tive, at this time and at this place, was negligence, without reference to whether it was an abuse or not." This the court refused to charge. There seems to have been no error in the manner in which this question was left to the jury. The railroad company, having the right to use the whistle, could not be charged with negligence in its use unless there had been an improper or abusive exercise of that right. The jury could not find that the defendant was guilty of negligence in blowing this whistle unless there had been, as already stated, an improper exercise of this right under all the circumstances which surrounded the defendant in the operation of its road at this particular locality. This question was distinctly presented to the jury, and they were instructed that, in case the defendant had abused the right to sound the whistle, —that is, had sounded it in an improper place too frequently, unnecessarily, or improperly, because of the nature of the locality through which their track ran, and the road was operated,-they might find the defendant guilty of negligence. The jury certainly had no right, unless some of these elements were present, showing an abuse by the defendant of the right which it had, to find the defendant guilty of negligence; and it was only because some of these elements showing an abuse of the right might have been found to be present that the court submitted the question at all to the jury.

The court is bound to instruct the jury as to the elements which they are to take into consideration in determining the question of negligence. The jury are not judges of both the law and the facts, and they can only come to a conclusion by taking into consideration the instructions which the court gives them for the purpose of guiding them in considering the evidence produced before them. In the case at bar the court was particular in this respect, and did not leave the jury to exercise their judgment unguided and uninstructed as to what was necessary to be established in order to prove that the defendant had been guilty of negligence in the operation of its road.

We see no reason to disturb the verdict which has been rendered in this case, and the judgment and order should be affirmed, with costs.

DANIELS, J., concurs.

BRADY, J. The whistle not having been used wantonly or capriciously, but for a legitimate purpose, as alleged, I concur.

MAGNOLIA ANTI-FRICTION Co. v. SINGLEY et al.

(Supreme Court, General Term, First Department. January, 1890.)

A complaint alleged that, "by sale and assignment from said Singley, plaintiff became sole owner of said formula, process, and trade secret, and of any and all inventions theretofore made or which might thereafer be made by said Singley in the composition or manufacture of anti-friction metals; that upon said sale and assignment said Singley covenanted with plaintiff to assist it in manufacturing and selling anti-friction metals, and not to assist others in any way, directly or indirectly, in the manufacture or sale of anti-friction metals in the United States without the consent of plaintiff; and that under and pursuant to said covenant said Singley entered into the service of plaintiff, and for a time assisted plaintiff in the manufacture and sale of anti-friction metals." Held, that the pleading was sufficiently definite and certain to render the precise meaning as to the manner in which plaintiff derived title to the subject-matter of the action apparent.

Appeal from special term, New York county.

Action by Magnolia Anti-Friction Company, respondent, against Samuel Singley and another, appellants. Defendants moved for an order requiring plaintiff to make its complaint more definite and certain, and from an order denying this motion defendants appealed.

Argued before VAN BRUNT, P. J., and BRADY and DANIELS, JJ.
Mason W. Tyler, for appellants. Roger A. Pryor, for respondent.

