(157 App. Div. 852.) FATTA V. EDGERTON. (Supreme Court, Appellate Division, Fourth Department. July 8, 1913.) 1. PRINCIPAL AND AGENT (§ 69*)-DUTIES OF AGENT-AGENT TO DISCHARGE MORTGAGE TAKING ASSIGNMENT IN OWN NAME-EFFECT. Where plaintiff's agent, in paying off prior mortgages on property, so as to make the mortgage given by plaintiff to defendant a first lien as agreed, instead of having the mortgage discharged, took an assignment in blank, the assignment inures to the benefit of plaintiff, and both plaintiff and defendant are entitled to have it discharged of record. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 130145; Dec. Dig. § 69.*] 2. PRINCIPAL AND AGENT (§ 105*)—PAYMENTS TO AGENT-MISAPPROPRIATION BY AGENT-EFFECT. Where money loaned on a mortgage was paid to the agent of the mortgagor for that purpose, who misappropriated it, the mortgagor must stand the loss, rather than the mortgagee, though the agent of the mortgagee in paying the money to the mortgagor's agent had failed in his duty to the mortgagee to see that the money was properly applied. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 298310, 374; Dec. Dig. § 105.*] 3. PRINCIPAL AND AGENT (§ 23*)-EXISTENCE OF AGENCY-SUFFICIENCY OF EVIDENCE. Evidence in an action to cancel a bond and mortgage held to show that one to whom the mortgagee paid the money loaned on the mortgage, and who misappropriated it, was the agent of the mortgagor to receive the money. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. § 23.*] Foote, J., dissenting. Appeal from Trial Term, Erie County. Action by Maria A. Fatta against George B. Edgerton. From a judgment for defendant (137 N. Y. Supp. 226), plaintiff appeals. Affirmed. Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ. Cleveland G. Babcock, of Buffalo, for appellant. Thomas A. Sullivan, of Buffalo, for respondent. KRUSE, P. J. The action is brought to cancel a bond and mortgage, executed by the plaintiff to the defendant to secure the payment of $2,800, covering certain premises situate in the city of Buffalo, upon the ground that the moneys, the payment of which the bond and mortgage were intended to secure, were not applied by the defendant as agreed between the parties. The action has been twice tried. Upon the first trial the plaintiff succeeded, but upon appeal to this court the judgment was reversed and a new trial ordered. 143 App. Div. 658, 128 N. Y. Supp. 181. Upon the second trial, plaintiff's complaint was dismissed, and she appeals. The plaintiff contends that the evidence on the last trial differs from that on the first trial. I think there is not enough difference to require or warrant a conclusion different from that reached by this court on For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 143 N.Y.S.-15 the former appeal. The opinion on the former appeal was written by the late Justice Spring and concurred in by all of the other justices. It states very fully and in detail the various circumstances which led to the conclusion there reached, and need not be again stated here, beyond a bare outline. [1] The plaintiff, or her husband, acting for her, applied to Moses T. Day, a lawyer, for a loan upon the property, agreeing to pay him 212 per cent. commission. Day procured the loan from George B. Edgerton, the defendant, with the understanding that the mortgage would be a first lien. Edgerton paid the amount of loan to Day. After the bond and mortgage in question were executed, they were delivered to Phillip V. Fennelly, another lawyer, by plaintiff. Day paid over to Fennelly the amount of the loan, except such part as represented Day's commissions and other charges; the amount so paid over being $2,488.66, which was to be used in clearing the title and discharging the prior mortgages. Among other claims against the property, at the time the bond and mortgage in question were executed, were two mortgages, one known as the Utley mortgage, and another known as the Snyder mortgage. Fennelly used $400 to pay an unrecorded mortgage (not one of the two referred to), and the further sum of $850 to pay the Snyder mortgage. The balance of the money he kept, leaving the Utley mortgage, upon which there was unpaid about $1,900, unsatisfied. Fennelly did not have the Snyder mortgage discharged, but took an assignment in blank. The trial judge finds, however, that the assignment inured to the benefit of the plaintiff, and that both parties to this action are entitled to have the mortgage discharged of record. [2] It is contended on behalf of the plaintiff that the testimony of the defendant himself, who was not sworn upon the first trial, but testified upon the second at the instance of the plaintiff, as well as Day's own testimony upon the second trial, shows that he (Day) was acting as the agent for the defendant. While Day was the agent of the defendant to the extent of seeing that the defendant's mortgage was a first lien upon the property, it does not follow that because Day violated his obligation to the defendant, and disobeyed his instructions, and paid over the money before the title was clear, defendant must bear the loss occasioned by the misappropriation