92 N.Y.S. 208 | N.Y. App. Div. | 1905
Lead Opinion
Upon the trial, at the end of the plaintiff’s case, the defendant moved to dismiss the complaint. This motion was denied. The •defendant then entered upon its case and introduced its evidence, •and when the defendant rested, there being no testimony in rebuttal, the defendant again moved to dismiss the complaint; which motion was granted.
We have several times called attention to the impropriety of •such a motion after the evidence of both parties has been taken. A dismissal of a complaint in an action at law, under our practice, is equivalent to a nonsuit, which in effect is a determination that the plaintiff’s evidence is not sufficient to sustain his cause of action. Rut after the defendant ,has been heard and his evidence taken, if
The action is brought by a fire insurance company to récover the value of certain hides'stored in the defendant’s warehouse that had been destroyed by fire. The defendant, a foreign corporation organized under the laws of the State of New Jersey, maintained a warehouse for the storage of merchandise at Hoboken in that State. Prior to the 30th of June, 1900, a firm known as Alphonse Weil &■ Brothers were the owners "of a quantity of hides which were stored in the defendant’s warehouse of the value of upwards of $10,000, and upon .these hides various insurance companies had issued policies bf insurance. The complaint alleges that on the 30th of June, 1900,- while these policies of insurance' were in full force, a fire occurred which destroyed a part of the warehouse of the defendant and damaged or destroyed a large quantity of hides and other merchandise therein; that the firm of Weil & Brothers filed with the insurance companies proof of its loss by reason of this fire, claiming from the insurance companies the total value of tlie hides so destroyed, and the said insurance company paid to- said Weil & Brothers the value of the hides, the amount of insurance being in-excess of that value, and the said insurance companies demanded and
The an'swer admits and alleges that after the fire a Mr. Lewis, representing certain insurance companies, called upon the defendant and requested it to take out the hides which might be recovered from the ruins of the warehouse, stating that he desired to sell these hides for the account of the insurance companies, and it was thereupon agreed that the defendant should proceed to uncover said hides-for its account, and that, when uncovered, they should be. sold, and defendant reimbursed from the proceeds for its actual expense in so-doing, and that the balance, if any remaining, should be turned, over to said insurance companies; that the said hides had been-imported from foreign countries to the port of New York and had been stored in bond, subject to the payment to the United States of the customs duties imposed thereon, and that the custom house authorities refused, though requested so to do, to release said hides, or any of them, until the said hides and all other contents of the
Upon the- trial it was proved that the fire commenced on the 30th of June, 1900, and continued until Monday, July second; that the fire destroyed the warehouse in which the hides were stored ; that subsequently the insurance companies paid the loss to Weil & Brothers and received an order on the defendant for the hides claimed by Weil & Brothers; that this order was turned over to a Mr. Lewis, who was requested to take charge of the matter on behalf of the insurance companies, and a communication was thereupon sent to the defendant stating that Messrs. Woodrow & Lewis were authorized to take charge'of all goods remaining in the warehouse and damaged by the fire on June thirtieth, and to take such further action as might be necessary for the removal and disposition of the same. Lewis testified that he was one of the firm of Wood
Dr. Heifer, the health officer, was called by the defendant and testified that he was acting as president for the board of health in the months of June, July and August, 1900 ; that after the destruction of the Campbell Stores it was very hot, one of the hottest Julys they had had in many years; that about 170 people had been killed by the fire, and the health board had all they could do to save the city from contagious diseases in consequence of the fire and heat; that the Campbell Stores were burning for a long time and that very offensive stenches emanated from the warehouse; that about the eighth or ninth of July he told Campbell that something must be done at once to save the lives and health of the inhabitants because the stench from the warehouse was awful; that Mr. Campbell then ■immediately engaged a large gang of men to have the debris removed ; that they struck a lot of beans, which were very offensive and which were removed; that they afterwards came across some salted green hides; that subsequently a Mr. Lewis came to see the witness, and Lewis asked the commissioner to give him permission to have these hides auctioned off when they were removed from the debris, to which the health commissioner said that he would do anything that he could to get the hides out of the city of Hoboken ; that two or three days elapsed and nothing was done towards removing the hides and the health officer then asked Campbell who were the owners of the hides, and he told him that they had been stored by Weil& Brothers of New Tori. The health commissioner at once notified them by letter that the hides must be removed.
