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that any delay in deliveries had been acquiesced in; that respondent had disposed of the rejected material elsewhere at an increased price, and concluded with a plea for payment based on the ground that the entire transaction had been unprofitable to the respondent and the material supplied at a loss. Manifestly most of this letter was of no probative force on any issue involved, and I do not think that the court's rejection of it when offered in its entirety constituted error.

[4] The appellants contend that an improper measure of damages was adopted by the learned trial court. The respondent did not attempt to prove any loss of profits. It did prove that in order to perform the contract a corduroy road was necessarily constructed, and it recovered the reasonable expense thereof. Upon the facts in this case I do not think that such recovery was error. Expenditures necessarily made in anticipation of performing a contract may in many instances be recovered as an element of damage sustained after performance has been wrongfully prevented. Long Island C. & S. Co. v. City of New York, 204 N. Y. 73, 97 N. E. 483; United States v. Behan, 110 U. S. 338, 4 Sup. Ct. 81, 28 L. Ed. 168; Phillips, etc., Const. Co. v. Seymour, 91 U. S. 646, 23 L. Ed. 341. It may be that a recovery for both the prospective profits and the preliminary expenditures could not be sustained. See Mackey v. Olssen, 12 Or. 429, 8 Pac. 357.

[5] Assuming, however, that the contract was being conducted by the respondent at a loss, it would have been entitled to recover nominal damages at least for the breach; and I see no reason why in such instance it cannot also recover incidental expenditures necessarily made in anticipation of performance.

[6] It may be that the respondent could have been required to deduct from the cost of the road the value of its use in the performance of so much of the contract as had been completed at the time of the breach, but no such question was raised at the trial, and such an apportionment cannot be made upon appeal.

The judgment and order should be affirmed, with costs.

JENKS, P. J., and WOODWARD and RICH, JJ., concur.. BURR, J., dissents upon the ground that plaintiff was not entitled to recover the costs or any portion of the costs of constructing the corduroy road.

BROOME COUNTY v. CORTLAND COUNTY.

(Supreme Court, Appellate Division, Third Department. December 30, 1912.) PAUPERS (§ 39*)-LEGAL SETTLEMENT-LIABILITY FOR AID.

Poor Law (Consol. Laws 1909, c. 42) §§ 40, 42, 51, provide for the acquisition of legal settlements, and declare that a person who has made settlement in any town shall be maintained thereby, and that, when a poor person is removed or goes from a town or county into any other town or county not legally chargeable with his support, he shall be maintained by the superintendent of the county, who may recover the same. A person and his family acquired a legal settlement in a town in B. county. For several months he and his family resided in T. county, and *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

for some months they resided in C. county, and then returned to the town. They had received no aid from T. or C. counties, and their going was voluntary. Held, that the town or B. county was liable for their subsequent support, and there could be no recovery from C. county therefor.

[Ed. Note. For other cases, see Paupers, Cent. Dig. §§ 162-179; Dec. Dig. § 39.*]

Lyon, J., dissenting.

Appeal from Trial Term, Broome County.

Action by the County of Broome against the County of Cortland. From a judgment for plaintiff, defendant appeals. Reversed, and judgment directed for defendant.

Argued before SMITH, P. J., and KELLOGG, HOUGHTON, BETTS, and LYON, JJ.

James F. Tobin, of Cortland, for appellant.

James K. Nichols, of Binghamton, for respondent.

JOHN M. KELLOGG, J. Oscar Austin and his family of four children were natives of Lisle, Broome county, and resided there without material interruption until March 12, 1909. Therefore they had a legal settlement in that town under section 40 of the Poor Law, and such settlement continued until they had gained a like settlement in some other town or city by a residence of a year. Chapter 46, Laws of 1909 (Consol. Laws 1909, c. 42). From about March 12, 1909, to about the middle of October, 1909, they resided in the county of Tioga, and from the latter date until the family returned to Lisle, about May, 1910, they resided in Cortland county. They had not received any aid from the poor authorities of Tioga or Cortland counties, and the going from Tioga to Cortland county and from Cortland county to Lisle were entirely voluntary acts upon their part.

