Private street may be appropriated after and as to the run the question should five years consecutive public use. Ac- have gone to the jury, as to whether it ceptance necessary. Where a contractor goes outside of his contract, it is for the had not been made and left in a dangerous jury to say whether the owner consented to the act, in an action by third persons for damages suffered thereby. Appeal from order dismissing the complaint. This action is brought to recover damages for injuries received through defenfendant's carelessness in leaving an excavation uncovered. In condition with defendant's consent. Judgment reversed, and new trial ordered. Opinion by Neilson, C. J.; Reynolds, J., concurring. MECHANIC'S LIEN. CITY COURT OF BROOKLYN-GENL TERM Decided at November Term, 1875. ter. A personal judgment may be recovered in an action to foreclose a lien. Appeal from judgment entered on verdict. Defendant was the owner of premises situated on Van Buren Street, as it was called, though it was not a public street. He contracted with one R. for the excavation of a cellar on his premises. doing this R. dug a run about 2 feet deep for carting out the sand &c., extending from the cellar to the street. This run was left uncovered and unguarded on a dark night in July 1874, and plaintiff, as he was walking along the street, fell into it and received serious injuries. At the Defendant, owning property in Brookclose of the evidence plaintiff's counsel lyn, contracted with one H., a builder, offered to show that the street had been for the erection of a house upon the used by the public for more than five years, and was by the Laws of 1862, ch. 63, 41, a public street. The complaint was dismissed on the following grounds. 1. That this was not a public highway, but the private property of defendant, over which he had allowed the public to pass. 2. That there was not such a relation as master and servant between defendant and the contractor. Plaintiff appealed, and it was Held, That the statute of 1862, provides that the City authorities may take and own as a public street any street that has been thrown open to the public and used by them for five consecutive years; but that the mere throwing open and use of a street does not have that effect, unless accepted by the authori ties. That R.'s rights and duties as a contractor did not empower him to make any further excavation than the cellar itself, property. Plaintiff, as sub-contractor, was employed to do the painting. On September 26th, 1874, H. was owing plaintiff $40 on the sub contract. Plaintiff was at this time informed by defendant, that he would pay no more money to H., whereupon plaintiff said that he would stop work. Defendant then personally agreed to pay plaintiff, i he would go on with his work, which plaintiff did. Under this agreement $250 was paid, leaving a balance of $312 due. Plaintiff filed a notice with the County Clerk, under the mechanic's lien law, against defendant as owner, and H. as contractor, and then brought this action. Judgment was entered in his favor for $383.21, and an order entered for selling defendant's property under the lien. Held, 1. That there was an original promise on defendant's part, to pay plaintiff for labor and materials used after the 26th of September, 1874, and plaintiff should have personal judgment share in the proceeds. Upon this refertherefor. 2. The Act establishing the mechanic's lien, distinguishes between the person against whom the claim is made, and the owner; the one makes the engagement to pay, and the other holds the title to the property effected. The owner may, as in this case, represent both, in which case the lien should name him in both capacities. We cannot amend the lien; nor in view of the facts sustain it. Judgment should be modified so as to leave it a personal judgment only. The authorities show that such a judgment may be made in an action to foreclose a lien, 35 N. Y., 941; 36 N. Y., 604. Judgment so modified, without costs. Opinion by Reynolds, J.; Neilson, C. J., concurring. ence it appeared, that the company not being able to pay the coupons due July and October, 1872, and January, 1873, one S. agreed with its presid nt to advance the money and hold the coupons for his security. S., in pursuance of this agreement, left with plaintiff the money to pay the coupons, plaintiff agreeing with him to take and deliver them to him uncancelled, that he might hold them as his socurity for the money advanced. The bondholders who presented the coupons for payment generally knew nothing of this arrangement, and supposed, when they received the money and delivered up their coupons, that they were paid. S. claims to share in the funds pro rata with the other holders of bonds and coupons. The referee disallowed his claim. Held, No error: that as against the company the detachment of the coupons did not deprive the holder of the security of the mortgage; 44 Penn., 63; 40 Vt. 399; 109 Mass. 88; that S. could enforce the mortgage for the payment of the money advanced by him; but a dife ent rule applied as between S. and the bondholders. They were interested in having the coupons paid so as to preserve the value of their security, and they had not. agreed to assign them, but delivered them up supposing they were paid. Their equities were superior to those of S., and they were entitled to the fund in preference to him. In