That he saw she had a fainting fit. That he went outside and examined her when she had it. That such a fit was one of the manifestations of hysteria, and comes in some cases more frequently than others. That her fainting spell was what is called hysterical epilepsy. It resembles epilepsy, but it is not true epilepsy. It is really hysteroepilepsy. That he did not believe she feigned it. That if he were told that this occurred every two or three days, he would not at all be surprised, in view of the conditions he found her in, in March. These fainting fits, or this condition of hystero-epilepsy, may occur very frequently, and that kind of a condition was to be expected. The denial of a motion for mistrial was right. I think this case was properly submitted to the jury, that there are no reversible errors, and that the judgment and order should be affirmed, with costs to the respondent. MCLAUGHLIN and SCOTT, JJ., concur. LAUGHLIN, J. (dissenting). On the 7th day of June, 1910, the plaintiff, who was then a tenant of the defendant, occupying an apartment in a building of which he was the lessee at 804 East Fifth street, borough of Manhattan, while passing through the yard between the building in which her apartment was and another building, likewise leased by defendant, was struck by a board or plank which fell from the window sill of an apartment in the building in which she lived, or from a scaffold erected by employés of a contractor to whom defendant had let the contract for certain repair work, including the erection or repair of water pipes on the side of the building toward the yard, and she has recovered therefor. The view of the evidence most favorable to the plaintiff is that the board was used on a window sill to hold flowers, and that it was removed by the employés of the contractor to enable them to perform their work, and that through their personal negligence in handling the board or plank it was permitted to drop. The general rule is that a landlord is only liable to a tenant for damages resulting from a defective condition of the demised premises of which he has notice, either actual or constructive, or caused or contributed by his own acts. Cohen v. Cotheal, 156 App. Div. 784, 142 N. Y. Supp. 99, affirmed 215 N. Y. 659, 109 N. E. 1070; Idel v. Mitchell, 158 N. Y. 134, 52 N. E. 740; Decker v. Osterweil, 144 App. Div. 653, 129 N. Y. Supp. 681; Hanselman v. Broad, 113 App. Div. 447, 99 N. Y. Supp. 404. There are, of course, exceptions to the rule. It is claimed in support of the judgment that one exception makes it the personal and nondelegable duty of the landlord to protect the tenants against injury from such a cause as that shown by the evidence in this case, and that therefore the landlord is liable for the negligent acts of the employés of his independent contractor, precisely as if they were his own acts. I know of no authority which supports that contention. Those relied upon by respondent are, I think, clearly distinguishable on the material facts. It is the well-settled rule in this jurisdiction that the landlord owes a duty to his tenants to exercise care and diligence--the authorities are conflicting with respect to the degree of care, and no opinion need now be expressed on that pointto prevent injury to or interference with the use and enjoyment of the demised premises from building operations or repair work conducted by him, and to perform such contract obligations as he has undertaken to perform for the benefit of the tenant, of which furnishing and operating an elevator is an example, and that these are nondelegable duties. Paltey v. Egan, 200 N. Y. 83, 90, 93 N. E. 267, reversing 132 App. Div. 254, 116 N. Y. Supp. 889; Sciolaro v. Asch, 198 N. Y. 77, 91 N. E. 263, 32 L. R. A. (N. S.) 945; O'Rourke v. Feist, 42 App. Div. 136, 59 N. Y. Supp. 157; Blumenthal v. Prescott, 70 App. Div. 560, 75 N. Y. Supp. 710; Snow v. Pulitzer, 142 N. Y. 263, 36 N. E. 1059; Judd & Co. v. Cushing, 50 Hun, 181, 2 N. Y. Supp. 836; Butler v. Cushing, 46 Hun, 521; Downey v. Low, 22 App. Div. 460, 48 N. Y. Supp. 207. In the case at bar, the work which was being done was not, so far as appears, required by any contract obligation of the defendant as landlord to the plaintiff as his tenant. The work was lawful, and it did not involve any obstruction endangering the use of a public highway, and the performance of it as contemplated would neither have interfered with any rights of the tenants nor have constituted a nuisance. It was entirely competent, therefore, for the landlord to employ an independent contractor, and for the negligent acts of the employés of such contractor the defendant is not liable. See Berg v. Parsons, 156 N. Y. 109, 50 N. E. 957, 41 L. R. A. 391, 66 Am. St. Rep. 542; Deming v. Terminal Ry. of Buffalo, 169 N. Y. 1, 61 N. E. 983, 88 Am. St. Rep. 521. I therefore vote for reversal. INGRAHAM, P. J., concurs. (170 App. Div. 197) NEW YORK & BOSTON DESPATCH EXPRESS CO. v. CARROLL et al. (Supreme Court, Appellate Division, First Department. December 3, 1915.) LIMITATION OF ACTIONS 95-RECOVERY OF PROCEEDS OF INSURANCE POLICY -STATUTE. Code Civ. Proc. § 382, subd. 1, provides that an action upon a contract obligation for a liability expressed or implied, except a judgment or sealed instrument, must be commenced within 6 years after the cause of action accrues. Section 403 provides that the term of 18 months after the death within this state of a person against whom a cause of action exists is not a part of the time limited for the commencement of an action against his executor or administrator. A vessel owner collected the proceeds of a policy of insurance upon the cargo, for the account of whom it might concern, on March 7, 1905, dying thereafter in 1907. A cargo owner brought suit against his personal representatives to recover the proceeds of the policy March 1, 1915, alleging, in his reply, that he had no knowledge of the effecting of the insurance or the collection thereof until March 20, 1912. Held that, whether the action be one at law for money had and received or in equity, the obligation was based For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes on an implied contract and was barred in 6 years plus 18 months, or on September 7, 1912. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 337, 473, 474; Dec. Dig. 95.] McLaughlin and Laughlin, JJ., dissenting. Appeal from Special Term, New York County. Action by the New York & Boston Despatch Express Company against Howard Carroll and another, as executors. From an order denying their motion for judgment on the pleadings, defendants appeal. Reversed, and motion for judgment on the pleadings dismissing the complaint, granted. The following is the opinion of Lehman, J., at Special Term: The plaintiff sues for an accounting of moneys received by the defendant's testator on March 7, 1905, under an insurance policy made payable to him or order "for account of whom it may concern." The Court of Appeals in construing a similar complaint in the case of symmers v. Carroll, 207 N. Y. 632, 101 N. E. 698, 47 L. R. A. (N. S.) 196, Ann. Cas. 1914C, 685, has decided that the defendant's testator, under the terms of this policy, was the trustee of an express trust for the benefit of the owners of the property, and when he "received the proceeds of the policy of insurance for account of whom it may concern he holds the money as trustee for those concerned." It is not disputed that under the authority of that case the complaint sets out a good cause of action, but the defendant has set up the six-year statute of limitations, and moves for judgment on the pleadings on the ground that from the undisputed facts it appears that the moneys were received by defendant's testator more than six years before the beginning of the action. The defendant's testator received these moneys rightfully. He was the trustee of an express trust. While he received them as trustee for the plaintiff and others, his retention of these moneys was rightful until he was called upon to account for them. His rightful possession could not be changed into a conversion or other wrongful act until a demand for these moneys was made upon him. No such demand could be made upon him until the plaintiff had actual knowledge of the facts upon which that right depends. It does not appear that this plaintiff had in 1905 knowledge that the defendant's testator had received this money, or even that he had insured the cargo "for account of whom it may concern." Since the defendant's testator received the moneys as trustee, and since a demand upon him was necessary to entitle this plaintiff to maintain an action, it would appear that under section 410 of the Code of Civil Procedure the statute did not begin to run until the plaintiff had actual knowledge of the facts, regardless of whether the form of action be in conversion, money had and received, or on accounting. See Lightfoot v. Davis, 198 N. Y. 261, 91 N. E. 582, 29 L. R. A. (N. S.) 119, 139 Am. St. Rep. 817, 19 Ann. Cas. 747. The defendant, however, claims that in the case of Roberts v. Ely, 113 N. Y. 128, 20 N. E. 606, the Court of Appeals has decided that the action is barred in six years from the date of the receipt of the money. A careful reading of that case discloses that it is not authority for any such contention. It is true that in that case the court concluded its opinion by stating: "The right of Geiger & Co. to recover the money was perfect from the time of its actual receipt by Ely in 1871. Lillie v. Hoyt, 5 Hill, 395 [40 Am. Dec. 360]." The case cited arose, however, under the old statute (section 91 of the Code), and that section has been considerably changed. See Lightfoot v. Davis, supra, 198 N. Y. at page 269, 91 N. E. 582, 29 L. R. A. (N. S.) 119, 139 Am. St. Rep. 817, 19 Ann. Cas. 747. Without determining whether this change is in itself sufficient to distinguish the cases, it is to be noted that the statement of the law above cited does not represent the actual decision of the court, and must be read in connection with the actual facts and question before the court. That question was only whether the six-year statute or some longer period applied. The question of whether the statute began to run from the date of the receipt or the date when the plaintiff had knowledge of the facts is immaterial. The real decision of the court is contained in the words: "The money was paid to Ely in 1871, and the facts were known to Geiger & Co. at or soon after that date. The action was commenced in 1881. Assuming that an equitable action could be brought to enforce the liability claimed, it would still be subject to the limitation of six years." are mine.) Defendant's motion for judgment is therefore denied. (Italics Argued before INGRAHAM, P. J., and MCLAUGHLIN, LAUGHLIN, SCOTT, and DOWLING, JJ. Avery F. Cushman, of New York City, for appellants. INGRAHAM, P. J. The complaint alleges a cause of action based upon the receipt by defendant's testator of certain insurance moneys upon a policy whereby the insurance company insured the