Section 42 of the Poor Law required that this family be supported by the town of Lisle or the county of Broome, the place where they were when they applied for relief. Section 51 provides that if a poor person is removed, or comes from a city, town, or county into any other city, town, or county "not legally chargeable with his support," he shall be maintained by the superintendent of the county where he may be, and then provides for giving notice to a county which it is claimed is liable under the law for the support of the poor person. This section does not apply to this case, as the Austins in returning to Lisle did not come into a town or county not chargeable with their support, but came to the county legally chargeable with their support.

County of Delaware v. Town of Delaware & Sullivan County, 105 App. Div. 130, 93 N. Y. Supp. 954, and like authorities, do not apply to this case. They proceed upon the theory that section 51 of the Poor Law furnishes no remedy over against the town where the poor person had a legal settlement, unless the person was a poor person when he came into the county actually furnishing the relief. That case does not affect the question as to which county is primarily liable for the support of the poor person; but, as the statute requires the

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

person to be supported in the town where he is and only provides a remedy over in case the person coming into the county was a poor person when he came, it held that there could be no recovery. But here the town of Lisle or the county of Broome was legally chargeable with the support of the family when the relief was granted. Section 51 gives plaintiff no right to recover over, and, as the burden rested upon Lisle or Broome county, the county of Cortland is not liable.

We have not discussed the facts as to the situation of the Austin family, but have so far treated the case as one of law. As a matter of fact, however, we are satisfied that the family of Oscar Austin were poor, shiftless, and improvident, and were considered fair subjects for charity and treated as such before they left Broome county, and that they were really poor persons within the meaning of the statute when they came to Tioga and Cortland counties.

The judgment is therefore reversed upon the law and the facts. The particular findings of fact disapproved of are the second, third, and fourth, and judgment is directed in favor of the defendant in the court below, with costs, and with costs of this appeal. All concur, except LYON, J., dissenting.

NUGENT v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department. January 10, 1913.) INFANTS (§ 72*)—INJURY TO UNBORN CHILD-RIGHT OF ACTION AFTER BIRTH "NEGLIGENCE."

Although there is a residuum of injury for which neither parent can recover, and although a child en ventre sa mere is an entity for many purposes, yet a child cannot after its birth recover from a railroad company damages for a deformity caused by the company's negligence in transporting its mother, who was then enceinte, for no relation of carrier and passenger extended to the fœtus, the carrier's duty only extending to the mother, and so it could not be guilty of negligence towards it, for that is the culpable failure to observe a duty owed by one to another in a particular relation, and for the same reason no action for breach of contract will lie.

[Ed. Note.-For other cases, see Infants, Cent. Dig. §§ 180-185; Dec. Dig. § 72.*

For other definitions, see Words and Phrases, vol. 5, pp. 4743-4763; vol. 8, pp. 7729-7731.]

Appeal from Trial Term, Kings County.

Action by Girard Nugent, an infant, by Arthur A. Nugent, his guardian ad litem, against the Brooklyn Heights Railroad Company. From a judgment dismissing the complaint, plaintiff appeals. Af

firmed.

Argued before JENKS, P. J., and HIRSCHBERG, BURR, THOMAS, and CARR, JJ.

William E. Butler, of New York City, for appellant.

D. A. Marsh, of Brooklyn, for respondent.

THOMAS, J. The plaintiff has sued for injuries received 36 days before his birth on September 5, 1911, through the negligent starting *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

of defendant's car, while his mother was alighting therefrom on July 31, 1911. The appeal is from the judgment for defendant on the pleadings after demurrer to the complaint. The father has brought a separate action for expenses incurred and services lost by reason of the child's injuries.

