Imágenes de páginas

App. Div.] First Department, November, 1911. estopped from questioning it. Plaintiff further testified that he had gone to Amenia to get his wife and had entered upon a contemplated four months' trip with her, intending to go first to Washington, then to Old Point Comfort, Norfolk, Baltimore, Philadephia, Atlantic City and Lakewood; that it was his intention as soon as he got comfortably settled in the hotel in Washington to send for his trunks. His wife corroborated him.

He did not, as matter of fact, take this trip because the money was lost and because his wife was badly injured, but he did not go into business or do anything for a year after. If, as matter of fact, he was entering upon a trip of four months, the jury were entitled to say that for two people traveling and living in hotels for that space of time the amount of money provided was reasonable. He was not limited to the fare necessary to get him from Amenia to New York. A continuing journey was contemplated at that time. Nor was he required to provide himself with a letter of credit, to open bank accounts in the various cities or do any of the other things to secure the necessary funds suggested by the learned counsel for the appellant. He was entitled to do as he pleased and to take such sums as were reasonable for his sojournings, for his expenses, his fares, possible sickness, pleasure and entertainment. The reasonableness of the sum was a question of fact and not of law.

The case was properly submitted to the jury; they saw and heard the witnesses, who were submitted to a grueling crossexamination, and as trial by jury of questions of fact continues to be the law of this State, I find no justification for disturbing this verdict. This court settled the law of the case and the jury have now passed upon the facts.

In Hasbrouck v. N. Y. C. & H. R. R. R. Co. (202 N. Y. 363) the Court of Appeals reasserted the doctrine of the cases cited in our former opinion and allowed a recovery to the amount of $1,500, the value of rings taken from a grip, VANN, J., saying: “ The jewelry was adapted to her tastes, habits and standing, as the court found upon sufficient evidence, and the amount of money was no greater than was found to be reasonable and prudent.

The contract to transport the plaintiff carried with it the duty of transporting a reasonable amount of

First Department, November, 1911.

[Vol. 146.

hand baggage, such as is commonly taken by travelers for their personal use, the quantity and value depending upon station in life, object of the journey and other considerations. (Merrill v. Grinnell, 30 N. Y. 594; Carlson v. Oceanic Steam Navigation Co., 109 N. Y. 359; Railroad Co. v. Fraloff, 100 U. S. 24, 29; Ray on Negligence of Imposed Duties, 561, 564; 4 Elliot on Railroads, 2604, 2605.) As was said by Chief Justice COCKBURN in Macrow v. Great Western Railway Co. (Law Rep. [6 Q. B.) 612, 621): ‘Whatever the passenger takes with him for his personal use or convenience according to the habits or wants of the particular class to which he belongs, either with reference to the immediate necessities, or to the ultimate purpose, of the journey, must be considered as personal luggage.?” It is true the court went on to say: "We appreciate the danger that fraud may be practiced upon railroad companies by unscrupulous passengers, and the necessity for clear proof and conservative action by the courts;” but we have in the case at bar undisputed evidence, the prompt demand and the refusal by the defendant to permit the highest proof, to wit, the pass book, so that it seems to me our previous opinion is in conformity with the last decision of the Court of Appeals.

The judgment and order appealed from should be affirmed, with costs and disbursements to the respondent.

LAUGHLIN and MILLER, JJ., concurred; INGRAHAM, P. J., and MCLAUGHLIN, J., dissented.

INGRAHAM, P. J. (dissenting):

I do not concur in the affirmance of this judgment as I think the verdict of the jury that this sum of money was taken by the plaintiff with reference to the immediate or the ultimate purposes of the journey of the plaintiff and his wife at the time of the accident is not sustained by the evidence. The plaintiff's wife had been spending several days at Amenia visiting a relative. Plaintiff started from New York upon one of the defendant's trains on a Friday, purchasing a ticket to Amenia and return, and on the following Monday morning he and his wife returned to New York on the train which met

