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by reason of its failure to give the indorser due notice of dishonor, having paid the dishonored check, thereby acknowledged his continued liability and established a waiver of the bank's laches in failing to give him due notice of dishonor. After this waiver on the part of the plaintiff he stood in the same position as if proper steps had been taken to charge him. Ross v. Hurd, 71 N. Y. 14, 27 Am. Rep. 1. In Ross v. Hurd, supra, Judge Andrews said:
"It has been frequently held that a promise by the indorser to pay the note or bill, after he has been discharged by the failure to protest it, will bind the indorser, provided he had full knowledge of the laches when the promise was made. A promise made under these circumstances affords the clearest eri. dence that the indorser does not intend to take advantage of the laches of the holder; and the law, without any new consideration moving between the parties, gives effect to the promise."
The judgment is reversed and a new trial ordered with costs to the appellant to abide the event.
GILDERSLEEVE, P. J., concurs.
LEHMAN, J. (dissenting). The defendant herein received a check from the plaintiff, and thereupon with the plaintiff's consent credited the plaintiff's account with the amount of the check before collection, and thereby became a purchaser of the check, and not a holder for collection only. Metropolitan National Bank v. Loyd, 90 N. Y. 530. The bank, however, still owed the plaintiff the duty to collect the check or to return it to the plaintiff with his rights against the parties to the check unimpaired. In this respect its duties are the same as if it had taken the check only for collection. Martin v. Home Bank, 160 N. Y. 190, 54 N. E. 717. Payment of this check was refused, and the bank failed to give the plaintiff prompt notice of dishonor, but informed him some days thereafter that he could have the check only by giving a new check for the same amount. The plaintiff protested that his account was ample to cover this check; but, when informed that the bank's rules required its clients to give a new check before receiving the old check, he complied with the alleged rules.
I do not think that this was a waiver of the neglect of the bank that could bar the plaintiff's right of action. Section 180 of the negotiable instruments law provides that notice of dishonor may be waived, even after the omission to give due notice, and the waiver may be implied. It appears to me that this section was meant to cover all cases where the notice of dishonor was a condition precedent to a recovery, but not a case where the failure to give notice of dishonor has become the basis of an affirmative right of action for neglect. In such a case the waiver of the neglect would amount to a release of a cause of action already complete, and I think no acts can have such a result unless they constitute an accord and satisfaction. If the bank, as a purchaser of the check, were attempting to hold the plaintiff as a prior party, then the bank might perhaps claim that its failure to give notice of dishonor could be waived, as the prompt notice would then be simply a condition precedent to a recovery upon its part, which, like other
to recover for the neglect of the bank, a neglect which he had not waived before its commission and had not released after its commission. It is true that, if the act of the plaintiff did amount to a waiver of the notice of dishonor, even as a condition precedent to a recovery by the defendant, the plaintiff should not be allowed to recover here, because the defendant would then have a right of action against the plaintiff as a prior holder, and there would be simply a circuity of action.
Such a waiver must be clearly established, and will not be in ferred from doubtful or equivocal acts or language. Ross v. Hurd, 71 N. Y. 14, 18, 27 Am. Rep. 1. In this case it appears to me that the acts and language of the plaintiff showed only an intention to wipe out the previous credit by the bank of the amount of the check to his account. They should be given no other force, and the plaintiff should be allowed to recover damages for the uncontradicted neglect of the defendant.
The judgment should be affirmed, with costs.
MANDEL et al. V. GOTTFRIED et al.
(Supreme Court, Appellate Term. May 6, 1909.)
1. LANDLORD AND TENANT (8 293*)-STATUTES-RETROACTIVE OPERATION-SUM
MARY PROCEEDINGS-PRE-EXISTING RIGHTS.
Labor Law (Laws 1906, p. 303, c. 178, as amended by Laws 1908, p. 1217, c. 426) $ 94, provides that, whenever by the terms of a lease the lessee shall have agreed to carry out certain provisions of the law, his failure or refusal to do so shall be a cause for dispossessing him by summary proceedings, as provided by the Code of Civil Procedure. Held, that such section only creates a new remedy for a pre-existing right, and hence it was applicable to a lease which was made prior to the amendment.
(Ed. Note.--For other cases, see Landlord and Tenant, Dec. Dig. $
295.*] 2. Courts (8 188*)—MUNICIPAL COURT-SUMMARY PROCEEDINGS-JURISDICTION.