The question presented for the first time in this state is worthy of consideration, inasmuch as, if this action upon proper pleading may not be maintained, there is no remedy unless in an action by the mother for damages to her by reason of injuries to her son, and that would be inadequate. The statement in the complaint is, in effect, that the injuries to the mother affected the plaintiff's body, resulting in deformity at birth and less than normal nervous and physical condition, and otherwise injured him. The fact that the child was deformed, and would suffer thereby, would cause the mother mental pain, and, even if she could recover for that, the mental pain the child would suffer and the mere fact of deformity with its consequent diminution of the value of capacities and faculties could not be included in her recovery. The father, in case he could recover at all, could do so only so far as the injury enlarged the expense of the child's maintenance and entailed loss of service. So, however the subject be viewed, there is a residuum of injury for which compensation cannot be had save at the suit of the child, and it is a question of grave import whether one may wrongfully deform or otherwise injure an unborn child without making amends to him after birth. The identification of an unborn child with the mother, and the merger of its individuality in her own, would seem justly to be limited by her ability to recover full compensation for the injury done both to her and to him. In the case at bar certain of his injuries can be segregated, but she cannot represent him for the purposes of recovery for them. If, now, one should assault the mother, whereby violence would be transmitted injuriously to an unborn child, there seems to be no reason to deny him an action after his birth for his injuries. The inconvenience of discovering the resultant injury does not affect the present inquiry, as the naked fact of such harm is admitted by the demurrer to the complaint alleging it. It would be no answer to the trespasser that the child was concealed in the mother's womb. The wrongful act initiated by the assailant would reach the child, as it might result in tortious contact with any third person, although that was not within the purpose of the actor. So, if a tort be an act of negligence, the remedy is not confined to the person next to the act in sequence. But it may be answered that an unborn child is not an entity. Hence a trespass upon it does not invade the personal rights of a human being so as to admit of a civil remedy at its instance after birth. And so it is argued, in effect, that an unborn child is not a member of political society so as to be related to others engaged in any of the activities or subject to any of the conditions of life. From this it would be argued that no person actually born owes an unborn any duty of which there can be a culpable breach. That is, none of the rights of the person attach to him because he is not a person. It is repeating arguments several times advanced in this connection to say that an unborn child has, conditioned upon its birth,

usual rights of property, and the remedies that pertain to them for actionable injuries inflicted before his birth. The being that owns is the supreme consideration and has capacity for ownership. What is owned and the right to own are merely incidental to the living entity. And yet shall the incidents be valued in legal cognizance and the owner not? But when in legal apprehension for the purposes of property rights does the entity begin? And what are its capacities? It is sufficient for present purposes to state that it begins before birth, and that it has all the capacities of born persons to receive property, and after birth to enjoy it, and redress prenatal injuries to it. It is in being for the purpose of measuring the valid limitation of estates. Long v. Blackall, 7 Durn. & East. 96. An estate may be given to it or to another person for its life (Thellusson v. Woodford, 4 Ves., Jr., 227), and a guardian may be appointed for it (Marsellis v. Thalhimer, 2 Paige's Ch. 35, 21 Am. Dec. 66). The death of its father by the wrongful act of another by culpable negligence may injure it so as to permit recovery therefor after birth. The George and Richard, L. R. 3 Adm. 465, noticed approvingly in Quinlen v. Welch, 69 Hun, 584, 23 N. Y. Supp. 963, where it is also said:

"It has been held that the civil rights of such an infant are equally respected at every period of gestation; and it is clear that, no matter at how early a stage, it may be appointed an executor, is capable of taking as legatee or under a marriage settlement, may take specifically under a general devise as a child, and may obtain an injunction to stay wastes."

In Cooper v. Heatherton, 65 App. Div. 561, 73 N. Y. Supp. 14, Mr. Justice Jenks discusses the status of an unborn child in regard to property rights, and says:

"In Stedfast v. Nicoll, 3 Johns. Cas. 18, Kent. J., notes 'a late case' (Doe v. Clarke, 2 H. Black. 400), where 'the court go so far as to say that it is now settled that an infant en ventre sa mere shall be considered, generally speaking, as born, for all purposes for his own benefit."

Is not the right to be born with normal faculties the capacities for its benefit? If so, he who takes it away deprives the child of the highest good. In Walker v. Great Northern Railway Company (1890) 28 L. R. (Ir.) Q. B. & Ex. Div. 69, 75, O'Brien, C. J., in commenting on the rule that a child in utero is considered as actually born when it is necessary for the benefit of such unborn child so to be considered, said with reference to a case of a person disabled from earning a livelihood by willful injury to it in the womb:

"In the case I put it would be manifestly for the benefit of the child that it should be considered as born at the time the injuries were inflicted, and that an action could be maintained."

In that action the claim was that the mother, quick with child, was received by the defendant for safe carriage, but that the defendant so negligently conducted himself that plaintiff, thereafter born, was permanently injured and crippled, and the demurrer to the claim was sustained. The several judges wrote with much reference to the cases, statutes, and civil, ecclesiastic, and common law relating to the status of an unborn child, and, while there was diversity of view, they met

139 N.Y.S.-24

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