text:
    Moses P. Prout, App’lt, v. Alexander R. Chisolm et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Money had and beceived — When lies.
    Where money is received by one person which belongs to another, without any valuable consideration therefor on the part of the receiver, an action for money had and received lies in all cases.
    3. Same — Pleadings.
    A sufficient complaint, in such an action, is not rendered insufficient by reason of an additional allegation that the defendant had obtained money from the plaintiff by false statements that purchases and sales had been actually made, or by any other fraudulent representations.
    3. Same — Relief
    Though it is the better practice, under the Code, to pray for the precise relief to which the allegation entitles the plaintiff, yet, where an answer has been interposed, the form of the prayer is quite immaterial.
    Appeal from a judgment, dismissing the complaint.

      G. H. & F. L. Crawford, for app’lt; Geo. Putnam Smith, for resp’t.
   Dykman, J.

— This is an appeal from a judgment entered upon the dismissal of the plaintiff’s complaint at the circuit, and also from an order denying a motion for a new trial on the minutes of the court.

At the close of the testimony on the part of the plaintiff, the trial judge, upon a motion for a dismissal of the plaintiff’s complaint, stated that the question he was called upon to determine was whether the evidence was sufficient for the jury to find that there was fraud practiced; and he dismissed the complaint, holding that the evidence was insufficient to permit a recovery for money had and recieved, and that the proof the plaintiff had given did not sufficiently support the allegations of fraud to justify their submission to the jury. The answer of the defendants admits the allegations of the complaint that the defendants, as stock brokers, had recieved from the plaintiff, as their principal, a large sum of money, and also property of value, solely by way of security or partial payment upon supposed actual purchases and sales of stocks and bonds made or to be made by the defendants for the plaintiff. It is conceded that the defendants received the plaintiff’s'money for that purpose, and for no other. The complaint, alleged that in fact no such purchases or sales were made, and therefore it sufficiently presented a cause of action for the money plaintiff had deposited with the defendants. Where money is received by one person which belongs to another, without any valuable consideration therefor on the part of the receiver, an action for money had and received lies in all cases; for the law implies a promise on the part of the person so receiving the money to repay the same, or to account for it in some particular manner. Freer v. Denton, 61 N. Y. 492. The complaint, therefore, being sufficient, is not rendered insufficient by reason of the additional allegation that the defendant had obtained the money from 'the. plaintiff by false statements that purchases and sales had been actually made, or by other fraudulent representations. That doctrine has been repeatedly enunicated. In Byxbie v. Wood, 24 N. Y. 607, the plaintiff sued to recover back an overpayment by the assignor of the plaintiff to the defendant upon purchases made by the latter on a joint venture. The complaint of the plaintiff charged that the moneys were obtained by false and fraudulent representations. The objection was taken that the cause of action was in tort for deceit, and not therefore assignable. In the opinion delivered in that case, the court said:

“What valid objection is there to treating these words as mere inducement, containing a statement of the facts which show that Marvin’s payment was not a voluntary one, with knowledge of the facts? * * * How, without some such statement, was he to show that it was not a voluntary payment, or that his statement of the accounts was not final and binding on him ? * * * It is entirely immaterial, in our present modes of pleading, whether the plaintiff anticipates what would be matter of defense, and establishes in advance that it was so obtained as to be invalid and no defense, or whether he omits all mention of it, andón the trial, when it is interposed as a defense, proves the fraudulent obtaining of it, which makes it evidence, and no defense.”

So in the cases of Conaughty v. Nichols, 42 N. Y. 83; Ledwick v. McKim, 53 id. 307; Sparman v. Keim, 83 id. 243; People v. Wood, 121 id. 522 ; 31 St. Rep. 860.

The courts refuse to permit allegations of fraud to disable the pleadings as a complaint on contract. In the present case it was. clear that the defendants would rely, as upon the trial they did l-ely, upon their monthly accounts, as accounts stated. It was inevitable that the truth of those accounts must be tried, and must be the principal subject of investigation. There was no valid objection to the plaintiff’s expressly dealing with the matter in liis complaint.