defendants' testator as "freightor, forwarder, bailee, common carrier, or for account of whom it may concern, loss, if any, payable to" John H. Starin, "or order, to the amount of $20,000 on goods, wares, and merchandise, including live stock and baggage while on board" the vessel known as the John H. Starin (subsequently transferred to the Glen Island), owned by the said John H. Starin, "against all loss damage, detriment or hurt by fire. It is the intent of these insurers to fully indemnify the assured for all general average charges and salvage expenses, and loss, damage, detriment, or hurt to said property. ** The complaint alleges further that the steamer so insured was destroyed by fire on March 7, 1905, and the defendants' testator collected from the insurance company the amount of the policy, to wit, the sum of $19,500, to the account of the owner of said cargo so burned as aforesaid, that the testator died in the year 1909, and the defendants duly qualified as executors of his estate. It seems to be conceded that this complaint set up a cause of action in favor of the plaintiff, under the decision of the Court of Appeals in Symmers v. Carroll, 207 N. Y. 632, 101 N. E. 693, 47 L. R. A. (N. S.) 196, Ann. Cas. 1914C, 685. Among other defenses, the defendants set up the 6-year statute of limitations, alleging that this action was commenced March 1, 1915, and not within 6 years after the cause of action stated in the complaint had accrued to the plaintiff and each and every one of its assignors. To that defense the plaintiff served a reply, admitting that the action was commenced March 1, 1915, and alleging that the defendants had no knowledge or information with respect to the insurance which defendants' testator had effected on the cargo of the steamer Glen Island, or of the receipt by said defendants' testator of any sums upon insurance policies or otherwise, until the attention of one of plaintiff's officers was called to a notice which appeared in the public print on March 20, 1912, of the decision in the case of Symmers v. Carroll by the Appellate Division of the Supreme Court. Upon the pleadings the defendants made a motion for judgment, which was denied, and from that order the defendants appeal. Thus the only question upon this appeal is the sufficiency of this plea of the statute. It is alleged in the complaint that on March 7, 1905, Starin collected from the insurance company the amount of its policy "for account of the owners of said cargo so burned as aforesaid." The cause of action, therefore, arose in favor of the plaintiff on the 7th of March, 1905. Starin died in the year 1907. While a cause of action existed against him to enforce his obligation to pay the portion of the insurance money to the plaintiff, by section 403 of the Code of Civil Procedure the"term of eighteen months after the death, within this state, of a person against whom a cause of action exists, * is not a part of the time limited for the commencement of an action against his executor or administrator." * * Adding 18 months to the 6 years would make the statute a bar on September 7, 1912, and this action was not commenced until March 1, 1915. This question seems to have been presented in Roberts v. Ely, 113 N. Y. 128, 20 N. E. 606. In that case defendant's testator was in possession of a quantity of teas which was the property of the plaintiff, and it was agreed that the defendant's testator should hold the teas in storage and insure the same for their benefit; that the teas so insured were destroyed by fire, and the insurance money for the whole collected and received by defendant's testator in November, 1872, who wrongfully appropriated the whole thereof and paid no portion to the plaintiff's assignor; and the relief demanded was that the defendant account for and pay over to the plaintiff all moneys received by reason of the destruction of the teas belonging to the plaintiff's assignor. The statute of limitations was pleaded, and the Court of Appeals held that the bar of the statute was a conclusive answer to the claim of the plaintiff upon his own theory of the cause of action. That theory is stated by the Court of Appeals as follows: "The plaintiff insists that Geiger & Co., whose rights he represents, became the equitable owners of a specific portion of the insurance money collected, and which came to the hands of David J. Ely, the defendant's intestate." Ely collected from the insurance company $43,535, and the trial judge found that in this sum was included $5,841.25 paid by the insurers on account of the destruction of the teas of Geiger & Co. "Upon all the circumstances the plaintiff insists that when the insurance money was paid to Ely he took it impressed with a trust in favor of Geiger & Co., to the extent of their interest in the teas destroyed by fire, as represented by the fund received, and was equitably bound to account to Geiger & Co. for their equitable interest." Turning to Symmers v. Carroll, 207 N. Y. 632, 101 N. E. 698, 47 L. R. A. (N. S.) 196, Ann. Cas. 1914C, 685, under which it was held that a cause of action was stated, it was there said: * "If Starin held the insurance moneys as trustee, then the owners of the cargo here represented by the plaintiff had a right to call him to account, and it was his duty to state his account and prove the items of his loss. It was his further duty, after paying himself, to divide what remained of the insurance money among the owners of the cargo according to their respective rights and interests." 156 N.Y.S.-2 |