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cussion of this question with a brief quotation from the opinion in that case. In classifying the cases which are exempt from the rule that a complete written contract cannot be modified or contradicted by parol evidence, Judge Vann says: "The second class embraces those cases which recognize the written instrument as existing and valid, but regard it as incomplete either obviously, or at least possibly, and admit parol evidence, not to contradict or vary, but to complete the entire agreement of which the writing was only a part. * * Two things, however, are essential to bring a case within this class: (1) The writing must not appear upon inspection to be a complete contract, embracing all the particulars necessary to make a perfect agreement and designed to express the whole arrangement between the parties, for in such a case it is conclusively presumed to embrace the entire contract. (2) The parol contract must be consistent with and not contradictory of the written instrument." This extract we regard as a compendium of the law applicable to this case, and it follows that the defendant should have been allowed to make proof, if he could, of the express oral warranty alleged in his answer.
The judgment herein should be reversed, and a new trial granted, with costs to abide the event.
CULLEN, C. J., and EDWARD T. BARTLETT, WILLARD BARTLETT, and HISCOCK, JJ., concur; GRAY, J., absent; CHASE. J., not sitting.
Judgment reversed, etc.
(186 N. Y. 310)
CRANCH v. BROOKLYN HEIGHTS R. CO. (Court of Appeals of New York. Nov. 13, 1906.) RAILROADS INJURIES TO PEDESTRIANS ON TRACK-CONTRIBUTORY NEGLIGENCE.
A pedestrian, intending to take passage on a train at a station, was struck by a train, which did not stop there. No warning was given that the train would not stop. Trains customarily stopped at the station which fact was known to the pedestrian. The pedestrian first saw the train about 700 or 800 feet from the station. She next saw it about 120 feet from her and instead of attempting to cross there, she walked a distance of 35 or 40 feet to a place at or near the center of a street and without looking for the approaching train she stepped on the track, and was injured. While walking the distance of 35 or 40 feet she was in a place of safety and could, at every instant, have commanded a full view of the approaching train. Held, that she was guilty of contributory negligence as a matter of law.
[Ed. Note. For cases in point, see Cent. Dig. vol. 41. Railroads, §§ 1080-1083.]
Vann and Willard Bartlett, JJ., dissenting. Appeal from Supreme Court, Appellate Division, Second Department.
Action by Ruth Cranch against the Brooklyn Heights Railroad Company. From a judgment of the Appellate Division (95 N. Y. Supp. 169) affirmed by a divided court
and judgment entered on the verdict of a jury in favor of the plaintiff, defendant appeals. Reversed, and new trial granted.
This action was brought to recover damages for injuries sustained by the plaintiff in a collision with one of defendant's trains at what is known as the "Eighty-Fourth Street Station" of that branch of its railroad which runs southerly from the city of Brooklyn to Ulmer Park. The Eighty-Fourth Street Station is in the Bath Beach section of the city of Brooklyn. The accident happened shortly before 11 o'clock on the morning of November 22, 1901. The plaintiff, a married woman, was on that date about 41 years of age, and, with her husband, had resided within a few blocks of the station mentioned for a number of years, so that she was familiar with the locality, and with the times of the running of trains on defendant's road. At Eighty-Fourth street the railroad consists of double tracks running generally north and south. The trains are propelled from an overhead trolley system. At that point the right of way is a private one derived from a steam railroad which had formerly been operated there. On each side of the tracks to the south of Eighty-Fourth street, which crosses the tracks from east to west, are concrete platforms 120 feet in length that serve as stations for persons intending to take passage on defendant's trains. The northbound trains run to Brooklyn and pass in front of the easterly platform, while the south-bound trains going to Ulmer Park pass in front of the westerly platform. At about 20 minutes to 11 on the morning of the accident the plaintiff, in company with her husband, left her home intending to take a train to Brooklyn which was scheduled to leave Eighty-Fourth street at 10:53. They approached the tracks from the west by a diagonal foot path across a vacant lot. When they had crossed this vacant lot, and had reached Eighteenth avenue, which is adjacent to the defendant's right of way on the west, they saw a train approaching from the south and then about 700 or 800 feet distant. They supposed that it was the 10:53 train to Brooklyn which they intended to take. Continuing towards the tracks and expecting to cross them to the opposite platform ahead of the approaching train their progress was interrupted by a train from Brooklyn which came in on the south-bound track in front of them, crossed Eighty-Fourth street and stopped at the platform on the westerly side. The rear end of the last car of this south-bound train stopped at about the northerly end of the platform on the westerly side, which is about 6 feet south of the Eighty-Fourth street crossing. As they crossed behind the rear car. of this train and emerged from behind it into the space between the two tracks, the plaintiff looked to the south and saw the oncoming north-bound train at the southerly end of the concrete platform about 120 feet
