
    (44 Misc. Rep. 627.)
    McDOWELL v. SYRACUSE LAND & STEAMBOAT CO. et al.
    (Onondaga County Court.
    August, 1904.)
    1. Nonsuit—Denial—Waivek.
    Where defendant moves for a nonsuit at the close of plaintiff’s case, and excepts to the denial thereof, and thereafter puts in his evidence, but neglects to renew the motion at the close of all the evidence, his previous exception is waived, though the evidence given by defendant did not change the situation.
    Appeal from Justice Court.
    Action by John H. McDowell against the Syracuse Land & Steamboat Company and others. From a judgment for plaintiff, the above-named defendant appeals.
    Affirmed.
    Stone, Gannon & Petit (A. H. Sheldon of counsel), for appellant
    John H. McCrahon, for respondent.
   EGGLESTON, J.

The plaintiff herein brought this action for the a Company, the Syracuse Land & Steamboat Company, and others, defendants. Upon the submission of the case the court gave judgment for the Syracuse Rapid Transit Railway Company against the plaintiff, and gave judgment in favor of the plaintiff against the defendant the Syracuse Land & Steamboat Company for the sum of $743.13, being the amount of the plaintiff’s claim allowed, together with costs of the action. The defendant the Syracuse Land & Steamboat Company appeals from the judgment rendered.

From the reading of the evidence it is apparent that the plaintiff proceeded upon thé trial with the purpose of recovering judgment against the Syracuse Rapid Transit Railway Company and endeavoring to make that company liable for the amount of damages which it is claimed the plaintiff sustained, and it is equally noticeable that the defense upon the trial substantially lost sight of the other defendants, and turned all of its force and skill toward the defeat of the recovery of the judgment against the defendant the Syracuse Rapid Transit Railway Company. The trial court has found as matter of fact that the evidence _ shows that Mr. Gannon and Mr. Connette were the agents for the’ Syracuse Land & Steamboat Company, and had authority to authorize and consent to the improvements which were made upon the lands of the steamboat company, and that the improvements made had inured to the benefit of the company, and, as there is some evidence tending to prove that fact, though slight, it may be said that that question of fact has been found in favor of the plaintiff. Certainly the judgment rendered is according to the equity of the case, and, if possible, should be sustained. The defendants the Syracuse Rapid Transit Railway Company and the Syracuse Land & Steamboat Company united in their answer in the action, and appeared by the same attorneys.

For a period of years it would seem that the business of the steamboat company had received but little attention, if any, at the hands of the officers of the company. Mr. Kuntzsch, who seems to be about the only remaining officer of the company, and who was at one time its secretary, is not quite sure whether he is now an officer or not. He states that he would not be sure whether he had ever resigned .his office; that there was some talk about having the matter closed up; and that he suggested that the matter be closed up, and that the company have new officers elected. Whether it was done or not he could not say, or whether he resigned he could not say, but, so far as he did know anything about it, there had never been any new officers elected. It is admitted, however, that Mr. Kuntzsch is vice president of the company, and it can be safely said that as such officer he did not give attention to the business of the company. At one time he was upon the premises of the company, and saw the improvements that were being made, but paid no particular attention to them. Ninety-two of the 100 shares of stock of the land and steamboat company were negotiated and purchased for the railway company, Mr. Kuntzsch assisting to that end. It is very evident that for several years past, and at the time the improvements were made upon the lands of the steamboat company, the business affairs of the company were controlled exclusively by the officers of the railway company. The evidence very substantially shows this fact. Mr. Gannon was president of the railway company and Mr. Connette vice president and general manager of the company, and during the time the improvements were being made frequently visited the property, and the plans of the proposed improvements were submitted to them. In fact, they seemed to have entire control of the work which was taking place, in pursuance of the contract made for the improvements. The witness Robinson testified upon the trial to a conversation had between Gannon and Connette at the time of the signing of the lease, which conversation shows quite conclusively that they were giving directions and instructions as to the improvements to be made upon the lands of the land and steamboat company, which lands were controlled by the railway company. He says:

“Mr. Gannon and. Mr. Connette both explained. They told me to take the land and any land I wanted between the railroad tracks there; it virtually belonged to them. I went to Mr. Gannon and asked him for instructions. He said, ‘Take any of it or all of it.’ They came up and examined the improvements, and they said, ‘We compliment you on the work • and the way you are getting along.’ They were there a number of times.”

