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and 120 New York State Reporter paid by either party to the other are uncertain, and subject to an accounting between the parties, it is enough to offer in the complaint to pay or to perform whatever obligations rest upon the party bringing the action. Zebley v. F. L. & T. Co., 139 N. Y. 461, 34 N. E. 1007. The right to specific performance of a contract or its rescission rests in judicial discretion, and may be granted or withheld upon a consideration of all the circumstances, and in the exercise of a sound discretion. Winne v. Winne, 166 N. Y. 263, 59 N. E. 832, 82 Am. St. Rep. 647.
We cannot say as a matter of law that the complaint in this case should be dismissed for insufficiency as against either of the defendants. The court, after a trial of the issues that may be framed, and a consideration of any contemporaneous equities or equities arising by reason of subsequent events, can grant such relief as may be dictated by a sound discretion, or dismiss the complaint as to all or any of the parties defendants.
The interlocutory judgments should be affirmed, with one bill of costs to the respondent. All concur, except PARKER, P. J., dissenting. SMITH, J., concurs in result.
WILKENS v. HAMMANN. (Supreme Court, Appellate Term. February 23, 1904.) 1. SLANDER-CHARGE OF KEEPING HOUSE OF PROSTITUTION.
Saying to plaintiff: “Mrs. W., don't get excited. I simply tell you that your name is down at the Tenement House Department for keeping a house of prostitution, the same as the people on the floor below, and I can take you there and show it to you"-being false and defamatory, and spoken maliciously concerning plaintiff, in the presence of a third person, meaning thereby to charge plaintiff with keeping a house of prostitution,
is slanderous per se. Appeal from City Court of New York, Special Term.
Action by Mart Wilkens against Mary C. Hammann. From an order sustaining a demurrer to complaint, plaintiff appeals. Reversed.
Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ.
Herman Elfers (Frederick B. Maerkle, of counsel), for appellant. William F. Clare (Paul D. Judge, of counsel), for respondent.
GIEGERICH, J. The complaint demurred to is very short in its material part, being as follows:
"That the defendant, in the presence and hearing of one Margaret Lyons, maliciously spoke concerning the said plaintiff the false and defamatory words following: 'Mrs. Wilkens, don't get excited, I simply tell you that your name is down at the Tenement House Department for keeping a house of prostitution, the same as the people on the floor below, and I can take you there and show it to you;' meaning thereby to charge the plaintiff with keeping a house of prostitution, and that it was on record in the Tenement House Department that plaintiff was charged with keeping a house of prostitution, and that the defendant could prove it by taking the plaintiff there; and the same was under
11. See Libel and Slander, vol. 32, Cent. Dig. 88 77, 104.
stood and believed to convey said charge by the aforesaid Margaret Lyons, the person in whose presence the said words were uttered."
In support of the demurrer the respondent claims that the words quoted are not slanderous per se, but are such as any friend might address to another to apprise him of a supposed charge. But this view is impossible in light of the allegation that the defendant spoke maliciously, and meant by the language used to charge the plaintiff with keeping a house of prostitution.
The defendant further argues that the case is like Brown v. Moore, 90 Hun, 169, 35 N. Y. Supp. 736, where the complaint averred the following words, used in the presence of a third person: "What are you? You worked as a cook in Martin Brown's low hotel. Any one that worked there ain't much, and I can prove it; and I dare you to arrest me;" and then followed an innuendo that the defendant, by the words used, meant that the plaintiff was a common prostitute, and of bad character. In sustaining a judgment of nonsuit the court said:
"We meet upon this appeal the simple question whether the words spoken imputed unchastity to the plaintiff, and whether the words used could be fairly construed in that direction by the jury, even with an innuendo averring that the intent was to charge her with being a prostitute. Innuendoes cannot extend the meaning or words beyond what is justified by the words themselves and the extrinsic facts with which they are connected.”