Neither is there any validity in the objection raised to the form of the prayer for judgment. At common law it would have been sufficient iri an action for money had and received. Under our Code it is the better practice to pray for the precise relief to which the allegation entitled the plaintiff, but where an answer has been interposed the form of the prayer is quite immaterial. The court will give the relief required by the allegations in the complaint, and tire proofs upon the trial. Bell v. Merrifield, 109 N. Y. 202 14 St. Rep. 796.

6The charges in the complaint presented a case of money and property obtained from the plaintiff by deceit. The rule laid down by the learned trial judge was correct, — that fraud could not be presumed, but must be proved, — and the facts proved were proper evidence, and should have been submitted to the jury on that issue. Without a pause to consider the question whether the system of clearing and weekly statements maintained at the exchange of which the defendants were members was in any proper sense a system of real purchases and real sales, it is sufficient to say that the testimony introduced by the plaintiff tended to show that he desired to make actual purchases and actual sales, and that the defendants insist that purchases made according to the system of their exchange were actual, and not nominal. There were evidence for the jury tending to show that no such purchases or sales as they reported to the plaintiff were ever made by the defendants on the exchange, according to its rules or practice, or in any other manner. The defendants, when pressed by the plaintiff, did not give the name of a single broker or person from whom they had bought or to whom they had sold, and stated that they were unable to do so ; that they had kept no record of such names except on certain slips sent by them to the clearing house of the exchange where all the sales were made, and that such slips had been destroyed within thirty days. The duty of a broker or agent to keep accounts showing names of persons with whom he deals for his principal is plain to the last degree. In no other manner could the transaction of the agent possibly be verified. There is no reason in this matter to distinguish between the duty of a consignee selling merchandise and a broker buying or selling stocks. As to a large number of the supposed transactions stajed on the .defendants’ account, it was shown that although they were claimed by the defendants to have been had on the consolidated exchange, and to have been entered on the slips furnished by the defendants to the clearing house of the exchange, still the records kept by the clearing house of the total sales and purchases by the defendants were highly inconsistent with the defendants’ statement of sales and purchases made by them for the plaintiff. As to many transactions, it was shown by the official record of sales kept by the exchange that no transactions like those reported had taken place at all. As to certain of the securities stated by defendants to have been bought and actually held by them for the plaintiff, there was evidence tending to show a course of conduct by defendants quite inconsistent with the truth of their statements. It may be that the defendants had some answer or explanation to the case made against them. If they had, its production was essential; and, if they had not, the evidence was sufficient to carry the case to the jury and' justify a verdict in favor of the plaintiff for the full amount of his claim. If satisfied by the evidence that in many cases the defendants’ .accounts and statements of their transactions with the plaintiff were intentionally false and spurious, the jury might have inferred, in the absence of sufficient proof to sustain such accounts or statements, that they were altogether fictitious. The evidence given ■charged the defendants with the money they had received from the plaintiff. It had been received by them from him, and, instead of procuring a dismissal of the complaint because he had not convicted them of a fraud, the duty was to show its proper application; and, if they failed to sustain the burden thus cast upon them, the plaintiff was entitled to recover.

The judgment and order denying .the motion for a new trial should be reversed, with costs.

All concur.


source: Caselaw Access Project

author: Dykman, J.

license: Public Domain

text:
    William H. Flannery et al., Resp’ts, v. Cornell Steamboat Company, App’lt.

      (Supreme Court, General Term, Second De artment,

      Filed July 26, 1895.)

    1. Collision — Lookout.
    Where, in case of a collision between two steam tugs, the absence of a lookout contributes nothing to the accident, no liability will be incurred thereby.

      2. Same.
    If the peril is seen by the navigator or any other person in time to take measures for its avoidance, no charge of negligence can be based upon the absence of a lookout.
    3. Same — Rules of navigation — Construction.
    When steamers are approaching each other head and head, the pilot of either steamer may be first in determining to pass to the right.
    Apteat, from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial.

      Benedict & Benedict, for app’lt; Stewart & MacJclin, for resp’ts.
   Dykman, J.

