text:
    The Mayor, etc., of N. Y., Resp’t, v. Philip Goldman, App’lt.

      (Court of Appeals,

      Filed January 27, 1891.)

    1. Bonds—Official.
    Where the statute itself makes it a duty of the office to pay over the moneys received, a condition in the official’s bond that he will faithfully perform the duties of the office includes and embraces the duty of payment over, and the omission of an express condition for such payment, if a defect at all, is covered by the provision of 2 R. S., 6th ed., 863, § 35.

      2. Same—Designation of officer.
    The mere fact that the bond referred to the duties of “attorney for the collection of personal taxes,” when the appointment was to the office of “ attorney for the collection of arrears of personal taxes,” will not invalidate such bond, in the absence of a pretense that there was more than one office. The omission of the word ‘ ‘ arrears ” is not material.
    3. Same—Pboof op depatjlt.
    The books' of the department produced from the proper custody, showing the absence of entries which would have existed if payments had been made, with evidence of the proper officers that they entered such returns as they received from the officer, is sufficient to prove a default.
    Appeal from judgment of the general term of the New York common pleas, affirming judgment in favor of plaintiff.

      Robert L. Wesley, for app’lt; D. J. Dean, for resp’t
   Finch, J.

The defendant was sued as surety upon the official bond of Edward D. Gale as attorney for the collection of arrears of personal taxes, and judgment has been rendered against him which he asks us to say is erroneous.

His first allegation of error is that the breach complained of is founded upon a condition which the bond does not contain, but which the statute expressly declares it ought to contain. The statute authorizes the appointment of an 'attorney for the collection of arrears of personal taxes, and requires the appointee to give a bond to the city, “ conditioned for the faithful performance of the duties of his office and the payment over of all taxes collected by him.” The condition contained in the bond is: “If the said Edward D. Gale s"hall well and faithfully execute the duties of said office without fraud, deceit or oppression, the above obligation shall be void,” etc. It is, therefore, upon the omission from the bond of an express condition to pay over moneys collected that the objection rests. There might be force in the criticism were'it not for the fact that the statute explicitly makes it one of the duties *of the office to pay the taxes collected, and so that specific duty is included in the general duty and the double condition is merely cumulative.

In Farrar v. United States, 5 Peters, 373, upon which the defendant relies, there was the same general condition to perform the duties of the office and the same omission of the special condition to pay over, and the court expressed a doubt whether under the language of the statute proof could be given that payment over was one of the duties of the office. But that was a case where the statute did not make it so, and extrinsic proof was needed to establish the fact if it existed, and the court had no doubt that where the conditions are cumulative the omission of one condition cannot invalidate the bond so far as the other operates to bind the party. That is the situation here. The statute itself makes it a duty of the office to pay over the taxes collected; and a condition to faithfully perform the duties of the office includes and embraces the duty of payment over. To add that specific condition would be cumulative merely and its omission, if a defect at all, is covered by the provision of the Revised Statutes, 2 R. S., § 35, p. 863, (6th Ed.,) which makes the bond sufficient, although it does not in all respects follow the prescribed form, if, nevertheless, it does conform thereto substantially.

The second objection made in behalf of the surety is wholly technical. It is that the bondtrelated to the duties of “attorney for the collection of personal taxes ” and the appointment was to the office of “ attorney for the collection of arrears of personal taxes.” There is no pretense that there was more than one office, or that Gale was assigned to a different duty from that covered by the bond. The criticism rests wholly upon the name of the office, which was sufficiently described in the recital of the bond. The omission of the word “ arrears ” was not material and could not have misled any one.

The third objection is aimed at the proof of Gale’s default so far as it rested upon the books of the department. The books are public records required by law to be kept, Consol. Act, §§ 849, 850, and are admissible upon proof that they come from the proper custody. The cases cited on behalf of the respondent show that the absence of entries of payment which in the ordinary course of business and under the explicit requirements of the statute would exist if payment had been made, furnishes lawful evidence of nonpayment. Corning v. Walker, 100 N. Y., 547; Matter of Silvernail, 45 Hun, 575; 10 N. Y. State Rep., 588. In addition to the evidence of the books, the offieers whose duty it was to enter the returns of taxes collected by Gale whenever he made any, were called as witnesses and testified to the entry by them of such returns as they received from him, but none of which covered the collections shown to have been made by Gale for which the surety has been made liable. We think the default was properly and sufficiently proved. The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    In the Matter of the Probate of the last Will and Testament of Benjamin A. Kavanagh, Deceased.

      (Court of Appeals,

      Filed January 27, 1891.)

    Will — Charitable bequests — Laws 1866, chapter 201 — Laws 1848, chapter 319, § 6.
    A testator , by his will, made within two months before his death, after making several bequests, gave one-third of the residue to the St. Francis Hospital, then in charge of the Little Sisters of the Poor. JBeld, that the reference to the Revised Statutes in chapter 201, Laws of 1866, under which the Sisters of the Poor are incorporated, was to the edition of the Revised Statutes then in use; that in that edition § 6 of chapter 319, Laws 1848, was embodied in title 7, chapter 18 of the Revised Statutes, and by the reference thereto was made applicable to such corporation, and that under it the devise was invalid.
    Appeal from judgment of the supreme court, general term, second department, affirming decree of surrogate rejecting a portion of the will of testator. '

      George Bliss, for appellant; Daniel P. Hays, for resp’t

       Affirming 24 24. T. State Rep., 238.

   Earl, J.

Benjamin A. Kavanagh died in the city of New York on the 29th day of September, 1887, having in the previous month made a will, the sixteenth clause of which is as follows: il I give, devise and bequeath the remaining one-third of such residue and remainder unto St. Francis Hospital of the city of Hew York, situated in Fifth street, in said city, and now under the charge of the Sisters of the Poor of St. Francis, and in case such hospital be not incorporated, then I make such bequest to the Society or Order of Huns having such hospital under their charge and care, for the use of such hospital.”

The hospital was not incorporated, but it was in charge of the Sisters of the Poor of - St. Francis, and they were incorporated by chapter 201 of the Laws of 1866 the seventh section of which is as follows:. “ The said corporation shall possess the general powers and be subject to the general restrictions prescribed in the third title of the eighteenth chapter of the Revised Statutes, and also subject to the provisions of title 7, part 1, of chapter 18 of the Revised Statutes, in relation to devises or bequests by will.”

The respondents claim that this corporation can take nothing under the will, because it was. executed less than two months previous to the death of the testator, and so the surrogate and the general term have held.

It is not questioned that these decisions are correct if § 6 of chap. 319 of the Laws of 1848, is applicable to this corporation.

The Law of 1848 is a general law for the incorporation' of “ benevolent, charitable, scientific and missionary societies,” and § 6 provided that any corporation formed under the act shall be capable of taking property by devise or bequest, but that no such devise or bequest shall be valid in any will which shall ‘‘ not have been made and executed at least two months before the death of the testator. ” That provision, therefore, as contained in that act is applicable only to corporations formed under that act, and there is no general law making it applicable or making a similar provision applicable to all corporations.

This corporation was specially created by the act of 1866, and it is claimed that the provisions of § 6 of the act of 1848 are made applicable to it by the language of § 7 of the act of 1866 which makes it “ subject to the provisions of title seven, part first, of chapter eighteen of the Revised Statutes, in relation to devises or bequests by will.” On an examination of the Revised Statutes proper, it is found that chapter 18 contains only four titles, and they have no provision whatever in relation to devises or bequests by will, and' there is nothing in the Revised Statutes whatever which condemns this gift to this corporation. But there have been several editions of the Revised Statutes published by individuals and all of these editions have been in general use. They have been cited in the courts by lawyers and judges as the Revised Statutes, and they have been recognized as such by the legislature in appropriations made for their purchase for its library and the use of its committees. They are commonly called by that name, and the early and official edition has, to a very large extent, been superseded by these later unofficial editions. The fifth edition of the Revised Statutes was published in 1859, and chapter 18 of that edition contains 27 titles, and title 7 embodies chapter 319 of the Laws of 1848, with the amendments thereto, and, of course, includes § 6 of that, act. On the hearing before the surrogate that section was read! from the Revised Statutes and his attention was thus called to it.

We may take judicial notice that that edition of the Revised Statutes was in common use in 1866, when the special act creating this corporation was passed. Unless the legislature in §' 7 of' that act referred to this edition of the Revised Statutes, by the language it used, then the language has no meaning whatever. We think it is plain that the reference in the act of 1866 was to the Revised Statutes then in use, and that § 6 of the act of 1848, embodied in title 7 of chap. 18 of the Revised Statutes, was made applicable to this corporation. Having thus ascertained the legislative intention, we must give it effect, and for our -conclusion the case of People v. Cluie, 50 R Y., 451, is sufficient authority.

The judgment should be affirmed, but without costs.

All concur.


author: Macomber, J.

text:
    James H. Hooker, Resp’t, v. The City of Rochester, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Judgment—Findings—Remedy foe failure to make.
    In an action for an injunction and damages, specific issues were tried by a jury, and judgment was directed to be entered for the amount of their verdict and for an injunction. Such judgment was entered ex parte, but no findings were made by the court. Meld, that defendant’s remedy was by motion to vacate the judgment for irregularity, and not by appeal.
    Appeal from a judgment entered in Monroe county, June 24, 1889, for $800 damages, besides costs, being the amount of a verdict at the circuit on issues framed in an action for maintaining a nuisance, and by which also the defendant was permanently enjoined from continuing such nuisance after October 1, 1889.

