73 77 FIRST DEPARTMENT, JUNE TERM, 1902. [Vol. 73. avoid wetting her feet walked on a strip about a foot wide which was immediately adjoining the excavation, and in walking over this strip she slipped and fell. It is not claimed that the plaintiff was not entirely familiar with the situation, or that she did not know that the excavation had been made, but she deliberately selected this place of danger in preference to the other sidewalk or the middle of this sidewalk where she would have been safe. To say that an accident under these conditions was the result of the negligence of the defendant seems to me to contradict all of the conceded facts. The accident really happened because the plaintiff voluntarily placed herself in a place of danger which was perfectly apparent to her, and not through any negligence of the defendant. Judgment and order reversed, new trial ordered, costs to appellant to abide event. 262 2 16 MARY FLOR, Respondent, v. WENZEL FLOR, Appellant. Contempt proceedings for non-payment of alimony a recital of a demand therefor in the order of commitment must be sustained by proof thereof. Proceedings in contempt are to be construed stricti juris and every condition precedent to the exercise of the power must show a literal compliance with the law. Section 2268 of the Code of Civil Procedure, relating to contempt proceedings instituted because of the refusal to pay a sum of money required by an order, which provides that the court must be satisfied by proof by affidavit that a personal demand has been made for payment of the sum directed to be paid in the order, is not satisfied by a recital, in the order adjudging the offender guilty of contempt, that it appears to the satisfaction of the court that such a demand has been made, where there is no proof of that fact by affidavit or otherwise. APPEAL by the defendant, Wenzel Flor, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of March, 1902, and also from an order entered in said clerk's office on the 3d day of April, 1902, resettling said first-mentioned order adjudging the defendant guilty of contempt of court, and directing that he be committed to the common jail in the city of New York. App. Div.] FIRST DEPARTMENT, JUNE TERM, 1902. William Henry Knox, for the appellant. William M. Sullivan, for the respondent. HATCH, J.: This action was commenced by the plaintiff to recover a judgment for an absolute divorce, and at the time of the service of the summons and complaint in the action there was also served a notice of motion for alimony pendente lite and counsel fees. The defendant made default in appearing upon the motion and an order was granted directing the payment by the defendant of alimony and counsel fees in a specified sum, the order requiring that service should be made upon the defendant and settlement of the same had upon notice. When the proposed order and notice of settlement was served upon the defendant he applied for and obtained leave to open his default, and upon the hearing had upon the subsequent application the court made an order awarding to the plaintiff the sum of $8 a week as alimony and $125 as counsel fees. A copy of this order was served upon the defendant by the plaintiff, but no demand was made upon him at that time for the payment of the alimony and the counsel fee or of either. From this order the defendant appealed to this court, where the same was modified by reducing the amount of the alimony to six dollars a week and the counsel fee to fifty dollars, and as so modified the order was affirmed. This order was never served upon the defendant and no demand of payment of the alimony and counsel fee awarded thereunder has ever been made. Thereafter the plaintiff obtained an order to show cause why the defendant should not be punished for contempt in failing to obey the several orders directing him to pay alimony and counsel fees. This order coming on to be heard on March 6, 1902, the defendant was adjudged to be guilty of contempt and was directed to be committed by the sheriff of the county of New York to the common jail in the city of New York, in the borough of Manhattan, and to be there detained in close custody until he should be discharged according to law. On April third this order was resettled, but no change was made in that part adjudging the defendant to be in contempt and directing his commitment to the common jail. From the resettled order this appeal is taken. It is evident that the order cannot be sustained. It is FIRST DEPARTMENT, JUNE TERM, 1902. [Vol. 73. well settled that proceedings in contempt are to be construed stricti juris, and every condition precedent to the exercise of the power must show a literal compliance with the law. (McComb v. Weaver, 11 Hun, 271.) Before the defendant could be adjudged to be in contempt it must have appeared, not only that the order with which he was required to make compliance was served upon him, but that such service be accompanied with a demand that he make compliance therewith and pay the money directed to be paid thereby. (Delanoy v. Delanoy, 19 App. Div. 295; Bradbury v. Bliss, 23 id. 606.) In the present case there has never been any service of the order made by the Appellate Division, nor has there been made any demand upon the defendant that he comply with such order. Service was made of the Special Term order, but the papers failed to disclose that any demand was made upon the defendant to pay the money directed to be paid by such order. It is true that the resettled order recites that, "it appearing to the satisfaction of this court that a personal demand for the alimony and counsel fee herein has been made upon the defendant," yet a careful examination of the papers recited in the order, as well as the other papers contained in the record, fails to disclose that any such demand was made upon the defendant or that the order of the Appellate Division was ever served upon him. Authority for these proceedings is contained in chapter 17, title 3 of the Code of Civil Procedure. By the provisions of section 2268 of that chapter it is, among other things, provided that