the payment of money upon a mortgage or judgment by a person not a party thereto, the question as to whether the security shall be regarded as extinguished, or held to be in force for the benefit of the party who has made the payment, de This action was brought to foreclose a mortgage given to plaintiff by The M. & P. J. R. Co., defendant, to secure the payment of certain bonds issued by said Railway Company and the coupons at-pends upon his intent in making it. tached. A judgment of foreclosure and sale was ordered, and the mortgaged property was sold for less than the amount of the bonds, and a reference was ordered to ascertain, among other things, the holders of the bonds and coupons, who were entitled to Equity will keep the security in life in such a case to promote the ends of justice, but not against any person having a snperior equity 20 N. I. 398; 7 N, H. 100; 40 Vt. 399; 6 J. Ch. 423; 109 Mass. 88. Order of General Term affirming order of Special Term, confirming report of re- ought to have applied to postpone the feree, affirmed. Opinion by Earl, J. NEW TRIAT. trial; (Vandervoort vs. Smith, 2 Car. 155; Jackson vs. Malin, 15, Johns 293), and where the evidence, although not actually known to the party and his counsel before the trial, might have been d s N.Y. MARINE COURT-SPECIAL TERM, covered by reasonable diligence, his Hernstein v. Fleming. laches are sufficient to defeat his applicaDecided at October Term, 1875. tion for a new trial; (Leary vs. Roberts, 2 Where a witness, from his connection with Hilt. 290; People vs. Mack, 2 Park Cr. the transaction out of which the suit 673), and if upon the trial a party is surarose, would in all probability be a ma-prised the remedy is by motion to postterial witness, the failure to have him in court is laches of so positive a character that his testimony will not be such newly discovered evidence as to give a party a new trial. The facts will be found in the opinion. Opinion. McAdam, J. The defendant moves for a new trial upo the ground of surprise and of newly discovered evidence. The action was brought to recover $1,000 for an alleged breach of contract, and part of the damages recovered was $750 which the plaintiff testified he was obliged to pay to one Bartles, the broker in the transaction, and Bartles' receipt for the payment was produced upon the trial. The defendant claims that he was surprised by this testimony, and that he has since discovered that Bartles will testify upon a new trial, (if one can be had,) that he never received the $750, and that the receipt was given upon the payment of not over $150 in all. Other facts are stated showing that Bartles would have been a material witncss for the defendant upon the trial. Why was he not produced? This is a question which must be satisfactorily answered before the defendant will be entitled to relief. If the testimony was known at the time, and no efforts were made to obtain it, the laches of the defendant will be a complete answer to his application. If it could have been obtained with reasonable diligence, the same conclusion follows. (10 Wend. 285; 7 Robt. 111). If the If the defendant had knowledge of the existence of the testimony, but could not procure it in time, he pone, which, if considered well founded by the presiding Justice, may be granted, by directing the withdrawal of a juror in which case the cause goes off, without impairing the rights of either party; (The People v. N. Y. Com. Pleas. 8 Cow., p. 130). and if the evidence called newly discovered was known even after the close of the testimony, but before the completion of the trial, the party should have applied even then for leave to introduce it. (Dodge v. N. Y. and Washington S. Co., 6 Abb. Pr. N. S. 451.) These rules demonstrate the fact that the law exacts vigilance from litigants in the preparation and trial of causes, and that it will not permit a party to experiment with the chances of a favora ble verdict, and then, if unsuccessful, ask relief afterwards upon a motion like the present. The defendant had his day in court, and if properly defeated upon the case he then presented the strife ought to end, unless he has brought himself strictly within some settled rule entitling him to another chance before the jury. If the defendant was improperly defcated upon the trial, the error will be more appropriately corrected upon appeal. In The People ex rel. Oebrucks v. The N. Y. Superior Court, (10 Wend, 286,) it was held that a party is chargeable with laches who previous to the trial, knew that the witness whose testimony he seeks to introduce as newly discovered, must probably, from his situation and employment at the time of the transaction, the subject of the controversy, be conversant with the facts in relation to the transaction. Bartles connection with the present case was equally known to both of the parties, and it was of such a character as to suggest his materiality as a witness. The trial occupied two days, and Bartles name and address were disclosed upon the trial. The payment of $750 to Bartles was proved, and Bartles' receipt was produced, and if the defendant had used even ordinary diligence he might have ascertained from Bartles the facts since called newly discovered, and in that way obviated the necessity of another trial. The defendant's laches are fatal to his motion. on appeal entered into by this defendant