      C. B. Ernst, for app’lt; J. & Q. Van Voorhis, for resp’t.
   Macomber, J.

This action was brought to obtain an injunction restraining the defendant from discharging sewage from Rorth avenue outlet sewer, in the city of Rochester, into Hobbie creek in the town of Irondequoit, which runs through the plaintiff’s farm, consisting of 143 acres. Upon issues submitted to the jury at the circuit a verdict of $800 for the plaintiff was rendered, and subsequently, on application to the court at special term, judgment was directed to be entered thereon and for an injunction perpetually restraining the continuance of the nuisance after October 1, 1889.

After repeated decisions of this court and of the court of appeals, the question whether an action may be maintained for damages for discharging the sewage of this city through creeks of adjacent towns to the detriment of the lands along such creeks, together with an injunction restraining such unlawful use, can no longer be deemed open. Hooker v. City of Rochester, 37 Hun, 181; Affd., 107 N. Y, 676; 12 N. Y. State Rep., 864; Gould v. Same, 105 N. Y, 46; 6 N. Y. State Rep., 503; Bell v. Same, 58 Hun, ; S. C., 33 N. Y. State Rep., 739.

But a point of practice is made by counsel for the appellant which deserves attention. After the coming in of the verdict, an application was made to the special term for judgment for the damages found by the jury and for other relief prayed for in the complaint. This motion was opposed, at least formally, by the defendant’s counsel, but it was nevertheless granted, and judgment, in accordance with the directions contained in the order, was subsequently entered by the plaintiff’s attorney ex parte.

The position, is now taken by the appellant that the issues relating to the right to the injunction should have been tried before the court without a jury, and a decision containing findings of 'fact and law, signed by the justice, rendered thereon. Such is the undoubted practice presented by § 972 of the Code of Civil Procedure, and, for the sake of harmony of procedure, it should have been adhered to in this instance. But the appellant is in fact responsible for the departure in practice; for no objection based on this ground was made to the granting of the order. A preliminary objection of this character interposed at that time would have been effectual; but it was not made. On the contrary the order was granted upon the merits of the case.'

The entry of the judgment without proper findings'was merely an irregularity. An appeal from the judgment and order cannot remedy such irregularity. It was competent for the justice, as a part of the proceeding at special term, to make and sign his decision. The defendant’s counsel doubtless had a right to assume that this step would be taken before the entry of the judgment. What, then, was his duty when he found that the judgment had been entered ex parte, supported by the order already made? It was to make a motion to vacate such judgment for irregularity, as was done in the case of Hammond v. Morgan, 101 N. Y., 179, and not by appeal.

“ The defendant,” says the court in that case, did not have a remedy for the error or irregularity he complained of by an appeal from the order or judgment. His only remedy was by motion.”

The judgment should be affirmed, with costs.

Dwight, P. J and Corlett, J., concur.


text:
    Elizabeth Blazy, Resp’t, v. Hector McLean, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Deed—Collateral secubity.
    Where property is held as collateral security only for the payment of a certain sum of money by other parties, and the obligation for the payment of the money is rescinded, the property held as such security reverts to the owner, and an action to compel a reconveyance thereof may be maintained.
    Appeal from a judgment entered in Monroe county upon an interlocutory judgment previously rendered, and upon the report of a referee, to whom had been referred the matter of the rents and profits of certain real estate while in the possession of the ■defendant.

      C. C. Davy, for app’lt; E. W. Gardner, for resp’t
   Macomber, J.

This action was brought for the purpose of compelling the defendant to convey to the plaintiff, by a good and sufficient deed, the title of lots 29 and 30, on the north side of Weeger street, in the city of Rochester, and also for a recovery of the rents, issues and profits of such lands during the occupancy thereof by the defendant

The interlocutory judgment was rendered in behalf of the plaintiff, and a reference was ordered to ascertain the amount of such rents, issues and profits. Upon the coming in of such report, it was found that the value thereof was $716.66. Many exceptions were filed to such report, but they have all been abandoned by the learned counsel for the appellant upon this appeal. The question, therefore, before us relates wholly to the original interlocutory judgment pronounced by the special term.

Prior to the 23d of January, 1878, the plaintiff was the owner of these lots 29 and 30. On that day the defendant and John Blazy and Augustus C. White entered into a contract under their hands and seals by which the defendant in consideration of the sum of $5,092.52 agreed to convey to such parties certain lands other than those involved in this action. As a part of »sucli agreement, but in a separate writing on the back of the first paper, it was agreed that John Blazy and Augustus C. White should pay to the defendant the sum of $2,000 with semi-annual interest from and after the first day of January, 1878; such $2,000 and interest being secured in part by a deed executed by Elizabeth Blazy and John Blazy to the defendant of lots 29 and 30 above mentioned.

This sum of $2,000 was to be paid to the'defendant prior to the execution of the deed by the defendant to John Blazy and White; and on the sale of said lots by the defendant the avails of said sale after paying all expenses were to be applied on the $2,000. It was found by the court, upon substantially undisputed evidence, that the deed of lots Ho. 29 and 30, though absolute in form, was executed, delivered and received as security for the payment of this sum of money.

The defendant took possession of such property on Weeger street and he has continued in possession thereof ever since. John Blazy and Augustus 0. White, under the contract above mentioned, took possession of the lands mentioned as being conveyed to them, situate in Orleans county, and moved onto the same with their families. But afterwards John Blazy removed from such lands, leaving White in possession thereof, The defendant by a full covenant deed dated April 28,1880, conveyed to one Eleanor White the lands in Orleans county described in the contract; and he now claims that the lots 29 and 30 on Weeger street were turned out to him absolutely as part' payment for the Orleans county lands.

The plaintiff did not consent to the arrangement between Augustus C. White and the defendant, by which lots 29 and 30 on Weeger street were turned out to the defendant as a part of the consideration of the purchase by White. The defendant is shown to have made a memorandum in writing, by which the original contract for which the deed of lots 29 and 30 had been executed as collateral security had been cancelled and taken up in the year 1879. There is no evidence to impeach this writing; there is much to confirm it. Ro fact is shown whereby it may be claimed that the land contract with John Blazy and White was forfeited on account of the failure of White and Blazy to make payments in accordance with the terms thereof. The case shows, with great abundance of evidence, that the plaintiff had no knowledge of and never consented to the pretended arrangement between White and the defendant by which the Weeger street property should be applied, in part, as payment for the lands in Orleans county.

From the evidence as well as the findings, it is clear that the plaintiff executed the deed of lots 29 and 30 as collateral security for the payment by White to the defendant of $2,000 and interest, and for nothing further. A rescission of the contract with White would necessarily cancel the collateral security itself and put an end to the contract or any claim made against the plaintiff’s property by reason thereof. Where property is held as collateral security only for the payment of a certain sum of money by other parties, and the obligation for the payment of the money is rescinded, the property held as such security reverts to the owner, and an action to compel a reconveyance thereof may be maintained.

The judgment should be affirmed, with costs.

Dwight, P. J., and Corlett, J., concur.


text:
    The People ex rel. The New York Central & Hudson River R. R. Co., App’lt, v. The Board of Health of the Town of Seneca Falls, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Nuisance—Boards of health—Certiorari.
    A writ of certiorari is the proper remedy to review a determination of a board of health in relation to the existence and abatement of a nuisance.
    3. Same—Notice.
    While a board of health may, and in some instances should, make ex parte examinations, yet before a final determination is made which will put the accused person to expense, or deprive him of his right to carry on his business, such person is entitled to reasonable notice to enable him to defend himself, and the omission of such notice is a fatal defect in the proceedings.
    Appeal by the relator from an order of the special term in Monroe county dated June 30, 1890, vacating a writ of certiorari and the order upon which it was issued bearing date the 21st day of March, 1890. The motion at special term was made upon the papers upon which the writ was granted.

      Camp & Dunwell, for app’lt; C. A. MacDonald, for resp’t.
   Macomber, J.

The board of health of the town of Seneca Falls, on the 7th day of Rovember, 1889, made an order, without notice to the relator, requiring the latter to make two openings of •a hundred feet each in the embankment extending from the west shore of Cayuga Lake, upon which it operates a railway, so as to permit the free flow of the waters of the lake through them northward. The board further directed, that in case the relator should fail to comply with said order the work should be done under the direction of such board and the expense thereof assessed upon the relator’s property. The motion at special term having been made alone upon the papers on which the writ was issued, the affidavit of the relator’s assistant engineer used on the original application, to the effect that such expenses to the railroad company would be $70,000 or $75,000 stands uncontradicted.

The ground upon which such action was taken is stated in the resolutions of the board of health to be, that this embankment caused an impediment in the current or natural flow of the waters and made a deposit of sediment and decaying vegetable matter, and the formation of marshes and a thick growth of weeds, grass and flag along the west shore of the lake at that point, detrimental to the health of the community.

This embankment bad existed, substantially in the condition in which it was at the time the board of health took this action, for a period of forty-two years. The relator has maintained embankments from both shores of the neck of this lake, but the same were connected by a bridge over the middle, resting upon stone cribs, between which are openings at intervals for a distance, in the whole, of 1,522 feet, through which the waters of the lake freely flowed towards the north. Shortly prior to the action of the board of health the railroad company began the construction of a new bridge, by which the opening between the cribs through this space of 1,522 feet would be lessened in extent and reduced to a distance of 611 feet in the clear’.