DANIELS, J. The motion has been made under the authority of section 546 of the Code of Civil Procedure, providing that, where one or more denials or allegations contained in a pleading are so indefinite or uncertain that the precise meaning or application thereof is not apparent, the court may require the pleading to be made definite and certain by amendment. That part of the complaint which is affected by the motion is contained in its third paragraph. By this paragraph it has been alleged: "(3) That on or about the 23d February, 1888, by sale and assignment from said Singley, plaintiff became sole owner of said formula, process, and trade secret, and of any and all inventions theretofore made or which might thereafter be made by said Singley in the composition or manufacture of anti-friction metals; that upon said sale and assignment said Singley covenanted with plaintiff to assist it in manufacturing and selling anti-friction metals, and not to assist others in any way, directly or indirectly, in the manufacture or sale of anti-friction metals, in the United States, without the consent of plaintiff; and that, under and pursuant to said covenant, said Singley entered into the service of plaintiff, and for a time assisted plaintiff in the manufacture and sale of anti-friction metals." It has been urged in support of the motion that it does not appear from the statements contained in this paragraph precisely the manner in which the plaintiff may have obtained the title to the subject-matter of the action. But this objection does not seem to be well founded; for it is stated that the plaintiff had become the sole owner of the process, formula, or trade secret in controversy, and that in the sale and assignment made the defendant Singley covenanted with the plaintiff to assist it in manufacturing and selling antifriction metals. It is plainly to be inferred from this statement that the transfer relied upon by the plaintiff was received from the defendant Singley, and that it was by way of a sale and assignment in writing; for it is stated that he covenanted with the plaintiff to the effect mentioned in the complaint, and that could only be done by an instrument in writing from himself to the plaintiff. It accordingly fairly and reasonably appears from this statement in the complaint that the plaintiff derived its title directly from the defendant Singley, and that it was secured to it by an instrument in writing. No difficulty stands in the way of giving this construction to the statements contained in the paragraph, for a covenant necessarily implies a writing, and they are sufficient to disclose the manner in which the plaintiff derived its title, upon which its right to prosecute the action depends, and the fact that the instrument from which it was derived was made by the defendant Singley, and was in writing, although the defendant was not entitled to have it stated that it was in writing. This is all that the case requires in this respect. They made the pleading sufficiently definite and certain to render its precise meaning apparent. No difficulty stands in the way of entirely understanding this part of the plaintiff's case. It has been sufficiently disclosed and alleged, and the order should be affirmed, with $10 costs, and also the disbursements. All concur.

GRANT, Sheriff, v. TEFFT et al.1

(Common Pleas of New York City and County, General Term. February 10, 1890.) BONDS-INDEMNITY TO SHERIFF.

Defendants, with other judgment creditors, executed indemnifying bonds to protect plaintiff, as sheriff, against counsel fees, actions, and judgments by reason of his sale of property levied on under their execution. Plaintiff sold the property, and paid defendants the amount of their execution. Suit was thereupon brought against him by the assignee for benefit of creditors of the judgment debtor, for conversion. Held, that defendants could not escape liability on their bond for their proportionate share of the expense incurred by plaintiff in defending such action, by showing that they orally notified him that they did not wish it defended. Appeal from city court, general term.

The action is on a bond of indemnity, executed by Tefft, Weller & Co., as principals, and by Andrew J. Shively, Thomas R. Armstrong, and Edward H. Branch, as sureties, to the plaintiff, as sheriff of the county. The bond recites the recovery of a judgment by Tefft, Weller & Co. against Adolph Von Der Linden, for $2,174.73, the issuing of an execution thereon to the sheriff, and that certain personal property, apparently the property of the judgment debtor, was claimed by others. The condition of the obligation was that the indemnitors were to save, keep, and bear harmless the plaintiff against any damage, liability, costs, counsel fees, expenses, suits, actions, and the like, that might at any time arise, come, accrue, or happen by reason of the levying, taking, or making sale under such execution of all or any personal property which he might judge to belong to the judgment debtor, or for or by reason of any action that might be brought against him on account thereof. There was also in the hands of the sheriff an execution against Von Der Linden in favor of Abraham Weinberg for $469.74, and another in favor of John Claflin and others for $3,988.39. In each of these actions a bond of indemnity similar in form, executed by the plaintiffs in said actions as principals, and by others as sureties, was given to the plaintiff as sheriff. A sale of certain property levied on was had, and the various executions were paid in ful. James J. Byrne, as general assignee of the judgment debtor, claimed title to the property, and brought action against the plaintiff to recover damages by reason of the levy thereon and sale therecf. The action was defended, tried twice; the jury on each trial disagreed, and the action was thereafter discontinued. The plaintiff paid his counsel for defending that action $1,000, and claimed that Tefft, Weller & Co. were liable to him for $325, their proportion of the fee. The defendants offered evidence tending to show that inducements were offered to give the bond, that conditions accompanied it, and that certain instructions were thereafter given concerning the defense of the action brought by Mr. Byrne. The evidence offered was excluded under exception. The defendants then moved to dismiss the complaint on the ground that there was no evidence of any levy on behalf of Tefft, Weller & Co., and no proof that the sum paid by the plaintiff as counsel fee was a reasonable and fair charge. The motion was denied under exception. The jury, by direction of the court, found a verdict in favor of the plaintiff for $325, and from the judgment entered thereon the defendants appeal.