and B, and the final judgment. Defendant answering admits the execution of such an undertaking, but does not know whether it is the one in suit, and for a second defence denies all knowledge or information, etc., as to any of the allegations in the complaint. On motion at Special Term the answer was overruled as frivolous, and judgment ordered. Held, 1. That the second part of the answer was a general denial of all the allegations of the complaint under Sec. 149 of the Code, and that such an answer cannot be stricken out as sham. (Wayland v. Tyson, 45 N. Y. 281.) Nor can judgment be ordered on a part of an answer as frivolous, when there is a part held good. (Thompson v. Erie R. R. Co., 45, N. Y. 468.) The fact that the defendant delayed making the inquiry of Bartles until "after the trial, in one sense makes the evidence newly discovered, but it becomes 2. It is not therefore necessary to pass such only through the un-excused laches on the first part of the answer. Since the of defendant, and is not of that charac-second part contains what the act and the ter which justifies the granting of a new authorities declare to be a general denial. trial. Opinion by Davis, P. J.; Daniels and The defendant's motion will therefore Brady, J. J. concurring. be denied, with costs. PLEADING. N. Y. SUPREME COURT-GENL. TERM. Grocers Bank of City of N. Y. respt. v. O'Rorke, applt. Decided December 6, 1875. An answer denying all knowledge or in- Defendant and one B. were sureties for one McK. in an undertaking on appeal in an action between this plaintiff and said McK., and as such are sued to recover the amount of the judgment awarded against their principal. N. Y. SUPERIOR COURT-GENERAL TERM. Lehmaier, et al, pliffs. and respts., v. Appeal from an order sustaining a demurrer to counterclaims. The summons was for relief, and the complaint was in tort, and for the purposes of the appeal the action was determined by the complaint. The counterclaims did not arise out of the contract or transaction set forth in the complaint, neither were they connected with the subject of the action, Held, The counterclaims were not available, for the words, "the subject of the Complaint sets forth the action and action," mean, "the facts constituting judgment against McK., the undertaking plaintiff's cause of action." Order affirmed, with costs. Co., to strike out the supplemental com Opinion by Freedman, J.; Speir, J. plaint, or to make such portions thereof as concurring. N. Y. SUPREME COURT-GENL. TERM. Decided December 6, 1875. When an order is made allowing a sup- Appeal from order of Special Term refusing to strike out supplemental complaint, and denying motion to strike out portions therof as irrelevant, or to have certain portions made more definite and certain by amendment. This action was originally brought by plaintiff against the M. S. & N. I. R. R. Co. and its officers and directors, to recover for arrearages of dividend upon certain stock of the Michigan, Southern and Northern Indiana Railroad Company. and known as the guaranteed 10 per cent stock of that road. While that suit was pending the said Northern Indiana R. R. Co. was consolidated with and merged into The Lake Shore and Michigan Southern Railway Co., which last-named company assumed the indebtedness of the Michigan Southern and Northern Indiana. Road. An order was made in this action at Special Term on the 9th day of April, 1875, allowing the plaintiff to file a supplemental complaint as plaintiff might be advised for the purpose of bringing in The Lake Shore and Michigan Southern Railway Co., as a co-defendant in the same suit allowing plaintiff to make such allegation therein as he might be advised. are irrelevant, more definite and certain by amendment, which motion was denied and from such order denying motion this appeal was taken. Held, That no appeal having been taken from the order of April 9th, 1875, allowing the supplemental complaint to be filed, and that order remaining in full force, so much of the order below as refused to strike out the whole of the supplemental complaint must be affirmed. That it was necessary for the plaintiff in his complaint to set forth the history of the proceedings in the other suit, as the. object of the suppplemental complaint was to bring in the new party as the successor to the liabilities and obligations that previously existed against another party, and enforce such obligations against the former as such successor. That the prolixity in reciting the proceedings in the former action, cannot be said justly to prejudice the new defendant, and although the court below might perhaps, without any impropriety, have sifted out and directed the omission of certain portions of the numerous exhibits, we are of opinion that its refusal to do so is not error, inasmuch as no substantial injury to any parties will result from their retention. So much of the motion as asks that the plaintiff be required to recite the acts of the several legislatures, or their several titles, under which the new defendant was organized, was properly denied. It was sufficient to allege the consolidation and organization of the defendant under the laws of the several states. Order below affirmed with $10 costs and disbursements. Daniels, J. J., concurring, PRACTICE. A motion was then made by The Lake Shore and Michigan Southern Railway N. Y. SUPERIOR COURT-GENL TERM. |