FRANCIS PARES OSBORN et al.., Pl'ffs, v. WILLIAM A. ROGERS et al., Def'ts.

(New York Superior Court, General Term, Filed May 5, 1890.)

UNDERTAKING-CONSTRUCTION OF.

On appeal from an order denying motion to vacate a judgment plaintiff's proceedings were stayed and a levy under execution discharged on defendant's giving an undertaking with sureties, which provided that defendant should pay said judgment and the sheriff's fees in case "said order appealed from shall be affirmed by said general term, and if an appeal be taken from the determination of the general term upon such appeal to the court of appeals in case said order be finally affirmed by said court of appeals." The general term reversed the order, but the court of appeals reversed its decision and restored the judgment and execution. Held, that it was not the intention of the parties that the liability of the sureties should end in the decision at general term; that the allusion to the court of appeals indicates that an appeal to that court was to be expected on the part of either party aggrieved, and the undertaking therefore remains in full force.

SUBMISSION upon an agreed case of a controversy arising out of a claim made by the plaintiffs upon a joint and several bond, the plaintiffs claiming that the condition has not been performed, and the defendants claiming that the condition has been performed.

Coudert Brothers, for pl'ffs; A. D. Williams, for defendants Rogers and Horton; Marston Niles, for defendants Edgar and Grannis.

O'GORMAN, J.-This action being now pending, this is a submission, under § 1279, et seq., of the Code, on an agreed case, of a controversy arising from the differing opinions entertained by the parties plaintiff and defendant as to the true meaning, force and effect of a certain bond with sureties, given by defendant Rogers, under order of the supreme court, as a condition for the discharge of a levy made under judgment and execution against Rogers, in favor of the plaintiffs for the sum of $7,938.53, with interest and costs.

The plaintiffs claim that this bond is now in full force. The defendants deny the claim.

On issue of execution and levy made on the property of Rogers, he moved at the special term of the supreme court for the vacation of the judgment and execution. His motion was denied.

From this decision he appealed to the general term, and also moved in the special term for a stay of plaintiffs' proceedings pending that appeal. This motion was granted, and Rogers obtained an order staying the plaintiffs' proceedings and discharg ing the levy pending the appeal to the general term, and also pending such appeal as might be taken to the court of appeals, on the condition of his giving a bond with sureties.

The bond was given under the approval of the court, and the contention now is as to the true intention and legal effect of that bond.

The supreme court, at general term, reversed the order of the special term, and set aside the judgment against Rogers.

From that decision the plaintiffs appealed to the court of appeals, which reversed the decision of the general term of the supreme court, and restored the judgment and execution against Rogers to their former force and effect.

The defendants now claim that the liability of the sureties on the bond was discharged by the judgment of the general term setting aside the judgment against Rogers, and that plaintiffs can maintain no action against the sureties.

The plaintiffs, on the other hand, contend that the bond and all its obligations continued in full force and effect during all the litigation in the court of appeals; and on the decision of that court, reversing the decision of the general term, and reinstating the judgment against Rogers and the execution against his property, they were entitled to demand the fulfillment of all the provisions of that bond in their favor, and to compel the sureties to pay the amount of the judgment, etc.

The condition of the bond is as follows:

"That whereas the above bounden, William C. Rogers, has appealed to the general term of the supreme court of the state of New York, first department, from an order made and entered on the 28th day of October, 1887, in an action in the supreme court of the state of New York, wherein Francis Pares Osborn, and others, are plaintiffs, and the said William C. Rogers, defendant, which order denies the motion made by the said Rogers to vacate the judgment entered in said action on October 17, 1887, and to set aside the execution issued thereon.