— This action was brought by the plaintiffs as owners of the steam tug William H. Bentley, against the Cornell Steamboat Company, owner of the steam tug Coe E. Young, to recover the damages sustained by the Bentley while in collision with the Young on the 5th day of September, 1893. On the day of the accident, the Bentley started from the Wallabout in Brook-, lyn, about half-past seven o’clock in the morning, bound down' and across the East river to Pier No. 6, on the New York side. She proceeded at half speed. There was a large steamer corning up the East river, heading towards the New York side, and when the steamer crossed the bows of the Bentley it was between the Bentley and the Young, which was coming up the river, against the tide, with a canal boat loaded with coal on her port side. When the captain of the Bentley first sighted the Young the two tugs were about head and head, and he put his wheel a-port, and blew one whistle to indicate that he was going to the right of the Young, and that the pilot of the Young should port his wheel and go to the right of the Bentley, so that each vessel should pass the other port to port. At that time the two tugs were about 250 to 300 feet apart. No answer was made from the Young to the signal whistle of the Bentley, and in a few seconds the captain of the Bentley gave a second signal of one whistle also. During all this time the Bentley had been going to the right, in accordance with her signal, but, when no answer was received to the second signal of one whistle, her captain blew two or three larger signals, as a warning to the Young to keep clear. Instead of stopping or putting his wheel to the larboard and turning his vessel towards the Brooklyn side so as to escape the collision, the captain of the Young put his wheel a-starboard, and thereby turned his vessel to the left, and the canal boat collided, and struck her about midships on her port side.

The rule of navigation for steam vessels applicable to this case is as follows:

“ When steamers are approaching each other head and head, or nearly so, it shall be the duty of each steamer to pass to the right or port side of the other, and the pilot of either steamer may be first in determining to pursue this course, and thereupon shall give, as a signal of his intention, one short and distinct blast of his steam whistle, which the pilot of the other steamer shall answer promptly by a similar blast of his steam whistle, and thereupon such steamers shall pass to the right or port side of each other. But if the course of such steamers is so far on the starboard of each other as not to be considered by pilots as meeting head and head, or nearly so, the pilot so first deciding shall immediately give two short and distinct blasts of his steam whistle, which the pilot of the other steamer shall answer promptly by two similar blasts of his steam whistle, and they shall pass to the left, or on the starboard side of each other.”

Under the circumstances disclosed by the evidence and found by the jury, as we must assume, the conduct of the captain of the Bentley was in accordance with that rule. It was the duty of each vessel to pass to the right, and either one might be first in determining to pursue that course, and when he had so determined it was his duty to signal his intention by giving one short and distinct blast of his whistle. That was all done by the captain of the Bentley, and the pilot of the Young gave no signal, and there is no excuse for such inaction. If, for any reason, he could not go to the right, or. if in his opinion the course of the steamer was such as not to be considered by pilots as meeting head and head, or nearly so, then he knew that he was the first pilot to so decide, and it was his duty immediately to give two short and distinct blasts of his steam whistle, as a notice of his intention to-, pass to the left. If he could have done neither, he could have reversed his engine, and his headway soon would have .been arrested by the current, which was against him. Without any effort in either of the directions indicated, his action had been to-turn his vessel towards the Bentley, and expedite the collision.

At the close of the testimony on the part of the plaintiff, the counsel for the defendant moved to dismiss the complaint on the ground of the absence of the outlook on the Bentley, and the denial of that motion is assigned for error. A lookout is a competent person, stationed for that purpose on the forward part of the vessel. His presence there is a wise precaution, and in many cases his absence would manifest a want of proper care; but where the absence of a lookout contributes nothing to the accident, no liability will be incurred therefor. It is the office of a lookout to discover dangers which cannot be so quickly discovered by a pilot, who is engaged in navigating the vessel, but if the peril is seen in time by the navigator, or any other person, in time to take measures for its avoidance, no charge of negligence can be based upon the absence of a lookout. As a lookout is by no means the only precaution adopted by a prudent navigator to guard against danger, so his presence is not indispensible as a shield against the imputation of negligence. The Farragut, 10 Wall. 334. The foregoing principles, applied to this case, exculpate the navigators of the Bentley from the charge- of negligence. The Young was discovered by the captain of the Bentley as soon as she was uncovered by the big steamer, and came in,sight behind her stern. A lookout could .not have seen her sooner, and there was ample time for the avoidance of the collision if the pilot of the Young had observed the Bentley and obeyed the rules of navigation as the captain of the Bentley did. It may as well be stated here-that, under the charge of the trial judge, we must assume that the-jury believed the testimony on the part of the plaintiffs, and disbelieved the testimony on the part of the defendant. We therefore take the facts as the jury have found them. The absence of a lookout, therefore, went to the jury, like all the other facts and circumstances in the case, upon the question of negligence, and the motion for a dismissal was properly denied. The same question was raised by a request to charge, which was also properly denied. The counsel for the defendant requested the trial judge-to charge that the man who blows the whistle has no right to go a-port, but must wait until the signals are understood, but the requestwas properly denied. We have already stated the proper construction of the rule of navigation to be that the pilot of either steamer may be first in determining to pass to the right when steamers are approaching each other head and head.