Argued before LARREMORE, C. J., and BOOKSTAVER and BISCHOFF, JJ. Roscoe H. Channing, for appellants. David Leventritt, for respondent.

LARREMORE, C. J. Appellants could not succeed in this action without being allowed to occupy two absolutely inconsistent positions. They had formerly indemnified the sheriff, and he, relying upon their bond and those of other judgment creditors, sold the property which he had before levied on, and collected and paid over to them the amount of their claim. But, at the time 'Affirming 7 N. Y. Supp. 129.

v.8N.y.s.no.5-30

of giving such bond, defendants allege that they represented to the sheriff that they were preferred as creditors in an assignment which by that time had been made by the judgment debtors, and that they did not wish to attack such assignment. They also aver that later, when the action. was brought by the assignee against the sheriff to recover damages for the wrongful conversion of the very property which defendants had indemnified the sheriff to sell, they notified the sheriff that they did not wish such action defended. These matters they seek to set up as defenses in the present action to recover from them, under their bond of indemnity, their proportionate share of the expense incurred by the sheriff in defending such action. A mere statement of their position is sufficient to make it plain that no court could sanction such a double-face policy on the part of any litigant. Defendants desired to have the benefit of the sale under execution, in order to secure prompt payment of their claim. On the other hand, as the ultimate payment thereof was secured by the preference in the assignment, they propose to escape reimbursing the sheriff for the liabilities and expenses incurred in carrying through the execution sale and defending himself from the consequences thereof. The legal status of the matter is simply that, in the face of the bond of indemnity, their oral notices were meaningless and nugatory. By indemnifying the sheriff, they elected to collect the debt by execution, and this action on their part necessarily contemplated the incurring of every liability legitimately arising out of the pursuit of that remedy. In company with the other judgment creditors they put upon the sheriff the obligation to perform certain acts involving personal risks, and, after he had started upon such course, he could not withdraw. The sheriff having sold the property relying upon his bouds, the defending of the action brought by the assignee was something which he could not avoid. The expense incurred in such defense was one of the charges fairly covered by said bonds, and defendants are very properly compelled to pay their proportionate share thereof.

For the reason stated in the opinion of MCADAM, C. J., (7 N. Y. Supp. 129,) at the general term of the city court, we think there was sufficient in the case to support the finding by the trial judge as to the reasonable value of the services rendered. The judgment appealed from should be affirmed, with costs.

KING . BAUER.

(Common Pleas of New York City and County, General Term. February 3, 1890.) FACTORS AND BROKERS-REAL-ESTATE AGENTS-COMMISSIONS.

In an action to recover commissions for services rendered by a real-estate broker, it appeared that the broker's agent called the purchaser's attention to the land, carried on active and continual negotiations with them, took them to see the property, described its advantages, gave them the owner's name, and used every means to make a sale. The purchasers finally made an offer for the land, which was refused by the owner. Subsequently, however, the owner closed the deal with the purchasers, but refused to pay the commissions, saying the deal was a poor one. Held that, as the broker was the active and efficient procuring cause of the sale, he was entitled to his commissions, though he did not bring the owner and purchasers in actual contact, and though the sale included other land, for which negotiations had been pending some time before the broker's employment.

Appeal from judgment on report of referee.

