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The court did not err in the conclusion stated. The statute provides that letters shall be granted in the county where, at his death, the intestate was an inhabitant. Burns' Ann. St. 1901, § 2381.
The action of the Johnson circuit court was not, however, void. It was not subject to collateral attack, but only to a direct one, and so long as it was unrevoked, furnished complete protection to appellant acting thereunder. Razor v. Mehl, 25 Ind. App. 645, 57 N. E. 274, 58 N. E. 734; Soules v. Robinson et al., 158 Ind. 97, 62 N. E. 999, 92 Am. St. Rep. 301. Many questions are presented in argument, but, in view of the fact that the court, which has assumed jurisdiction which did not properly belong to it, may and should, upon its own motion or upon application of any interested person, or upon suggestion of an amicus curiæ, revoke such action, they are not regarded as material. Croxton v. Renner, 103 Ind. 223, 226, 2 N. E. 601.
(186 N. Y. 323)
STENGER v. BUFFALO UNION FURNACE CO.
(Court of Appeals of New York. Nov. 13, 1906.) MASTER AND SERVANT-INJURY TO SERVANTNEGLIGENCE EVIDENCE QUESTION FOR JURY. In an action for injuries to a servant by being overcome by gas escaping from a blast furnace at which he was working, evidence examined, and held to warrant a finding that the injury was suffered in consequence of the increased discharge of gas from the furnace because of the actionable negligence of the employer in failing to keep the same in proper repair.
Appeal from Supreme Court, Appellate Division, Fourth Department.
Action by Michael Stenger against the Buffalo Union Furnace Company. From a judgment of the Appellate Division (95 N. Y. Supp. 1162) reversing a judgment in favor of plaintiff and granting a new trial, he appeals. Reversed, and judgment entered on verdict affirmed.
George H. Kennedy, for appellant. Clinton B. Gibbs, for respondent.
HAIGHT, J. This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant on the 17th day of April, 1903. The defendant was the owner operating a blast furnace in the city of Buffalo, and the plaintiff was in its employ and worked on the top of the furnace. The furnace was about 80 feet high, circular in shape, with a diameter at the base of 22 feet, and at the top of about 14 feet. The top was covered with what is called an iron hopper in the form of a suspended cone extending down into the furnace with a circular opening in the center, through
which is suspended a large bell-shaped casting, so adjusted to an iron beam over the top, of the furnace that it could be raised up into the hole in the center of the hopper sufficient to close it and prevent the escape of gas and fire. When in operation the furnace is fed from the top. The coke or fuel is raised up from the ground by mechanical appliances, in what are called buggies, and then with the scrap iron or iron ore is dumped into the hopper, and at frequent intervals the bell is lowered, allowing the contents of the hopper to slide down through the opening, and, by reason of the flange of the bell, distributed around the outer sides of the furnace, where it becomes fused from the fire and heat beneath. After the contents of the hopper has thus been discharged the bell is again raised up, closing the hole, thus permitting the refilling of the hopper. To facilitate the dumping of the buggies into the hopper there was a platform constructed at the top of the furnace with a small house at one end, some distance from the furnace, in which the men could stay and be shielded from the fire and gas escaping from the furnace when the bell was lowered, and from which they could pass to the top of the furnace when necessary to dump a buggy filled with fuel or ore. The plaintiff and his brother were in the employ of the defendant engaged in dumping the material into the hopper, and from thence into the furnace from time to time by the lowering of the bell. About 4 o'clock in the morning of the day of the accident, the plaintiff was in the house referred to upon the top of the platform with his brother. A buggy of material had come up from below, and his brother went out to the top of the furnace to dump it. The brother remaining longer than usual, the plaintiff stepped out to see what had become of him, and as he did so he saw him stagger and then fall into the hopper. The plaintiff, as he tells us, then called for help, and instantly ran to the top of the furnace and reached down with one hand to get hold of his brother, and in doing so he himself inhaled gas, fell upon the hopper, and became unconscious. He was shortly thereafter rescued, taken down to the ground and revived, but his brother died. The plaintiff received severe burns which laid him up for several weeks, and it is for the injuries so received that the jury has awarded him damages.