App. Div.) First Department, November, 1911.
with the accident which resulted in the loss of this

money. I agree with Mr. Justice CLARKE that the question as to whether the plaintiff had or had not the money in his possession at the time of the accident was a question for the jury, but I think the immediate journey which the plaintiff and his wife were taking at the time ended at New York, and of course the sum of $1,180 had no relation to that journey. It is true that the plaintiff and his wife both testified that they intended to take a four months' trip through the Southern States after they arrived at New York, but it seems to me that was an entirely separate and independent journey from that upon which the plaintiff was engaged at the time of the accident. The total personal baggage of the plaintiff at the time was that required for a trip to Amenia to spend Sunday, and it was entirely inconsistent with the idea of an extended trip of four months. Plaintiff and his wife were passengers on the local train from Amenia to New York, making no connections with any other train. She had purchased a ticket for that trip. He had no intention of taking any particular train at New York, but said that he intended to go to the Pennsylvania railroad and take such train as he should then find would meet his purpose. His return from Amenia was a returning home from the journey upon which he had started on the preceding Friday; and when he started from New York on the southern trip he was commencing a new journey which had no relation to his trip from New York to Amenia and return. It seems to me clear that the trip from New York to the South was not at the time when he left Amenia a journey within the meaning of the rule making a common carrier liable for a loss of personal luggage, and, therefore, I think that the verdict of the jury that this money was a reasonable amount for a traveler to carry with reference to the immediate necessities or the ultimate purpose of the journey in which he was engaged at the time of the accident was against the evidence.

I, therefore, dissent.

MCLAUGHLIN, J., concurred.

Judgmeut affirmed, with costs.

First Department, November, 1911.

[Vol. 146.


First Department, November 3, 1911.

Insurance - police endowment fund — by-laws construed — when widow

entitled to fund as against beneficiary named by member - interpleader - payment into court.

Where the by-laws of a municipal police endowment fund association

provide that the beneficiary of one who was a member of the association in good standing for one month or over and was killed in the discharge of his duty should receive the benefit, but that no one should receive the benefit except the wife, child, father or mother of the deceased, a sister of an officer in good standing who was killed in the

discharge of his duty, is not entitled to the benefit as against his widow. Although the by-laws of the association provided that a committee should

investigate the death of the member and the circumstances of his family in order to see if they were dependent upon him for a living, it is immaterial, as between a sister of the deceased and his widow, whether such investigation was made, for it was a matter which concerned the

association only and a right which it might waive. The fact that the association when sued by the sister to recover the benefit

paid the money into court and interpleaded the member's widow as defendant in its stead was not an admission of a willingness to pay the money to the plaintiff or a recognition of her claim.

APPEAL by the defendant, Catherine Fitzgerald, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of December, 1910, upon the decision of the court rendered after a trial at the New York Special Term.

John Ewen, for the appellant.
Adolphus D. Pape, for the respondent.


The action was originally brought against Andrew J. Lyle, as treasurer of the Brooklyn Police Endowment Fund Association, on a beneficiary certificate issued on the 1st day of February, 1907, to Robert J. Fitzgerald, since deceased, but then a member of the police department of the city of New York, who on the 25th day of January, 1907, executed a certificate in writing designating the plaintiff, his sister, as App. Div.] First Department, November, 1911. the beneficiary to receive all benefits due to him as a member of the Brooklyn Police Endowment Fund Association, in the event of his death while a member of said association. The original defendant made a motion for leave to pay the fund into court, and to interplead the appellant as defendant in its stead. The motion was granted and the money was thereafter paid into court.

The certificate issued by the association does not name the beneficiary. It merely certifies that the decedent was a member of the association and entitled to the benefits provided in the by-laws thereof upon the surrender of the certificate “in the event of his resignation, death, retirement or dismissal from the Brooklyn Police Force.” The decedent was killed while a member of said association, in good standing, and while in the discharge of duty as a member of the police department on the 10th day of January, 1908, having been a member of said association for only about eleven months. The appellant is the widow of the decedent, and she claims the fund in that right. At the time the decedent became a member of said association its by-laws provided in effect that it should not be liable to pay a beneficiary fund unless the member, at the time of his death, retirement, resignation or dismissal from the department, shall have been a member of the association for eighteen months; and if the provisions of the by-laws had remained the same at the time of the member's death it is quite clear that plaintiff would have no standing to assert a claim against the association. The by-laws of the association, at the time the decedent joined it, provided that where a beneficiary fund was payable it should be collected from the members of the association by a per capita assessment, and that it should be paid “to the member for whom the collection was made, or the person designated to receive the same, taking his receipt therefor, when his membership and connection with the association shall be terminated forever.” It was provided that on the resignation, dismissal or retirement of the member from the police force, he should return his certificate of membership indorsed by the treasurer to whom he paid the last contribution, “or execute the proper power of attorney, with the certificate of membership attached, and likewise so indorsed, “authorizing the payment of the

« AnteriorContinuar »