The difference between that case and this is obvious. There the words did not clearly state nor warrant the meaning that the plaintiff was guilty of unchastity, a charge slanderous per se. Here the language is specific and unequivocal. “Keeping a house of prostitution is an offense slanderous per se to charge against a person. 18 Am. & Eng. Ency. of Law (2d Ed.) 900, and New York decisions there cited, including Wright v. Paige, 42 N. Y. 581. The only question here is whether the defendant used the words in way of friendly warning or maliciously and with intent to repeat and renew the charge already made elsewhere and by others. A charge may be made by assertions as to reports (Powers v. Skinner, 1 Wend. 451), or, as said by Hatch, J., in Byrnes v. Mathews, 12 N. Y. St. Rep. 74, 80, affirmed 16 N. Y. St. Rep. 993:
“The assertion of a libel, either by insinuation, irony, question, or allusion, is the same as if asserted directly in terms. Folkhard's Starkie on Slander and Libel, 181 and 183. Gibson v. Williams, 4 Wend. 320.”
So, in O'Shaughnessy v. Morning Journal Ass'n, 71 Hun, 49, 24 N. Y. Supp. 610, it was said:
“The repetition of injurious words as having been spoken by another is a libelous publication as much so, if maliciously published, as if the direct charge had been made."
We therefore think the complaint was sufficient, and that the interlocutory judgment should be reversed, with leave to the defendant to answer upon payment of the costs of the demurrer and of this appeal.
Interlocutory judgment reversed, with leave to the defendant to answer upon payment of the costs of the demurrer and of this appeal. All concur.
and 120 New York State Reporter
DOUGHERTY V. NEW YORK CENT. & H. R. R. CO.
(Supreme Court, Appellate Term. February 23, 1904.) 1. FERRYBOATS-INJURY TO PASSENGER-INVITATION TO EMBARK-ASSURANCE OF
Where a company operating a ferryboat moors its boat and keeps open the gate, it thereby invites a passenger to embark, and gives assurance that
it is safe to do so. 2. SAME-CONTRIBUTORY NEGLIGENCE-SUFFICIENCY OF EVIDENCE.
Evidence in an action by a passenger injured in attempting to board a ferryboat examined, and held to sustain a verdict for plaintiff, negatiring contributory negligence.
MacLean, J., dissenting.
Action by Michael Dougherty against the New York Central &
and MacLEAN and DAVIS, JJ.
Herbert E. Kinney (Robert A. Kutschbock, of counsel), for appellant.
Joseph H. Radigan, for respondent.
DAVIS, J. The action was brought to recover $2,000 as damages for personal injuries sustained by plaintiff while attempting to enter upon defendant's ferryboat at the foot of West Forty-Second street, in the city of New York, at midnight, on February 17, 1902. The plaintiff purchased his ticket, and, after a few minutes' conversation with some person attached to the ferry house, started to go down the passage gangway to go upon the boat. The night was stormy, and the gangway was badly lighted and more or less dark, although on this point there was a conflict of evidence. The plaintiff was looking ahead, and thought he saw the gang plank touching the boat. He continued on his way, and walked into the open space, three feet wide, between the ferry bridge and the boat, and fell a distance of nine feet below, upon the piled-up ice in the river. It is admitted by the defendant that the gang plank was not in place, but it claims that the plaintiff was negligent in failing to discover the absence of the gang plank. Prior to the accident the boat had been moored for the purpose of discharging and receiving passengers. Some had gone off, and others were actually embarking. On account of the great amount of ice in the slip, it was found impossible to get the men's side of the boat nearer than within three feet of the bridge. I think the verdict of the jury is well supported by the evidence. The defendant, by mooring its boat and keeping open its gate, invited the plaintiff to embark, and thus gave assurance that it was safe to do so. The plaintiff relied upon this assurance, and proceeded to embark; not omitting, however, to look ahead for his own safety. Notwithstanding this precaution, he failed to determine correctly the position of the gang plank, on account of the semidarkness of the passageway, and thus
fell into the river, and sustained very serious injuries. The question of the plaintiff's contributory negligence was a question of fact in the case, and was presented to the jury with great clearness by the trial justice. Under the circumstances, I think the judgment and order appealed from should be affirmed, with costs.
Judgment and order appealed from affirmed, with costs.
FREEDMAN, P. J., concurs.