A notice addressed to the defendant, dated July 25, 1900, was then-introduced in evidence. This notice is as follows : “ In accordance with the orders of the Board of Health, already communicated to you, the hides, beans and other matters contained in your warehouse have .been condemned as a menace to life and health in this city. In pursuance of this order I desire to notify you that Mr.
Lewis had been notified the day previous to the date of this letter that these "hides had been condemned and the board of health had ordered their immediate removal. A resolution of the board of health adopted on July 24, 1900, was introduced, which recited ■ that whereas the stench, arising from the hides and beans was unbearable and dangerous to life and health, it was resolved “ that said green salt hides and beans are hereby condemned by the Board, as a menace to life and health, and that said owners be ordered to-have said hides and beans removed at once.” The health commissioner also testified that about the nineteenth or twentieth of July he had an interview with Lewis; that he told Lewis that he did not want to see the lives and. health of the citizens menaced; that if Lewis would remove the hides as quick as they came out of the-debris he would have no objection to his taking them away, but. that he could not give permission to let the hides lie there in the scorching sun and be auctioned off there, because it would' take toe long, and that he would not have the stench that arose from the hides, there any longer to the menace to the health of any one" in the city of Hoboken ; that after he had communicated, to Campbell the fact, that the hides had been condemned as a menace to life and health* the witness engaged a contractor to remove the hides, and made an agreement with Harrington as the contractor, and notice of this, contract was given to the defendant by a letter signed by the corporation attorney, dated July 26, 1900, which’stated that “The bearer, Mr. A. W. Harrington, is directed by order of the Board of Health to remove the hides now in your custody as Warehousemen-, at once out of the City, in accordance with orders heretofore'served upon you. Please deliver the hides to him and he will give you the necessary receipt for the Board of Health ; ” that he made an agreement With Harrington to remove tire hides, and.delivered this letter-addressed to the defendant as his authority; that he went down when Harrington was at work to see that his order was complied with, and'lie saw the hides taken out of the warehouse and removed* and that after that he did not do anything further about it; that after his first conversation with Lewis, at which Lewis was ordered
The statute of New Jersey in relation to the powers of boards of health was then introduced in evidence. Section 27 of chapter 68 of the Laws of New Jersey of 1887 (Gen. Stat. N. J. 1640, § 27) provides: “ That a notice of any inspector of any local board of health to abate any nuisance, or by the executive officer or other authorized member of said board, shall be taken as a notice from the board, and if the owner or person notified shall fail to abate the nuisance complained of, the said board inay cause the same to be abated in a summary way, giving written directions to the inspector in relation thereto, and he shall proceed according to the directions so given.”
