(42 Misc. Rep. 336.)

GORMAN V. MILLIKEN et al.

(Supreme Court, Trial Term, Kings County. January, 1904.)

1. INJURY TO EMPLOYÉ-RES IPSA LOQUITUR.

Where a derrick furnished by the master falls, injuring an employé, the failure of the master to explain the fall is prima facie evidence of his negligence; and a verdict for him, rendered in an action for damages, should be set aside as against the evidence.

2. NEW TRIAL-DEFECTIVE INSTRUCTIONS.

Where the instructions do not fully state the correct theory of the case, there must be a new trial, though plaintiff did not except thereto.

Action by Bridget Gorman against Edward F. Milliken and others. Verdict for defendants. Motion by plaintiff for a new trial. Granted. Arnold Charles Weil, for the motion. Albert E. Lamb, opposed.

SMITH, J. Without reviewing the evidence in detail, it seems to me conclusive that, if the verdict for the defendant was based upon a determination by the jury that the death of plaintiff's intestate was not the result of the injury received by him at the time of the fall of the derrick, the verdict should be set aside. No other cause for his death is suggested by the evidence, and the testimony of all the physicians, including that of the expert produced by the defendants, makes it clear that the injury to Gorman's skull developed months afterward into the meningitis which caused his death. On the whole case, I think a new trial should be granted, because the verdict was against the weight of evidence. Although no exception to the charge was taken by the plaintiff, I fear the jury was not instructed with sufficient clearness as to the law of the case. Upon the authority of Stewart v. Ferguson, 164 N. Y. 553, 58 N. E. 662, the fall of the derrick afforded prima facie evidence of the negligence of the defendants. The burden of proof is not shifted to the defendants by evidence of the fall of the derrick, as is claimed by the plaintiff, but the burden imposed upon the plaintiff of showing defendants' negligence is met by evidence of the fall of the derrick. I do not think this proposition of law was impressed upon the jury. The plaintiff advanced a theory to explain the accident. I do not think that theory sufficient, and evidently the jury had the same opinion, but it was not necessary for the plaintiff to advance any theory. She could have stood on the fall of the derrick.

I do not believe the jury was made to understand this. If they had so understood it, their verdict must have been for the plaintiff, because it was incumbent upon the defendants to explain the fall, and it seems to me they entirely failed to do so. The uncontradicted evidence was that the derrick was properly located with reference to the foundation on which the column was to be placed. The column at the foundation had to be deflected from the perpendicular only 10 inches to be in a position to go into its proper place. The defendants' contention is that the men deflected it much more than 10 inches, so that its weight all came on one leg of the derrick, this causing it to collapse; but a perusal of the whole evidence of plaintiff's witnesses, upon which this conten

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tion is based, does not sustain it. Besides, there was no reason or motive for this deflection. It was entirely unnecessary, and very difficult of execution. If the men were attempting this difficult and unnecessary work, and they lost control of the column, its tendency would be to swing back to the center between the two masts of the derrick.

In short, neither theory of the happening of the accident advanced by the plaintiff or the defendants is sustained by the evidence, but, because the burden of proving defendants' negligence imposed upon the plaintiff was met by simply showing the fall of the derrick, the plaintiff should have had the verdict.

It seems to me there has been, under a law which controls this case, a grave miscarriage of justice, and the court assumes its full share of the responsibility for the result. Although the court was not requested to submit the case on the correct theory, and there was no exception to the charge, the case was not submitted to the jury upon the correct theory and under such circumstances there should be a new trial. Whittaker v. D. & H. Canal Co. (Sup.) 3 N. Y. Supp. 576. Motion granted.

BEETHEM v. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Term. May 11, 1903.)

1. STREET RAILWAYS-PERSONS ON STREETS-CONTRIBUTORY NEGLIGENCE-EVIDENCE.

In an action for injuries by a street sweeper against a street railroad, evidence held insufficient to show that plaintiff was in the exercise of due

care.

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by William Beethem against the Interurban Street Railway Company. From a judgment of the Municipal Court for plaintiff, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and TRUAX and GILDERSLEEVE, JJ.