MacLEAN, J. (dissenting). Some of the exceptions to the exclusion of questions on cross-examination seem good, and to call for reversal--notably, to the nonallowance of the question whether the plaintiff, in going along, assumed the condition of the boat to be the same as always. It was, as he testified, a stormy night in February; there was an ice pack in the slip; and the reason for his presence was to see after an express wagon drawn by a spike team—the first used that season with a driver who had never driven such a team. If, absorbed in his errand, he relied upon conditions which did not or could not, under the circumstances, exist, and so neglected the care to which he was bound, there was no case for the jury.
BUCHSBAUM v. FELDMAN et al.
(Supreme Court, Appellate Term. February 23, 1904.) 1. NEW TRIAL-TIME FOR MOTION-MUNICIPAL COURT Act.
Under Municipal Court Act, $ 254 (Laws N. Y. 1902, p. 1563, c. 580), authorizing a motion for new trial, “provided said motion is made at the close of the trial or within five days from the time the judgment is rendered, and in the latter case at least two days' notice of motion is given," where the motion is not made at the close of the trial not only must there be two days' notice of the motion, but the motion must be made within the
five days. Appeal from Municipal Court, Borough of Manhattan, Fourth District.
Action by David Buchsbaum against Nathan Feldman and another. From an order setting aside a judgment and granting a new trial, defendants appeal. Reversed.
Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ.
Shapiro & Shapiro, for appellants.
FREEDMAN, P. J. This action was tried on October 29, 1903, and resulted in a judgment dismissing the complaint. On November 4, 1903, the preceding day being a holiday, a notice of motion was served upon defendants' attorney by the plaintiff's attorney, returnable on November 6th, eight days after judginent was rendered, for an order to vacate and set aside said judgment and to grant a new trial. The only paper served was the notice of motion, which states "that, upon the minutes, case, and exceptions, * the undersigned
and 120 New York State Reporter will move the court
for a new trial of the above-entitled action, and for an order directing that the dismissal had on the 29th day of October, 1903, be vacated, set aside, and that the cause be restored to the calendar.” This motion was granted, and from the order granting the same this appeal is taken.
Under section 257 of the Municipal Court act (Laws N. Y. 1902, p. 1563, c. 580), such an order is appealable. Section 254 of that act provides that such a motion may be made "upon exceptions taken at the trial, or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence, or contrary to law, provided said motion is made at the close of the trial or within five days from the time the judgment is rendered, and in the latter case at least two days' notice of motion is given.” The moving papers in this case do not specify any grounds for granting the relief sought, nor was the motion made within the five days. It is clear that the section contemplates that the motion must be made promptly. If made at the close of the trial, no notice is needed, for all parties are presumably there present, and can be heard. If it is desired to be made thereafter, it must be made within the five days prescribed, and two days' notice thereof must be given. Had the Legislature intended that the notice of motion might be given within the five days, the clause, “in the latter case (that is, if not made at the close of the trial]
* two days' notice” must be given, would not have been inserted, because, unless it was the intent of the Legislature to limit the time to five days within which such motion must be made, there would be no good reason for shortening the time of eight days' notice of motion to but two days. A notice of motion is distinct from the motion itself. Giving a notice is a mere warning that an order will be applied for, and it is clear that the intent of the act was that, from parties having ground for the relief contemplated in section 254, promptness in having their motion made, and not promptness in giving such notice, is required. If the plaintiff was only required to give his notice within 5 days, he could make it returnable in 30 or 90 days; and while, possibly, a judgment creditor might move for an order shortening such time, he is without redress by appeal from an order denying his motion, should one be made, as the Municipal Court act contains no provision for an appeal from such an order. Under the circumstances disclosed by the record herein, the court had no jurisdiction to grant the order appealed from, and it must be reversed.
Order reversed, with costs. All concur.
WARSIIAWSKY et al. v. DRY DOCK, E. B. & B. R. CO.
(Supreme Court, Appellate Term. February 23, 1904.) 1. DAMAGES-ACCIDENT—Cost oF REPAIRS.
Testimony as to the cost of repairs necessitated by injury to a wagon is
insufficient as proof of the extent of damages. 2. SAME-RECOVERY FOR A HORSE-DEATH.
A recovery in damages for the value of a horse cannot be sustained where it was not shown that the horse died as a result of the accident.