Mr. Campbell testified that he was connected with the defendant that the health officer came to his office after July twelfth, when they had begun to work at the ruins, and instructed Campbell to remove the contents of these burnt storehouses as soon as possible, as they were becoming offensive and dangerous; that after the beans were,removed‘ and the hides were exposed, the health officer again came to Campbell and told him that he must give him a, notice to get these hides off; that he asked him who Were the owners of the hides, to which Campbell replied, “ Alphonse Weil owns the hides,” but that Weil had settled-with the insurance company ; that the next thing he heard he got an order from the board of health condemning the hides and directing their removal; that he did not personally see Harrington who removed the hides at all; that after he received this order from the board of health he saw Lewis, stated that he had received the order from the board of health to deliver the hides to Weil, but that Lewis said that the
The superintendent of the defendant testified that the notice of condemnation signed by the health officer and the certified* copy • of the resolution of the 'board of health were served personally upon • him; that Harrington, with whom the president of the board of health made a contract to remove the hides, took them and delivered to the defendant a receipt, which was introduced in evidence; that these hides when taken out were wet by the water that was' used to extinguish the fire; that many of them were rotten and stuck together and were very offensive; that the president of the board of health, on or about the twentieth of July, notified the witness ■ that these hides had'to be taken away; that in pursuance of that order he put them on the cars and a locomotive came and pulled them away. , • ■
This testimony was not disputed, and the situation, therefore, was that these hides, removed from the. ruins of this storehouse, were wet and rotten and extremely ofEefisiv'e. After tire fire,- which destroyed a considerable portion of the docks and water front in the city -of Hoboken, the health authorities determined that- th,e public health of the city required that these hides should be removed. Lewis, representing the insurance companies, was repeatedly notified of this determination of the health authorities. The health department, acting under legislative authority, undertook to and did remove the hides, without the consent of the defendant. It is not disputed but that the defendant gave Lewis notice of the action of the health authorities that was communicated to it, and certainly the’ defendant was not responsible for the action of the health officials or their agent in removing these hides. They were taken out of the possession of the defendant by paramount authority, over which the defendant had no control and which the defendant could not have resisted, and it seems to me that this relieved the • defendant of responsibility to the plaintiff, or the other insurance , companies, for a failure to produce or deliver the .hides. It is entirely immaterial in relation to a claim against the defendant based upon a delivery to other parties, whether the ■ action of the health authorities was justified or not. They had the power to remove the hides if their presence was a menace to the life of the
There was no question of fact for the jury. Under, the contract as alleged in the complaint and testified to by the plaintiff’s witnesses, all that the defendant agreed to do was to take the hides out of the building. Lewis then agreed to sell the hides and to repay to the defendant the expense incurred. After the hides were removed and placed on one side out of the building they were as much in the possession of Lewis as of the defendant, and certainly the defendant was not responsible for their removal by the health officers in order to preserve the public health. There is not a particle of evidence that the defendant did not act in good faith, or that it participated in or consented to the removal of the hides. It acquiesced in the exercise of power of the health officials, which it does not appear it could successfully have resisted. There are no exceptions to rulings on questions of evidence relied on by thp plaintiff.
I think, therefore, that on the whole testimony the defendant was entitled to the direction of a verdict, and that the judgment appealed from should be affirmed, with costs.
McLaughlin, J., concurred; Patterson, J., concurred in result;
Van Brunt, P. J., and Laughlin, J., dissented.
Dissenting Opinion
(dissenting) :
By the settlement with the owners of the hides and the delivery of the warehouse receipts the title to the hides passed to the insurance companies to the knowledge of the defendant, while the hides were still in the possession of the defendant as warehouseman, and before they had been uncovered or removed. As warehouseman it then became the duty of the defendant to deliver the hides to the insurance companies, and the same duty continued under the contract made by the defendant with the representative of the insurance companies for the excavation of the hides from the ruins. It is alleged in the complaint that the defendant, in violation of its duty in this regard, failed to deliver the hides to the plaintiff, and, without the plaintiff’s knowledge or consent, deliv
Moreover, I think questions of fact were presented requiring the submission to the • jury of the plaintiff’s right to recover the other eight carloads of hides. The statute (Gen. Stat. N. J. 1634 et seq) regulating the powers and duties of the board of health of Hoboken, so far as drawn to our attention, does not provide for a notice of hearing to the owner before property may be condemned "as a nuisance injurious to public health. It is unnecessary to determine, however, whether any action that could be taken by the board of health in these circumstances would justify the confiscation of private prop-. erty as a nuisance; for, although the board of health acting' ex parte adjudged these hides to be a menace to the public health and directed that thfe owners be ordered to remove them,-it did not direct the defendant tó .remove them and did not authorize .airy one to remove ,tliem in behalf of the board of health. It is claimed that the removal was made, not by the defendant, but by Harrington acting under a" contract with the president of the board of health. The board of health did not authorize this contract, and if the eight cars were removed thereunder the action was without legal authority and should not have been acquiesced in by the defendant. (Roberts v. S. S. D. Co., supra) I am of opinion that it would not have been acquiesced in by the defendant had not the defendant, Weil & Brothers, the president of the board of health and the contractor been acting in collusion.
I, therefore, dissent from the affirmance.
Van Brunt, P. J., concurred.
Judgment affirmed, with costs.