of the money by Fennelly. Even if Day's agency for the plaintiff was limited to procuring the loan, and his agency for the defendant extended to the proper distribution of the money, if Fennelly was her agent for ultimately receiving and distributing the money, or she so held him out, or consented to the payment thereof by Day to Fennelly, as I think the evidence shows, she should bear the loss of Fennelly's misdoings, rather than the defendant. The plaintiff, as well as the defendant, understood that the defendant's mortgage was to be a first lien upon the property. She also knew that the amount loaned was not sufficient to meet all the prior liens and incumbrances upon the property. She knew that the money had been paid to Fennelly, and with that knowledge caused a sufficient sum to be placed in his hands, in addition to what had been turned over to him, to procure the satisfaction and discharge of the Utley mortgage. [3] While Day did testify upon the first trial, as plaintiff's counsel urges, that the plaintiff's husband told him to pay the money over to Fennelly, that Fennelly was acting for him and his wife, and testified finally on the second trial that he could not swear that the plaintiff's husband told him in so many words to pay over the money to Fennelly, he did insist that the husband told him that Fennelly had the matter of clearing up the title in his hands, and to go over and close up the matter with Fennelly. I think his testimony in that regard is corroborated by other circumstances, as will be seen by referring to the opinion on the former appeal. The decision of the case did not necessarily turn upon the question as to whether or not Day represented the plaintiff. It was there held that, if either Day or Fennelly was her agent in getting the money into the hands of Fennelly, the plaintiff cannot recover. To that ruling we adhere, and upon the evidence hold that in receiving and distributing the money Fennelly represented the plaintiff, and not the defendant. Of course, the defendant expected, and it was a duty which Day owed to the defendant to see, that all prior liens against the premises were discharged, so that his mortgage would be a first lien; but his failure so to do cannot properly be urged as a reason for making the defendant also liable for the misconduct of Fennelly. I think the judgment should be affirmed, with costs. FOOTE, J. (dissenting). Day admits on this trial that he had no express authority from plaintiff or her husband to pay over the money to Fennelly, nor does it appear that Fennelly had authority from plaintiff to receive it. No such authority should be implied. Day's admission removes the essential basis of our former decision, and brings the case within the rule of Graves v. Mumford, 26 Barb. 94, Johnstone v. Horowitz, 139 App. Div. 800, 124 N. Y. Supp. 689, and Yeoman v. McClenahan, 190 N. Y. 121, 82 N. E. 1086. (157 App. Div. 835.) ACKERMAN v. STACEY. (Supreme Court, Appellate Division, Fourth Department. July 8, 1913.) 1. MUNICIPAL CORPORATIONS (§ 706*)-NEGLIGENT USE OF STREETS-EVIDENCE -RATE OF SPEED. In an action for the death of a boy, who was killed by the defendant's automobile while crossing a street, evidence held to require submission to the jury of the question whether the automobile was exceeding the speed limit, although there was no direct testimony as to its speed. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. 1518; Dec. Dig. § 706.*] 2. NEGLIGENCE (§ 122*)-INSTRUCTIONS-CONTRIBUTORY NEGLIGENCE OF CHILD -BURDEN OF PROOF. Where a boy 10 years old was killed by an automobile while crossing a street, an instruction that the burden was upon the plaintiff to show that the boy was incapable of taking care of himself in the street, in order to find that he was not guilty of contributory negligence, was erroneous, as requiring the plaintiff to prove, without reference to age, For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes intelligence, or circumstances, that the boy was actually incapable of taking care of himself. -223, 229 [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 221-223, 234; Dec. Dig. § 122.*] 3. TRIAL (§ 295*)-INSTRUCTIONS-CHARGE CONSIDERED AS A WHOLE. Though, if a charge taken as a whole contains correct instructions upon the issues, error cannot be predicated, ordinarily, upon the fact that separate instructions contain inaccurate statements of the law, yet where one of the lost instructions given is an erroneous statement as to the law of contributory negligence as applied to an infant decedent, it constitutes reversible error. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.