By this improvement, which materially lessened the number of feet through which the waters of the lake flowed northward, the pre-existing cribs, located at intervals through the 1,522 feet, were dispensed with; so that, under the facts disclosed in the papers, the flow of the lake would not be retarded by the change.

It is further claimed on behalf of the relator that if there is any obstruction to the free passage of the waters the same is caused by reason of certain structures made .by the state in the vicinity of Mud Lockage on the Seneca canal, below the relator’s bridge, where all the waters of the lake are required to flow through a space of 252 feet.

It is not necessary to go into all the facts claimed to exist, as stated in the petition and affidavits ; for if the conclusion to which we have arrived is correct, the merits of the case are not necessarily before us, but they may be presented to the court in a subsequent step in this or in some other proceeding.

It is established without dispute that the action taken by the defendant was without notice to the relator. This omission we deem to be fatal to the regularity of the proceeding and to cause a reversal of the order appealed from. The proceeding is instituted pursuant to chap. 270 of the Laws of 1885, which was amended by chap. 309 of the Laws of 1888 in particulars not material to this appeal. Under subd. 4 of § 3, the board of health of towns has power “ to receive and examine into the nature of complaints made by any of the inhabitants concerning nuisances, or causes of danger or injury to life and health within theu limits of its jurisdiction; to enter upon or within any place or premises where nuisances or conditions dangerous to life and health are known or believed to exist, and by appointed members or persons to inspect and examine the same; and all owners, agents and occupants shall permit such sanitary examination ; and said board of health shall furnish said owners, agents and occupants a written statement of results or conclusions of such examinations; and every such board of health shall have power, and it shall be its duty, to order the suppression and removal of nuisances and conditions detrimental to life and health, found to exist within the limits of its jurisdiction.”

By subdivision 6 of the same section, the board has power to make such order and regulation in special or individual cases, not of general application, as it may see fit concerning the suppression and removal of nuisances and concerning all other matters in its judgment detrimental to public health. By subdivisions 8 and 9, it has power to employ necessary persons to carry its orders into effect and to impose penalties for the violation thereof. Section 4 makes willful violation of such orders a misdemeanor and in addition thereto, in case of noncompliance therewith, the board may enter the premises and abate the alleged nuisance and may recover the expense thereof from the persons maintaining such nuisance.

That the writ of certiorari may be issued in a case of this character admits of no doubt. Section 2120 of the Code of Civil Procedure preserves the writ as it existed at common law except where expressly taken away by statute. So far as the board of health could render its determination upon the matters before it,- the decision which it made was a final adjudication from which no appeal could be maintained by the relator, and hence the case is not brought within one of the exceptions to the rule. Id., § 2122; Stone v. Mayor, 25 Wend., 167.

The duties of the board in respect to inquiring into and determining whether or not a nuisance existed are quasi judicial in their nature, and it is the duty of this court to determine by means of such writ whether jurisdiction was obtained by the board of health and whether the authority conferred upon it has been pursued in the mode required by law in order to authorize it to make the determination. Code, § 2140, subds. 1, 2 and 3.

Without any notice the defendant has taken steps which if legal will cause a great expense to the relator. While it may be true that a suit in equity to restrain the defendant from proceeding further with its illegal acts might be maintained, yet that additional remedy of the aggrieved party is no obstacle to the validity and regularity of the writ in this instance. But the appellant’s counsel carry their contention too far. It is claimed by them that the act under which the board of health has proceeded is unconstitutional, being in violation of the provisions of the constitution that no person shall be deprived of life, liberty or property without due process of law. In this, however, we think they are in error. This act did not undertake to give the entire procedure necessary to charge any person with the offense of maintaining a nuisance. Had it declared that such a proceeding could be maintained without notice to the parties most interested therein, then the question of its constitutionality would have fairly arisen and been easily decided. It was similarly attempted to be raised in the case of the Metropolitan Board of Health v. Heister, 37 N. Y., 661. But such folly cannot be ascribed to it. Though no special provision is made in the act for notice to the offending party yet the power given to the board by subd. 4 of § 3, “ to receive and examine into the nature of complaints made by any of the inhabitants concerning nuisances, etc.,” requires by necessary implication the board to give a reasonable notice to the person against whom the maintenance of the nuisance is alleged that complaint has been made or that such fact exists, so that he may be heard in his own behalf and if possible to refute the charge made against him. Ho proper inquiry leading to a final order affecting private rights can be made without hearing both sides.

The opportunity to be heard before consideration is the right which every person has under the common law and under our constitution. So firmly is this fundamental principle embedded in our judicature, that it is not necessary, even in acts in derogation of the common law, to prescribe in words that notice of the hearing to a party proceeded against shall be given. In the absence of any prescribed length of notice, a reasonable opportunity is implied and must be afforded him to defend his conduct. Such notice will vary in length according to the circumstances and exigencies of each particular case.

While it is true that the board of health may, and in certain instances it should, in the discharge of its public duties, make ex parte examinations, yet before a final determination is made which will put the accused person to expense, or which will deprive him of his right to carry on his business, he should be apprised of the substance of the charge, and thus enabled to defend himself before final judgment If the material parts of the petition and affidavits upon which the writ of certiorari was granted are true (as we must deem them to be for all purposes of this appeal), a wrong has been perpetrated upon the relator by the proceeding complained of, under which it could not safely rest; for in the absence of a reversal of the board’s determination for its entire illegality, or the permanent restraint by the court against its being carried into effect, the property rights of the relator would be seriously imperiled.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate the writ of certiorari denied, with ten dollars costs.

Dwight, P. J., and Corlett, J., concur.


text:
    Robert R. Rhodes et al., App'lts, v. Daniel E. Newhall, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Carriers—Contract of shipment—Estoppel.
    The plaintiffs received a quantity of wheat to he shipped to defendant. The loading was supervised hy a weighmaster employed by plaintiffs, and they gave a bill of lading for the amount shown by his report, which stated “ all the deficiency in cargo to be paid by the carrier and deducted from the freight,” and any excess to be paid for by the consignee. The hatches were battened down, and so remained until the vessel’s arrival. Before the vessel arrived' defendant paid drafts drawn on the cargo to the amount specified in the bill of lading. On arrival there was a shortage. In an action for freight, Reid, that the portion of the contract in relation to deficiency was conclusive against plaintiffs, and estopped them from contending that the amount specified was not received by them; that under the contract it was immaterial whether the wheat actually delivered was worth more than the advances defendant had made, and that the value of the wheat not delivered was properly deducted from the freight charges.
    Appeal from a judgment entered in Erie county on the 18th. day of April, 1890, on the report of a referee.

      Williams & Potter, for app’lts; George J. Sicard, for resp’t.
   Macomber, J.

This action was brought to recover freight money for the transportation of wheat from Duluth to Buffalo. The defense was that the whole cargo was not delivered to the consignee, and the amount of the deficiency arising from the failure of the plaintiff to deliver the whole was, by the decision of the referee, recouped against the plaintiff’s demand.

On the 14th day of September, 1889, the plaintiffs by their agents agreed with the firm known as W. S. Moore & Co., to receive on board their propeller Robert R. Rhodes a quantity of wheat, then in an elevator at Duluth, for shipment to Buffalo, audio deliver the same to the defendant at Buffalo in as good order as when taken on board the propeller, and were to receive three and three-fourths (3f) cents per bushel for such transportation, for which charges the cargo was made subject. Thereupon four bills of lading were delivered by the plaintiffs’ agents to W. S. Moore & Co., embodying the agreement, wherein the quantity of wheat was mentioned in the aggregate to be 47,000 bushels of No. 1 hard spring wheat, and 7,000 bushels of No. 1 Northern wheat. The bills of lading contained the following clause: “All the deficiency in cargo.to be paid by the carrier and deducted from the freight, and any excess in the cargo to be paid for to the carrier by the consignee.”

The wheat was loaded from an elevator in Duluth by a spout, and was weighed into the vessel by the elevator’s weighmaster, the process being supervised by a board of trade weighman employed by the plaintiffs, with the result above given. The propeller was fully laden with this quantity of merchandise. Before sailing her hatches were battened down, and without touching at any intermediate port, on the 19th day of September, 1889, she arrived at Buffalo with her hatches undisturbed. Thereupon her cargo was weighed, out into elevators, and the same delivered to the defendant; but by such weighing out only 46,466 bushels of No. 1 hard spring wheat, and only 6,707 bushels of No. 1 Northern were found, being 53,173 bushels in all, showing a shortage in the weight at Duluth of 534 bushels of the spring wheat, and 293 bushels of the Northern wheat, of the value of $712.47. This sum has been deducted by the referee from the freight charges computed on the whole number of bushels actually shipped at Duluth, and it is solely of this deduction that the appellants complain.

Attached to the bills of lading were drafts drawn by W. S. Moore & Go. on the consignee for the full amount of the cargo as shipped, together with policies of insurance. The drafts were paid by the latter before the arrival of the vessel at Buffalo and before any knowledge or notice of the shortage had come to him.

That part of the contract by which it was agreed that “ all deficiency in cargo to be paid by the carrier and deducted from the freight,” must be deemed conclusive against the contention of the appellants. It was doubtless designed to settle by contract what might be a vexatious dispute, and to work an absolute estoppel against the ship owners. Lishman v. Christie, L. R., 19 Q. B. Div., 333.