away. Her husband crossed safely at this point and reached the northerly end of the platform on the opposite side, which is nearer to Eighty-Fourth street than the one on the westerly side. The plaintiff did not attempt to follow her husband across at this point. Having seen the train approaching at the other end of the platform, and evidently supposing that it would stop by the time the first car reached the northerly end of the platform, she turned and walked towards the north about 35 feet, taking the same direction as the approaching train. This took her well into the center of Eighty-Fourth street. She then attempted to cross without again looking at the approaching train. Just as she placed one foot on the track she was struck by the motor car of the north-bound train, which had not slackened its speed, and sustained the injuries complained of. The plaintiff and her husband acted upon the assumption that this train was the one due to leave for Brooklyn at 10:53, and that it would stop as usual in front of the Eighty-Fourth street platform in such a position that the first car would not pass beyond the northerly end of the platform. It transpired, however, that it was not a regular train, and was not scheduled to stop at that station. The place at which the plaintiff attempted to cross was shown, by the plaintiff's evidence, to be considerably to the north of the usual stopping place of trains at this station. The plaintiff's evidence tended to show, and the jury were justified in finding, that all trains, except those running at night after 9 or 10 o'clock and in the early morning, came to a stop at this station, and that the front end of the first car of such stopping trains did not usually project more than a few feet beyond the end of the platform towards the Eighty-Fourth street crossing. The evidence also justified the jury in finding that in approaching this station those in charge of the train that caused the accident blew no whistle, rang no bell, or gave any warning of its approach, and that the speed of the train, which was about 12 miles an hour, was not slackened. In short, that nothing was done to indicate that this was not the regular train scheduled to stop at the Eighty-Fourth Street Station at that time.
I. R. Oeland, for appellant. Stephen C. Baldwin, for respondent.
WERNER, J. (after stating the facts). For the purposes of this discussion we will assume that the jury had the right to charge the defendant with negligence, for there was evidence tending to show that those in charge of the train with which the plaintiff collided gave no signal or warning of its approach to the crossing at which the accident happened. We must also assume that the evidence warranted the finding that all of the north-bound trains of the defendant stopped at the EightyFourth Street Station, and that this fact was
known to the plaintiff, who had been a resident in that vicinity for many years, and had been a frequent passenger on the defendant's railroad. If these facts, in and of themselves, justified the plaintiff's attempt to cross the tracks at the time and in the manner above indicated, it would logically follow that the verdict of the jury was proper, and that its affirmance by the Appellate Division was necessary. It seems to us, however, that the plaintiff's evidence upon this feature of the case not only failed to establish her freedom from contributory negligence, but demonstrated its existence as matter of law. The evidence which tended to show that all of the defendant's north-bound trains stopped at the Eighty-Fourth Street Station was clearly competent and cogent upon that question, and, standing alone, might have been sufficient to sustain the conclusion that the plaintiff was free from contributory negligence. But there is something more. The plaintiff testified that from the time when she and her husband reached Eighteenth avenue and first saw the north-bound train at a distance of 700 or 800 feet south of the station, she did not see it again until she looked around the rear end of the south-bound train which had stopped at the station. At that moment she saw the north-bound train coming into the southerly end of the station at a distance of at least 120 feet south of the point from which she took her observation. Instead of attempting to cross then and there, as she might possibly have done in safety, she concluded to walk to the north for a distance of 35 or 40 feet, to a place at or near the center of Eighty-Fourth street. What was her purpose in doing this? She was doubtless acting upon the assumption that the train would stop at the station, and, therefore, concluded to go far enough to the north to be entirely clear of the motor car of the train which, in stopping, might run slightly past the limits of the station and into the boundaries of Eighty-Fourth street. Having taken this precaution, while she was in a place of absolute safety from which she could at every instant have commanded a full view of the approaching train, it is obvious that she should not have attempted to cross the track without first looking to see whether the train had in fact stopped. It is a familiar physical fact within the knowledge of all persons of ordinary intelligence that railroad trains, operated either by steam or electricity, cannot always be stopped with mathematical precision at a given point. This fact is clearly demonstrated by the evidence which tends to show that the north-bound trains, in stopping at the Eighty-Fourth Street Station, would sometimes be brought to a standstill before the motor car reached Eighty-Fourth street, and on other occasions would run a little further to the north so as to project into Eighty-Fourth street.