The questions presented upon this review are as to whether the plaintiff presented any evidence from which the jury could have found negligence on the part of the defendant, and the want of contributory negligence on the part of the plaintiff. In order to answer these questions, it will become necessary to examine with some care the evidence produced upon the trial as to the manner in which this furnace was equipped and operated. It appears that in the operation of a
blast furnace a great amount of gas is generated, and that of necessity a considerable quantity escapes and impregnates the atmosphere. When the bell is lowered so as to permit the coke and ore to slide into the furnace, the gas and a flame of fire shoots out into the air in great quantities. It also appears that a pipe had been constructed from the top of the furnace running down to the bottom, through which the gas was conducted and there made to serve as fuel to the fire inside of the furnace. There were also constructed near the top of the furnace two large steel doors, which hung upon hinges hanging downward so that they would close by their own weight, which were called explosion doors. Their purpose was to relieve the furnace when the pressure of gas inside became too great; on such occasions the doors would fly up allowing the gas to escape and thus relieve the furnace from the over-pressure. The defendant had constructed the house in question to shelter the men and to guard them against injury while working on the top of the platform, by reason of the escape of fire gas from these sources. It had also so arranged that it was necessary for but one man to go out at a time to dump a buggy, and then to remain but a brief time, and had provided shifts of men to take the places of those upon the platform at frequent intervals or whenever any one felt the ill effects of the escaping gas. The company had also provided clay with which to fill in the cracks around the explosion doors, and salamoniac and iron borings to fill in around the iron plates of the hopper, in order to prevent as far as possible the escape of gas from the furnace. These precautions taken on the part of the defendant were doubtless ample and sufficient to afford reasonable protection to the men in its employ if they observed proper care and caution. But it is now claimed on behalf of the plaintiff that the defendant had permitted the furnace to get sadly out of repair, and that, by reason thereof, a much larger quantity of gas was allowed to escape than would have had the furnace been kept in good repair, and that the injury to the plaintiff resulted in consequence of such escape.
This brings us to a consideration of the controverted evidence in the case. It distinctly appears from the testimony of several witnesses produced on the part of the plaintiff that the explosion doors were not only cracked but badly warped; that there was a displaced brick under the hopper so as to leave an opening between the hopper and the brickwork of from four to six inches; that some of the plates had been cracked, and that one had been removed; that one explosion door was unpacked with clay, and that it was vibrating back and forth by reason of the gas inside, and that the foreman in charge had refused to stop the
blowpipe from beneath sufficiently long to allow the door to be packed. This evidence was all sharply controverted by the defendant's witnesses, whose testimonies tended to show that the furnace was in proper condition and repair. The learned presiding justice, writing for the Appellate Division, in granting a new trial, conceded that the evidence bearing upon this question was of such a character as to raise a question of fact as to that issue, and justified the jury in finding that the defendant was negligent in respect to those matters. But following such concession he then proceeded to state that "the serious question presented by this appeal is whether or not there is any evidence which tends to show that any gas has escaped because of either of the defects referred to and from which the injury to the plaintiff resulted." And then, after considering the evidence, he reached the conclusion that there was no such evidence. In this particular we have reached a different conclusion.
Assuming, as we must from the verdict rendered, that the defects complained of existed at the top of the furnace, it is within the common knowledge and experience of ordinary men at the present day that the gas generated in the operation of a furnace of this character will escape in large quantities through the cracks and holes described by the witnesses. Indeed, this is con ceded by several of the defendant's witnesses. They even go to the extent of claiming that, in case the cracks and holes were of the dimensions claimed by the plaintiff's witnesses, it would not be possible for men to work there; that the gas would escape in such volumes that it would consume and burn them up. The defendant's witness Smoot, on cross-examination, said: "If you have these holes they testified to in these plates, the gas would come up." Thomas Marron, the defendant's yard superintendent, said: "Gas always exists at the top of a furnace while it is in blast or in operation. It comes from the combustion of the stock inside, coming up through the pores of the brick. There is no way to confine it absolutely. It will escape the best you can do to prevent it, and it passes into the air above the furnace.
If holes three-quarters of an inch to an inch wide and four feet long existed at the bell extension and at the hopper extension of three feet long, it would not be possible for the men to work there on account of the escape of such a large volume of gas. It would consume the men, burn them up. After it struck the air and was ignited it would be flame. It would blow anywheres from 10 to 20 feet high. The men could not work there. They would burn up. It is not possible to operate a furnace under such conditions." Schroeder, another of the defendant's witnesses, testified that "all furnaces leak more or less gas. It will
penetrate right through the brick.
If there was a hole three-fourths of an inch
in width and four feet, or one-half an inch in width and three feet long in the bell extension, it would be impossible to operate the furnace because the gas and flame would come out through these openings and the men could not work there." Patrick O'Brien, another of the defendant's witnesses, testified that he was working at the furnace at the time the plaintiff was injured. He said it was very gassy that night at the top of the furnace because of the east wind, and also that he was taken down from the furnace that night because he was overcome and gassed at the time of this accident; that it was very gassy up there; said he was affected by the gas; that it affected his knees; and that it overcame him altogether. It thus appears to us that there was evidence which tended to show that, if the appliances at the top of the furnace were out of order by reason of cracks or holes, the gas would escape through such openings, and augment or increase the danger to the men working upon the platform over and above that which necessarily existed with the appliances in good condition and repair, and that the jury might have found that the injury which the plaintiff suffered was in in consequence of such increased discharge of gas.
