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and 114 New York State Reporter across the street. The testimony indicated that it had to be maintained in that position about two hours to unload the particular car which was then being discharged. The learned trial judge left it to the jury to say whether the travel in the highway was unreasonably obstructed by this runway, as the proof showed it to have been used. As to the liability of the city, he charged that a municipal corporation had no right to permit the establishment or continuance of a nuisance, and, if they found that this was such an interference with the fair and reasonable use of the street as to work a direct and physical injury to those who had the right to use the thoroughfare, it was the duty of the officers of the city of Yonkers to see that it was abated.

In another part of his charge he left it to the jury to say whether the runway had been “an habitual obstruction to the fair and reasonable uise of that thoroughfare.” The jury found a verdict for the plaintiff, and the defendants have appealed.

As to the contention that the plaintiff himself was guilty of contributory negligence, it is enough to say that this question was one for the jury, under all the recent authorities on that subject in the court of appeals. The court was requested to charge "that the accident happened, not upon the permanent portion of the structure, but from the lowering of the beam, which was a temporary use, and, unless the city has notice that this temporary use has been so continued at any one time as to constitute a permanent obstruction, the city is not liable.” In response to this request, the court said, “I decline to charge in the language of the request,” and the defendants excepted. In view of what had been said in the main body of the charge, and in response to previous requests, we do not think this refusal constituted error. The court had already instructed the jury, in substance, that they were not to find a verdict for the plaintiff unless they found that the structure was a permanent and habitual obstruction of the street, interfering with its reasonable use. The proof was ample to sustain the conclusion that, when in use as it had been for years, the runway obstructed the street for hours at a time. In the case of Callanan v. Gilman, 107 N. Y. 360, 14 N. E. 264, I Am. St. Rep. 831, an obstruction of a sidewalk in the city of New York by a bridge from 12 to 20 inches above the surface was condemned by the court of appeals in this language:

"It was incumbent upon the defendant to show, not only that the use he made of the sidewalk was necessary in his business, but also that it was reasonable in reference to the public convenience. That it was unreasonable is too clear for dispute. He might use the bridge to load or unload a single · truck, and this he could do at intervals during the day; at no one time obstructing the street for any considerable length of time. But there is no authority and no rule of law which would warrant such an obstruction daily for hours, or even one hour continuously. The defendant was therefore guilty of a public nuisance."

Complaint is also made of the admission of the testimony of a physician to the effect that he found the plaintiff suffering from an asthmatic affection, which he subsequently admitted he was not willing to declare to be due to the accident. A motion to strike out this testimony was denied, with leave, however, to renew if the testimony was not subsequently connected. The motion to strike out was not re


newed, but the court expressly instructed the jury that there was no evidence in the case as to the permanency of pain or suffering. Under the circumstances it is impossible to say how the testimony of the physician can have damaged the defendants. I think the judgment should be affirmed.

Judgment and order affirmed, with costs. All concur.

HUTCHINSON v. YOUNG. (Supreme Court, Appellate Division, Second Department. February 11, 1903.) 1. VEXI'E-CORPORATION-FALSE REPORT-ACTION AGAINST OFFICER.

Stock Corporation Law, § 31, provides that, if any annual report of a corporation shall be false in any material representation, the officers signing the same shall be personally liable to any person who has become a stockholder of the corporation upon the faith of such report to the amount of the damage sustained by such stockholder. Held, that section 31 is not penal, and hence an action thereunder is not within Code Civ. Proc. $ 983, providing that an action must be tried in the county where the cause of action arose, where it is brought "to recover a penalty

or forfeiture imposed by statute.” Appeal from special term, Kings county.

Action by Archibald A. Hutchinson against John Alvin Young. From an order changing the place of trial from Kings to New York county, plaintiff appeals. Reversed.


William M. Bennett, for appellant.
R. Floyd Clarke, for respondent.