The inevitable inference to be drawn from the plaintiff's own testimony is that it was this uncertainty as to the precise point of
stoppage of the train that was in her mind when she concluded to make the "detour" of 35 or 40 feet to the north. In doing so she turned her back to the oncoming train and never looked again to see where it was, or whether it had stopped or not, although a simple turn of her head would have sufficed to gain for her this all-important information. Without a look, she put her foot upon the north-bound track. Before she could move forward, she was struck by the train which was then moving at the rate of 12 miles an hour. Without any attempt to exercise her senses of sight or hearing she stepped from the zone of absolute safety into a place of probable danger, and this at the very time when the exercise of her faculties was imperative, if her previous precautions were to be of any practical benefit. If such conduct does not properly support the legal inference of contributory negligence, then there can be no case in which the speculative finding of a jury upon that question may not be substituted for legal rules of evidence. It may be admitted, for the argument, that the custom of stopping all north-bound trains at this station and the failure of the defendant to give any signal or warning of its intention not to stop this particular train, might have lulled the plaintiff into a feeling of security such as described in the case of Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y. 355, 363, 21 N. E. 145, 3 L. R. A. 683, 10 Am. St. Rep. 450. The obvious answer to that suggestion is that the plaintiff's own conduct, considered in the light of the surrounding circumstances, was utterly inconsistent with that theory. When the plaintiff and her husband reached the northerly end of the stationary south-bound train the husband crossed the intervening track and, according to the undisputed testimony, barely escaped collision with the oncoming train. Had the plaintiff attempted to follow even a moment later, an accident would have been inevitable. It was this emergency that must have suggested to the plaintiff the propriety of going to the north to a point beyond which the then moving train would be sure not to extend if it were going to stop at that station. Having done so much, how could the plaintiff be said to have exercised reasonable care and caution without even taking another look before stepping from her position of safety literally against the motor car which was then directly in front of her.
ed in the light of another rule to the effect that a person who intends to take passage upon a railroad train and crosses the railroad tracks at a highway crossing commonly used for that purpose, is not held to the same strict exercise of care and caution that is required of the ordinary wayfarer along the highway. Terry v. Jewett, 78 N. Y. 338; Brassell v. N. Y. C. & H. R. R. R. Co., 84 N. Y. 241. Both of these rules might be successfully invoked in support of plaintiff's contention that her alleged contributory negligence presented a question of fact for the jury, if it were not for the conclusive character of the evidence showing that plaintiff, although fully cognizant of the threatened danger, disregarded the most simple and obvious precautions for her safety that common prudence and ordinary intelligence could suggest. Having gone out of her way to avoid the train, she neglected to look for it at a time when every instinct of self-preservation and every dictate of common prudence demanded such action. Instead of attempting to cross at the usual place, relying upon the customary stoppage of the train, she had witnessed the dangerous, albeit successful, experiment of her husband, and concluded to defer her crossing to another time and place. Assuming that the plaintiff walked at the rate of four miles an hour, it would have taken her between 5 and 6 seconds to make her "detour" of 35 feet, while it would have taken the train, running at the rate of 12 miles an hour, between 8 and 9 seconds to reach the place where she attempted to cross; that point being 155 feet north of the southerly entrance to the station. Thus, although this was a matter of seconds, the plaintiff still had an appreciable period of time in which to look for the train, after she had arrived at the place where she attempted to cross and before that point had been reached by the train. These are the facts which differentiate this case from Palmer v. N. Y. C. & H. R. R. R. Co., 112 N. Y. 234, 19 N. E. 678; Beecher v. Long Island R. R. Co., 161 N. Y. 222, 55 N. E. 899, and the other cases relied upon by the plaintiff. In all of those cases there were circumstances from which it was reasonable to draw the inference, either that such care had been exercised as was required in the circumstances, or that the necessity for such care had been obviated by conditions well calculated to lull a reasonably prudent person into a sense of security. In the case at bar the plaintiff's own testimony affirmatively establishes, not only her failure to exercise necessary care. but her evident understanding and appreciation of the conditions which attended her attempt to cross the tracks.