the court must be satisfied by proof, by affidavit, that a personal demand has been made for payment of the sum directed to be paid in the order. There is no affidavit of such fact contained in the present record nor does the recital in the order adjudging the defendant to be in contempt contain such statement, the recital being "it appearing to the satisfaction" of the court, etc. The satisfaction of the court as provided by the Code provision must be had upon an affidavit or other equivalent proof. In this respect the application to punish for contempt is wholly unsupported. It follows that the order should be reversed and the defendant be discharged from custody. PATTERSON, O'BRIEN, INGRAHAM and MCLAUGHLIN, JJ., concurred. Order reversed and defendant discharged from custody. App. Div.] FIRST DEPARTMENT, JUNE TERM, 1902. EDWIN H. MAIRS, Respondent, v. BALTIMORE AND OHIO RAILROAD COMPANY and Others, Appellants. Bill of lading-delivery of the goods to the consignee, having the bill in his possession, without requiring its surrender · right of action of a subsequent transferee of the bill of lading - an action does not lie for conversion — nor for negligence when a crime was a necessary feature of the transaction the punishment of a felony is presumed to be exclusive of any other remedy for the wrong. A common carrier issued a bill of lading which did not have the words "not negotiable" plainly written or stamped upon its face, but did contain a provision that, if the word " order" was placed before or after the name of the consignee, the surrender of the bill was required for delivery, but not otherwise, and that any alteration made without the special notation thereon of the agent should be void. Thereafter, at a time when the consignee was in possession of the bill of lading and was entitled to receive the goods, the common carrier delivered the goods to him without requiring the surrender of the bill of lading. Subsequently, the consignee transferred the bill of lading to a bona fide purchaser thereof. At the time the bill was transferred, the word "order" had been fraudulently inserted therein. Held, that the fact that the common carrier had violated section 633 of the Penal Code, by delivering the goods without requiring the surrender of the bill of lading, did not entitle the transferee to maintain an action against the carrier to recover damages because of such violation. O'BRIEN, J., dissented. Semble (per HATCH and LAUGHLIN, JJ.), that the only authority which ever existed for the maintenance of such an action was chapter 326 of the Laws of 1858, as amended by chapter 353 of the Laws of 1859, which prohibited, under pain of fine and imprisonment, a common carrier from delivering goods represented by such a bill of lading without requiring the surrender thereof, and authorized any person aggrieved by a violation of the statute to bring an action against the common carrier to recover the damages sustained by him because of such violation. Consequently, when the Legislature, in re-enacting the statute of 1858 in sections 629 and 633 of the Penal Code, declared the offense to be a felony, but omitted the provision authorizing the maintenance of a civil action by the person aggrieved, the right to maintain such an action ceased. Semble (per HATCH and LAUGHLIN, JJ.), that the action could not be maintained as one in conversion, as the consignee was entitled to receive the goods at the time they were delivered to him, nor could it be maintained upon the theory that it was negligent for the carrier to deliver the goods without requiring the surrender of the bill, as the failure of the carrier to require the surrender of the bill of lading before delivering the goods would not have worked any injury if the word "order" had not been fraudulently inserted in the bill. FIRST DEPARTMENT, JUNE TERM, 1902. [Vol. 73. Semble (per HATCH and LAUGHLIN, JJ.), that a statute which declares an act to be a felony and attaches a punishment thereto, furnishes an exclusive remedy for the wrong, and an offense against its provisions may not be made the basis of a civil action for the recovery of damages. APPEAL by the defendants, the Baltimore and Ohio Railroad Company and others, 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 12th day of June, 1901, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 28th day of June, 1901, denying the defendants' motion for a new trial made upon the minutes and for a reargument of said motion and also denying leave to the defendants to amend their answer. The action was brought to recover damages resulting from the delivery by the defendant of property without the surrender of the bill of lading which for a valuable consideration had been transferred by the consignee to the plaintiff, the bill of lading not bearing upon its face the words "not negotiable," as required by section 633 of the Penal Code. The complaint averred that "by reason of such violation and the unlawful acts of the defendants as above set forth, plaintiff has sustained damages in the sum of four hundred twenty and dollars ($420)." There is no essential dispute as to the facts. On December 12, 1896, the Norfolk and Western Railroad Company issued at Circleville, O., the bill of lading in question for 200 barrels of Sagamore cornmeal consigned to James S. Day, New York city, and the goods were shipped via the Baltimore and Ohio railroad, the defendant herein, who on January 14, 1897, notified the consignee of its arrival; and, by his direction, the same was delivered by the defendant to the steamship Madiana on the following day, the 15th of January, 1897, without the surrender or cancellation of the bill of lading. The bill of lading did not have "upon its face the words 'not negotiable,' plainly written or stamped." It did contain a provision that if the word "order" was placed before or after the name of the consignee, the surrender of the bill was required for delivery, but not otherwise, and that any alteration made without the special notation thereon of the agent should be void. The bill did not bear the word "order" when 1 |