The manner in which the case comes up materially simplifies the question. The action is solely one for the recovery of freight charges , according to the written agreement. As a part of that agreemént any shortage in the cargo was to be deducted from such charges. Under this contract, it matters not that the quantity of wheat actually delivered to the defendant was. worth more than the sum which he had advanced thereon as consignee or purchaser. To any person of whom such freight charges could be demanded, this partial defense was available by the terms of the contract. The finding of the learned referee (the fifth) that 54,000 bushels of wheat were received on board the propeller at Duluth is a just inference from the evidence. The plaintiffs were represented at the loading of the vessel by a weighmaster of their own selection and employment. The number of bushels of grain was agreed to. No fraud or mistake is shown at Duluth, and no error at Buffalo. The plaintiffs must then be conclusively bound by their agreement to deduct from their claim of freight the amount of wheat, which in some unexplained and, to the defendant, inexplicable manner, disappeared during the five days cruise between these ports.

The judgment should be affirmed.

Dwight, P. J., and Corlett, J., concur.


author: Macomber, J. (dissenting.)

text:
    John Burns, App’lt, v. Theodore M. Norton, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Duress—Justice oe the peace.
    Plaintiff was convicted before defendant, a justice of the peace, of the_ crime of assault in the third degree, and was sentenced to pay a fine of $100, and in default of payment to be committed to jail until the fine was paid, not exceeding 100 days. The justice then informed him that he would commit him unless the fine was paid forthwith, and plaintiff then paid the fine, but afterwards demanded the same before it was paid to the county treasurer. Held, that an action to recover from the justice the moneys so paid could not be maintained.
    (Oltw'Jcr. Holdridge, 58 Barb., 61, followed.)
    (Macomber, J., dissents.)
    Appeal from judgment in favor of defendant on trial by the court, a jury having been waived.
    The following facts were agreed upon:
    That the defendant was, on the 5th day of August, 1889, an acting justice of the peace in and for the town of Victor, in the county of Ontario, and was from that time and now is; that on that day John Burns, the plaintiff, was arrested by virtue of a warrant charging him with having committed an assault in the third degree on the person of Julius Madison on the 3d day of August, 1889, duly and regularly issued by the defendant. That the said plaintiff was brought before the defendapt, at his office in the said town, where the defendant was holding a court of special sessions ; that the plaintiff was then, and there charged before the said defendant with having committed an assault on said Madison, in said town of Victor, as charged in said warrant
    That said defendant, as such court of special sessions, arraigned the said plaintiff upon such charge of assault in the third degree ; that the said plaintiff pleaded not guilty and demanded a trial by jury; that on the 22nd and 23d days of August said trial was had and the testimony taken and the case was submitted to the jury, who found the said plaintiff guilty of said assault; whereupon the said defendant, acting as such court of special sessions, in due form, sentenced this plaintiff to pay a fine of $100, and in -default of the payment thereof, to be committed to jail until said fine should be paid, not to exceed 10,0 days.
    That this plaintiff was before the said court, and on the same day paid to, and this defendant did receive from this plaintiff the ;said sum of $100, when this plaintiff was discharged. That this defendant acted in good faith in imposing said fine, believing he had a right to impose $100. That the same defendant afterwards on or about the ■ day of , 1889, paid said sum of $100 into the county treasury of Ontario county. That the defendant refused to pay back to the plaintiff the said sum of $100. That said $100 Was paid by the plaintiff under protest, and to avoid being committed to the jail of Ontario county. That the verdict of the jury was rendered and the sentence imposed at about 11 P. M. of Friday, the 23d day of August. That the plaintiff asked the defendant to pay back the money that night', which the defendant declined to do, saying that he would if he was wrong, but that he thought he was right and had a right to keep it, and that the defendant declared he, intended to commit the plaintiff unless the fine was paid.
    It was also stipulated that the said defendant, as such court of special sessions, had full and competent jurisdiction and authority "to try and sentence said plaintiff for said offense.

      The following opinion was filed by the trial judge:
    Adams, J.—IJpon the undisputed facts of this case, there can be no question but the defendant exceeded the jurisdiction conferred upon him as a court of special sessions when he rendered the judgment complained of, and the error on his part was doubtless occasioned by his confounding § 15 of the Penal Code with § 717 of the Code of Criminal Procedure, the latter of which pro vides-for and limits the judgment of a court of special sessions, and was, of course, controlling in this case. It follows, therefore, that an excessive, erroneous and unlawful judgment was imposed upon the plaintiff, and his contention is, that he is thereby entitled to the remedy sought by this action.
    The plaintiff’s counsel bases his right to recover upon the theory that the defendant in passing judgment acted without, jurisdiction, and therefore his act was absolutely-void. In support of this proposition the attention of the court is directed to the celebrated case of the People ex rel. Tweed v. Liscomb, 60 N. Y., 559, which it is contended determines the precise question here presented. It is true that a similar view was taken of the effect of that decision in two instances cited by counsel,' People ex rel. Knowlton v. Sadler, 2 N. Y. Grim., 438; People ex rel Stokes v. Risley, 4 id., 109, in each of which it was held that where the penalty imposed was in excess of that authorized by law, the judgment by which it was imposed was void and the prisoner was entitled to a discharge by habeas corpus. But such a construction is in direct conflict with a decision of the court of appeals, rendered subsequent to that in the case of Tweed, in which it was. held that a judgment in excess of jurisdiction, although void, did not entitle the party to his discharge. People ex reí. Devoe v. Kelly, 2 N. Y. Grim., 437. It is likewise contrary to an adjudication by the general term of this district upon facts identical with those relied upon by plaintiff. Clark v. Holdridge, 58 Barb., 61. In that case, as in this, it was contended that the imposition of a. fine so largely in excess of the amount authorized was as much a nullity as would have been a sentence that the person convicted should be hanged or imprisoned in the state prison, but as was said by Johnson, J., “ this is a. confusion of ideas and principles, essentially and fundamentally different” In the case suggested the punishment inflicted would be different in kind and degree, but here the court having acquired jurisdiction of the person and of the offense, erred in the degree but not in the quality of the punishment contemplated by the statute, and to quote once more from the opinion of Johnson, J., this constitutes “the true distinction between the acts of an inferior magistrate which are coram non judice and void, and those which are erroneous and voidable-merely.”
    In this connection it may be worth while to call attention to a. very obvious distinction between this case and that of Tweed. The only question there considered relates to the right of the court to impose cumulative sentences in a case where a party was convicted of several separate and distinct misdemeanors, identical m character and charged in one indictment, such sentences exceeding in the aggregate what is prescribed by statute as the maximum punishment for one offense of the character charged, and it was held that the power of the court was exhausted when it had imposed the first sentence of the maximum punishment fixed by the statute; that it then ceased to be competent to render, a further judgment in the case, and where the judgment included more than this a party was entitled to his discharge by habeas corpus.

    That this was all that was intended to be decided in that case the court is careful to state in a later decision, People ex rel. Woolf v. Jacobs, 661ST. Y., 8, and what is said by way of illustrating the principles enunciated must be regarded as merely obiter. The case of G lark v. Holdridge, supra, was decided prior to the Tweed case, it is true, but in my view of the latter case there is no conflict in principle between them, and until the former authority is expressly overruled I shall feel constrained to follow it, and this course is pursued the more willingly inasmuch as the principle it establishes is not only in harmony with my own views but is likewise supported by authorities so numerous that it would seem “ mere ostentation to cite them. Assuming however that the Tweed case does establish the principle contended for by plaintiff’s counsel, the most that could be claimed for it in this case would be that it authorized the recovery of such portion of the money paid by plaintiff as was in excess of the penalty imposed by statute, which would be the sum of fifty dollars. It by no means follows, however, that if the judgment was void to the extent claimed, it entitles the plaintiff to maintain this action; for as was said in substance by Hale, Oh. J., in Bushell’s case, 1 Mod., 119, while the judgment may be void so far as the plaintiff’s right to be discharged is concerned, it gives him no right of action against the defendant, because he acted judicially, although erroneously. This princiSle was recognized and followed by the supreme court of the hited States in Lange's case, 18 Wall., 163, where it was said that “ the distinctions between void and voidable judgments are very nice and they may fall under one class or the other as they are regarded for different purposes."

    If this action can be maintained then one for false imprisonment could be had the sentence been imprisonment for a period in excess of the term prescribed by statute. The court of appeals has said, however, that where a court of superior or general jurisdiction acts judicially, although in excess of its power, it is not liable in a civil action, Lange v. Benedict, 73 1ST. Y., 12, and the same rule has been held applicable to courts of inferior and limited jurisdiction by the general term of this department Kenner v. Morrison, 12 Hun, 204.
    It follows, therefore, in no view of the question presented by the facts of this case, can the action be maintained, and the defendant is consequently entitled to judgment

      Charles H. Paddock, for app’lt; Edwin T. Hicks, for resp’t
   Judgment affirmed, on the authority of Clark v. Holdridge, 58 Barb., 61.

Dwight, P. J., and Corlett, J., concur.

Macomber, J. (dissenting.)

This action was brought to recover the sum of $100, claimed to have been collected of the plaintiff by the defendant upon a void judgment and sentence in a criminal case, by means of threats of imprisonment if the alternative money penalty should not be paid.

