to take part in the litigation unnecessarily, when as a fact the plaintiff stands neutral and only as a stakeholder. [2] This action is brought under section 820A of the Code of Civil Procedure. The real parties in interest are the defendants as between themselves. While the plaintiff sets forth as the amount involved the sum of $2,000 and some of the defendants state that that is not the correct amount because interest should be added, there does not arise thereby such a dispute as to the amount involved as would require the court to deny for that reason the motion of plaintiff. Empire Engineering Corp. v. Mack, 217 N. Y. 85, 111 N. E. 475. The plaintiff upon the argument of this motion recognized that an item of interest was involved. Interest has accrued from the time payment was due. The amount really in dispute is, as the plaintiff admits, the principal sum of $2,000 with interest added. An order may be entered permitting plaintiff to pay into court the sum of $2,000 with interest to date of payment, and the order may also provide for an injunction staying all proceedings on the part of these defendants in any other action as against the plaintiff with respect to matters at issue concerning the proceeds of the certificate of in surance. (175 App. Div. 881) BARNETT v. HOLBROOK, CABOT & ROLLINS CORP. (Supreme Court, Appellate Division, First Department. October 20, 1916.) PLEADING 276-SERVICE OF SUPPLEMENTAL ANSWER-COSTS. An order granting the defendant's motion to serve a supplemental answer will be conditioned on the payment of the taxable costs to date to the plaintiff. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 833, 835; Dec. Dig. 276.] McLaughlin, J., dissenting. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Appeal from Special Term, New York County. Action by Enoch Barnett against the Holbrook, Cabot & Rollins Corporation. From part of an order granting defendant's motion to serve a supplemental answer, the plaintiff appeals. Modified and affirmed. See, also, 171 App. Div. 432, 157 N. Y. Supp. 366. Argued before CLARKE, P. J., and McLAUGHLIN, SCOTT, DOWLING, and SMITH, JJ. Sydney A. Syme, of Mt. Vernon, for appellant. Benjamin Patterson, of New York City, for respondent. PER CURIAM. The order appealed from is modified by imposing as a condition of granting the motion the payment of taxable costs to date to the plaintiff, and as so modified affirmed, with $10 costs and disbursements to the appellant. Settle order on notice. MCLAUGHLIN, J., dissents on the round that the plaintiff had the right to settle the cause of action, and the defendant had a right to serve without costs a supplemental action showing that fact. (174 App. Div. 227) MOMAND v. LANDERS et al. (Supreme Court, Appellate Division, First Department. October 20, 1916.) DAMAGES 6-CERTAINTY-OFFICER'S SUIT AGAINST DIRECTORS-SUBMISSION OF ISSUE-STATUTE. In an action under General Corporation Law (Consol. Laws, c. 23) § 90, by the vice president of a corporation against directors thereof for his exclusion from a proper share in the management of the company, the court, pursuant to subdivision 7, improperly ordered to be tried by the jury the issue of what damage the company had suffered from plaintiff's exclusion from its management, as any answer that the jury might make would have to be speculative in the last degree. [Ed. Note.-For other cases, see Damages, Cent. Dig. § 5; Dec. Dig. 6.] Appeal from Special Term, New York County. Action by Ragland Momand, as director, vice president, and general manager of the Pressure Lighting Company, against George M. Landers and others. From an order directing questions of fact, claimed to be involved in the issues arising from the pleadings, to be tried by a jury, defendants appeal. Order modified and affirmed. Argued before CLARKE, P. J., and MCLAUGHLIN, SCOTT, DOWLING, and SMITH, JJ. Henry M. Earle, of New York City, for appellants. SMITH, J. This action is brought under section 90 of the General Corporation Law, which provides for an action against officers of a corporation for neglect and misconduct. The appeal is by the defend For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |