author:
Davies, J.
      Mullin, J.

text:
    Cornelius Dubois, Adm’r, &c., v. Abraham C. Baker.
    A promissory note, set up as a counter-claim, was alleged by the plaintiff to be a forgery. A witness who was cashier of a bank, after testifying that he was acquainted with the handwriting of the alleged maker, and that the signature to the note was in his handwriting, was asked whether the body of the note and the signature were written with the same ink. Held that the question was proper; the circumstances connected with the inception of the note, and the defendant’s possession of it, being legitimate subjects of investigation; and that the answer of the witness, in .the negative, laid a just foundation for subsequent inquiries tending to satisfy the jury of the fraudulent character of the note.

      Held, also, that other questions referring to facts apparent and obvious upon an inspection of the note, as; whether there were erasures upon it? whether they were-made before or after the note was written? and whether the edges of the note were cut edges, or the ordinary edges of foolscap paper? were not objectionable as calling for opinion. That the answers to them elicited facts, and facts material to the pending investigation, and having a tendency to make out the plaintiff’s theory respecting the note.
    That as to the writing upon the erasure, or whether made before or after the body of the note was written, if that rested in opinion, it was a proper inquiry to make of the witness, who was a bank cashier, and was therefore qualified to speak as an expert.

      Held, further, that questions put to the sapie witness, having for their object to elicit testimony tending to show that the note was written over the signature of the maker, and after the signature was written, were proper; and that his answer, that the note was more crowded and the words more cramped and confined than the maker’s usual- writing, formed an important link in the plaintiff’s theory that the note was in fact written after the signature.

      Held, also, that a comparison of the handwriting of the note in controversy with other writings of the alleged maker, in evidence in the cause, was allowable, for the purpose of ascertaining the gehuineness of the note.

      Appeal from a judgment of the Supreme Court.

    This action was brought to recover from the defendant the- amount of two promissory notes given by him to the plaintiff’s intestate, Isaac Allen, in his life time, one dated May 1st, 1861, payable to said Allen, or bearer, for the sum of $5,000, one year from date, with interest; the other dated June 25th, 186Í, payable to Allen, or bearer, thirty ' days from date, for the sum of $100. The amount of both notes, and the interest thereon, was admitted to be due upon the trial.
    The defendant, in his answer, admitted the making and delivery of these notes. As a defense, and by way of set-off or counter-claim, he alleged that on the 19th day of ¡November, 1860, the said Isaac Allen, being indebted to the defendant in various sums and amounts, for various considerations, the said Allen and the defendant, on or about the 19th of ¡November, 1860, met together and then and there adjusted all claims and demands which the defendant then had against said Isaac Allen, at the sum of $5,000; and it was then and there contracted and agreed that the said Allen was indebted to the defendant, for the consideration aforesaid, in the sum of $5,000, which sum it was promised and agreed should be and was to be paid out of the estate of said Allen, one day after the death of said Allen, and should then fell due and become payable; and thereupon the said Isaac Allen made and delivered to the defendant his promissory note or instrument in writing, of which the following is a copy:
    • “ 5,000. One day after my death, for services rendered and value received, I promise to pay, and there shall be paid, out of my estate, to A. C. Baker, or bearer, the sum of five thousand dollars.
    “Hyde Park, November 19th, 1860.
    “ Isaac Allen.”
    The questions litigated upon the trial had reference entirely to the validity of this note, and they were: 1. Whether the signature to the note was or was not genuine. 2. Whether, if the signature was genuine, the note was written over such signature, by the defendant, without the knowledge or consent of Allen. 3. Whether the note was or was not without consideration.
    The verdict of the jury was against the validity of the note. ¡No exceptions were taken to any portion of thé charge of the judge, but exceptions were taken, by the defendant, to the admission and rejection of evidence, which were directed to be heard in the first instance at general term. The exceptions taken were over-ruled by the general term, and judgment ordered for the- plaintiff for the amount of the verdict, with costs (see 40 Barb. 556), and the defendant appealed to this court.
    On the trial the plaintiff produced and read in evidence two receipts of the defendant, as follows:
    “$1.00. Hwde Park, May 1st, 1860.
    “ Received, of Isaac Allen, one dollar, in full for all services and demands up to date. A. C. Baker.”
    “Received, of Isaac Allen, five dollars and sixty cents, for expenses for selling a grey horse, and other services, up to date.
    Hyde Park, August 8th, 1861. “A. C. Baker.”

      H. A. Nelson, for the appellant.

      A. J. Parker, for the respondent.
   Davies, J.

It is to be observed that the defendant claimed, in his answer, that this $5,000 note was given to him for the sum found due to him on the 19th of November, 1860, upon an account stated, between him and Allen, and which account consisted of money lent by the defendant to Allen, for amounts due by Allen to him upon promissory notes of Allen held by the defendant; for money had and received by Allen belonging to the defendant; for a part of a bond and mortgage sold and assigned by the defendant to Allen; for goods, &c., sold by the defendant to Allen; and for work and labor, counsel and advice rendered by the defendant to Allen. And that the note is payable one day after the death of the maker and without interest. Some other items of set-off were claimed in the answer, but no question arose upon them at the trial.

Isaac Allen died on the 21st of January, 1862, at Hyde Park, where he resided for many years upon a farm of his own, the management and cultivation of which was his only business. He seems to have been a man of considerable estate, as his inventory amounted in 1860 to about the sum of $40,000. He had neither wife nor children, at the time of his decease, and no one resided with him at and for some time before his death, except a woman named Mary E. Sarles, who seemed to have had the care of him, going about with him, and transacting business for him, and was of a somewhat doubtful reputation. He was eighty years of age, when he died. -His eye sight had been impaired for years, and for more than one year before he died he was perfectly blind. The defendant resided in his neighborhood;. he whs not a professional man, and his accustomed occupation does not distinctly appear. He was frequently at Allen’s house about the time the note bears date, and his relation to the deceased then somewhat intimate and confidential, for he occasionally sold the products of Allen’s farm for him, paid his taxes, attended to a law suit or so in the justices’ courts, collected money for him, and assisted him in the transaction of his business. Beyond these inconsiderable services, and the two receipts of the defendant produced to show that they were regarded in that light and the compensation paid therefor of a very moderate character, the defendant offered but little proof of the allegation of his answer, in respect to the money, property and services therein referred to as the consideration of the note set up. The facts disclosed on the trial would seem clearly to show that Allen was more likely to be a lender of money to the defendant than a borrower from him. And .-the fact of the defendant’s conceded" indebtedness to Allen in May and June, 1861, as indicated by the notes in suit, and the giving of these notes, afford strong ground for the belief that Allen at this time was not indebted to the defendant. And it is also to be remarked that the defendant, upon the trial, offered no evidence to show any money lent by him to Allen, any money received by him belonging to the defendant, any assignment or transfer of any bond and mortgage froto him to Allen, any books, or account showing any entries of any items which went to make up the balance of $5,000, found due to the defendant upon the accounting; nor did he specify, or attempt to show how much was due for money, how much for property, or how much for the alleged services tendered.