V

While it may be said that this evidence as to the conversations with Gannon and Connette was objected to, it is a significant fact that it was only objected to as not binding on the railway company. No objection was made to it as against the land and steamboat company, though the same attorneys were appearing for both companies. It is not apparent why it was objected to upon the part' of the defendant appealing, unless it is to be construed as a concession that the land of the company virtually belonged to them, and that they had the right to direct the improvements to be made. Other evidence of like character and force was given by the witness without any objection:

“Q. Where is the property that Mr. Gannon and Mr. Connette told you they particularly owned, and you could use it? A. They said they owned everything between the railroad tracks, down from the line of the railroad to the water front. Q. What did they say? A. They said they controlled the property from the railroad—from the B. & O. Railroad—-to the iron pier building and down as far as the mouth of Onondaga creek. Q. What else did they say? A. They said go ahead and take possession of it. I would not be interfered with at all. They controlled all of that property. Pay no attention to this street”

In the lands referred to are included the lands of the defendant. If' objected to by the defendant appealing, it would have been error to have received this evidence, and it"is not easy to understand why objection was not made, unless it was conceded by the defendant- that Gannon and Connette had the right to speak for and bind the defendant in the matter, especially when considered in the light of the fact that the defendant railway company and the defendant land and steamboat company appear in the action by the same attorneys, who object to only a portion of the evidence as against the railway company alone.

Another fact which shows upon the trial a tacit admission of the liability of the defendant the land and steamboat company is the very loose and indefinite motion for a nonsuit made at the close of the plaintiff’s testimony, as that motion seems to be confined to a motion made by the railway company, and was not intended to be a motion for a nonsuit in favor of the defendant the land and steamboat company. So that, from the evidence given upon the trial, the court might find as matter of fact that under the existing circumstances in the case—the ownership of the stock of the land and steamboat company, the manner in which its business has been conducted for some time, and the evidence received of the acts of Gannon and Connette, without objection—■ they were acting for the land and steamboat company, and that the improvements made were really made for the benefit of the land owned by the land and steamboat company, but equitably owned by the stockholders of the railway company, and that they were agents with power to act in the matter. While the record does not disclose just what disposition of the nonsuit was made, it may be inferred that it was denied, as the defendant immediately proceeds to the giving of testimony upon the part of the defense. At the close of the evidence no motion was made upon the whole evidence for a nonsuit, and the case was submitted upon the evidence. From this course of procedure it may be taken for granted that the defendant admitted that there was evidence sufficient to warrant the submission of the case upon the facts presented, and, if that fact has been decided adversely to it, it cannot prevail upon this appeal. In the case of Hopkins v. Clark, 158 N. Y. 299, 53 N. E. 27, the.court has, with a purpose and intent to do so, settled the practice on this point, and stated the rule as follows:

“The rule laid down by the Supreme Court of the United States seems the proper one, to the effect that when a defendant, after the'close of the plaintiff’s evidence, moves to dismiss, and, the motion being denied, excepts thereto, and then proceeds with his case, and puts in evidence on his part, he thereby waives the exception, and the overruling of the motion to dismiss cannot be assigned as error.”

The rule has been settled for a long time that a defendant,' by failing to move for a nonsuit, concedes that there was a question for the court or jury to decide as between the parties. Hecla Powder Co. v. Sigua Iron Co., 157 N. Y. 437, 52 N. E. 650; Pollock v. Pennsylvania Iron Works Co., 157 N. Y. 699, 51 N. E. 979; Hopkins v. Clark, 158 N. Y. 299, 53 N. E. 27. It may be urged, however, that the evidence given upon the part of the defendant did not change the situation of the case from what it was at the close of plaintiff’s evidence, and thus relieve the defendant from the rule referred to. There was no well-defined motion for a nonsuit for the defendant appealing made upon the trial, and, even if the motion made is to be considered as a motion made in favor of both defendants, then the rule referred to in this case should prevail. In the case of Hopkins v. Clark, supra, the court states inferentially that, even though the evidence of the defendant did not strengthen the plaintiff’s case, but, on the contrary, weakened it, still the rule referred to should be followed. This appeal presents a case where the judgment appealed from should be sustained, if possible, and is not a case where the court should strain for reversal. National Wall Co. v. Sire, 163 N. Y. 122, 57 N. E. 293; Otis v. Dodd, 90 N. Y. 336. In reaching the conclusion that the judgment should be affirmed, I am not unmindful of the somewhat guarded method of the law to prevent the taking of the property of another, under the mechanic’s lien law, to satisfy a lien filed for the making of improvements upon such property, unless it appears that such improvements were made with the consent of the owner; nor have I overlooked the fact that corporations are bound only by the acts and contracts done and made by their agents within the scope of their authority given; but the law enacted for the purpose of giving the lien is a remedial statute, to be construed liberally, to secure the beneficial interests and purposes thereof, and a substantial compliance with its provisions is declared to be sufficient for the validity of the lien. In this case I am disposed to take the tacit admission upon the trial that Gannon and Connette were acting within the scope of the power given to them to act for the land and steamboat company, as they themselves stated that they had the right to use it, and thus give support to the fact which the trial judge has found in favor of the plaintiff and as against the defendant.

There are no exceptions in the case calling for a reversal of the judgment, no errors upon the trial shown to have been committed in the admission or the exclusion of evidence, and, as the judgment seems to be equitable and just, it is affirmed, with costs.

Judgment affirmed, with costs. 
      
      . See Trial, vol. 46, Cent. Dig. § 982.
     