We do not deem it necessary to go into an extended discussion of the decided cases for, in the last analysis, the question of contributory negligence depends upon the application of well-settled legal rules to the special facts of each given case. As a gen eral rule the question whether a person colliding with a railroad train has been guilty of contributory negligence is one of fact for a jury (Parsons v. N. Y. C. & H. R. R. R. Co., supra), and, as applied to the specific VANN, J. (dissenting). I dissent. The facts of this case, that rule is to be consider- | plaintiff, instead of running the risk her hus
The judgment should be reversed and a new trial granted, with costs to abide the event.
band ran, took greater care than he, and relying, as she had the right to, on the absence of signals and the uniform custom of the defendant, met with injury owing to its negligence. The strict rule governing travelers at a highway crossing does not apply to one who is compelled to cross tracks in order to reach a railway station, which, when a train is due, is a constant invitation to come and take it. It was the duty of the defendant to so arrange its trains that a person intending to take passage could get on one without being injured by another. The plaintiff had the right to assume, in the absence of any warning, that the north-bound train would stop where such trains always had stopped. She may have erred in judgment in believing that the defendant would do its duty and warn her if a train passed by without stopping, but since she took care to walk far around instead of following her husband straight across, she should not be turned out of court on the ground that she took no care whatever. While she did not take all the care possible, since she took some, it was for the jury to say whether she took enough, and we should not hold that she was negligent as matter of law. Strict rules are required to protect passengers and those about to enter a station intending to become passengers, and every decision which tends to undermine their safety is a misfortune to the traveling public. I vote to affirm. CULLEN, C. J., and HAIGHT and HISCOCK, JJ., concur with WERNER, J. WILLARD BARTLETT, J. concurs with VANN, J. GRAY, J., absent.
Judgment reversed, etc.
(186 N. Y. 360)
Appeal from Supreme Court, Appellate Division, Fourth Department.
Action by the American Guild of Richmond Virginia against Phebe D. Damon and another. From an order of the Appellate Division (94 N. J. Supp. 985) reversing a judgment of the Special Term in favor of defendants, they appeal. Reversed.
Louis J. Bedell, William Kennedy, and Nelson L. Lansing, for appellants. Wallace Thayer, for respondent.
CULLEN, C. J. The action is brought by the plaintiff, a Virginia corporation, as the assignee of the Safety Fund Insurance Society, a New York corporation, to foreclose a mortgage executed by the two appellants, husband and wife, to said lastnamed corporation to secure the payment of a joint and several bond executed and delivered to the same party at the same time. The defendants pleaded as a defense and set-off a claim held by the defendant Joseph Damon against the plaintiff's assignor on two participation certificates issued by that corporation, the nature of which certificates is not material to this discussion. On the trial it appeared that the plaintiff's assignor and its assignee had entered into what is called "a consolidation agreement," by which the plaintiff was to acquire all the assets of its assignor and to administer those assets in discharge of its assignor's obligation, but the debts of the assignor were in no degree to be assumed by the plaintiff. The Special Term found the maturity of the participation certificates before the assignment of the mortgage in suit to the plaintiff and the liability thereon of the plaintiff's assignor to the defendant Joseph. It made a decree in favor of the defendants
AMERICAN GUILD OF RICHMOND, VA., canceling the bond and mortgage and award
1. PLEADING-SET-OFF AND COUNTERCLAIM— ANSWER-REPLY.
In an action by the assignee of a mortgage to foreclose such mortgage where a claim held by defendant against plaintiff's assignor exceeding the amount due on the obligation secured by the mortgage is pleaded as a "defense and set-off," and such set-off and defense are sustained, plaintiff is not liable for the excess of the sum due on defendant's claim over that due on the mortgage obligation, though he failed to serve a reply to defendant's answer, as such answer did not distinctly plead defendant's claim as a "counterclaim."
[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, § 329.]
2. SET-OFF AND COUNTERCLAIM-JOINT AND SEVERAL CLAIMS.
In an action against a husband and wife to foreclose a mortgage executed by them to secure their joint and several bond, a claim by the husband alone against the mortgagee was a good set-off and extinguished the liability on the mortgage and the obligation secured by it, though the action was in form joint.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Set-Off and Counterclaim, § 87.]
ing them judgment against the plaintiff or the excess of the amount due on the certificates over that due on the bond and mortgage. The Appellate Division reversed this judgment, and ordered a new trial. The unanimous order entered upon this decision reversed the judgment on questions of law only, and affirmatively declared in the body of the order that the facts had been examined and no error found therein. From the order of the Appellate Division the defendants have appealed to this court, giving the requisite stipulation.