H. A. Robinson (A. K. Wing, of counsel), for appellant.
Harrison, Seasongood & Edwards, for respondent.

GILDERSLEEVE, J. The plaintiff was a street sweeper, and, while at work between Forty-Ninth and Fiftieth streets and Second avenue, was struck by one of the defendant's cars, and brings this action to recover damages for personal injuries and loss of time. The plaintiff testifies that he was working within four or five inches of the west rail of the south-bound track when he was hit by the car. How long he had been in that position, does not appear. He had been sweeping from Forty-Third street north, and had got near the corner of FortyNinth street; and, as he says he had been working "all over the street," his position at the time he was struck by the car may be presumed to have been temporary. He was familiar with the locality, and knew that cars ran over the tracks. How far distant the car was when he took up this position is not shown; nor is it shown that he at any time

looked to ascertain whether a car was far from or near to him. He showed nothing from which it could be inferred that he took any care whatever to avoid danger. So far as appears from the testimony in the case, the car, at the very moment the plaintiff took up his position four or five inches from the west rail, may have been so near him that it would have been absolutely impossible for the motorman to have stopped it in time to prevent injury. While it has been held that persons engaged upon the streets in public service are merely bound to use reasonable care to avoid the dangers by which they are beset, the cases have not gone as far as to hold that such persons need exercise no care whatever. The witnesses called to corroborate the plaintiff do not aid him in this respect, as neither of them testifies that they saw him before he was struck by the car.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event. All concur.

(42 Misc. Rep. 341.)

MEUER v. PHENIX NAT. BANK.

(Supreme Court, Trial Term, New York County. January, 1904.)

1. CHECK-TRANSFER BY PAROL.

Where a check is drawn to order, it can be transferred by delivery and parol, and the lack of an indorsement only renders the check not negotiable, and subject to equitable defense.

2. SAME-CERTIFICATION-LIABILITY Of Bank.

Where a bank, at the request of a bona fide holder for value, certifies a check drawn to order, and there are no equities between the maker and the bank, the holder can recover of the bank, though the maker has not indorsed the check to him.

Action by Max Meuer against the Phenix National Bank. Verdict for plaintiff. Motion for a new trial. Denied.

Lawrence Goldberg, for plaintiff.

Masten & Nichols (Benjamin N. Cardozo, of counsel), for defendant.

CLARKE, J. Motion to set aside a verdict and for a new trial. On December 12, 1901, one Arthur Johns, who had been the attorney of Mrs. Edla M. Meuer and had collected certain moneys for her, which he had deposited to his own account in the Phenix National Bank, delivered to her his check for $1,303.65, drawn to her order on said bank. On December 28, 1901, Mrs. Meuer transferred and delivered said check for a valuable consideration to the plaintiff, her brother-in-law. She was sick at the time and omitted to indorse the check. Before this omission could be supplied she died, on the 29th of December, 1901. The evidence was conclusive that the transaction was bona fide, and that the transfer of the check was with full knowledge and for full consideration, and sustains the verdict. Plaintiff thus became the holder of the check for value. There is abundant authority that title to a check, like title to any other chose in action, can be transferred without indorsement, and by delivery and parol. It ceased, however, to be a negotiable instrument. The effect of this, however, would be simply to admit of an inquiry into the equities. But there are no

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equities as between the maker, Johns, and the payee, Mrs. Meuer. He owed the money represented by the check to her. It was her money, which he had collected for her and undertook to pay to her. He has no interest whatever in it, and sets up none. Nor are there any equi

ties between Mrs. Meuer and plaintiff, as she received full value for the check on its transfer by her. On January 18, 1902, the check was presented to defendant by a messenger from the holder, the plaintiff, for certification, and was duly certified. Payment was subsequently demanded and refused, and this action was brought.

The defendant claimed that it had received a notice from the maker, stopping payment, on December 30th, and that its certification thereafter on January 18th was due to forgetfulness upon the part of its officers, that such a notice had been received. It was a question of fact as to whether any such notice had been sent to or received by it, and this question was resolved against it by the jury on conflicting evidence, the jury finding no such notice had been received at the time claimed. The only reason suggested by Johns for sending the notice, as claimed, was that he feared the check had come into the hands of plaintiff improperly. There is not a scintilla of evidence to sustain this theory, and it is settled to the contrary by the verdict. The jury found also that, after the certification, the conditions had changed, to the detriment of the plaintiff. In the first place, he had filed a claim against the estate for $5,000, which was admitted to be valid, instead of $6,300, which was due him without the check, and, having the certified check, had settled said $5,000 claim for $3,000. This was sustained by uncontradicted evidence. So that we have all these questions of fact settled by the jury, and the verdict is fully supported: First. Plaintiff is the bona fide holder for value of the check. Second. It was duly certified by the bank for the holder before receipt of the stop order. Third. That plaintiff's position has materially changed, to his detriment, by reason of said certification. Therefore there is left for consideration solely a question of law.