Action by William G. L. King against Moritz Bauer to recover commissions for services rendered as a real-estate broker. The action was tried before a referee, who made the following report.

"The defendant is an extensive dealer in real estate in the city of New York, and in October, 1887, was the owner of a plot of land located between One Hundred and Fourth and One Hundred and Fifth streets, and the Boulevard and West-End avenue, which he had purchased in May, 1887. There were two mortgages upon the property,-one for $115,000 and one for $25,000,

-the interest on which would become due on or about the 3d day of November, 1887. In October, 1887, the defendant employed the plaintiff to procure him a purchaser for said premises. No price was named, but plaintiff was directed to submit any offer over and above the amount of the mortgages. The defendant was anxious to make a sale of the property. The plaintiff at once initiated very active and persistent efforts for the sale of the property, and carried on several fruitless negotiations. He engaged the services of Mr. Foshay, another broker, to aid him, because he believed that Mr. Foshay was acquainted with certain people who would be likely to purchase such a parcel of land. Mr. Foshay went at once to Messrs. Beck & Runk, and carried on active and continual negotiations with them. He took Mr. Runk up to see the property, gave him the owner's name, described the advantages, and used every means to make a sale, and had several conversations with Mr. Runk, and also with his partner, Mr. Beck, and continually urged them to purchase the property, and at last he was informed that Messrs. Beck & Runk might take the property if the owner would accept a West-Side house and some cash for his equity. Foshay reported this offer to the plaintiff, who at once reported it to the defendant; but the defendant declined the offer, saying that he would not take a West-Side house in any event; that if it was avenue property it might be different. About a week after this report was made, defendant informed plaintiff that he had received an offer of $7,500 in cash, and a house on West Seventy-First street, for his equity in the premises in question. The plaintiff at once asked him if the West Seventy-First street house did not belong to Beck & Runk; and, upon his replying that it did, plaintiff informed him that that was the house he had spoken of a week previously, and that he had been carrying on negotiations with Beck & Runk; and the defendant thereupon replied that it made no difference, anyhow; that he would not take a dwelling-house on the West Side. Plaintiff continued his efforts to bring about a sale; and about November 29th the defendant told him he thought he should close up that transaction with Beck & Runk; and when plaintiff claimed his commission he refused, saying that the deal was a poor one, and he could not recognize the plaintiff as a broker in it. The property was sold about December 2, 1887, to Messrs. Beck & Runk, for $160,000, defendant taking in payment their equity in the house of West Seventy-First street, amounting to $12,500; cash, $7,500; and the mortgages on the property, amounting to $140,000; and the deed was afterwards delivered and recorded. There is no dispute regarding the strenuous efforts made by plaintiff. and his agent, Mr. Foshay, to procure a customer for the lots in question; and, in my opinion, there is very little, if any, doubt that the property in question was first really called to the attention of the purchasers by Mr. Foshay. If it had ever been mentioned before, it had been forgotten and passed over, and had never been impressed upon their minds, nor had they ever seriously considered purchasing it. The evidence clearly shows this: Mr. Untermyer testified that he had carried on negotiations for a year on behalf of Beck & Runk as to other property, and says he mentioned to them this piece of property in the course of the discussion; but he evidently did not lay much stress upon it, for it does not appear that anything further was said or done about it until after it had been called to the attention of Beck & Runk by Mr. Foshay. Mr. Untermyer did not seem to know where the land was located; and Mr. Runk had never seen it, or heard who owned it, until Mr. Foshay took him there, and told him. The property was certainly first called to the serious attention of Beck & Runk by Mr. Foshay; and he was the cause which brought the active negotiations on their part for its purchase. If they had heard of it before, the idea of purchasing it had never occurred to them until the arguments and persuasions of Mr. Foshay were brought to bear upon them. It is true that plaintiff did not bring the defendant and the purchasers together in actual contact. But the defendant was a real-estate man. He did