The facts which were agreed upon at the trial are as follows: The defendant, on the 5th day of August, 1889, being a justice of the peace in Victor, in the county of Ontario, caused the arrest of the plaintiff on a warrant charging him with having committed an assault in the third degree.

On being arraigned the plaintiff pleaded not guilty and demanded a trial by jury. At a subsequent day such trial was had, and the testimony in the whole case was submitted to the jury, who returned a verdict of guilty of assault in the third degree, whereupon the defendant, acting as a court of special sessions, sentenced the plaintiff to pay a fine of $100, and in default of' such payment to be committed to jail until the fine should b& paid, not exceeding 100 days.

A certificate of conviction, embodying such judgment, was made out by the defendant, who declared to the plaintiff that he would commit him to jail unless the fine was paid forthwith. The plaintiff thereupon paid to the defendant this sum of $100 rather than to go to jail, and shortly thereafter demanded the return of such money, upon the ground that the same had been illegally exacted. The defendant acted in good faith, though ignorantly, in rendering such judgment, and believed he had the right to impose the whole of it He afterwards, but after the demand of repayment of him, turned the fine into the county treasury of Ontario county. This action was brought to recover the money refused to be paid to the plaintiff by the defendant.

No doubt, as is conceded in the case, the defendant, as a court of special sessions, had jurisdiction and authority to try the plaintiff for the offense of assault in the third degree, and impose a legal sentence against him upon a conviction. But the judgment rendered by the defendant against the plaintiff was illegal, and no reasonable argument can be made to sustain it The justice’s judgment was limited by law to a fine of not exceeding fifty dolars, or imprisonment not exceeding six months, or both such fine and imprisonment Code Grim. Pro., § 717".

In case of a fine only, the imprisonment, until the fine is satisfied, is limited to one day for every one dollar of fine.

The defendant clearly acquired jurisdiction of the person of the plaintiff and of the offense of which he was charged. In pronouncing judgment, however, he was bound by the statute, and any judgment not warranted by the statute must be deemed to be: void.

The plaintiff was in duress, and the payment by him of the illegal exaction made by the defendant may be recovered in this action, unless the defendant is protected by some fundamental rule of law hedging about a magistrate.

The learned judge, at the trial, has based his decision upon an authority in Clark v. Holdridge, 58 Barb., 61.

The facts in that case were, in many respects, similar to those appearing in this record, save the important exception that in the case before us there was a demand for the return of the money made upon the justice before an action was brought to recover the amount of the illegal fine, and before the moneys had been covered by him into the treasury of the county. This we deem to be an important and far-reaching distinction between the two cases. But, however, this may be, even if the authority relied upon by the judge at the trial were applicable to the facts of this case, yet the decision of the court of appeals rendered in the case of the People ex rel. Tweed v. Liscomb, 60 N. Y., 559, would lead to a reversal of the judgment. In that case it was held that if the record showed that the judgment is not merely erroneous, but such as could not, under any circumstances, or upon any state of facts have been pronounced, the case is not within the exemption of the habeas corpus statute, 2 R. S., 563, § 22, subd. 2, and the applicant was entitled tobe discharged, and that too although the court had acquired jurisdiction of the person of the prisoner and of the subject-matter ; and that the inquiry went further, namely, as to the jurisdiction of the court to render the particular judgment. It Was there held that a judgment in excess of that which by law the court has power to make was void for the excess.

The court, per Allen, J., says : “ With us all punishments are prescribed by statute as well as to character as extent, and a sentence not conformable to law as not warranted by statute, or which is in excess of the legal punishment, is ultra vires, and like every other act, whether judicial or ministerial, done without legal authority, is void. A sentence to imprisonment in the state prison for a misdemeanor would be void, as would a sentence to imprisonment, when only a fine was the statutory penalty. A fine of one thousand dollars for a misdemeanor, unauthorized by law, would not protect an officer in the execution of process for its collection of the property of the condemned, or by detaining the person until the fine should be paid. If a court having jurisdiction of the person of the accused, and of the offense of which he is charged, may impose any sentence other than the legal statutory judgment and deny the aggrieved party all relief except upon a writ of error, it is but a judicial' suspension of the writ of habeas corpus.”

A person whose rights have been thus invaded cannot justly be left without remedy; but what the remedy, is depends upon the circumstances of the case. Suppose, for instance, that the judgment of the special sessions had been, instead of a fine of a hundred dollars, that the defendant be confined in jail for a period of one year. His remedy clearly would have been through a writ of habeas corpus, whereby he would have been discharged as being illegally detained and imprisoned under a judgment which was absolutely void. A fine of a hundred dollars having been imposed with the alternative of one hundred days of imprisonment, the plaintiff cannot be regarded as without a remedy in yielding to the illegal exaction in order to avoid the degradation of imprisonment. It was not, in any legal sense, a voluntary^ payment. His remedy, therefore, must be, not by habeas corpus, lor his body was not imprisoned, but by some other means, for common justice would lead us all to say he ought not to be remediless. Having made a demand for the return of the moneys before the justice had covered them into the county treasury, we think he was in a position to maintain this action.

In the case of the People ex rel. Stokes v. Risley, 4 N. Y. Crim., 109, the relator was convicted in a court of special sessions of the offense of disposing of property covered by a chattel mortgage and adjudged to pay a fine of $250 and stand committed until the fine should be paid, not exceeding one year. On habeas corpus the general term held that the relator should be discharged on the ground that the judgment was void and that by § 717 of the Code of Criminal Procedure the court had no power to render the judgment. See, also, People ex rel. Devoe v. Kelly, 97 N. Y, 212; and People v. Carter, 48 Hun., 165; 15 N. Y. State Rep., 640. In the case last cited the relator was convicted by a court of special sessions for violation of the excise law and adjudged to pay a fine of $100 or be imprisoned not to exceed 100 days. Upon habeas corpus he was discharged upon the ground that, though the justice had jurisdiction of both the person and subject matte, rhis judgment was void.

Under these authorities and for the reasons above stated, the judgment appealed from was erroneous and should have been given to the plaintiff upon the facts found by the court.

The judgment should be reversed, with costs, and judgment ordered for the plaintiff, upon the facts found, for the recovery of the moneys demanded.


author: Dwight, P. J.

text:
    The Union Bank of Rochester, Pl’ff, v. Harris Newman, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Variance—Admissions in pleading.
    In an action on a promissory note the complaint alleged that said note was' made and delivered by the defendant to the payee for value and by the payee endorsed to plaintiff for value. The answer admitted these facts and alleged that the note was made and delivered to the payee upon an usurious agreement. The case was tried and submitted on the issue whether the note had its inception in the hands of the payee or was made and endorsed for the purpose of being discounted by plaintiff and whether the payee acted as defendant’s agent in procuring the same. Held, that an objection that this theory of the case was excluded by the allegations admitted by the answer could not be raised for the first time on appeal; that the parties having by tacit consent adopted an issue other than that which was formed by the pleadings could not afterwards object that the result was contra allegata.

    Motion by defendant for a new trial on a case and exceptions ordered to be heard at the general term in the first instance, after verdict for the plaintiff at the circuit.

      George W. Reed, for the motion; George Truesdale, opposed
   Dwight, P. J.

The action was on á promissory note of $1,000 made by the defendant, payable to the order of George Trues-dale, three months from date. The complaint set out the note and alleged that it was made and delivered by the defendant to the payee for value received, and that the latter subsequently, for value received, endorsed and transferred the same to the plaintiff. The answer expressly admitted these allegations of the complaint and averred that the note was so made and delivered to Truesdale upon a corrupt and usurious agreement by and in pursuance of which the latter was to, and did in fact reserve and secure to himself interest at the rate of ten per cent on the amount of the note for the period of three months.

Under these pleadings the issue tried at the circuit and submitted to the jury was whether the note had inception in the hands of Truesdale, or whether it was made by the defendant and endorsed by Truesdale and one Doty as accommodation endorsers for the purpose of being discounted at the plaintiff’s bank, and whether Truesdale acted as the agent of the defendant in procuring the endorsement of Doty and the discount by the plaintiff. , That was the theory of the case which the evidence on the part of the plaintiff tended to establish, and which was sustained by the verdict of the jury. The defendant now objects that the theory mentioned was excluded by the positive allegations of the complaint which were admitted by the answer, and that the recovery was contrary to the facts thus conclusively established.

The objection would undoubtedly have been a good one if it had been raised on the trial. The complaint clearly alleges the inception of the note in the hands of Truesdale as a subsisting obligation, and its transfer by him to the plaintiff, and these allegations are admitted by the answer. The defendant was, therefore, entitled to avail himself of those facts on the trial as conclusively established for all the purposes of the action, but unfortunately for his defense he failed to do so. There is no exception in the case which raises the question of the effect of the pleadings upon the issues actually tried. The case was tried throughout as if the question whether Truesdale was the lender of the money or an accommodation endorser were an open one. That was the one question submitted to the jury by instructions of the court, to which no exception was taken. Indeed the requests to charge made by the defendant all assumed that the jury were to find, upon the evidence, whether the note had inception in the hands of the payee, and there was nowhere a suggestion that that question was foreclosed by the pleadings.

The case is plainly one in which the parties by tacit consent adopted for the purpose of the trial an issue other'than that which was formed by the pleadings; and having done so, it is now too late for either to object that the result was contra allegata. Under the issue actually tried the instructions of the court were entirely correct, the evidence objected to was plainly relevant, and the verdict was in accordance with the weight of evidence.