Edward Burrett, a witness for the defendant, testified / ' that in December, 1860, he had a conversation with Allen about Baker. He said Baker was a clever fellow; that he was doing business for him, or had been, and that he intended to take care of him and pay him for what he had' done; that he had given him this five thousand dollar note for his services to pay him well. He said Fowler and Miss Sarles were both present, but does not know if they heard the conversation. Both these witnesses were examined by the defendant, but they do not testify to ever having heard Allen say anything about this note, or of any indebtedness of Allen to Baker. The character of Burrett was impeached on the trial more or less, and the jury may have entirely discredited his testimony. Travis, a witness for the plaintiff, testified that since Allen’s death, he had heard Baker speak of this note; said that he held a note against Allen’s estate for $5,000; he stated how it was drawn—one day after death. He said he drew the note and Allen signed it; that it was at Allen’s house that he drew the note and Allen signed it; that they were alone, and nobody was to know it till after his death. No reason for the gift was assigned by Baker; he said Allen wanted to give him a present as he had done a great deal for him. The evidence undeniably established that the signature at the foot of the note was in the proper handwriting of Allen, and it also' satisfactorily established that the body of the note was written by the defendant, and in different ink from that of the signature. The theory of the plaintiff’s counsel was, that Baker had procured a slip of paper, upon which there were two signatures of Allen, and that one of them had been erased, and that over the other this note had been written. The ¡ilaintiff proved by Dr. Edward H. Parker, a witness accustomed to the use of the microscope, that he had examined the note and the writing thereof, through that instrument, and that the word “year,” in the body of the note,'had been erased, and the word “ day” written upon the erasure, so as to make it payable one day instead of one year" after the death of the maker; and that the body of the note, which was written in blue ink, had been written after it was signed with the name of Isaac Allen, which was written with black ink, because certain parts of the blue ink passed on .and overlapped the black ink. The jury found a verdict for the plaintiff, thus affirming that the note was in fact a forgery.

We have only to consider the exceptions taken by the defendant upon the trial, and which are now urged as grounds why the judgment should be reversed and a new trial ordered. John E. Hull, cashier of a bank, testified that he was well acquainted with the handwriting of Allen, and that the signature to the note was in his handwriting. He was then asked by the plaintiff’s counsel, are the signature and the body of the note written with the same ink? It is to be observed here that it was subsequently proved that the body of the note was in the defendant’s handwriting, and was written with blue ink, and that the signature of Allen was written with black ink, and that the body of the note was written partly over and upon the signature, thus demonstrating, if this evidence was credited by the jury, that the body of the note was written after the signature had been written. This question was objected to, and admitted and exception taken, and the witness answered: “ I think it is not.” The defendant had produced the note and had relied upon it as the ground for establishing a debt against the estate of the deceased. All the circumstances connected with its inception and possession by the defendant, were legitimate subjects of investigation, and the position of the plaintiff not only authorized, but demanded the fullest enquiry into them. The question put to the witness was therefore eminently proper, and the answer given laid a just foundation for the subsequent enquiries, which satisfied the jury of the fraudulent character of the note. The next questions put to this witness and objected to are:

1. Does there appear to have been an erasure in this note?

2. Was the erasure made before or after the body of the note was written? 3. Are either of the edges of the note in question cut edges, or the ordinary foolscap edge?

These questions were objected to on the ground that they asked for the opinion of the witness. It is a mistake to assume that these questions called for opinion. The •answers to them elicited facts, and facts material to the pending investigation. Whether there were erasures upon the note; whether they were made before or after the note was written, and Whether the edges of the note produced had cut edges, or the ordinary edges of foolscap paper, Were all circumstances having a tendency to make out the plaintiff’s theory respecting the note. They are all facts-apparent and obvious upon an inspection of the note, and it was competent and proper for the plaintiff to call the attention of the witness to them, and to establish them as evidence by his oath. As to the writing upon the erasure, or whether made before or after the body of the note was written, if that rested in opinion, it was a proper enquiry to make of the witness, who was a bank cashier, and was therefore qualified to speak as an expert. (Cowen & Hill’s Notes, 1418, 1419; 1 Green. Ev. §440; Moody v. Bornell, 17 Pick. 490; Stone v. Hubbard, 7 Cush. 595; Sheldon v. Benham, 4 Hill, 131, n. b.; Cooper v. Bockett, 4 Moore P. C. Cases, 433.) In this latter case it was decided that where one line of Writing crosses another an expert may testify which, in his opinion, was made first. The same remarks will apply with equal force to the question put to Harris, and objected to by the defendant. He was also a cashier and an expert, and these questions had for their object to elicit testimony tending to show that the note was written over the signature of Allen, and after it was written. He was competent to say, by comparison of this with other writings of Baker, whether it was more crowded, and the words more cramped and confined than his usual writing. The answers showed that it was so, and they formed an important link in the plaintiff’s theory that the note was in fact written after the signature. A comparison of the- hand-writing of papers introduced and relevant is permitted, to ascertain the genuineness of the one in controversy, and no reason is perceived why the same thing may not be done in the present instance, for the purpose indicated. This rule was distinctly laid down in Doe v. Newton (5 Adol. & Ellis, 574), that where different instruments are properly in evidence for other purposes, the hand-writing of such instruments may be compared by the jury, and the genuineness or simulation of the handwriting in question be inferred from- such comparison. This rule received the approval of this court in Van Wyck v. McIntosh (4 Kern. 442). I see no objection to the admission of the claim made by Miss Sarles upon the estate of Allen, and her release and settlement thereof. She had testified, upon the defendant’s examination, that her claim was settled; that it was not what Allen had offered her, and that she was not satisfied. She was evidently under an unfriendly bias toward the plaintiff, and it seems to have been quite proper that all the facts connected with that claim and settlement should b.e laid before the jury, that they might judge of the cause and extent of that bias and prejudice. It affected the defendant in no other way than as showing the influences under which the witness testified.

I see no other exceptions of the defendant calling for any further observation; and being of the opinion that they were legally overruled, I am of, the opinion that the judgment appealed from should be affirmed, with costs.

Denio, Ch. J., and Wright, Ingraham and Johnson, JJ., concurred.

Mullin, J.

The verdict of the jury was rendered on conflicting evidence, and is conclusive on the questions of fact in the case.

The only questions before the court are those arising on the exceptions to the rulings of the court on the trial as to the admission or rejection of evidence. They will be most conveniently examined in the order in which they are stated in the case.

Hull, cashier of the Fallkill Bank, a witness on the part of the defendant, was asked, on cross-examination, whether the signature and body of the note were written with the same ink. The defendant’s counsel objected to the evidence on the ground that it called' for the opinion of the witness, and was improper. The objection was overruled, ■and the defendant’s counsel excepted.

If there was in fact a difference in the color of the ink used in writing the body and signature of the note, it might be quite material upon the issue as to the genuineness of the note. If the note was written at the defendant’s house, on the day it was signed, and the intestate had but one bottle of ink, and that was black, and the body and signature were written in inks of different colors,—it would be a fact tending to cast suspicion on the note if not to proye it a forgery. The subject matter of the inquiry being material, it only remains to inquire whether the witness was competent to testify to it. If it was a matter which was to be determined by mere inspection of the paper, the jury were as competent to pass on the question of color as the witness. But if it involved any peculiar skill to detect the difference, then the opinion of an expert was competent.

I think we may take it for granted—in the absence of any allegation to the contrary, or objection to the evidence until it was shown that the witness had skill in the deduction of forgeries—that a cashier of a bank is. an expert within the rule that permits experts to give opinions upon matters peculiarly within the branch of science or art to which their skill relates. A cashier is an expert in regard to handwriting, by reason of the great amount and variety of it which comes under his observation, and because of the great care which such officers are required to exercise in order to avoid the ¡numerous risks which banks incur in having their own notes, and those which they are in the practice of using daily, forged and counterfeited. Entering into the question of forgery, not unfrequently, is the question whether the ink, with which the note that is the subject of investigation is written or printed, is of the same color of the genuine notes, or whether the signatures and the body are of the same color or of different colors. It is also true that the color of ink is affected by lapse of time; some becoming darker and some lighter. An expert in the detection of counterfeits is able to appreciate these changes, and they may be quite obvious to him, while to. the jury they may be wholly unappreciable.

I am, therefore, of opinion that it was competent to ask the witness the question put to him, and the objection was properly overruled.

The next question objected to by the defendant’s counsel was, whether there appeared to be an erasnre upon the note. The objection was overruled, and the counsel excepted.

The observations already made apply with some force to the question now under consideration. But there is another which I omitted to allude to in examining the previous question and objection, which applies to both, and that is this: The party assailing a note as forged or counterfeited, has the right to have a description of it incorporated in the record, so that the court of review, which does not usually have the original paper before it, may be informed as correctly as possible in regard to its appearance. As to all matters apparent on the face of the note, a jury are informed by mere inspection; but that information can only be got into the case through Avitnesses called to describe its appearance. Hence a witness with the paper before'him may be asked as to the condition and appearance of the paper, and such facts are not opinions. An expert, on the other hand, while he may testify to the game matters, yet his peculiar province is to speak of matters connected with the paper, which it requires science and skill to discover. On either ground I think the evidence was competent.

The next question objected to by the defendant’s counsel was whether the erasure was made before or after the body of the note was written? The objection was overruled.

For the reasons already suggested, I think this question competent.

The next question, whether the edges of the note were cut, or the ordinary foolscap edge, was competent for the same reason. It was descriptive of the note, and either .party had the right to have a description of it in the case.

Harris, a witness, produced on the part of the plaintiff, testified that he was cashier of the Merchants’ Bank, and that he knew the defendant’s handwriting. Five papers, being notes and receipts, were then shown to him, and he said they were also the defendant’s handwriting, and these papers were, as I infer from the case, put in evidence, being numbered 1, 2, 3, 4 and 5. He was then asked to state in what respect the character of the handwriting of the $5,000 note, differed from the receipts and notes shown to him? This question was objected to by the defendant’s counsel as improperly asking for the comparison of hands and as irrelevant.

It would seem from the evidence given in answer to this and other questions that the object of it was to show that the $5,000 note was not written in the defendant’s usual manner, but the letters were smaller and more crowded; the plaintiffs’ thereby intending to satisfy the jury that the note was written over a signature of the intestate and was not a note signed by him, with knowledge of the character of the paper thus signed by him. It was competent to prove this fact. The question put was understood by the witness as calling for evidence bearing, on the view of the case just suggested. The evidence called for was not therefore immaterial.

But the question called for a comparison by the witness of the $5,000 note with the five papers put in evidence, thus assuming that these papers were fair specimens of the defendant’s style and manner of writing notes and receipts. I can perceive no objection to asking the witness whether the writing in the $5,000 note was larger or smaller than Allen’s usual hand; nor whether he was accustomed to crowd his letters and words, or to leave considerable space between. These are facts any one acquainted with his hand writing could testify to. But the complaint'is that the witness was called on to speak not from his own knowledge, but from comparison with other writings.

It has been held that a witness cannot be permitted to testify to his opinion of hand writing from comparing that of the paper in question in the suit with that of other papers; proved to be genuine, unless the papers with which the comparison is to be made are in evidence in the cause; then the papers thus in evidence may be given to the jury, in order that they may, by comparison, determine a conflict of evidence in relation to the genuineness of the handwriting in issue. (Van Wyck v. McIntosh, 14 N. Y. 439; Ellis v. The People, 21 How. Pr. R. 356; 4 Bro. 442; 5 Ad. & E. 544.)

The comparison proposed in this case was not for any such purpose. The body of the note was concededly in the defendant’s hand writing—that of -the signature in the intestate’s. The comparison proposed was however just as improper as if it had related to the hand writing. The question was improper. But it was not answered. The witness answers from his own knowledge of the defendant’s hand writing, and not from any comparison of the $5,000 note with the notes and receipts exhibited to him. The defendant was not prejudiced by the question, and the error has not injured him.

There were three other exceptions taken to questions put to this witness, which were overruled. These questions related to whether the words in the noté in question were more or less crowded than the defendant’s usual writing; whether two kinds of ink were used in writing the note— one kind in the body and another in the signature; and how the color of the ink attempted to be erased compared with the color of that in the signature.

It is impossible to say from the case whether these questions called for the opinion of the witness as an expert, or merely a description of the appearance of the note. If the former, the witness was an expert, and competent to give an opinion. If the latter, then a description of the note, in all the respects referred to in the question, was competent.

Evidence of the claim- of the witness, Mary E. Sarles, against the estate of Isaac Allen, and the papers accompanying the same, was incompetent, and should have been rejected. The dealings between the witness and the intestate were wholly irrelevant to the issue between the parties then before the court. They could be used only to affect the credibility of the witness, if they were of a nature to produce that' result. The only way they could be used against her for that purpose was by an examination of her in reference to such dealings. But they being irrelevant, her answers were conclusive on the plaintiff. In order to attack her reputation, otherwise than by her own oath, evidence that her character for truth and honesty is bad must be given. It was not competent to show that she had been guilty of perjury or other specific crime, for the reason that a witness is not presumed to be prepared to meet evidence' of particular criminal or immoral acts, but is presumed to be at all times prepared to meet and resist attacks on his general character and conduct. (1 Cowen & Hill’s Notes, 766.)

The papers relating to the claim against the estate, when received, would prove or have a tendency to prove that the witness had made a dishonest claim against it, or that She* had been guilty of perjury in verifying it, dr both. These facts, if facts they were, could not be proved in any other way than by her own oral evidence, and that evidence could not be controverted.

The defendant, on the- direct examination of the witness, gave no evidence that could form a basis on which to rest the admission of this evidence.

When the defendant closed the first examination of the witness, he had not alluded to her claim against -the estate. The plaintiff’s counsel, at the close of the cross-examination, alindes to it for the'first time, by enquiring of her how much she had got out of Allen’s estate. On re-direct examination, the defendant’s counsel proved by her that her claim was settled, but what she got was not satisfactory to her, as it was not as much as Allen offered her. She said she went to Allen’s because he came for her, and promised to do better by her than she could do for herself; and that he had given her two notes of $500 each.

On re-cross-examination the plaintiff’s counsel inquired of the witness what the amount of her claim against the estate was, and she replied she did not remember; and thereupon the papers relating to it were offered and received in evidence.

This case is not within the rule laid down at the last term in the case of Jeffards v. The People. In that case the mother of the prisoner was examined on his behalf, and on her direct examination testified that she was the widow of the person for whose murder the prisoner was then on trial. The district attorney, to contradict her on this point, offered in evidence an affidavit made by her some years before the trial, in which she swore that she was then the wife of a person named by her; and he also offered a deed signed by her as the wife of the same person; and these papers, with other evidence given on the trial, proved that she could not be the widow of the deceased. This evidence was received under the objection of the prisoner’s counsel, and this court held it admissible, on the ground that^the evidence of her relation to the murdered man, was not collateral to the issue, and it was therefore competent to contradict her.

The evidence of the claim, &c., in this case, contradicted nothing the witness had sworn to on either her direct or cross-examination; and it could only operate by way of impeachment, and for this purpose specific acts of misconduct are not admissible. (1 C. & H. Notes, 766.)

Evidence of the defendant’s habit of carrying an inkstand at any time, was not admissible. The fact to be proved was that he had one with him on the day the note was drawn, and his habit to have one was not legal evidence that he had one at that time. It is not as convincing proof of that fact as evidence of the habit of a usurer to take usury, is that a contract made by him is usurious; and evidence of such a habit has been held to be incompetent.

The judgment should be reversed and a new trial granted, with costs to abide the event, by reason of the admission of the illegal evidence as to the claim of the witness Sarles against the estate of the intestate.

Seldek, J., was also for reversal. Hogkeboom, J., did not vote. Judgment affirmed.


source: Caselaw Access Project

author: Davies, J. Selden, J.

license: Public Domain

text:
    John Mulhado v. The Brooklyn City Railroad Company.
    Where the plaintiff, a passenger upon a city railroad car, indicated his wish to alight at the place where the car was then stopping, by requesting the driver to keep on the brake, who replied “ yes sir,” but instead of suffering the car to remain stationary until the plaintiff should alight, he turned the brake and set the car in motion, thereby precipitating the plaintiff, (who was in the act of alighting,) from the car into the street, thereby causing an injury; Held that if the jury believed the evidence they were justified in finding the driver guilty of negligence; and that it was not the province of the court to discredit it, and nonsuit the plaintiff.

      Held, also, that the plaintiff was not chargeable with any fault in that he did pot prefer the request to the conductor, to stop the cars, instead of to the driver.

      Held, further, that there was no fault in the attempt of the plaintiff to get off the front platform, instead of the rear one; he having got on at the front platform without objection; and it not appearing that any notice was given to passengers that they must not get off at the front platform. In an action to recover damages for a personal injury, there is no valid objection to the exhibition of the injured limb, by the plaintiff, to the surgeon called to describe the injury, before the jury.

      Appeal from a judgment of the general term of the Supreme Gourt, affirming the judgment of a speciel term rendered upon the verdict of a jury.

    The facts appear in the following opinions:
    ■-, for the appellant.

      H. Morrison, for the respondent.
   Davies, J.

This action is brought to recover damages sustained by the plaintiff in consequence of the negligence of the defendants’ agents. The plaintiff was a passenger on the cars of the defendants. The- car stopped, and the plaintiff wishing to get out, asked the driver where the car was stopping. He replied, at the corner of' Degraw street. The plaintiff said to the driver, “be so kind as to keep your brake.” He replied, “yes, sir.” The plaintiff then stod'd up. The driver was in front, and the plaintiff was behind him. The car started, the driver having turned the brake, and the plaintiff fell forward and was injured. This is the version of the transaction as given by the plaintiff, and it is the one which the jury must have credited. They found a verdict of §900 for the plaintiff, and judgment was entered thereon, which was affirmed at the general term. It is claimed, on the part of the defendants, that the motion for 11011-suit should have been granted, as there was no evidence of negligence on the part of the defendants. This can not be justly- said if the statement of the plaintiff was to be believed. He clearly indicated by his acts and words that he wished to alight from the car, at the point where it was then stopping. He made the request to the driver to keep on the brake, and such request could only be understood in the sense that he wished to get out, and desired the car to remain stationary until that was accomplished. The driver, instead of complying with this reasonable request, immediately, and while the plaintiff was in the act of alighting from the car, turned the brake and set the car in motion, thereby precipitating the plaintiff from the car. into the street, causing the injury. If the jury believed this evidence, they were justified in finding the driver guilty of negligence; and it was not the province of the court to discredit it, and non-suit the plaintiff. It is also urged that the plaintiff was not free from fault, in that he did not prefer the request to the conductor to stop the car, instead of the driver. It is difficult to predicate any fault in the plaintiff from this circumstance. It is to be inferred that he was near the driver. He saw he had control of the brake, and it was natural that the request to continue the stationary condition of the car should, under the circumstances, be preferred to him. If it had been made to the conductor, who is usually stationed at the other end of the car, he would have had to communicate it to the driver either by sounding the bell or verbally. It cannot, therefore, be said the plaintiff was in fault, and himself contribnting to the accident, by reason of making the request to the driver to hold on the brake until he got off, rather than to the conductor. Neither was there any fault in the attempt of the plaintiff to get off the front platform instead of the rear. It does not appear that any notice was given to passengers that they must not get off of the front platform; and as it appeared that the plaintiff got on the car at the front platform, without objection from the driver, he might well have supposed, from the absence of any notice of the kind indicated, and from the circumstance that he got on at the front platform without objection, that it was an unobjectionable place, to leave the car. The attempt of the plaintiff to alight from the car was made while it was stationary. The setting it in motion before he had accomplished that was the cause of the injury, and which was clearly negligence on the part of the defendants’ agent.

There is no force in the exception that the physician called to describe the injury to the plaintiff’s arm should not have exhibited to him, in the presence of the jury, the arm so injured. Such exhibition certainly tended to make the description of the injury more intelligible, and it cannot be supposed that it could have had any undue influence upon the feelings or sympathies of the jury. As well might it be contended that a man who had lost an arm or a leg, by a similar injury, should not be permitted to appear before a jury to testify in relation to it, lest thereby their feelings might be influenced, and under the undue excitement created thereby they might do injustice. We cannot assume that any such consequences will follow such a course' of examination; and we can not perceive that it was objectionable in the present instance.

The judgment must be affirmed, with costs.

Selden, J.

. No good reason is shown for the reversal of this judgment. The jury have found, as they had the •right to do, that the injury was occasioned in the manner testified to by the. plaintiff. It was clearly a question for them to determine, under all the facts and circumstances of the case, whether the plaintiff was guilty of any negligence in undertaking to leave the car in the manner testified to by himself, and whether the defendant was guilty of negligence in permitting the car to be started while the plaintiff was in the act of leaving it. I think the verdict • is right on both points, and justified by the evidence. It was clearly no case for a non-suit. Certainly it cannot, as matter of law, be regarded as negligent in a party to get off, even from the front end of a street car while it is standing, after he has requested the driver to hold his brake for that purpose, and has received his assurance that he will do so. Nor can it be held, as matter of law, that the defendant was free from negligence in allowing the cars to be started after this, while the plaintiff was .in the act of getting off. It was a question of fact, and the conclusion of fact was to be drawn from a variety of facts and circumstances, neither of which was, in itself, clear and decisive. This is always the province of a jury. It was for them to consider what was intended and understood both by the plaintiff and the driver by the request and the assent proved, and to determine the-weight and force of all the circumstances tending to the conclusion of the fact of negligence.

There is no force in the objection, to the exhibition of the injured limb by the plaintiff, to the surgeon, before the jury.

The judgment should be affirmed.

All the judges concurring, judgment affirmed.


author: Hogeboom, J.

text:
    Orrin North v. James O. Bloss, impleaded with James W. Adams.
    The term “ dormant partner” implies one who is not an active partner nor generally known as a partner. But to be such it is not essential a" person should wholly abstain from any actual participation in the business of the firm, or be universally unknown as bearing a connection with it.
    Nor does the term necessarily imply a studied concealment of the fact.
    Where a firm consisting of three members, B. A. & M. did business under the firm name of “B. & A.” and everything in the apparent mode'of transacting their business indicated that B. & A. constituted the sole members of the firm; and there was nothing to signify to ordinary dealers with the firm that M. had any thing to do with it; and there was an entire omission on the part of B. & A. to communicate the fact of such connection to one dealing with them; and actual ignorance by him of such connection, and apparent good faith on his part in treating B. & A. as the only parties interested; Held that the referee was right in regarding M. as a dormant partner, and therefore not necessary to be joined as a co-defendant with B. & A.
    And'the only ground for presuming that there was any general knowledge of the fact that M. was interested in the firm being the circumstance of his name appearing upon the cards of the firm, but-there was no evidence that these cards were in any way circulated, or issued to a single person; Held that it belonged to B. & A. to bring out a fact so vital to their defence, of the non-joinder of M.
    Where, in an action to recover back money paid by mistake, the referee found that the defendnts were overpaid—were overpaid by mistake, and by mistake on a matter of fact; Held that this made the allowance for such over payment a lawful credit in favor of the plaintiff, and deprived the defendants of the benefit of the objection that the payment was a voluntary one made with full knowledge of the fact; it being neither a voluntary payment, nor made with such a knowledge of the facts as barred the plaintiff’s title to relief.

      Appeal by the defendant Bloss from a judgment of the Supreme Court, affirming a judgment entered on the. report of a referee.

    The action was brought to recover for moneys advanced by the plaintiff to the defendants, and also for freight and commissions on garden and other seeds sold by the plaintiff for the defendants. The defenses set up in the answer were: 1st. A general denial. 2d. The non-joinder as defendant of Moses M. Matthews, an alleged" general partner with the defendants. 3d. An accounting and settlement between the plaintiff and defendants, and a payment of the balance found to be due.
    In the year 1855, the plaintiff was doing business as a merchant at Brockport, in the county of Monroe, and the appellants were doing business as co-partners, at the city of Bochester, as seedsmen, under the name, firm and style of “Bloss & Adams.” Moses M. Adams was also a partner with the defendants, and it was a question in the case whether he was a dormant partner or not.
    The plaintiff purchased clover and timothy seeds of said Bloss & Adams, amounting to $1,121.41. or thereabouts, at different times during that year, and from time to time gave Bloss & Adams his promissory notes for such seeds, which were accepted and received by them, and upon which they realized the money, and the same were paid by the respondent. Said notes were given at yarious times whilst the dealings between the parties were going on, and without any settlement or looking over the state of the accounts between the parties. The notes amounted in the aggregate to $1,189.40, making the sum of $67.99 actually overpaid by the plaintiff to said Bloss & Adams, and claimed by the plaintiff to have been so paid by mistake. The plaintiff claimed that they were indebted to him in the sum of $164.08 for money advanced by him to said defendants over and above all discounts and set-offs, which the defendants refused to pay. He also claimed they were indebted to and owing him in the further sum of $164.08, being for money advanced by him at the request of the defendants.
    The referee reported in favor of the plaintiff, and against the defendants for the sum of $67.99, and judgment was entered thereon for said amount with costs. The plaintiff’s claim for money overpaid by mistake was sustained, and the claim for freight and commissions was disallowed by the referee, who also reported that the action was well brought against the present defendants without joining Mathews.
    Upon the trial, it turned out that Mathews was also a partner in the firm.of “Bloss & Adams,” but the fact was unknown to the plaintiff, and never communicated to him in all his dealings with the firm. Mathews took no active part in the business; was seldom at the place of business of the firm, and only assisted the firm whenever they wanted to borrow money; he would go to. the bank or person of whom the firm wished to borrow money, and make known the fact of his connection with the firm, and being a man of wealth, by the use of his name enabled the firm to borrow money. There is no proof to show that the fact of Ms being 'a partner was generally known in the community where the firm was doing business, or that “Bloss & Adams” ever stated to any person that Mathews was a general partner with them. There was nothing in the firm name to indicate that anybody else was. a member of the firm but “Bloss & Adams.” Mathews’s name was printed in full on the business cards of the firm as'a member of the copartnership, but how far, if at all, they were used or circulated does not appear in the case. Upon the trial, the defendants’ counsel moved to dismiss the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The motion was demed by the referee, and an exception was taken. On the examination of the witness Sadler, the plaintiff’s counsel asked him this question, viz: Have you any knowledge how the plaintiff was selling those seeds? It was objected to by the defendants’ counsel, and the objection was overruled by the referee, to which an exception was taken. The plaintiff’s counsel also offered in evidence the exhibits marked A, B, C, D, F, G, H, I and K, designed to show the course of business between the plaintiff and defendants; also the notes given by the plaintiff; also the statement of the accounts between the parties, which were also objected to by defendants’ counsel, the objection was overruled by the referee, aud his decision wa^s excepted to by the defendants. The plaintiff also offered parol proof of the existence of a promissory note which he had paid, and was unable to find, amounting to $150, which was also objected to, and overruled by the referee, and his decision excepted to. The defendants’ counsel moved for a non-suit, which motion was denied by the referee, and his decision was excepted to.
    The referee upon this found the following facts and conclusions of law, viz: That in the year 1855, the firm of Bloss and Adams sold and delivered a quantity of clover and timothy seed, at Rochester, in the county of Monroe, to the plaintiff in this action; that said clover and timothy seed in the aggregate amounted to the sum of $1,121.41, besides a quantity of garden seeds the value of which does not appear; that said seeds were received by the plaintiff, and sold by him upon1 his own account, and not upon any commission to be, paid by the defendants, and that the plaintiff paid freight on the same from Rochester to Brock-port, but no sum was specifically shown; that James O. Bloss and James W. Adams, and Moses M. Mathews, carried on business as general partners at Rochester, under the firm name of Bloss & Adams; the name of Mathews, who was a practising physician, was not in the firm name, and there were no general terms in it which would suggest to the public there were other names or partners than those expressly named in it; Mathews was not generally known as a member of the firm, and the plaintiff did not know him as such; he took no active part in the business, and was seldom at the place of business, but was so occasionally to advise and see how the firm got along; that he assisted the firm to raise money and negotiated money for the firm, and was a man of wealth; that his name was published in full on the business cards of the partnership, and his connection with the firm was never concealed nor made a secret of. The plaintiff paid at different times in the year 1855 money and gave his promissory notes, which were Received by said firm of Bloss & Adams in payment for said seeds, and on which said firm realized the money, and which notes were at maturity paid by the plaintiff; that said notes and money 'amounted in the aggregate to $1,189.40, of which the Sum of $67.99 was overpaid by mistake. The referee found, as matter of law, that the plaintiff was not entitled to recover anything for freight paid by him, nor for commissions for selling said seeds. That Mathews was a dormant partner of the firm of Bloss & Adams, and that this action could be 'maintained against Bloss and Adams without joining Mathews as a party defendant; that the defendant was indebted to the plaintiff in the said sum of $67.99; that the plaintiff was entitled to judgment for $67.99, being the amount overpaid by him to said firm of Bloss & Adams more than what the plaintiff was indebted for the seeds sold him. by said firm. The defendants excepted to the findings of fact and of law SO far as they were adverse to the defendants.
    The plaintiff entered judgment upon said report, from which an appeal was brought to the general term of the seventh judicial district, where the judgment was in all things affirmed. This appeal is from the said judgment of affirmance.
    The cáse was submitted on printed points by

      Horace J. Thomas, for the plaintiff (respondent).

      J. Van Voorhis, jr., for the defendant (appellant).
   Hogeboom, J.

In the printed points submitted by the counsel for the ^appellant only tioo grounds are urged for the reversal of this judgment. It is unnecessary therefore to discuss any other.

The first is, that the plaintiff should have joined Moses M. Matthews ás a party defendant. Matthews was no doubt a general partner, and participated in the profits and losses of the concern. But there is no evidence that he was generally known as such partner; or that the public, in the proper sense of that term, was ever apprised of his connection with the firm. No doubt he could have been sued and held liable on account of his actual membership in the firm, but the question is, was the plaintiff bound to join him as a defendant with the ostensible members of the firm. His name did not appear in the firm name; he did not participate except in an advisory manner in the general and ordinary business of the firm; his connection with it would not be naturally inferred from their mode of business, nor be likely to be known except to those who loaned money or extended pecuniary credit to the firm. It cannot be said that there was any general knowledge of the facts. The only ground for presuming such general knowledge would be the fact of Matthews’ name appearing upon the cards of the firm. The difficulty is, there is no evidence that these cards were in any way circulated, or issued to a single person.' And it belonged to the defendants, I think, to bring out a fact so vital to the defence. There being, therefore, every thing in the apparent mode of transacting their business to indicate that Bloss & Adams constituted the sole members of the firm—nothing whatever to signify to ordinary dealers with the firm that Matthews had any connection with it—an entire omission on the part of the defendants ever to communicate the fact of such connection to the plaintiff—actual ignorance on the part of the latter of such connection—and apparent good faith on his part in treating the defendants as the only parties interested, I am inclined to think the referee was right in regarding Matthews as a dormant partner. He finds that he was so—■ treating such finding it is true as a question of law—but it being in truth rather a question of fact or of mixed law and fact—a conclusion not unwarranted by the evidence in the case nor by the facts which the referee has detailed in his report. It is conceded that a dormant partner need not be joined as a co-defendant in the action. The definition of a dormant, partner is not very clearly given in the adjudicated cases, or the elementary treatises on partnership. It implies, perhaps clearly enough, one who is not an active partner nor generally known as a partner. But to be such I apprehend it is not essential that he should wholly abstain from any actual participation in the business of the firm, or be universally unknown as having a connection with it. ■Nor does it necessarily imply, as I conceive, a studied con- ■ cealment of the fact. I will not undertake to analyze the various definitions of such a partner, but content myself with a reference to some of the elementary treatises, and a few adjudicated cases. (See Story on Partnership, sec. 80; Collyer on Partnership, sec. 4; Bissett on Partnership, page 5; Kelley v. Hurlburt, 5 Cowen 534; Clarkson v. Carter, 3 Cowen 84; N. Y. Dry Dock Co. v. Treadwell, 19 Wend. 525.)

Even if the evidence on this point be regarded as nearly balanced, or slightly preponderating in favor, of the defendants, I think we may well support the finding of the referee on rules of interpretation and review applicable to questions of fact.

It is held, in the superior court of New York, that where one person enters into a contract with two others, by name, without knowing or having, at the time, reason to suspect that they have a partner in the business to which such contract relates, such two persons may be sued without join ing such third person; and he may be regarded as to such transaction, and under such circumstances, as a dormant partner, although the fact of his connection with the firm come to the knowledge of the plaintiff before the bringing of the suit. (Hurlbut v. Post, 1 Bosw. 36; See also N. Y. Dry Dock Co. v. Treadwell, 19 Wend. 525; Clarkson v. Carter, 3 Cowen, 84; Clark & Bissell v. Miller & Lozee, 4 Wend. 628; Mitchell v. Dall, 2 Harr. & Gill. 159, 171.)

The remaining point discussed by the appellant is that the judgment appealed from can not be sustained on the merits.

I do not think this question is open for discussion. We cannot interfere with the conclusions of the referee on the. questions of fact. There is plainly good evidence—I think preponderating evidence—to support his finding, abundant evidence to justify the refusal to non-suit, and to sustain ' the verdict of a jury.

It is said that the report is unsustainable because the referee has found, as one of the facts in the case, that Bloss & Adams sold the plaintiff clover and timothy seed to the amount stated in his report, besides a quantity of garden seeds, the amount and value of which does not appear; and that the price of the latter might well account for the apparent excess of the amount of the plaintiff’s payments over his receipts.

But it is not the business of an appellate tribunal, reviewing the case simply on questions of law, to criticise with much nicety the findings of fact in order to speculate on some phases of the case which were not probably presented in the court below, or were susceptible of ample explanation there. It -may well be answered that the garden seeds were not urged as an item of the defendant’s claim in the court below, or were satisfactorily accounted for there in a way not necessary to be shown in the case, as no point was made thereon. Certain it is that neither the quantity nor the value of the garden seeds is shown, and cannot therefore be taken as justifying an implication against the correctness of the referee’s report, nor as justifying an allowance equal to the balance which he found in favor of the plaintiff. Certain it is, also, that he found the defendants were overpaid—were over-paid by mistake— and by mistake on a matter of fact, which makes the allowance for such over-payment a lawful credit in favor of the plaintiff, and deprives the defendants of the benefit of the further ground taken by them, that the payment was a voluntary one, made with full knowledge of the facts. In the light of the referee’s report and of the legal definition of a voluntary payment, it was neither voluntary nor made with such a knowledge of the facts as barred the plaintiff’s title to relief.

The judgment should be affirmed.

Denio, Ch. J., and Ingraham, J., were for reversal, on the grounds that the burden of proof was on. the plaintiff, and that the value of the garden seeds must be shown before there could be said to be an over-payment.

All the other judges being for affirmance, judgment affirmed. .


author: Johnson, J. Davies, J.

text:
    Ambrose W. Thompson v. Stephen Kessel and others.
    Exceptions to a referee’s findings of fact cannot be reviewed in this court.
    Where the testimony before a referee is conflicting upon all the material points involved in the action, and the supreme court, at general term, has affirmed the judgment, the court of appeals cannot look into the testimony, to determine whether the facts are found according to the weight of evidence.
    A claim on the part of a defendant, for the price and value of the identical goods which are the. subject of the action, is a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or is at least connected with the subject of the action, and is strictly a counter-claim, within section 150 of the code of proceedure.
    Several individuals composing the firm of B., F. & Co., were sued by the plaintiff by their firm name, the complaint alleging that the names of the individual members of said firm were unknown to the plaintiff. F. only appeared and answered, in the first instance, claiming the goods sued for in behalf of the firm. He also put in a supplemental answer, in which he claimed judgment in his own favor for the value of the goods, and not in favor of himself and his copartners individually. After judgment, the defendants were allowed to amend by entering an appearance nunc pro tunc for the other two partners, and to amend the supplemental answer, so as to make it a claim in behalf of all the members of the firm individually, with a demand for judgment in their favor. Held, that there was nothing for which the judgment should be reversed, in the fact that it was rendered for the value of the goods, in favor of the several individuals composing the firm of B., F. & Co.
    Held, also, that the supreme court had ample power to make the amendments which were ordered, by inserting the individual names of the other members of the firm in the answer, and in the judgment, in accordance with the facts found on the trial.