*] Appeal from Trial Term, Herkimer County. Action by Schuyler Ackerman, as administrator, against Irving E. Stacey. Judgment for defendant, and plaintiff appeals. Reversed and remanded. Argued before KRUSE, P. J., and ROBSON, LAMBERT, and MERRELL, JJ. A. M. Mills, of Little Falls (James A. Evans, of Little Falls, of counsel), for appellant. Andrew J. Nellis, of Albany (Robert F. Livingston, of Little Falls, of counsel), for respondent. ROBSON, J. Plaintiff's intestate, an infant nearly 10 years of age, a pedestrian crossing a public street in the city of Little Falls about 10 o'clock in the evening of June 15, 1910, was struck and fatally injured by an automobile in which defendant was then riding with three members of his family and two friends, besides a chauffeur, who was driving the car. Respondent does not seem to claim on this appeal that he, though not in fact the owner, was not the person responsible for the operation and management of the car. The evidence presented a fair question of fact both as to defendant's negligence and the contributory negligence of the deceased, and we should not be inclined to disturb the verdict of the jury in defendant's favor, except that, as it appears to us, the substantial rights of plaintiff were on the trial prejudiced by certain rulings of the trial court. [1] The speed at which the car was running at the time of the accident was a material factor in the evidence upon the question of defendant's negligence. No witness testified directly as to an estimate of the speed of the car, and the court in the course of the trial held that there was no evidence warranting the jury in finding that the speed exceeded 4 miles an hour. This ruling was first made at defendant's request, when the court was considering the question whether there was evidence to go to the jury on the question of a violation by defendant of the statute as it then existed, which limited the speed at which it was lawful to run an automobile under the conditions which the evidence disclosed were then present. To this ruling plaintiff duly excepted. When plaintiff's counsel was making his closing address to the jury, the court held that he had no right to suggest to *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes them that the car was going at a greater rate of speed than 4 miles an hour. Again, in the charge of the court the jury were fully instructed that, though they could not under the evidence find that the car was running at a greater speed than 4 miles an hour, yet, as the court said: "If the condition there, in view of the park being located on the right-hand side, the conditions as to the street lights, and the conditions as to the probability of persons passing from the park out into the street, were such that the chauffeur ought to have reduced the speed more than he did, ought to have had his car under better control than he did, so as to stop it in less time and less space than he did, then those are circumstances which you have a right to take into consideration on the question whether he was or was not negligent in the operation of that car." Exceptions to these rulings of the court were duly taken in behalf of plaintiff. We think the jury's consideration of the question of the speed of the car should not have been thus limited, and that there was some evidence of facts from which as an inference the jury might under proper instruction have determined that the car was running at a considerably greater speed than 4 miles an hour. It appeared that the car weighed 3,000 pounds and was equipped with a gasoline motor of 45 horse power. It was also equipped with both a foot and an emergency brake, which, as the chauffeur testified, "acted quickly and were very forcible and powerful." He also testified that as soon as he saw the intestate, who was then directly in front of the left headlight of the car and but about a foot distant, he "threw on the brakes and pulled the throttle, which slackens the speed of the machine and stops her." He further says: "I applied the foot brake just as soon as I saw the boy. I put the other brake on after that." And this brake was found to be on after the car had stopped. These is further testimony upon which the jury might have found that this car, notwithstanding these efforts of the chauffeur to stop it, ran, after the intestate was struck, more than 70 feet along a street having, as the exhibits indicate, a slight upgrade in the direction the car was moving. Under such circumstances it is apparent that the car had a considerable momentum when it struck the intestate; and, if it ran more than 70 feet after he was struck under the conditions shown by this part of the evidence of the chauffeur, it is not credible that its speed was not greater than 4 miles an hour. Though there was no evidence to show within what distance this or a similar car would be stopped under similar conditions when running at any designated speed per hour, yet it was for the jury to deduce as an inference from these facts the speed of the car, and not for the court to hold as matter of law that the evidence did not warrant a finding that it was running more than 4 miles an hour. [2] We are also of the opinion that the court erred in charging the jury upon the question of the contributory negligence of plaintiff's intestate. In the body of the charge the jury were instructed correctly that: "A boy of that age is not held to the same high degree of care that a person of mature years is held. He is held under the law to only that degree of care and caution for his own safety that a reasonably careful and cautious boy of that age is accustomed to exercise." |