For the reasons indicated we think the motion for a new trial must be denied.

Motion for a new trial denied, and judgment ordered for the plaintiff on the verdict, with costs.

Macomber and Corbett, JJ., concur.


text:
    Fred P. Wilcox, Ex’r, Resp’t, v. Quincy Van Voorhis et al., Impl’d, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Usury—Voluntary payment.
    Where payments of interest in excess of the legal rate are voluntarily made by a party with full knowledge of the facts, he is not entitled to have the excess applied on the principal debt.
    3. Same—Mortgage.
    The mortgage in question was made in 1878 and was conditioned for the payment of $1,300 in one year, with interest at the rate of seven per cent, payable half yearly, on days specified, “ and also at the time the principal shall be paid.” Held, that by the terms of the mortgage plaintiff w'as entitled to collect interest at the rate of seven per cent, until the time of actual payment or until the contract merged in a judgment, and that no subsequent change of the statute could affect the rate of interest.
    Appeal by defendants from a judgment of the county court of Monroe county, entered on the findings and decision of the court.

      Q. Van Voorhis, for app’lts; E. F. Wellington, for resp’t.
   Dwight, P. J.

The action was to foreclose a mortgage of real estate. The only question litigated was of the sufficiency of a tender made before the commencement of the action, and that turned wholly upon the question whether interest had been paid in excess of the rate legally chargeable, and whether the defendants were entitled to have such excess applied in reduction of the principal sum due on the mortgage.

The facts were as follows: The mortgage was for $1,200 and was made in 1873 by the defendant, Frances A. Yan Yoorhis, to the Monroe County Savings Bank, and assigned by the latter in 1879 to the plaintiff’s testator. The mortgage was by its terms “ intended as security for the payment of the sum of $1,200, in one year after the date hereof, with interest thereon at the rate of seven per cent per annum, to be paid half yearly, on the first days of January and July, in each year, and also at the time the principal shall be paid * * * according to the conditions of a bond, etc.,” and the condition of the bond was to the same effect

In July, 1881, the mortgagor conveyed the mortgaged premises to the defendant Quincy Yan Yoorhis, who thereupon, as part of the purchase price, assumed and agreed to pay the mortgage. Up to the date of such conveyance the mortgagor had paid the interest at the rate of- seven per cent per annum. After the conveyance the defendant Quincy Yan Yoorhis continued to pay the interest at the same rate, namely, the sum of forty-two dollars, semiannually, up to and including the first payment in the year 1889, taking receipts therefor which, in most instances, specified that the same was received as interest. On the 1st of July, 1889, be tendered to the plaintiff the sum of $1,181.50 as in full of the amount due on the mortgage. The plaintiff declined to receive the tender as not being sufficient in amount and subsequently commenced this action.

The tender was sufficient in amount only upon the theory that there had been an over payment of interest, by the difference between six and seven per cent, from the 1st day of July, 1881, and that the defendant was entitled to have the excess applied as payment on the principal of the mortgage. The learned county judge held and found that the payments of interest in question were in excess of the amount legally collectible, but that such payments were voluntarily made by the defendant with full knowledge of the facts, and that for that reason he was not entitled to have the excess applied on the principal debt secured. We think that upon the authorities cited by him the county judge was clearly right in his final conclusion as to the effect of a voluntary payment, even though in excess of the rate of interest collectible under the terms of the security. New York Life Ins. Co. v. Manning, 3 Sand. Ch., 58; Ritter v. Phillips, 53 N. Y., 586; Bennett v. Bates, 94 id., 355. But we are also of the opinion that by the terms of the bond and mortgage, in this case, the plaintiff was entitled to collect interest at the rate of seven per cent down to the time of actual payment or until the contract was merged in a judgment. Seven'per cent was the legal rate of interest at the time the contract was made. It is 'true the mortgage was payable in one year from its date, but we think the condition, taken as a whole, clearly implies that interest was to be paid at the same rate until the principal should be paid. The language of the condition is: This grant is intended as security for the payment of the sum of $1,200 in one year after the date hereof, with interest at the rate of seven per cent per annum, to be paid half yearly on the 1st days of January and July in each year, and also at the time the principal shall he paiol."

It is well known to be the custom of savings banks to require mortgages taken by them to be made payable in one year, but to suffer them to run for a series of years, so long as the interest is promptly paid. Seven per cent was the legal rate of interest at the time the mortgage was made, and it was entirely unnecessary to specify that rate of interest in respect to the time for which, by its terms, the mortgage was to run. Such specification could have no effect except in contemplation of an indefinite extension of the time of payment of the mortgage, and of a possible change in the legal rate of interest during such extension; and the particular terms employed in this condition we think point to the same contingencies as within the contemplation and intention of the parties at the time this contract was made.

If it be the proper interpretation of this contract that the parties understood and intended that interest should be paid at the rate specified until the principal should be paid, then no subsequent change of the statute could affect the rate of interest payable on this mortgage down to that time or until the contract is merged in' a judgment. O'Brien v. Young, 95 N. Y., 428, 430; Taylor v. Wing, 84 id., 477.

Upon this ground, as well as upon that indicated in the opinion of the county judge, we agree with him that the defendant was not entitled to any credit on the principal debt of the mortgage by reason of excess of interest paid, and consequently that the tender made by him was insufficient in amount to affect the lien of the mortgage. The judgment appealed from should be affirmed.

Judgment affirmed, with costs.

Macomber and Corlett, JJ., concur.


text:
    Henry Slingerland, Resp’t, v. William H. Norton, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Evidence—Offeb to settle.
    In an action for injuries to plaintiff’s timber by fire allowed to escape from defendant’s fallow the defendant alleged that the negligence, if any, was that of a third person who had taken a contract to clear the land. On the trial evidence was admitted under objection of an expression on defendant’s part of a desire that the matter might be settled without paying money to the lawyers. Held, error; that the evidence was within the rule excluding evidence of an offer or consent to a settlement.
    3. Sahe.
    So, also, evidence of a settlement by defendant with another neighbor for damages arising from the same fire is inadmissible.
    Appeal from the judgment of the county court of Ontario county, affirming the judgment of a justice’s court.

      G. J. Bissell, for app’lt; W. W. Clark, for resp’t
   Dwight, P. J.

The action was for the alleged negligent burning of the plaintiff’s timber by fire allowed to escape from the defendant’s fallow. The defendant controverted the allegation of negligence in the setting and management of the fire on his own land and sought to avoid liability on the ground that the negligence, if any, was not that of himself, his agents or servants, but of a third person who had taken the contract to clear his land fit for the harrow at an agreed price per acre, and that the means and time of accomplishing that result were not in the defendant's control. The justice who tried the case, without a jury, gives the reasons for his judgment in his return, from which it appears that he decided the question of fact last above suggested against the defendant’s contention and found that the person who did the work and set the fire was not an independent contractor but the servant of the defendant and that the latter was responsible for his negligence. The evidence bearing upon this question was conflicting and, unfortunately, it embraced two items of testimony in behalf of the plaintiff, objected to by the defendant, which were improperly admitted. The first was in violation of the familiar rule that negotiations or propositions looking to the settlement of a controversy without action cannot be given in evidence as admissions of liability. 1 Greenleaf on Evidence, § 192; Stevens Dig. of the Law of Evidence, Chase’s Edition, 52, note ; and the cases cited.

The rule is well founded in reason. The law is willing to encourage the compromise and'settlement of controversies without litigation, and holds communications looking to that end as privileged in their character, and not to be used to the prejudice of the party making them. It is true the privilege does not extend to an admission of a disputed fact even though made in the course of such negotiations; but this does not detract from the force of the rule. The principle is that an offer, or consent, or expression of willingness to settle, is not to be taken as an admission of liability, and is, therefore, not evidence of the fact. The testimony objected to was within the rule. There was in it no admission of any fact in controversy, but only the expression of a desire that the • matter might be settled without paying money to the lawyers.

The same rule should, a fortiori, have excluded the testimony, objected to, of the fact of a settlement without litigation of the claim of another neighbor for damage done by the same lire. What motives or considerations may have influenced the defendant to make that settlement does not appear. The fact that he did settle with a third person was not to be taken as an admission of his liability, for the same reason that his proposition to settle with the plaintiff was not to have that effect.

The reasons for his judgment given by the justice in his return are pertinent and forcible, and we should probably have no hesitation to affirm that judgment had the conclusion of fact upon which it was based -been reached upon evidence, all of which was relevant and admissible on the issue involved.

For the error indicated the judgment of the county court and of the j ustice must be reversed.

- Judgment of the county court and of the justice reversed, with costs.

Macomber and Corlett, JJ., concur.


text:
    Emma J. Smith, Resp’t, v. Edward J. Gunn, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Bills and notes—Verdict—Preponderance op evidence.
    In an action upon a promissory note alleged to have been given by defendant to one K., deceased, from whom plaintiff received it, plaintiff was the only witness in her hehalf, and testified to loans made by K. to defendant and delivery of the note. This was not corroborated by any circumstance, but was contradicted by defendant, and her credibility was impeached. Defendant’s witnesses testified that the note and signature were not in his handwriting. Plaintiff did not call the other alleged eyewitness of the delivery of the note, although she was living with him. 2eld, that the evidence so strongly preponderated in defendant’s favor that a verdict in favor of plaintiff should not be allowed to stand.
    Appeal from a judgment in favor of the plaintiff entered on the verdict of a jury at the Cattaraugus circuit, and from an order of special term denying the defendant’s motion for a new trial on a case and exceptions.
    G. W. Cole, for app’lt; J. K. Wood, for resp’t.
   Dwight, P. J.