      Held, further, that such amendments were clearly in furtherance of justice; but if otherwise, that the order of the supreme court, allowing them, was not open to review in this court.

      Appeal from a judgment of the Supreme Court affirming a judgment at special term in favor of the defendants.

    The action was brought to compel the delivery by the defendants to the plaintiff of certain bills of lading of goods consisting of sulphate of barytes and black lead, shipped by Messrs. Kessel Brothers of Cologne to the city of New York, and to restrain the defendants or either of them from parting with said bills, or from interfering with or disposing of said merchandise:
    The complaint alleges that the goods were consigned to the plaintiff by Kessel Brothers at the instance and by the procurement of the defendant Stephen Kessel, who is claimed to have been the plaintiff’s agent in the transaction and to have made advances upon the goods with the plaintiff’s funds. It further alleges that the goods were thus shipped and consigned to fill certain orders sent by other persons in New York to the consignors by the plaintiff'through Stephen Kessel as his agent. The complaint also alleges that the bills'of lading of the gpods in question were delivered over to the plaintiff by Stephen Kessel on or about the 5th day of June, 1855; that the said merchandise.arrived in the port of the city of New York about the 8th of June, 1855, and that about the same time and while the bills of lading were in the plaintiff’s possession, the same were surreptitiously taken by Stephen Kessel and fraudulently delivered to the other defendants Bubens, Fredricks & Co. It also avers notice to the defendants Bubens, Fredricks & Co., before any part of the merchandise had been- discharged from the vessel, of the plaintiff’s rights, and an offer to them to reimburse them for any and all freight they might have paid on account of said merchandise, and a demand of said bills of lading, and the refusal of the defendants Bubens, Fredricks & Co. There was also a prayer for general relief. The defendants Bubens, Fredricks & Co. are made parties by their, firm name, and it is alleged in the complaint that their individual names are unknown to the plaintiff.
    The defendant Stephen Kessel answered separately, denying that the shipment of the goods was made for or on account of the plaintiff, in any manner, or that the bills of lading were ever delivered to him or were in his possession, and averring that the goods were purchased by himself and o.n his own individual account; and that the bills of laditig were delivered to him and were his sole and absolute property. He also denied that the plaintiff ever advanced or paid any thing on account of said goods, or ever had any interest therein, and averred that he sold and delivered to the defendants Rubens, Fredricks & Co. the said invoices and bills of lading duly endorsed, and the merchandise thereby, represented, for a good and sufficient consideration paid by said firm, at the time; and that they passed the said goods through the custom house, paid the duties. and the freight thereon, and received a portion thereof as they were discharged from the vessel.
    The defendant, Robert Fredricks, one of the firm of Rubens, Fredricks & Co., also answered separately, denying, upon information and belief, that the plaintiff had any interest in or claim upon said goods, and averring that he bought the same, in good faith, of the defendant, Stephen Kessel, for cash and credit, and paid the cash, part of the purchase and took an absolute transfer to his firm of the invoices and bills of lading, and passed the goods through the custom house, paid the duties and the freight thereon, and obtained an order from the shippers for a discharge of the goods from the vessel. That said goods were being-discharged from said vessel, and a portion had. been sent to the bonded warehouse, and another portion delivered to the defendants, when the further delivery was stopped by the proceedings in the action. He also averred that all his transactions in respect to said goods were for and on account of his firm, and claimed that the goods should be delivered to him, and that the defendant should pay damages . for the delay in the delivery. .The defendant also, by leave of the court, put in a supplemental answer, in which he alleged that, since the commencement of the action, the plaintiff had wrongfully taken possession of all the goods and merchandise in question, and converted and disposed of the same to his own use, which facts were not known to him at the time of putting in his original answer. He averred that the goods were worth $2,676.37, and that the claim therein set up was made for and in behalf of himself, Abraham Rubens and William Rubens, who composed the firm of Rubens, Fredricks & Co.; and he demanded judgment in favor of said persons for the sum of $2,676.37, with interest from the 18th day of June, 1855. To this supplemental answer the plaintiff put in a replication denying the same, except what was expressly admitted, and claiming that “ the defendants, Rubens and others, who are partners in the firm of Rub eng, 'Fredricks & Co., mentioned in the complaint herein, and whose names are unknown to the plaintiffs, ought to be made parties in making the claims set up in said supplemental answer.” The action wTas referred, and tried before the referee, who found, as matter of fact, that the defendant, Stephen Kessel, obtained certain orders for the merchandise in question, but not as the agent or clerk of the plaintiff, nor on his behalf; and that in pursuance of said orders, and in fulfillment thereof, the said Stephen procured from Messrs. Kessel Brothers, of Cologne the consignment of the said merchandise, but not on behalf of the plaintiff. That the invoices and bills of lading of the same were delivered by said Kessel Brothers to Stephen Kessel for the purpose of executing the said orders, and that at the time of the transfer of the bills of lading to Rubens, Fredricks & Co., one James Bell was the lawful owner and holder of the said orders. That the plaintiff had advanced to Stephen Kessel, and accepted drafts from him for large sums of money, amounting in all to about $1,900, but that such moneys were not advanced, nor were the drafts accepted to fulfill the said orders. That Stephen Kessel did not, at any time, deliver to the plaintiff the bills of lading, nor fraudulently ‘abstract the same from his possession as alleged in the complaint, out did, on or about the 8th of June, 1855, upon a good and sufficient consideration, transfer and deliver the said bills of lading to the said Rubens, Fredricks & Co., for the purpose of the execution of said orders. That since the commencement of the action the plaintiff had wrongfully taken possession of all the goods and disposed of and converted the same to his own use, and that the plaintiff was, at the time, under no legal obligation to deliver the goods to the purchasers to whom he had delivered them. That at the commencement of the action the said .firm of Rubens, Fredricks & Co. were the owners of the goods and entitled to possession, and that the same were worth, «at the time, $2,154.06.
    As conclusions of law, the referee held and decided that the firm of Kessel Brothers had no such interest or claim as to render them necessary parties to the action. That the several partners composing the firm of Rubens, Fred-ricks & Co., were parties defendants in the action, and parties in making the claim set up in the supplemental answer, and wore entitled to judgment against the plaintiff for the value of said goods and merchandise; and ordered judgment in their favor for said value, and interest— amounting to $2,486.62, with costs to be taxed—and a dismissal of the complaint against the defendant Stephen .Kessel, with costs. Several objections were made by the plaintiff, in the course of the trial, to evidence offered on the part of the defendants, and exceptions taken to the rulings of the referee, admitting the evidence. The only exceptions, however, insisted upon or noticed by the appellant, in his points, are those taken to the admission of evidence in support of the counter-claim contained in the supplemental answer. The only grounds of these objections taken upon the trial were that the supplemental answer was not a competent pleading in the action; and that the plaintiff was not bound to defend against the claims therein set up, and could not be charged with the value of the goods. The plaintiff excepted in due time, separately, to the several findings of fact by the referee, and also to the several conclusions of law, that the firm of Kessel Brothers -were not necessary parties; that the individuals composing the firm of Rubens, Fredricks & Co., were parties in making the claim set up in the supplemental complaint, and were entitled to judgment for the value of the goods; and that the complaint should be dismissed as against Stephen ICessel. Judgment was in the first instance rendered in form dismissing the complaint as to the defendant Stephen Kessel, “and that the defendant Robert Fred-ricks and others, composing the firm of Rubens, Fredricks & Co., recover of the plaintiff,” &c. The plaintiff brought an appeal from this judgment to the general term in the first district. After the appeal, the general term granted an order allowing the defendants, Abraham Rubens and William Rubens, copartners with the defendant Fredricks in the firm of Rubens, Fredricks & Co., to enter ah appearance in the action, and the supplemental answer to be amended so as to claim the property as belonging to the individuals composing the firm, and a judgment in behalf of all for the value of the property, and amending the record, accordingly. The general term affirmed the judgment. The plaintiff then brought his appeal to this court.