"And whereas a motion has been made by said Rogers for a stay of proceedings pending said appeal and to discharge the levy under the execution issued upon said judgment upon such terms as to the court may seem just, and the court having ordered such discharge of levy and a stay of proceedings until the final determination of the defendants' said appeal from said order by the general term, and in case of an appeal from the determination of the general term to the court of appeals, then until the final determination of the court of appeals upon such appeal, then that in case said order appealed from shall be affirmed by said general term, and if an appeal be taken from the determination of the general term upon such appeal to the court of appeals in case said order be finally affirmed by said court of appeals, the defendant, William C. Rogers, shall well and truly pay unto said Francis Pares Osborn, Charles Spencer Osborn, William Osborn and Robert Arthur Osborn, any and all sum or sums which may be or shall be due, owing and unpaid upon said judgment and the fees of the sheriff under said execution with interest upon such sum or sums unpaid and sheriff fees and all costs of appeal that may be awarded to the plaintiffs, within thirty days after the final affirmance by the general term, or if an appeal be taken to the court of appeals within thirty days after the final affirmance of said order by such court of appeals, then this obligation to be void, otherwise to remain in full force and effect."

The language used might have been, no doubt, more clear, N. Y. STATE REP., VOL. XXXI. 23

but, taking into account the circumstances under which it was executed and the important advantages secured by defendant Rogers, because of its execution, I find little difficulty in arriving at the conclusion that the plaintiffs' contention is right and that the liability of the sureties on the bond to the plaintiffs still exists, and the action on behalf of the plaintiffs against defendants is well brought.

In the endeavor to ascertain the meaning and purpose of a written contract, which, from the ambiguity or confusion of language, may not be quite clear, a court is justified in seeking for such construction as may be the most reasonable, the most liberal and most consistent with the sense in which the promisor believed that the promisee accepted the promise, and in which he did actually accept it.

I entertain no doubt that, in the case of the instrument here in question, the sense thus mutually understood by the parties was that the bond should be, and continue to be, a valid and sufficient security for payment of the amount of plaintiffs' judgment, whether that judgment was sustained by the general term of the supreme court or the decision of the court of appeals, if the litigation reached that court.

If the intention of the parties to the bond was that the liability of the sureties was to end on the decision of the appeal to the general term, all allusion in the bond to the court of appeals would have been useless, idle and irrelevant.

The allusion to the court of appeals clearly indicated that an appeal to that court was to be expected on the part of either party who might be dissatisfied by the decision of the general term.

It is very unlikely that the intention of the parties was that, in case of a decision of the general term hostile to the plaintiffs, they were to accept their defeat, or, if they sought redress by appeal to the court of appeals, carry on that litigation without any security from which they could realize any substantial benefit or protection.

It should be remembered that, at the time the bond was executed, the plaintiffs had levied under the execution on the goods of Rogers, and that, to the extent of the value of these goods, security, pendente lite, had been, in effect, given.

By setting aside that levy, the plaintiffs were left without any security, unless such as was found in the bond.

That whatever security was afforded by the bond should cease to exist on the decision of the general term in favor of the defendant, Rogers, would have left the plaintiffs without any security in place of the levy on the goods of Rogers, of which security he had been deprived by the order of the special term.

That this injustice should have been intended by the court, or would have been acquiesced in by the plaintiffs, is not to be believed.

No violence is done to the language of the bond by this holding, and the general drift of authoritative judicial opinion is in that direction. Robinson v. Plimpton, 25 N. Y., 484; Doolittle v. Dininny, 31 id., 350.

The intention of all the parties was, in my opinion, that the plaintiffs were to receive, by means of the bond, a security which should be the full equivalent of the security they held by their levy on the goods of Rogers.

There should be judgment for the plaintiffs in the form, and for the amount specified in folios 55 and 56 of the agreed case. SEDGWICK, Ch. J., and FREEDMAN, J., concur.

PATRICK DERVIN, App'lt, v. HENRY HERRMAN et al., Resp'ts. (New York Superior Court, General Term, Filed May 5, 1890.)

MASTER AND SERVANT-NEGLIGENCE.