The complaint alleged that “on the 3d day of at Little Valley, N. Y., the defendant made his promissory note, dated that day. whereby, by the name of E. J. Gunn, he promised to pay Sally Kelly or bearer two hundred dollars, with use, one year from the date thereof and that the said Sally Kelly, for value received, sold, transferred and delivered the said note to. the plaintiff.

On the trial the plaintiff produced and put in evidence a paper purporting to be a promissory note, in the terms above stated, but which bore, on its face, the name “ E. J. Grun ” as that of the maker. She testified that in May, 1884, she was living with Sally Kelly, who was her grandmother, and that the defendant, some time in that month, brought the note in evidence to Mrs. Kelly and delivered it to her, and told her it was for money he had of her; that her grandmother could not read, and the defendant read the note to her; that in August, 1884, her grandmother gave her the note for labor, and told her if Mr. Gunn did not pay it, to sue it; that she lived with her grandmother about three or four years, and took care of her for twelve shillings a week; that she never spoke to Mr. Gunn about the note, except that in March before it became due she asked him if he was going to pay it, and he said he would pay it in the spring. She testified that before the note was given the defendant was often at her grandmother’s house, and she heard talk between them in regard to loaning money; ” that she saw her grandmother give him fifteen dollars at one time, and ten dollars at another time, and that in June after the note was given she saw her give him $100; that her grandmother died the winter before the note was due. She also testified that one John Gleason was present when the defendant delivered the note to Mrs. Kelly; that she was at the time of the trial thirty years of age, and was living with John Gleason, and had done so for four years, and that there was no one else in the family except herself and Gleason; that she was not a married woman, but had one child, born when she was eighteen years old. No other testimony was given in support of the plaintiff’s case, except of witnesses called in rebuttal for the purpose of sustaining her character.

The defendant was called in his own behalf and testified that he did not write or sign the note; that he never wrote his name “ Gun ; ” that he did not deliver the note to Mrs. Kelly; that he did not see her for two years before she died; and that he never had any money of hers ; that he was appointed her administrator; that he did not pay her funeral expenses because John Gleason, with whom she was living at the time of her death, agreed to pay them ; that Gleason sued him in the supreme court for those expenses, and that the case was decided in his (the defendant’s) favor ; that this was before he received notice from an attorney that this note was left with him; that he never had any conversation with the plaintiff about the note, and that he never saw it until it was in the hands of an attorney.

The defendant called six witnesses, justices of the peace, attorneys, and others, of the vicinity, who were familiar with the handwriting of the defendant, all of whom testified that in their opinion the signature to the note was not in his handwriting. Several witnesses also testified that the reputation of the plaintiff was bad, and that they would not believe her under oath. Some of them spoke on cross-examination of her reputation in respect to the manner in which she lived with John Gleason, and one of them. testified that she seemed to be the tool of Gleason in every respect. The attempt to sustain her character, in rebuttal, was not very successful; all of the witnesses called by her on that question, who •knew of her reputation at all, testified that they had heard it called in question.

Upon this case the jury rendered a verdict for the plaintiff. We think it should have been set aside on the motion for a new trial on the ground that it was against the clear preponderance of the evidence.

In Syms v. Vyse, 2 N. Y. State Rep., 106, it was held, by the general term in the first department, that in a case where both parties were sworn and contradicted each other directly, and no circumstance corroborating either appeared by the record, the burden of proof, which was upon the plaintiff, was not successfully borne', and a verdict in his behalf could not be sustained ; and the cases of Raines v. Totman, 64 How., 493; and Losee v. Morey, 57 Barb., 561, were cited as authority for the decision. The present case is a much stronger one for the application of the rule of the burden of proof. Here the plaintiff made no ptoof except by her own testimony, which was not corroborated by any circumstance, but was contradicted in every particular by the defendant, and her credibility as a witness was strongly impeached. The testimony of the' defendant, on the other hand, was corroborated by the evidence which tended to show that the note and its signature were not in his handwriting, which was as •satisfactory as evidence upon that question can often be made. There was also in this case a circumstance which was entitled to ■some weight against the plaintiff. • That was the fact that the plaintiff had it apparently in her power to call a witness who, if her testimony were true, was, besides the parties, the only living eye witness of the transaction upon which her cause of action depended, and she neglected to call him. That witness was John Gleason, the man with whom she was living at the time of the trial and had lived for several years; whose relations to her were apparently not unfriendly, and who knew whether the testimony she had given was true or false. The omission to call that witness or to account for not calling him was, as the record stands, a potent circumstance against the theory of the plaintiff’s case. Cowen & Hill’s Notes to Phillips Ev., p. 473; Peoples. Dyle, 21 N. Y., 578; People v. Hovey, 92 id., 554, 559; People v. Bodine,. 1 Denio., 281. Whether this circumstance was brought to the attention of the jury we are unable to say because the charge of the court is not in the record ; but it would seem that it might well have been. *

In our opinion, this record discloses not a balanced case, as in Syms v. Yyse, supra, but one in which the evidence so strongly preponderated in favor of the defendant that a verdict in favor of the plaintiff ought not to stand.

The judgment and order appealed from must be reversed and a mew trial granted, with costs to abide the event.

Macomber and Corlett, JJ., concur.


text:
    Michael Kavanagh, Resp’t, v. A. L. Barber, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)
    Nuisance—Damages.
    Plaintiff and his family occupied a house owned by his wife. Defendant erected a building opposite said house for the manufacture of paving- and'roofing materials, and in doing so boils asphaltum, etc., which emit offensive and unwholesome gases and stenches, by reason of which plaintiff's family have been deprived of the use of part of the house and have been made sick, and plaintiff has been deprived of the services of his wife and children, and been compelled to pay for medical attendance on account of such sickness. Held, that although plaintiff was not the occupant of the premises on which the injury was received, he was an occupant of them, and was entitled to recover for the particular injury sustained by him.
    Appeal by the defendant from a judgment entered on the verdict of a jury at the Brie circuit.

      Spencer Clinton, for app’lt; H. C. Day, for resp’t.
   Dwight, P. J.

The action was to recover for damages alleged to have resulted to the plaintiff from a nuisance maintained by the defendant.

The complaint alleges “ that for about fourteen years last past this plaintiff has resided with his family, consisting of his wife and five children, in a house and lot owned by plaintiff’s wife on the northerly side of Fourth street in the city of Buffalothat about six years ago the defendant erected on the same street and opposite the plaintiff’s house,” and has since maintained an establishment for the manufacture of paving and roofing material, where he heats and boils asphaltum and other substances which emit offensive and unwholesome gases and stenches which render the air in the locality of the plaintiff’s dwelling foul and unwholesome ; that by reason thereof plaintiff and his family have been put to inconvenience, discomfort, sickness and damage; have been obliged* to keep the doors and windows of their dwelling closed day and night even in hot weather; that their food has been impregnated by such gases so as to be disagreeable to the taste and unwholesome; that fine sand and soot and other matter engendered in the defendant’s factory have been blown into the plaintiff’s dwelling to such an extent that plaintiff and his family have been deprived of the use of the front room; that plaintiff and his family have been deprived thereby of the ordinary and comfortable use and enjoyment of said dwelling and premises; that the plaintiff’s wife and family have been made sick by said smells, sand and stenches, and one of plaintiff’s daughters died from sickness caused or aggravated thereby; that the plaintiff has been deprived of the services of his wife and children by reason thereof, and has been compelled to pay for medical attendance on account of such sickness, and that by reason of the matters aforesaid the plaintiff has sustained loss and damage in the sum of $10,000.

The answer admits the erection and maintenance by the defendant of the establishment and apparatus for the manufacture of paving and roofing material from asphaltum and other substances and that he therein heats and boils asphaltum and other substances, but denies that he has done or does so in violation of any rights of the plaintiff, and denies the evil effects and results therefrom alleged in the complaint

The principal contention of the defendant on this appeal is that the plaintiff could not maintain the action because he was not the owner of the house and lot where the injury complained of was received. It is true that the plaintiff cannot recover for any injury to or depreciation in the value of the premises the title to which not only, but the possession also, is in the wife. Though the head of the family, he is not “in any legal sense the possessor or occupant of the house or land in or upon which the family reside.” Martin v. Rector, 101 N. Y., 77. But it is a mistake to suppose that this action is necessarily confined to injuries to the realty only. Under the technical definition of the common law the term “ private nuisance ” was, no doubt, chiefly, if not exclusively, applied to such acts as were “to the hurt or annoyance of the lands, tenements or hereditaments of another,” 3 Black Com., 216, and a common or public nuisance could ordinarily be prosecuted only by indictment or in the name of the crown or people. But, whether by enlargement of the definition of private nuisances, or by extending the right of private action to cases of common or public nuisance, it is certain that the individual action is not by any means confined to cases which affect the realty. The definition in Sutherland on Damages, quoted by ■counsel for the appellant, vol. 3, p. 394, is much in point. It is there said that a private nuisance “may be any wrongful act which destroys or deteriorates the property of another, or interferes with his lawful use or enjoyment thereof, or any act which unlawfully hinders him in the enjoyment of a common or public right, and thereby causes him a special injury.” By which is apparently intended that the former is a private nuisance because it violates a private right, the latter is a private nuisance because, though the violation is of a public right, it inflicts a particular injury upon a private person.