Some exceptions were taken by the defendant to the admission and rejection of evidence upon the trial. The Appellate Division did not discuss any of them, and none of them were orally argued. We have examined them and have reached the conclusion that no error of sufficient importance to justify a reversal was committed by the court.
The order of the Appellate Division should be reversed, and the judgment entered upon the verdict affirmed, with costs to the plaintiff in the Appellate Division and this court.
CULLEN, C. J., and VANN, WERNER, and WILLARD BARTLETT, JJ., concur. GRAY, J., absent. HISCOCK, J., not sitting.
(186 N. Y. 280)
In re SPERANZA.
WALSH v. CITY OF NEW YORK. (Court of Appeals of New York. Nov. 13, 1906.) 1. CHAMPERTY AND MAINTENANCE-CONTRACT FOR FEES OF ATTORNEY.
A contract by which a client agreed to pay the attorney, for services in conducting a lawsuit, a sum equal to 40 per cent. of the first $10,000 and 25 per cent. of any amount over $10,000 of the net amount recovered in the action, or, if it was settled before trial, 25 per cent. of the net amount of the settlement, together with all taxable costs and disbursements to which the client would be entitled if the case had been tried, conferring a lien therefor, and un agreement on the part of the client not to
settle the claim without the attorney's consent, was not champertous, or in violation of Code Civ. Proc. $$ 73, 74, prohibiting an attorney from directly or indirectly buying or being interested in a chose in action, with the intent and for the purpose of bringing suit thereon, and from making loans to the client.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Champerty and Maintenance, §§ 22-32.] 2. ATTORNEY AND CLIENT - LIEN ENFORCEMENT-SUMMARY PROCEEDINGS.
In a proceeding to enforce an attorney's lien, the latter alleged a written contract by which his client agreed to pay a percentage of the recovery, taxable costs, etc., and not to settle the claim without the attorney's consent. The answer alleged that the client was induced to sign the contract by the attorney's written proposition that he would pay all court fees, fees of witnesses, and necessary disbursements to judgment, if the client would allow 40 per cent. of the damages recovered up to the first $10,000, etc., plus taxable costs. The attorney in reply averred that he submitted to his client four propositions: One to receive a retainer of $250, 15 per cent. of the verdict, or 10 per cent. of a settlement plus taxable costs; another, that the client was to advance all court fees and disbursements, and pay 25 per cent. of the verdict, or 20 per cent. of a settlement and costs; or to advance one-half of the court fees and necessary disbursements and pay 30 per cent. of the verdict, or 20 per cent. of a settlement and costs; or the proposition contained in the written contract, which the client_accepted. Held that, if the contract was based on the proposition alleged in the client's answer, it was in violation of Code Civ. Proc. § 74, prohibiting an attorney from making loans to his client for the purpose of conducting litigation, and that it was error for the court to dispose of such issue in a summary manner without a trial in open court or before a referee.
Appeal from Supreme Court, Appellate Division, First Department.
Proceeding by Gino C. Speranza to enforce an attorney's lien on a judgment recovered by him as attorney for plaintiff in an action by Charles Walsh against the city of New York. From an order of the Appellate Division (100 N. Y. Supp. 1144), affirming an order of the Special Term enforcing such lien, Walsh appeals. Reversed.
Benjamin Patterson, for appellant. A. C. Shenstone, for respondent.
WERNER, J. This is a controversy between attorney and client over the terms of the contract of retainer. Upon conflicting averments made by the opposing affiants, the court at Special Term fixed the attorney's lien and directed its enforcement. At the Appellate Division that determination was unanimously affirmed. In view of that affirmance we shall refer to the facts, not for the purpose of reviewing them, but simply to support our suggestion that this is a case in which thedispute between attorney and client should not have been summarily disposed of by thecourt upon the petition and affidavits, unsupported by any common-law evidence. As that is the precise point upon which our decision. turns, it may not be out of place to preface our résumé of the facts with the statement that while all of our courts are proverbially and properly solicitous for the enforcement.
of the just claims of lawyers against their clients, the latter have rights of equal importance and sacredness which should not be overlooked or ignored.