The record discloses no errors, and the judgment and order denying a motion for a new trial must be affirmed, with costs.


author: Brown, P. J.

text:
    Edwin S. Piper, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1 Negligence — Oontbibutoby.
    A passenger who, while groping in the dark for the water closet, opens a vestibule door of the train and falls out, is not, as matter of law, negligent in not calling the porter and waiting for a light.
    2. Appeal — Exceptions.
    An exception to each of the charges made by the court at the request of the plaintifE, and to each qualification of those requests, and to each refusal to charge either of the propositions requested by the defendant, is wholly insufficient to present any question for review.
    Appeal from a judgment for plaintiff.

      Frederick A. Ward, for app’lt; Joseph A. Burr, for resp’t.
   Brown, P. J.

— This case was before the general term of this department at the December term in 1893 upon an appeal by the plaintiff from a judgment in favor of the defendant entered upon a dismissal of the complaint. The court then decided that the question as to the negligence of both parties was for the jury. We do not think that the case has been materially changed upon the retrial, and we adhere to the decision then made. The learned judge who wrote the opinion upon the former appeal appears to have understood that the plaintiff fell from the rear door of the rear car of the train. The fact that he fell from the vestibule between two cars does not make inapplicable the rule of law then applied, or anything said in the opinion; and, after a careful review of the testimony, we think the case in all its aspects was for the jury.

At the close of the charge the defendant presented to the court twenty-eight requests, some of which were charged and some refused. The defendant then excepted “ to each of the charges made by the court, at the request of the plaintiff, and to each qualification of those requests, and to each refusal to charge either of the propositions requested by the defendant to be charged.” These exceptions are wholly insufficient to present any question for review. Smedis v. Railroad Co., 88 N. Y. 22 ; Newall v. Bartlett, 114 id. 405 ; 23 St. Rep. 732; Huerzeler v. Central C. T. Railroad Co., 139 N. Y. 490; 54 St. Rep. 336. Other requests were made and exceptions taken to the rulings of the court, but they present no other question than that arising upon the motion to dismiss the complaint, and need not be considered. Hone of the exceptions to the rulings upon evidence are well taken, and the judgment must be affirmed, with costs.

All concur.


author: Dykmah, J.

text:
    Charles W. Reeve, Resp’t, v. Jeremiah Gallivan, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Damages — Breach of contract.
    The measure of damages for the breach of a contract to sell and deliver goods is the difference between the contract price and the market price at the time and place of delivery.
    Appeal from a judgment in favor of plaintiff.

      Edward A. Horton, for app’lt; Johnson & Lamb, for resp’t.
   Dykmah, J.