Labor Law (Laws 1906, p. 303, c. 178, as amended by Laws 1908, p. 1217, c. 426) $ 94, provides that, when any lessee shall have agreed to perform provisions of the law, his failure to do so shall be a cause for dispossession by summary proceedings, as provided by the Code of Civil Procedure. Held that, where a lessee had so agreed and refused, the Municipal Court was given jurisdiction of summary proceedings by the landlord to recover possession by Code Civ. Proc. $ 2234.
[Ed. Note.-For other cases, see Courts, Dec. Dig. § 188.*] Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Max Mandel and another against Elias Gottfried, impleaded with others as undertenants, to recover possession of certain premises. From a final order in favor of plaintiffs Gottfried appeals. Affirmed.
*For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.
Henry Weismann, for appellant.
PER CURIAM. The landlords herein have sought to regain possession of the premises from the tenant by summary proceedings brought under section 94 of the labor law (Laws 1906, p. 303, c. 178, as amended by Laws 1908, p. 1217, c. 426), providing that whenever, by the terms of a lease, any lessee shall have agreed to carry out certain provisions of the labor law, the failure or refusal so to do shall be a cause for dispossessing said tenant' by summary proceedings to recover real property as provided in the Code of Civil Procedure. In this case the lessee had so agreed, and by virtue of section 2234 of the Code the Municipal Court had jurisdiction of the proceeding.
The tenant also claims that, since this lease was made before section 94 of the labor law was amended to cover this case, the statute does not apply to this contract. The statute, however, does not give the landlords any new rights, simply a new remedy. The lease itself provides that, for a breach of the covenant to comply with the order of any state department, the landlords shall have the right to re-enter by summary proceedings. Until this statute was passed they were unable to do so, because there was no provision of law under which such proceedings could be brought; but it is evident that, when the remedy is provided, it will be effective in regard to a right previously expressly given by contract.
The final order appealed from is affirmed, with costs to respondents.
BRAUN V. NEW YORK CENT. & H. R. R. CO
(Supreme Court, Trial Term, Monroe County. March 31, 1909.)
1. MASTER AND SERVANT ($ 286*)-MASTER'S LIABILITY FOR INJURIES TO SEBE.
ANT-ACTIONS-QUESTIONS FOR JURY.
Where it did not appear that the jerk which threw plaintiff's intestate from a car was greater than that ordinarily produced when a stop signal is given and the uncoupling mechanism fails to work, which not infrequently occurs, or that the practice of giving a stop signal in place of a slow-up signal had been found dangerous, or had previously produced such accidents, or that other roads had such a rule, plaintiff was not entitled to go to the jury on the question whether defendant was negligent in failing to adopt a rule against stop signals.
[Ed. Note. For other cases, see Master and Servant, Cent. Dig. $
1036-1038; Dec. Dig. $ 286.*] 2. NEW TRIAL (8 41*)–EXCLUSION OF EVIDENCE-HARMLESS ERBOB.
Exclusion of evidence, though error, is not ground for new trial after a nonsuit, where its admission would not have entitled plaintiff to go to the jury.
[Ed. Note. For other cases, see New Trial, Cent. Dig. $ 69; Dec. Dig. § 41.*]
Action by Mary Braun, as administratrix, against the New York Central & Hudson River Railroad Company. Motion by plaintiff upon the minutes of the court to set aside a nonsuit and for a new trial, on exceptions and grounds permitted by Code Civ. Proc. $ 999. Denied.
Edward C. Edelman, for the motion.
FOOTE, J. The complaint alleged that the plaintiff's intestate, who was a brakeman working in the defendant's freight yard at East Rochester, was killed on January 6, 1904, by being jerked or precipitated from the car to the track and run over, while he and the crew of which he was a member were engaged in making up a train of empty freight cars. The negligence alleged is a defective coupling appliance and the failure to make and enforce a rule requiring:
"That in the work of uncoupling cars from a train or engine for the purpose of shifting or shunting them to a certain place, no signal to stop or kick said train shall be given until said car shall have been uncoupled from said train, and that in case such cars cannot be uncoupled, because of the failure on the part of the coupling appliance to work, no such signal shall be given at all.”