In the latter part of the year 1901 the petitioner respondent, Gino C. Speranza, an attorney at law, was employed by the appellant, Charles W. Walsh, to prosecute a claim against the city of New York arising out of injuries sustained by Walsh in slipping and falling on ice formed on one of the highways of that city. Pursuant to this retainer Speranza brought an action in favor of Walsh against the city, which subsequently resulted in a verdict for the plaintiff in the sum of $12,500. At the Appellate Division this recovery was reduced to $7,500, and judgment for that amount, with interest and costs, was entered, making a total of $7,702.04. Thereafter a disagreement arose between Speranza and Walsh, and the latter employed another attorney to collect the judgment. Then Speranza filed a notice of his lien for compensation with the comptroller of the city of New York, and later commenced this proceeding to enforce the same. Attached to his petition and made a part thereof is a written instrument, signed by Walsh, whereby the latter agreed "to pay to said Speranza for such services a sum of money equal to forty per cent. (40%) on the first $10,000, and twenty-five per cent. (25%) of any amount over said $10,000 of the net amount of money which I may recover from said city for said injuries, or, if the action is settled before trial, twenty-five per cent. (25%) on the net amount of such settlement, together with all taxable costs and disbursements to which I would have been entitled if the case had been tried, and I agree to give him and hereby give him a lien on all the proceeds of said action for the same, and in addition thereto the taxable costs which may be awarded to me in such action, and, further, I agree not to compound, compromise, or settle my claim for such injuries or such action without his consent and except by him."
In answer to Speranza's petition, filed herein, Walsh raised many objections to the enforcement of the lien, only one of which we deem it necessary to consider. That objection is that the written instrument, above quoted and signed by Walsh alone, was champertous, illegal, and in violation of the provisions of sections 73 and 74 of the Code of
Civil Procedure. In support of this objection Walsh's answer alleges that he was induced to sign said instrument by a proposition in writing made by Speranza on January 25, 1902, which reads as follows: "I will pay all court fees, fees of witnesses and necessary disbursements to judgment, if you will agree to give me forty (40) per cent. of the damages recovered on the first $10,000 thereof, and twenty-five (25) per cent. of such damages on any greater sum than $10,000 if settled before trial, twenty-five (25) per cent. on the entire amount of the settlement plus
the taxable costs to which I would be entitled if tried." This allegation was met by a rebutting affidavit from Speranza in which he avers that he submitted to Walsh, at the latter's request, four distinct propositions as follows: "(1) That said Walsh give deponent a retainer of $250, and agree to pay 15% on any verdict that might be secured, or 10% on a settlement plus taxable costs. (2) That said Walsh advance all court fees and necessary disbursements, and 25% on any verdict that might be recovered, or 20% on a resettlement plus taxable costs. (3) That said Walsh advance one-half of all court fees and necessary disbursements as they become due, and 30% of any verdict that might be recovered, or 20% on a settlement plus taxable costs. (4) The proposition set forth in the agreement of February 8, 1902, and embodied in the petition herein." These averments are followed by Speranza's assertion that Walsh, after due consideration, chose the lastmentioned proposition. Upon the petition and affidavits referred to, which, upon the issue of facts presented, are more in the nature of pleadings than proofs, the court, as stated, made an order fixing the attorney's lien and directing its enforcement.
What was the issue tendered by the answering affidavits of the appellant? Nothing more nor less than that the agreement alleged by the respondent in support of his lien was champertous and void. That agreement as set forth by the respondent was, to be sure, perfectly free from champertous taint, and the appellant does not deny having signed it. If that were all, it would clearly justify the summary disposition of the proceeding made at Special Term. But the appellant says that the respondent has introduced only a part of the agreement, and that there is another part, also in writing and signed by the respondent, which clearly reveals the champertous character of the whole. The court at Special Term seems to have proceeded upon the theory that the negotiations of the parties had all been merged in the writing signed by the appellant. In that connection it is to be noted that the part of the agreement relied upon by the appellant to establish champerty is not inconsistent with or contradictory of that part relied upon by the respondent. The agreement as set forth by the latter is silent. as to the expenses of the litigation, and is signed only by the appellant. But if it is true that there is a written proposition, signed by the attorney, by which he agrees to "pay all court fees, fees of witnesses, and necessary disbursements to judgment," if the appellant would agree to the scale of compensation set forth in the other writing, it is too clear for discussion that the arrangement would constitute no less a palpable violation of the provisions of section 74 of the Code of Civil Procedure than that which was so recently condemned in Matter of Clark (184 N. Y. 222, 77 N. E. 222). We think the case is one in which the court at Special
Term should have treated the record before it as presenting an issue upon which nothing short of a complete and thorough hearing, either in open court or before a referee, would satisfy the demands of justice. That is a pratice, not only sanctioned by long usage and the repeated approval of this court (Matter of Fitzsimons, 174 N. Y. 15, 66 N. E. 554; Matter of King, 168 N. Y. 53, 60 N. E. 1054; Peri v. N. Y. C. & H. R. R. R. Co., 152 N. Y. 521, 46 N. E. 849; Matter of Han Attorney, 87 N. Y. 521), but one peculiarly adapted to the ascertainment of the truth in cases where reckless affidavit making, or discreet silence upon essential particulars, may give the whole controversy a false atmosphere in which the real truth is hidden rather than revealed.