— This is an appeal by the defendant from a judgment entered on the report of a referee in favor of the plaintiff. On the 10th day of September, 1891, the defendant in this action, under the name of Gallivan & Go., signed a memorandum of agreement in writing, by which he sold to the plaintiff 2,000 casks of pure cider vinegar, which should fully meet all the requirements of the New York state vinegar law, in every possible respect, at 5-1- cents a gallon, free on board the cars at the defendant’s mill. The deliveries were to be made in car-load lots, as the plaintiff might order, between October 15, 1891, and October 15, 1892. The plaintiff was to furnish the empty casks free on board the ears at the same place. The deliveries of each month were to be paid for on the 10th day of each succeeding month. The plaintiff alleges a breach of that contract by the defendant, by reason of which the plaintiff was compelled to purchase and did purchase, during the period mentioned in the memorandum, that quantity of vinegar from other parties, at prices exceeding the sum for which the defendant agreed to sell the same, to the damage of the plaintiff of $1,866.57. There was a second cause of stated in the complaint, for ninety-four barrels, at $1 each, and $23.26 cooperage charges, incurred by the plaintiff for the defendant’s account. The answer admits the contract, denies plaintiff’s performance of it and the defendant’s breach of it, and denies the plaintiff’s allegations as to damages. It admits the receipt of ninety barrels, and sets up a counterclaim of $82.58 for cider sold to the plaintiff by the defendant in August, 1891. It then sets up, as an affirmative defense, — an excuse for nonperformance, — that the contract sued on is not the entire contract, and that a part of it was oral, to furnish cider as well as vinegar. It alleges a sale of cider on which there was a balance due the defendant of $82.58. It then sets up some other matters not very material to be mentioned here. After finding that the contract was made as stated in the complaint, the referee found, as facts, that the defendant failed and refused to deliver the vinegar, or any part thereof; that the plaintiff was compelled to, and did, purchase at different times, during the period in which the defendant undertook to deliver the vinegar, 2,000 barrels, containing 95,056 gallons of vinegar; that the aggregate value of the vinegar so purchased by the plaintiff was $7,014.48, and the aggregate amount purchased of the defendant, at 5% cents a gallon, would have cost, $5,228.08; that the interest upon the difference between the market value and the contract price, calculated from the different months during the year when such vinegar was to be delivered, was $22488; that the defendant was indebted to the plaintiff for cooperage upon barrels, and for ninety-four barrels, $96.85, less $68.58, leaving the sum of $27.28 due upon that account from the defendant to the plaintiff. As a conclusion of law, the referee found that the plaintiff was entitled to judgment against the defendant for $2,038.55, with costs.

The appellant complains chiefly of the damages. He says the last purchase of the plaintiff was 1,305 barrels, 'October 10, 1892, to be delivered thereafter, and as his contract with the plaintiff expired October 15, 1892, this last purchase was for future deliveries. But we cannot see how that fact can be invoked in aid of the defendant. The purchase was within the time limited by the contract, and the sum paid was the market value at that time, and that is within the rule of law. The true measure of damages was the difference between the contract price and the market value at the time and place of delivery. Brock v. Knower, 37 Hun, 609, and cases there cited. 'This case was tried and decided upon that theory, and no error was committed in relation to the damages. All the facts found by the referee are sustained by the evidence. Many of the purchases of vinegar by plaintiff were made in the vicinity of the defendant’s mill, and they all seem to have been fairly made, at ruling prices, and under such circumstances the market price is ordinarily the measure of its value. Parmenter v. Fitzpatrick, 135 N. Y. 190; 48 St. Rep. 80. We detect no error in the record.

The judgment should be affirmed, with costs.

All concur.


text:
    Trustees of New York and Brooklyn Bridge, Resp’t, v. Thomas J. Leary et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Appeal — Restitution.
    A husband, to whom an award for land taken in condemnation proceedings is paid, may be required, in case of the reversal of the decision that his wife’s inchoate right of dower cannot be recognized in the award, to make restitution to the extent of such dower right.
    Motion to compel restitution after reversal.

      Fromme Bros., for app’lts; Gaynor, Grout & De Fere, for resp’ts.
   Dykman, J.