GOODRICH, P. J. This appeal is from an order changing the venue from Kings county to New York county. The complaint sets out two causes of action separately. The first is that the defendant, being treasurer of the National Salt Company, a New Jersey corporation, and desiring to effect a sale of his stock therein at an excessive and fictitious value, made, as treasurer, a false report of the financial standing of the company; that such report came into the hands of the plaintiff, who was thereby induced to purchase stock at a price greatly in excess of its actual value, and that “the defendant has become liable to the plaintiff by virtue of the facts hereinbefore set forth and section 31 of the stock corporation law of the state of New York.” As the second cause of action, the complaint sets out substantially the same facts somewhat more in detail, but makes no reference to the Thirty-First section of the stock corporation act. It contains an allegation that the statements “were false and fraudulent, and known by the defendant to be false and fraudulent, and made with intent to deceive.” The affidavit on the motion to change the venue from Kings to New York county stated that the company had its general office in the county of New York, where the defendant transacted all his business as treasurer of the company, and where he made and signed all official reports of the company; that his counand 114 New York State Reporter sel advised him that the first cause of action was an action to recover a penalty, and that it arose in the county of New York, for which reasons he moved, under section 983 of the Code of Civil Procedure, to have the place of trial changed to that county. The section provides that the action must be tried in the county where the cause of action arose, where it is brought “to recover a penalty or forfeiture imposed by statute.” The court granted the motion, and the plaintiff appeals, contending: First, that, since the amendment of the stock corporation act in 1892, an action under section 31 is not a penal action; and, second, that the affidavit does not show that the cause of action arose in New York county. The defendant demurred to the complaint on the ground of misjoinder of causes of action, and, although that issue has not been tried, our decision will necessarily affect that issue, as it involves the same question that is raised by this appeal.

The first question to be considered is whether the present statute is penal. The stock corporation law (section 30) requires every domestic and every foreign stock corporation doing business within this state to make and file annually a report of its affairs. Section 31 provides that, if any such report shall be false in any material representation, the officers signing the same shall be personally liable to any person who has become a stockholder of the corporation upon the faith of such report, to the amount of the damage sustained by such stockholder, where the contents of such report have been communicated either directly or indirectly to such person, and he became a stockholder on the faith thereof. The present statute differs from the former statutes on the same subject. They made the officers who filed a false report liable for all the debts of the company, whether or not incurred on the faith of the report, and irrespective of the amount of the debts. Section 31 of the present act makes the officer liable to a stockholder only to the amount of the damage sustained by him where he has become such stockholder on the faith and with knowledge of the report. The former statutes were held to be penal, and the action to recover a debt local. In Veeder v. Baker, 83 N. 156, the court of appeals, Judge Earl, writing, held (page 160): “That such an action is a penal action is no longer open to question in this court. The statute imposes upon the officers of such a company, as a penalty for a false report, liability for the debts of the company.' Section 31, however, does not impose upon the officer of a corporation liability for all the debts of the corporation, but simply a liability to any person who has become a stockholder on the faith of such a report. This liability is greater than that which existed at common law, where, in an action for deceit scienter was essential to the maintenance of the ction. But this fact doe not necessarily render the statute penal. "A statute imposing upon those who disregard its provisions a liability for all actual losses or damages which are occasioned thereby, but nothing more, does not impose a penalty.” 13 Am. & Eng. Enc. of Law (2d Ed.) p. 54. In Merchants' Bank v. Bliss, 35 N. Y. 412, the court had under consideration sections 12 and 13 of the general manufacturing act of 1848 (chapter 40), which made the trustees of a company liable for failure to file an annual report, and