The orders of the Appellate Division and Special Term should be reversed, and the latter court directed to proceed as above indicated, with costs to abide the event.
CULLEN, C. J., and EDWARD T. BARTLETT, HAIGHT, VANN, WILLARD BARTLETT, and CHASE, JJ., concur.
(186 N. Y. 304)
MAYOR, ETC., OF CITY OF NEW
(Court of Appeals of New York. Nov. 13, 1906.) 1. STREET RAILROADS - PAVING STATUTESAPPLICATION-EXTENSION OF LINE.
Defendant street railway company was incorporated as provided by Laws 1863, p. 603, c. 361, which was amended by Laws 1874, p. 745, c. 553, so as to authorize it to extend its lines, and lay its tracks in the street in question. Laws 1871, p. 1436, c. 658, amended section 3 of the original statute of incorporation so as to provide that the grantees of the franchise or their successors should keep the surface of the street inside the rails and for one foot outside thereof in good and proper order and repair, and conform the tracks to the grades of the streets or avenues, etc. Held, that when defendant was authorized to construct the extension by an amendment to the original act, such extension was subject to the obligations contained in such original act as amended, including the duty to pave, though the amendatory statute, permitting the construction of the tracks in the street in question, contained no provision for repair or repaving.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Street Railroads, §§ 99-103.] 2. SAME-STATUTES-CONSTRUCTION.
Laws 1871, p. 1436, c. 658, provides that the grantees of a franchise for the construction of a street railway or their successors shall keep the surface of the street inside the rails and for one foot outside thereof in good and proper order and repair, and conform the tracks to the grades of the streets or avenues as they now are or may hereafter be changed by the authorities of the town. Held, that where the town authorities determined that the street occupied by the tracks of the railway company should be paved with a granite block pavement, the railway company's obligation to repair and keep the space between its rails, etc., in good order required the railway company to put the
space between its rails in the same condition as the rest of the street, though it necessitated the laying of a new pavement.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Street Railroads, § 101.]
Appeal from Supreme Court, Appellate Division, First Department.
Action by the mayor, aldermen and commonalty of the city of New York against the Harlem. Bridge, Morrisania & Fordham Railway Company. From a judgment of the Appellate Division (91 N. Y. Supp. 557), reversing a judgment and an order directing a verdict in favor of defendant, and granting a new trial, defendant appeals. Affirmed. Judgment against defendant.
Charles F. Brown, for appellant. Terrence Farley, for respondent.
HISCOCK, J. This action was brought to recover the value of granite block pavement laid between and for one foot outside the rails of defendant's tracks in 138th street, New York, at the same time that the rest of said street was being paved with said material, the defendant having failed to so pave its tracks in accordance with the demand of the plaintiff. The learned Appellate Division, in reversing the determination of the trial court, held that the defendant was under obligation to lay a trap rock pavement in the place specified by virtue of a condition contained in the permit granted by the municipal authorities to lay its tracks in said street, and that by virtue of such liability the plaintiff was entitled to recover upon the entire cost of laying the granite block pavement what it would have cost the defendant to lay a trap rock pavement. We agree with the Appellate Division that it was error to direct a verdict in favor of the defendant, and that a new trial was properly granted, but upon somewhat different grounds than were adopted by that learned court.
The plaintiff was incorporated under chapter 361, p. 603, of the Laws of 1863. Chapter 553, p. 745, of the Laws of 1874, by amendment to section 8 of the original act of incorporation, authorized the defendant to lay its tracks in the street in question. Chapter 658, p. 1436, of the Laws of 1871 amended section 3 of the original statute of incorporation so as to read as follows: "Sec. 3. The said grantees or their successors shall keep the surface of the street inside the rails and for one foot outside thereof, in good and proper order and repair, and conform the tracks to the grades of the streets or avenues as they now are or may hereafter be changed by the authorities of the aforesaid towns." The amendatory statute, permitting it to construct its tracks in the street in question, contained no provision upon the subject of repairs or repaving, from which it is argued that the defendant is exempt as to such extension from the obligations contained in the provisions of the original act, as amended, upon that subject.