— This is a motion addressed to the general term in the first instance for an order to compel restitution of the sum of $6,711. Previous to 1893 proceedings were instituted for the condemnation of real property of Thomas J. Leary, under the right of eminent domain, for the purposes of the New York & Brooklyn Bridge, and they were conducted to completion. The sum of $31,000 was awarded to Leary as compensation for the premises so condemned. There was a mortgage upon the premises, and after deducting the amount of that mortgage, which was paid from the award, one-third of the remainder was $6,711. Subsequent to the making of the award, Leary made an application to the court for the payment of that sum to him. The application was opposed by his wife, who claimed that the money should be invested during the life-time of the husband, and that her inchoate right of dower in the fund should be recognized and protected. Her application was denied, and an order was made which directed tne money to be paid to her husband. Upon the appeal to the general term that order was reversed, and the order of the general term was subsequently affirmed in the court of appeals. In the meantime however, Leary had obtained possession of the fund, and now a motion is made to the general term for an order which shall compel him to make restitution, by the payment of the sum to the treasurer of Kings county, in accordance with the order made and entered upon the decision of the general term.

The law applicable to this motion was settled by the general term and the court of appeals, — that where real property belonging to a married man is taken by the exercise of the right of eminent domain during coverture, an absolute title is required, divested of any right of dower existing in his wife, but her inchoate rights as between herself and her husband were not extinguished, but must be recognized and protected as between her and her husband. Such being the settled law applicable to this case, there remains nothing to be said on this application. The rights of the wife can only be protected by an order such as now sought for by the wife.

The motion must be granted, with $10 costs.

All concur.


text:
    Archibald N. McBean, App’lt, v. William M. McCallum, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Appeal — Finding by court.
    In considering the weight of evidence upon an appeal from the judgment in a case tried by the court without jury, the finding of the judge will be treated the same as the verdict of a jury.
    Appeal from a judgment, rendered by the court on a trial without a jury.

      Nichols & Bacon, for app’lt; Calvin Frost, for resp’t.
   Dykman, J.

— This is an appeal by the plaintiff from a judg-. ment in his favor. An action was brought to recover damages against the defendant for a breach of contract for the exchange of real property between them. The action was tried before a judge without a jury, and he decided in favor of the plaintiff, and fixed the damages at $200. The appeal is upon the ground that the court erred as to the measure of damages, which he insists should have been much larger. The facts are that the plaintiff was the owner of a house and some land in the city of Brooklyn, and the defendant was the owner of land in the city of Yonkers. A written contract for the exchange of property between them was made and signed by the parties, and when they met to close the transaction land of the plaintiff was found to be incumbered beyond the knowledge of the defendant, and he refuse d to carry the contract into execution. The sole question involved in the appeal is one of damages. In this case the facts seem to be peculiar, and there is no fixed legal rule of damages which would apply to this case specially. It cannot be gathered from the testimony that the plaintiff sustained damages beyond the amount which was awarded to him by the trial judge, and as no specific rule of law in relation to the damages has been violated, we see no reason for interference with the decision upon that sole ground. The finding of the trial judge in respect to the damages should be treated the same as the verdict of a jury, and if this action had been tried before a jury, and a verdict rendered in favor of the plaintiff for $200, the appellate court would not feel at liberty to interfere with the verdict. As the same rule should apply to this case, we think the judgment should be affirmed, with costs.


text:
    Peter S. Van Orden, Appl’t, v. Charles Kouse, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Executors — Sale of real estate for payment of debts.
    A claimant for funeral expenses cannot maintain a proceeding for the sale of decedent’s real property to pay debts.
    Appeal from an interlocutory judgment, sustaining a demurrer.

      Garrett Z. Snider, for app’lt; W. F. Wyckoff, for resp’t.
   Dykman, J.

— This is an equitable action to impress a trust upon certain real property belonging to Mary M. Krouse, deceased, at the time of her death, for her funeral expenses. She died intestate, and the plaintiff, who was an undertaker, buried her and furnished all the necessary articles for her funeral and interment. The plaintiff was not employed to render the services or furnish the articles. The husband of the deceased is insolvent, and she died intestate. No administrator of the estate has been appointed and the plaintiff desires to have his claim declared to be a lien upon the real property of the deceased. There was a demurrer to the complaint for insufficiency, which was sustained, and the plaintiff has appealed from the judgment sustaining the demurrer.