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held that the act was penal in character. But this act made the defaulting trustees liable for all the debts of the corporation. The liability thereunder was not limited to the damages of any particular creditor. The same view was expressed in Stokes v. Stickney, 96 N. Y. 323. In Dykman v. Keeney, 10 App. Div. 610, 42 N. Y. Supp. 488, this court liad under consideration section 23 of the stock corporation law, which declares the directors of a stock corporation who have made a dividend except from surplus profits liable to the creditors of the corporation for any loss sustained by them by reason of such dividend. We held that this was to be treated, not as a penalty, but as a provision for indemnity against loss. On a subsequent appeal (16 App. Div. 131, 45 N. Y. Supp. 137), we referred to such former holding, and the court of appeals affirmed on our opinion (160 N. Y. 677, 54 N. E. 1090). “Penal laws," said the court in Huntington v. Attrill, 146 U. S. 657, 667, 13 Sup. Ct. 224, 227, 36 L. Ed. 1123, “strictly and properly, are those imposing punishment for an offense committed against the state, and which, by the English and American constitutions, the executive of the state has the power to pardon. Statutes giving a private action against the wrongdoer are sometimes spoken of as penal in their nature, but in such cases it has been pointed out that neither the liability imposed nor the remedy given is strictly penal.” In Calvin v. Huntley, 178 Mass. 29, 59 N. E. 435, section 4527 of the United States Revised Statutes (U. S. Comp. St. 1901, P. 3077) was held not to be penal, but remedial. The section provided that where a seaman was discharged in a foreign country without fault on his part he should have a right of action against the master or owner for one month's extra wages as compensation. While I can find no express decision as to section 31, the analogy of these authorities compels the decision that section 31 is not a penal statute. If not a penal statute, it is not within the provision of section 983 of the Code of Civil Procedure, which requires an action to recover a penalty to be brought in the county where the cause of action arose. The order should be reversed.

Order reversed, with $10 costs and disbursements. All concur.


(Supreme Court, Appellate Division, Second Department. February 11, 1903.) 1. NEGLIGENCE-Res IPSA LOQUITUR.

Where plaintiff fell while riding a wooden horse on defendant's gravity railway, and there is a square issue on the proof whether the fall was caused by defendant's negligence or plaintiff's contributory negligence, it is error to instruct that the jury may infer from the accident having

occurred that defendant was negligent. Appeal from trial term, Kings county.

Action by George H. Huneke against the West Brighton Amusement Company. From a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.


and 114 New York State Reporter Argued before GOODRICH, P. J., and BARTLETT, JENKS, and WOODWARD, JJ.

Thomas F. Magner, for appellant.
Herbert T. Ketcham, for respondent.

WILLARD BARTLETT, J. The injury which gave rise to this litigation, and for which a jury has awarded to the plaintiff damages to the amount of $25,000, was sustained in consequence of the plaintiff's fall from a structure maintained and operated by the defendant at Coney Island for purposes of recreation and amusement, and which in the pleadings and the case on appeal is denominated a "steeple-chase." It may be described as a gravity railroad, consisting of six parallel tracks, so set as to make a course about 1,500 ieet in length arranged in the form of a horseshoe. Rude images of horses or ponies constructed of wood and metal, provided with wheels upon which they can move swiftly over the rails, are placed upon the tracks as vehicles for the conveyance of pleasureseekers, who, upon payment of a prescribed fare for each ride, desire to experience the sensations of a brief journey through space at a speed of 25 miles an hour, by taking a trip in which the motive power is furnished solely by the attraction of gravitation. The line falls and rises abruptly, in what the learned counsel for the appellant aptly calls a series of hills and dales, thus enabling it to be operated wholly by the agency of gravity.

The accident which cost Mr. Huneke his leg occurred on a summer evening, when the attendance at the defendant's so-called steeplechase was large. Two radically different pictures of the manner in which that accident occurred were presented for the consideration of the jury by the evidence given upon the trial. According to the plaintiff's version of the occurrence, he was carefully riding one of the ponies, upon which he was seated astride behind a friend who had mounted the animal in front, when, at a point 30 or 40 feet from the starting place, he experienced a sudden jar which threw him violently forward and to one side, and then off the horse. "My leg caught underneath as the horse proceeded," he said, "and I laid there with my mangled leg.” The witnesses for the defendant, on the other hand, insisting that the structure, track, and horses were all in good condition and perfectly safe if carefully used, ascribe the accident to the negligent conduct of the plaintiff, while “skylarking" with a young lady on another horse, in reaching over toward that horse and trying to catch hold of it. The theory of the defense is that in this way the plaintiff lost his balance and fell off, and was therefore himself wholly responsible for the injury which befell him.

In charging the jury, the learned trial judge held that the doctrine of res ipsa loquitur was applicable. "You are at liberty in such an action," he said, "bearing in mind all the attendant circumstances and the rule I have stated that the burden of proof is always upon the plaintiff, to infer from the accident having occurred that the defendant was negligent. So in this case, if you find that this accident would not ordinarily have occurred if the horse and track and appliances had been in a reasonably safe condition, and if the

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