In Lansing v. Smith, 4 Wend., 9, Chancellor Walworth said that if a person sustained no damage but that which the law_pre■sumes any citizen to sustain because it was a common nuisance, no action will lie ; “ but every individual who receives actual damage from a nuisance may maintain a private suit for his own injury although there may be others in the same- situation.” In Francis v. Schoellkopf, 53 N. Y., 152, Grover, J., said: “The rule is that one erecting or maintaining a common nuisance is not liable to an action at the suit of one who has sustained no damage therefrom except such as is common to the entire community, yet he is liable at the suit of one who has sustained damage peculiar to himself; no matter how numerous the persons may be who have sustained this peculiar damage, each is entitled to compensation for his injury. And the cases are very numerous to the same effect. Peck v. Elder, 3 Sand. 126; Stetson v. Faxon, 19 Pick., 147; Abbott v. Mills, 3 Verm., 529.

Whether then the nuisance in this case be denominated public or private the plaintiff had his action for the particular injury sustained by him. But we think the case was clearly within the sense of the definition first given of a private nuisance. Though not the owner, nor, in the legal sense of the term, under the married woman’s acts, the occupant or in possession of the premises upon which the injury was received, he was an occupant of the premises with the duty as well as the privilege of such occupancy so long as it was the home of his wife and family. So long it was his home and he had as good right to be protected in his enjoyment of it as if the title and legal possession had been in him. It was upon this theory that the court below sustained the action and submitted the case to the jury.

The case made was of an aggravated nuisance. The damages recoverable by the plaintiff were restricted by the court to such as were personal to himself, and the verdict was, in our opinion, far from excessive.

We think the judgment should be affirmed.

Macomber, J., concurs; Corlett, J., not sitting.


text:
    John B. McSherry, Resp’t, v. The Trustees of the Village of Canandaigua, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Villages—Negligence—Streets—Laws 1854, chap. 852.
    Under chap. 852, Laws 1854, the restrictions upon the powers of the trustees of the village of Canandaigua in relation to the streets, etc., of the village was removed and full powers given them in relation to the repair thereof, and the corporation, therefore, is liable for their negligence in respect thereto.

      S. Same—Notice of defects.
    Notice to the street commissioner of the village of defects in the streets or sidewalks is notice to the trustees.
    Appeal from a judgment in favor of the plaintiff, entered on' the verdict of a jury, at the circuit, and from an order denying the defendant’s motion for a new trial made on the minutes of the court.

      Edwin Hicks, for app’lts; Frank Rice, for resp’t
   Dwight, P. J.

The action was for alleged negligence on the part of the defendants in suffering a dangerous defect to exist in one of the sidewalks of the village of Canandaigua, in consequence of which the plaintiff sustained injuries. The defect consisted of a loosened grate on the level of the flagging which gave way under the plaintiff’s feet as he stepped upon it in passing. The exception chiefly argued was that taken by the defendants to the denial of their motion for a nonsuit, which was based upon the grounds: (1). That the charter of the village imposed upon the trustees no obligation to construct or repair sidewalks; (2). That the trustees had no notice of the defect complained of; and (3), that the injury was caused by the negligence of the plaintiff.

The village was originally incorporated in 1815 by a special act of the legislature, being chapter 254 of the Laws of that year, which contained no provision in respect to the construction, maintenance or repair of streets or sidewalks, except one empowering the trustees to make and publish “ prudential by-laws, rules and regulations * * * relative (among other subjects), to the streets, alleys and highways within said village, and draining, filling up, paving, keeping in order and improving the same.”

The charter remained unchanged in this respect until the passage of chap. 420 of the Laws of 1847. That act constituted- the village of Canandaigua a separate road district, exempted it from the jurisdiction of the commissioners and overseers of highways of the town of Canandaigua, except in respect to laying out, altering and discontinuing roads therein, provided that its trustees should, within its limits, possess the powers and perform the duties of commissioners and overseers of highways, except in the respect above mentioned, and only “ so far as such powers and duties are consistent with the provisions of this actand it very narrowly restricted those power’s and duties by prescribing the manner of raising and expending moneys of the village for highway purposes. In the same year the legislature enacted the first general law for the incorporation of villages, Laws 1847, chap. 426, and by its final sections provided for the adoption of any of its provisions by action of the electors of any village already incorporated, and the application thereafter of such provisions to such village. Accordingly, in June, 1848, the electors of Canandaigua duly adopted certain sections of the act of 1847, which thereupon became parts of its charter, and all provisions of previous statutes inconsistent therewith became nugatory in "respect to that village. Id., § 92. The sections thus adopted embraced all the essential provisions of the acts of 1847 in respect to streets and sidewalks, including that-cited and commented upon by the court in the case of Herrington v. The Village of Corning, 51 Barb., 396, decided by the former general term of this court in the seventh district in the year 1868. Among those provisions was one which limited the trustees in the exercise of the powers and duties of commissioners of highways in the same manner as they were limited' by the provisions of chapter 420, above quoted.

It was upon these particular and peculiar provisions of the general act of 1847 that the court distinguished the case of Herrington v. Corning from that of Conrad v. Ithaca, 16 N. Y., 158, and the large class of cases of a like nature, and upon which the village of Corning was held not liable in a case like the present.

But there was further special legislation on this subject in respect to the village of Canandaigua subsequent to the act of 1847, and prior to the occurrencewhichgaveri.se to this action. We refer especially to chap. 352 of the Laws of 1854. The first section of that act was in the following terms: “ The trustees of the village of Canandaigua shall be commissioners of highways in and for said village, and shall have all the powers of commissioners of highways, and as such they shall also have power to regulate, repair, improve and clean the streets, highways, alleys, lanes, public squares, bridges, sidewalks, crosswalks, drains and sewers in said village, and to prevent the encumbering of the same in manner, and to protect the same from encroachment and injury.” This legislation we regard as having an important bearing upon the main question involved in this case. Here was no longer the narrow restriction placed upon the powers of the trustees as commissioners of highways which marked the general act of 1847, chap. 420, nor those contained in the sections of the general act of that year, chap. 426, which became engrafted upon the charter of the village. On the contrary the act of 1854 created the trustees, absolutely, commissioners of highways, and gave to them all the powers of such commissioners, and, by specification, the power as such to repair the sidewalks of said village. This, we think, brought the case of Canandaigua within the doctrine of the case of Conrad v. Ithaca, and the numerous decisions which have followed it. The decision in the Conrad case was put expressly upon the ground that the trustees were commissioners of highways and, therefore, the corporation was liable for their negligence; and such has been the test of the liability of the trustees of villages ever since, and has been applied in a late case to the trustees of the village of Canandaigua itself, Colburn v. Canandaigua, 15 N. Y. State Rep., 668, in which case Bradley, J., mentions as the only basis of the judgment that “by the charter the trustees are commissioners of highways and are given the power to prohibit encumbering the sidewalks, etc.,” evidently referring to § 1 of the act last cited.

We have not overlooked the provision of § 3 of the same act, which continued to the trustees the “ power to give notice as now provided by law for taxes to be raised to cause crosswalks, sidewalks, etc., to be constructed * * * or repaired in said village; ” but we are not disposed to regard this provision as reimposing upon the trustees the limitations and restrictions in this respect contained in the previous statutes referred to. If such were the intention of the statute, what was the purpose of its enactment? If the trustees were to be in no larger sense commissioners of highways, nor to have any further power as such, than under the two acts of 1847, what was the purpose or propriety of the legislation of 1854 ? We think that by the latter act the village of Canandaigua was brought within the rule of liability established by the cases above referred to.

Upon the question of notice of the existence of the defect complained of, we find evidence which seems to be sufficient to charge the defendant. The evidence is substantially uncontradicted that the attention of one Homer Chase, who was known as street commissioner of the village, was called to the unsafe grate more than once some weeks before the accident. Neither the charter, nor, so far as appears, any by-law of the village directly provides for the appointment of such an officer, although the general act of 1847 recognizes the probable existence of such, § 57, subd. 11, and several ordinances of the village, in evidence, recognize his actual existence and prescribe certain duties for his performance. Homer Chase describes himself in his testimony as having been for nearly two years under the employ of the trustees of the village “ to superintend streets;” and testifies that his business in part is “to examine streets and sidewalks.” Moreover, we find in the record the formal admission by the defendant “ that Homer Chase was the street commissioner of the village of Canandaigua at the time of the accident to the plaintiff and had been since January 1, 1888.” All of which must establish the fact that the person named was in fact, if not by investiture of office, the street commissioner of the village, recognized as such by the trustees and charged with the duty, among others, of examining streets and sidewalks, not, we must assume, for his personal satisfaction, but for the information of the trustees. Such being the case, notice to him was unquestionably notice to the defendant. Childs v. The Village of West Troy, 23 Hun, 68; Deyoe v. Saratoga, 3 T. & C., 504., Rehberg v. City of New York, 91 N. Y., 137.

We think the question of the plaintiff’s contributory negligence was properly submitted to the jury, and that no other exception in the case was necessarily fatal to the verdict.

The judgment and order appealed from must be affirmed.

Macomber and Corlett, JJ., concur.