There is no legal principle upon which this action can be maintained, and the judgment must be affirmed, with costs.


text:
    John R. Drake, App’lt, v. New York Iron Mine et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Assignment — Equitable.
    Where a director of a corporation, without authority, executes notes in the name of the corporation, procures then to be discounted by a hank for his own benefit and subsequently charges them against himself on the books of the corporation, he does not thereby make an equitable assignment to the bank of the dividends of his stock, where the notes contained no direction, and were accompanied by no instrument, for payment out of the dividends.
    Appeal from a judgment, dismissing the complaint on the' merits.
    The opinion of Mr. Justice Bartlett at special term is as follows:
    The transactions which are the subject of the controversy in this suit grow out of the relations of the late Samuel J. Tilden and of the defendant William L. Wetmore to a corporation organized under the laws of Michigan, and doing business in that state, and in the state of New York, under the name of The New York Iron Mine. In the year 1877 nearly all the stock of the New York Iron Mine, save a few shares which were necessary to enable persons to act as directors, was.owned by Messrs. Tilden and Wetmore, Mr. Tilden owning a controlling interest. In April and May of that year, Wetmore, being in Michigan, made three promissonr notes, for five thousand dollars each, in the name of the New York Iron Mine, and procured them to be discounted by the First National Bank of Neganuee. Wetmore had no authority either to make or deliver any of tliese notes. His intention was, when there should next be a dividend by the New York Iron Mine, to pay these notes out of the share of the profits then coming to himself as a stockholder in the corporation. This intention, however, he did not divulge to anyone. When that dividend came to be made, Tilden insisted on the application of Wetmore’s share-to the payment of other claims. The notes were dishonored; and in July, 1877, Wetmore went into bankruptcy. Alter the filing of his petition he made entries in the books of the defendant corporation, kept by himself in Michigan, charging the notes against himself, as a debt due from him to the New York Iron Mine. The present plaintiffs sues as the owner, through successive transfers, of the three notes in question, .and as, also, owning all liens and assignments pertaining to them, His purpose is to reach certain dividend of the New York Iron Mine, in which the estate of Wetmore was entitled to share, which were declared in 1889. The theory of the case, in his behalf, aa I understand it, is that Wetmore made an equitable assignment to the ‘First National Bank of Nega-unee of all dividends which might thereafter be declared on bis stock in the New York Iron Mine, or that he created an implied trust, whereby such dividends were made applicable to the payment of these notes. Unless the plaintiff .can establish such an equitable assignment or implied trust, he must fail in the action. It is to be noted that the Negaunee bank never entertained the idea of any assignment or trust whatever. Its officers were informed that the notes were made without authority, but nevertheless the bank sued the New York Iron Mine upon them. If Wetmore ever intended to make any equitable assignment, or constitute any trust, it is tolerably plain that the bank at this time did not know it. But the evideuce fails to disclose anything which amounts to an equitable assignment What Wetmore meant to do was to pay these notes,, which he had issued wrongfully, out of the dividends which lie-should thereafter receive from the New York Iron Mine, but he never meant at any time to transfer to the Negaunee bank any right to those dividends as such. The bank never regarded him as its individual debtor, by reason of having made the notes, and I do not see how it can be held that its officers accepted an assignment of a fund to pay a debt which it did not suppose existed as an individual obligation of Wetmore. Wetmore declares that lie did not think he was making the Negaunee bank his creditor, and that when he found that he had got to go into bankruptcy he wished the bank to share with all his other creditors, and did not want to give it any preference. His acts, as proved, do not contradict his intent, as thus stated. .An intention to make an equitable assignment cannot be inferred from signing the notes in the name of the New York Iron Mine, and procuring them to be discounted, without any authority on his part so to do. The notes contained nothing, nor were they accompanied by any instrument indicating-a desire or direction for payment out of a particular fund. Wetmore did nothing at any time which put the dividends out of his dominion or control, and put them under the dominion or control of the Negaunee bank. His action in charging the notes against himself on the books of the New York Iron Mine in Michigan had no effect, as to the bank, thought it may be deemed an acknowledgment on his part that, as between himself and the New York Iron Mine, the notes were to be treated as his individual obligations. It is argued that these entries are evidence of a prior assignment, and amounted to a lawful declaration of trust; but it would be going very far, I think, to hold that this was evidence of a prior assignment, in the face of Wetmore’s declaration to the effect thas he did not intend to make any, and in view of the fact that the bank had no-knowledge or expectation of such an assignment. On the subject of “implied trusts,” Mr. Perry, in his well-lcnow treatise, says: “Any agreement or contract in writing made by a person having the power of disposition over property, whereby such person agrees or directs that a particular parcel of property or a certain fund shall be held or dealt with in a particular manner, for the-benefit of another, in a court of equity, raises a trust in favor of such other person against the person making such agreement, or any other person claiming under him, voluntarily or with notice.” 1 Perry, Trusts, § 82. But here there is nothing to show that the entries made by Wetmore gave any direction whatever for the payment of his future dividends to the Negaunee bank, or to anybody else. My conclusion, as matter of fact, that the proof does not establish an equitable assignment, or implied trust, renders it unnecessary to determine the other interesting questions discussed by counsel in their briefs. There must be judgment for defendants with costs.