Section 323 of the Negotiable Instruments Law, Laws 1897, p. 756, c. 612, provides:

"When a check is certified by the bank on which it is drawn the certificate is equivalent to an acceptance.

"Sec. 324. When the holder of a check procures it to be accepted or certified the drawer and all indorsees are discharged from liability thereon.

"Sec. 325. A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank and the bank is not liable to the holder, unless and until it accepts or certifies the check."

The bank claims that its certification, while it concedes it was an acceptance, was an acceptance to pay the check according to its terms, that is, to the payee named therein, and that that payee must have transferred title by indorsement thereon, and that in the absence of indorsement it cannot be compelled to pay. In Freund v. Importers' & Traders' Nat. Bank, 76 N. Y. 357, Judge Folger, speaking for an unanimous court, said:

"Doubtless there should have been upon the check the written indorsement of the payees, to have saved to it, in the hands of Blun, its original character and quality of negotiable paper. Having been transferred without indorsement, Blun got the right only that he would have taken had it been not nego

tiable at the start. The effect of the transfer of the check, it having been without written indorsement, was no more than that the drawers of it had such right to refuse or prevent payment of it as a maker of a nonnegotiable instrument would have had under the same state of facts. Grant that such right was so much as that it would prevail against every one but an innocent transferee for a good consideration. Before notice to stop payment, the defendant, on the presentation of it by Blun, had certified it as good. If Blun & Sons were then the holders and owners of it, with such right as that they could enforce it against the makers, the certification of it by the defendant had all the legal effect which the same certification would have had, had it been indorsed by the payees. That legal effect is the same as if the defendant had paid the money upon it, with the proper indorsement upon it of the payees. By the certification of a negotiable check, properly negotiated, the depositary of the fund checked upon becomes liable to the owner of the certified paper, and is bound to have in readiness the money to meet it from the fund drawn upon. When the check is not negotiable, or has not been indorsed, but has by assignment come into the hands of a lawful owner, who has a right to enforce it against the maker, the effect is the same."

This case has been cited with approval in Lynch v. First Nat. Bank, 107 N. Y. 179, 13 N. E. 775, I Am. St. Rep. 803, Ruger, Ch. J., saying:

"It was held, in Freund v. Importers' & Traders' Bank, that a certification by the bank of a check in the hands of a holder, who had purchased it for value from the payee, but which had not been indorsed by him, rendered the bank liable to such holder for the amount thereof. By accepting the check the bank took, as it had the right to do, the risk of the title which the holder claimed to have acquired from the payee. In such case the bank enters into contract with the holder by which it accepts the check and promises to pay it to the holder, notwithstanding it lacks the indorsement provided for, and it was accordingly held that it was liable on such acceptance, upon the same principles that control the liabilities of other acceptors of commercial paper."

But that case was distinguished from the Freund Case solely on the ground that the certification was at the request of the drawer of the check, and was therefore subject to the condition imposed by him, plainly written in the check, that it should not thereafter be payable except by his indorsement. It was also held:

"Where a depositor has imposed the condition that his check shall not be paid without it bears his indorsement, the depository, if it pays it to a holder without such indorsement, runs the risk of the transaction, and takes the burden of showing that such holder has acquired in some way the lawful title to receive the funds. It may successfully defend such a payment if it can show that it made it to a person who, as against the drawer, was legally entitled to receive it, for, in that event, the drawer would suffer no damage thereby."

And concluded:

"We are of the opinion that the evidence in this case did not authorize the trial court to find that Wilder [the maker who drew the check to his own order, had it certified himself, and delivered it without indorsement] intended to transfer any part of his deposit to the plaintiff, and there is no other theory upon which the action can, under the evidence, be maintained."

The Freund Case was again cited in Goshen Nat. Bank v. Bingham, 118 N. Y. 349, 23 N. E. 180, 7 L. R. A. 595, 16 Am. St. Rep. 765, as the established law. It was distinguished, however, upon the following facts: Brown, the drawer of the check, committed a gross fraud upon the bank by depositing worthless bonds, accompanied by a sight draft. He was a bankrupt, and had no funds in the bank, except such as resulted from the credit given him upon the faith of the draft accompanied by the bonds. He himself procured the check, drawn by himself