      II. G. De Forest, for appellant.

      W. Z. Larned, for respondents.
   Johnson, J.

The appellant's points are chiefly occupied with a discussion of the findings of fact by the referee. But the exceptions to the findings of fact cannot be reviewed here. The testimony before the referee was conflicting upon all the material points involved in the action, and the Supreme Court, at general term, has affirmed the judgment. This court therefore cannot look into the testimony, to determine whether the facts are found according to the weight of evidence. There was necessarily a judgment against the plaintiff, and in favor of the defendants; and the only question is whether the proper judgment has been rendered. This depends mainly upon the questions, whether the matter set up in the supplemental answer of the defendant Fredricks, is a counterclaim within the spirit and meaning of the code, so as to entitle the defendants, or either, or any of them, to affirmative relief; and whether that answer is available to the other individuals composing the firm of Rubens, Fredricks & Co. who are made defendants in the action by the summons and complaint by their firm name only.

There can be no doubt; I think, that the matter thus set up was strictly a counter claim within section 150 of the code. It was a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, or was at least connected with the subject of the plaintiff’s actiou. It was for the price and value of the identical goods which were the subject of the action. The question at issue before the supplemental answer was put in, was, which party had the title, or the right to control and dispose of the property.

I do not think it lies with the plaintiff, under the circumstances of this case, to allege that his taking was a mere tort, for the purpose of defeating the counter-claim. And even if an action, sounding in tort, might be maintained by the defendants Rubens, Fredricks & Co., for the taking while the action to determine the title was pending, I am still of the opinion that the cause of action for the value of the goods would constitute a good counter-claim in such a case as this. It existed in favor of certain of the- defendants in the action, in whose favor a several judgment might be had against the plaintiff, and the plaintiff might also have had a separate judgment against them. The conditions of the code, therefore, are all fulfilled in respect to this claim of the defendants.

I see nothing for which the judgment should be reversed in the fact that it is rendered for the value of the goods, in favor of the several individuals who compose the firm of Rubens, Fredricks & Co. These defendants were prosecuted by the plaintiff by their firm name, he alleging in his complaint that the name of the individual members of said firm were unknown to him. Fredricks only appeared and answered in the first instance, claiming the goods in behalf of his firm. He also put in the supplemental answer in which he claims judgment in his own favor for the value of the goods, and not in favor of himself and his copartners individually. After judgment the defendants were allowed by the court, at general term, to amend by entering an appearance nunc pro tunc for the other two partners, and to amend the supplemental answer so as to make it a claim in behalf of all the members of the firm individually, and a demand for judgment in their favor. It does not appear from the record how many of these defendants had been served with process, nor why the two who were allowed to appear so as to bind them by the judgment, did not appear at an earlier stage of the proceedings. It is suggested in the respondents’ points that these two defendants were residents of a foreign country, and were not served with process. But however this may be, the facts, it is to be presumed, were all before the court when the order granting the amendment was made, and it was an order they had clearly the right to make under section 173 of the code. The case had been fully tided upon its merits, .and the amendment was only in furtherance of justice. .And where the question is one of a common or general interest of several persons, one or more may be allowed to sue or defend for the. benefit of the whole. (Code, § 119.) It was wholly unnecessary to bring in the firm of Kessel Brothers. They did not pretend to have any title to the property, or right of control over it. But even if they were to be regarded as the general owners, the defendants, who were in fact consignees, could recover the value of the' property converted by a stranger.

I am of the opinion, therefore, that the judgment is right and -should be affirmed.

Davies, J.

(After stating the facts.) It is apparent that on the trial before the referee, the firm of Bubens, Fredricks & Co. were regarded as the claimants of the goods in controversy. And they were properly so regarded. That firm was made < the parties defendants by the plaintiff, with the defendant Kessel. He alleged in his complaint that the” bills of lading for said goods had been wrongfully delivered by the defendant Kessel to that firm; and that said defendants, Rubens, Fredricks & Co., paid the value therefor, and had notice of the plaintiff’s rights. That he had demanded said bills of lading of that firm, and that the firm refused to deliver the same, and claimed a right to hold the same, and to be entitled to the possession of the said merchandize described therein. The plaintiff thus made the firm of Rubens, Fredricks & Co., the substantial defendants in the action, and as such they were treated in all the proceedings. The answer interposed, although in form in the name of the defendant Fredricks, was distinctly stated to be in the name and on account of the firm of Rubens, Fredricks & Co., in whose name, and for whose account the said transactions in the answer set forth were made. The supplemental being in continuation of the original answer, is to be construed in connection with it, and the counter-claim therein made, is to be taken and deemed a counter-claim made and interposed on behalf of the said firm of Rubens, Fredricks & Co. The defendant Fred-ricks individually did not set up or pretend that he had any individual interest in said goods, or in the bills of lading, or that individually he had any counter-claim against the plaintiff. The plaintiff’s "action was against the firm, and the answers are to be regarded as those of the firm. If this were not so, it is very clear that under the code, the supreme court had full authority and ample power to make the amendment which was ordered, by inserting the individual names of the other members of the firm in the answers and in the judgment. Section 173 of the code authorizes the court, before or after judgment, in furtherance of justice, on such teriús as it may deem proper, to amend any pleading, process or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party; or a mistake in any other respect; or by inserting other allegations material to the case; or where the amendment does not substantially change the claim or defense, by conforming the pleading or proceeding to the facts proved. The supreme court in this case ordered the amendments by amending the judgment in accordance with the facts proved on the trial, on the terms of affirmance of the judgment, without costs of the" ajopeal. ’ These amendments did not substantially change the claim of the plaintiff, or the defense interposed. They were, in fact, in harmony with both, and the power might also be sought for, in the authority given to add the name of any party, or to correct any mistake in the name of any party. The amendments were clearly in furtherance of justice, but if they were not, the order of the supreme court making them, is not open to review in this court. (New York Ice Company v. North Western Insurance Company, 23 N. Y. 357.) The facts found by the referee are conclusive that the firm of Rubens, Fredricks & Co. Were the owners of the goods, and entitled to retain them as against this plaintiff. He having got possession of them, and converted them to his own use, they had a valid claim against him for the value thereof. This counter-claim arose directly out of the transactions .set forth in the complaint as the foundation of the plaintiff’s claim, and was connected with the subject of the action. (Codé, § 150, sub. 1.) It was properly set up in the answer, and correctly passed upon by the referee. The facts proved by him, show that his conclusions of law thereon were correct, and the supreme court rightfully affirmed the judgment.

The judgment should also be affirmed by this court.

Selden, J. was absent. All the other judges being for affirmance, judgment affirmed.