No proof was given of any defective coupling, and at the close of the plaintiff's case the only ground of negligence relied upon by the plaintiff was the failure of the defendant to adopt the rule alleged in the complaint. It was not claimed that plaintiff's intestate was an inexperienced brakeman, or unfamiliar with the practice of shifting and kicking cars in this yard, or that any similar rule was in force on this or any other railroad.
At the time of the accident this crew were engaged in shifting empty freight cars, for the purpose of making up a train of empty cars to be drawn out of the yard for delivery to another connecting road, which owned the cars. The engine was attached to a string of 17 cars, and the immediate operation in which they were then engaged was to place the rear 7, which were gondola coal cars, upon track No. 4, and for that purpose they were backing in from another track through a switch onto track No. 4 and moving at the rate of 5 or 6 miles an hour. Deceased was riding standing on the rear platform of the rear gondola car, with a lantern in his left hand and with his right hand resting on the top of the back end of the car, which was about the height of his shoulder. His duty was to set the brake on this car when it had run to its proper stopping place on track 4. After the rear y cars had run past the point of the switch, the conductor gave the engineer a signal to stop, and immediately seized hold of a lever to uncouple the 7 gondola cars from the other cars. This lever is at the front corner of the car. Its office is to raise out of the automatic coupler the pin which serves to lock it when closed. The object of giving the stop signal to the engineer was to take out the slack between the cars, which would release the tension on the pin in the automatic coupler and permit the lever to raise it and open the coupling. The 7 cars so released were then to run on with the momentum they already had. For some
reason the lever on this occasion failed to raise the pin and the uncoupling was not made. The stopping of the engine produced a jerk upon the cars, and this jerk is alleged to have thrown deceased off on to the track, where 2 cars passed over him, causing his death.
The failure of the lever to raise the pin was not an infrequent occurrence. It happened, according to the experience of some of the witnesses, once out of every 10 or 15 times. Why it occurred on this occasion did noť appear. The coupling apparatus was examined by two of the inspectors within an hour after the accident and found to be in good order. Deceased was riding with his hand on the end of the car when the car passed the point of the switch where he was last seen. Whether he continued his hand in this position, or whether he changed his position in any respect before the accident happened, does not appear, as no one observed him from that point.
This method of shunting cars by means of what is called a "kick” was the method commonly employed in this yard. It is criticised by the plaintiff on the ground that it necessarily produces a jerk of the cars which are to be uncoupled, if the uncoupling mechanism fails to work at the proper time. It is necessary that there should be a release of the tension on the pin in order to successfully raise it; hence the uncoupling can only be made when the pressure produced by either pulling or backing the train is released. This occurs shortly after the engine is stopped, and the practice is for the conductor or brakeman who is to make the uncoupling to give the engineer the signal to stop and about the same time seize hold of the lever and lift it up, and to hold iť in this position until the slack occurs, when the tension on the pin is released, and it raises and permits the coupling to open. In view of the fact that uncoupling cannot always be successfully made in this way, the plaintiff contends that there should be a rule against stopping the engine until it is ascertained that raising the lever will release the pin and permit the coupling to open. One method suggested is that a slow-up signal should be given to the engineer, which would result finally, but not so quickly as by the other method, in releasing the tension on the pin and permit the uncoupling to be made; but, in case the uncoupling was not successfully made, the jerk upon the train would be less than in case of a stop.
No evidence was given tending to show that this practice of giving a stop signal in place of a slow-up signal had been found to be dangerous, or had before produced such accidents as occurred in this case, and my impression of the case is that it comes within the rule laid down in the cases of Pearsall v. N. Y. C. & H. R. R. Co., 189 N. Y. 474, 82 N. E. 752; Morgan v. Hudson River Ore & Iron Co., 133 N. Y. 666, 31 N. E. 234; Berrigan v. N. Y. L. E. & W. R. R. Co., 131 N. Y. 582, 30 N. E. 57; Larow v. N. Y. L. E. & W. R. R. Co., 61 Hun, 11, 15 N. Y. Supp, 384; Wolfinger v. Brooklyn Heights R. R. Co., 121 App. Div. 140, 105 N. Y. Supp. 610. Within these authorities, I think the plaintiff failed to make a case for the jury on the question of fact as to whether such a rule as the plaintiff suggests is reasonably necessary for the safety of its brakemen, and that the cases cited by the