Plaintiff was employed by defendants as a porter, one of his duties being to close an iron hatchway in the sidewalk, using an elevator underneath to reach and fasten the staple. On the day of the injury the elevator was undergoing repairs and was left unfinished. Defendant with knowledge thereof, ordered it used to ship goods and shortly after plaintiff in closing the hatchway, being unable to stop the elevator, was crushed against the iron doors. No notice had been given him of the defect. Held, that this was not one of the risks of the employment which he assumed, but one against which defendants were bound to put him on his guard; that defendants failed in their duty in not warning him of the danger, and that a dismissal of the complaint was erroneous.

APPEAL from a judgment dismissing the complaint in an action brought to recover damages for personal injuries caused by the alleged negligence of defendants.

G. Washbourne Smith, for app'lt; Otto Horwitz, for resp'ts.

O'GORMAN, J.-In this case, the plaintiff's complaint was dismissed on the evidence as presented on his behalf, and the question on this appeal is, whether the learned trial judge erred in so ruling.

The action was brought by the plaintiff, a servant of the defendants, to recover damages for severe personal injuries incurred by him, by reason of the failure of the defendants to perform their duty to the plaintiff as masters.

The evidence, as presented by the plaintiff, disclosed these facts: The defendants were dry goods merchants at 466 and 468 Broadway, New York city, where the injury occurred on the 7th day of August, 1882. Their store consisted of the first floor in this double building and the basement below, and extended from Broadway to Crosby street. The ceiling of the basement was on a level with the sidewalk, and was seventeen feet above the floor of the basement.

This basement was used for the stock and as a shipping room. On the Crosby street side there was an Otis sidewalk elevator, which ran from the basement up to the sidewalk, and was used to take goods out of and into the basement.

The opening or hatchway at the mouth of the elevator was on the sidewalk, and was closed by two heavy iron doors fastened at the sides on hinges. When let down the doors came together at the middle of the hatchway, and an iron staple in one door went through a hole in the other door, and they were fastened by an iron pin put through the staple on the under side of the doors.

The plaintiff, at the time of the injury, was, and for three years prior thereto had been, in the employ of the defendants as a general porter, and it was part of his duty, every second or third week, to close the store, including the closing of the iron doors over the elevator, other employees closing the rest of the time.

The plaintiff, during the three years he was with defendants, closed the iron doors over the elevator in this way: He would go out on the sidewalk at the rear of the store and let down the iron doors over the hatchway. He would then go in the store and down the stairs to the basement, get on the platform of the elevator, pull down on the chain a little, and run the elevator up far enough so that he could reach up and put the iron_pin through the staple on the underside of the iron doors. When up far enough to do this, he would pull up on the chain a little and stop the elevator; then reach up and put the iron pin through the staple; then pull up on the chain, and run the elevator down to the bottom.

Other porters closed the iron doors over the hatchway in the same way during the three years plaintiff was with defendants, and before he came. The defendants told plaintiff, through Campbell, to close in this way. The defendants had seen plaintiff use the elevator in this way time and time again, and had not objected. They had provided no other means for closing the iron doors.

Campbell was the defendants' shipping clerk, and had full charge of down stairs and of the porters there. His duties kept him usually in the basement.

On the 7th of August, 1882, between six and half past six o'clock in the afternoon, the plaintiff began to close as usual. He went to the sidewalk on the Crosby street side and let down the iron doors over the hatchway; then went into the store and down the stairs to the basement; stepped upon the platform of the elevator, and pulled down on the chain to run the elevator up far enough so that he could reach up and put in the iron pin. After the elevator had ascended far enough for him to do this, he pulled up on the chain, as usual, to stop the elevator, but it would not stop. It carried him up and crushed him against the iron doors, injuring him severely.

On the day of the injury the engine and elevator had been undergoing repairs, and the repairs were not completed at the time the injuries were received.

The plaintiff did not know that the elevator had been undergoing repairs, and had no notice from the defendants or anybody that the elevator was in a dangerous condition.

Defendants knew that the elevator was undergoing repairs that day, and knew as late as 4 o'clock in the afternoon that the repairs would not be completed that day, but they did not give the plaintiff any notice or warning that the elevator was out of repair.

McCoy, the "elevator man," who did these repairs on the elevator, left off working at about 5 o'clock in the evening, having