Under the form of the order of the Appellate Division the facts found by the trial court are conclusive on this court. The only question before us is whether those facts justified or required a reversal of the judgment rendered thereon by the Special Term. That the plaintiff, under its agreement with its assignor, was not liable personally for the debts of the latter corporation is entirely clear. Therefore, the Appellate Division was doubtless correct in reversing so much of the judgment as award
ed a recovery against the plaintiff for the | held by himself. In Briggs v. Briggs, 20 excess of the sum due on the certificates Barb. 477, it was held that, in an action
over that due on the bond and mortgage, unless, as the appellants' counsel contends, the plaintiff was foreclosed by its failure to serve a reply to the defendants' answer. This position of counsel cannot be upheld. In the answer the certificates are pleaded as a set-off and defense, and in the prayer for judgment, where the only mention of counterclaim is found, it is asked that they be allowed as a counterclaim, defense, and set-off, and that the bond and mortgage be canceled. No recovery against the plaintiff for the amount of the certificate is asked. It is the settled law in this state that for a defendant to preclude a plaintiff from contesting a counterclaim because of a failure to serve a reply, the counterclaim must be distinctly named as such in the answer. Acer v. Hotchkiss, 97 N. Y. 395; Equitable Life Assurance Society v. Cuyler, 75 N. Y. 511. But though the judgment was properly reversed in this respect, it not being possible on another trial to vary the proof as to the liability of the plaintiff, a new trial should not have been ordered, but the judgment merely modified, unless as a matter of law the certificates were not a valid set-off to the bond and mortgage. Freel v. County of Queens, 154 N. Y. 661, 49 N. E. 124; Heerwagen v. Crosstown Street Ry. Co., 179 N. Y. 99, 79 N. E. 729.
This brings us to the principal question in the case, which is whether the claim on the certificates which was held by only one of the defendants was a good set-off against the plaintiff's claim. Under sections 502 and 1909 of the Code of Civil Procedure the assignment to the plainti was subject not only to every defense, but to every counterclaim there might have been set up against its assignor. Therefore, the question presented here is the same as that which would arise had the action been brought by the original mortgagee, and may be examined and considered from that point of view. At common law and under the Revised Statutes in an action against more than one defendant there could be interposed only a set-off due to all the defendants jointly. 2 Rev. St. (1st Ed.) p. 354, pt. 3, c. 6, tit. 2, § 18. That rule still obtains in this state, where the suit is on the joint obligation or liability of the defendants. Where, however, the liability of the defendants is several, under the express provisions of section 501 of the present Code, which in this respect is but a re-enactment of section 150 of the former Code, as amended in 1852, a defendant against whom a several judgment may be rendered can interpose a counterclaim existing in his own favor. In Parsons v. Nash 8 How. Prac. 454, which was an action against the maker and sureties on a promissory note, it was held that, as a several judgment might be rendered against either defendant, either could plead a counterclaim
against several defendants jointly and severally liable, either of them might set off individual debts due to him by the plaintiff or might avail himself thereof by way of counterclaim. See, also, Newell v. Salmons, 22 Barb. 647. The authority of these earlier decisions has never been impugned, and Newell v. Salmons is cited with approval in Bathgate v. Haskin, 59 N. Y. 533. In the present case, as already said, the bond of the defendants is joint and several, and, therefore, a several judgment could have been had against either defendant. The fact that the action was in form joint does not affect the principle involved. When the defendants "in an action are jointly and severally liable, although sued jointly, a counterclaim, consisting of a demand in favor of one or some of them, may, if otherwise without objection, be interposed." Pomeroy's Remedies and Remedial Rights, § 761; Dunn v. West, 5 B. Mon. (Ky.) 376, 381. Therefore, had the defendants been sued on the bond in an action at law the defendant Joseph could, under the authorities and the rule obtaining in this state, have interposed as a counterclaim the amount due him on the participation certificates. In such case it is plain that the counterclaim so interposed would necessarily have inured to the benefit of all the defendants. The plaintiff had but one claim, and but one cause of action. Payment by a stranger to the obligation would not discharge it, but payment by anybody liable thereon, whether jointly or severally, would necessarily satisfy it. Cockcroft v. Muller, 71 N. Y. 367. Any other rule would permit a creditor to recover his claim as many times over as he had parties severally liable for the debt. We are not considering a case where the creditor has released one of his debtors, either without consideration or for less than the debt, reserving his right to proceed against the others. Such settlements are authorized by our statutes. But where a debt has been paid in full by one debtor, it is satisfied as to all. Coonley v. Wood, 36 IIun, 559. The same rule must obtain in the case of a counterclaim as in that of payment. It is in fact a payment by the set-off of an outstanding claim against the creditor. Had the bond not been assigned, and the plaintiff's assignor brought an action upon it, the defendant Joseph interposing his counterclaim, the judgment in the action would extinguish pro tanto the claim of that defendant against the plaintiff. If it were allowed to recover against the other defendant, it would be recovering twice over-first, by the extinguishment of its debt, and, second, by the amount recovered against the other defendant. Whenever in a suit on a money obligation a counterclaim is allowed in favor of one of several defendants it must, from the nature of the case, necessarily inure to the benefit of all the defendants liable on