      Roger M. Sherman, for app’lt; Frank E. Smith, for resp’ts.
   Dykman, J.

— This case comes to us upon the judgment record alone, without a. case. The object of the action is to establish .and enforce an equitable assignment of,, or lien upon, a certain fund, and the complaint -was dismissed - after a trial before .a judge without a jury. In the - absence of a case containing the evidence, the findings of the trial judge in relation to the : facts are to be taken as true, and the sole question before us is whether those facts so founded in this case are sufficient to sustain the conclusions of law reached by the trial judge.

The findings are lengthy, and the facts are numerous. Their recitation here would -be unprofitable,-because they justify hut -one conclusion. They are entirely insufficient to support the ■claim of -the plaintiff. .The. trial judge dealt with the c,ose in -a very satisfactory opinion, and-we find it unnecessary to add anything to what is said thereon. The judgment should be affirmed,, with costs, .upon the opinion of the trial judge.

All concur.


text:
    Genevieve Phillips Powers, App’lt, v. H. O’Neill et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Bailment — Shopkeeper.
    A customer who lays down a pocket-book containing money upon the counter of a public store, and then loses sight of it, is guilty of negligence, which not only contributed to, but is the actual cause of the loss.
    ,3. Same.
    In such case, the shopkeeper is neither a voluntary custodian nor a custodian of any kind, and, therefore, under no obligation to use any care for the protection of the property".
    Appeal from a -judgment, dismissing the complaint.

      William S. Bennet, for app’lt; Isaac Fromme, for resp’t.
   Dykman, J.

— This action is brought to recover a sum of money and a pocketbook which was lost in the store of the defendants in New York city, the claim of the plaintiff being that the loss was sustained by reason of the negligence of the defendants and their employes. It appears from the testimony that the plaintiff visited the store of the defendants in New York city a few minutes before the time of closing the same, for the purpose of making a purchase of a hat for herself. While she was trying on the hats for the purpose-of selecting one for herself, she took off her own hat, and laid it upon the counter of the store, and placed her pocketbook, with the money which it contained, under the crown of her own hat. She remained herself near by the hat. There was no one in the department except the clerks of the defendant. She missed her pocketbook within a very few minutes after she had laid it under her hat. She immediately notified the saleswoman, who called the floor walker, and notified him of the loss. He made some examination of the drawers, and a cursory search -upon the counter, and then said he could do nothing that night but requested the plaintiff to call again in the morning. She called in the morning, and the superintendent took her name and address. The case is destitute of evidence to show that any of the employes of the defendant saw her poclcetbook, or had any knowledge that she had one. The cause came on for trial at the circuit before a jury at the city of Newburgh in Orange county, and at the close-of the testimony on the part of the plaintiff the counsel for the defendants moved to dismiss the complaint on the ground that no facts had been proven sufficient to sustain the action, and the motion was granted, to which, the plaintiff excepted. Counsel for the plaintiff requested permission to go to the jury on the evidence, and on the question of the negligence of the defendants, and also on the question as to whether the employes óf |he defendants used reasonable care after the loss, also on the question whether the defendants were not negligent in employing incompetent servants, all of which requests were denied, and there was an exception to each denial. The counsel for the plaintiff seems to have relied upon the decision of the court of appeals in the case of Bunnell v. Stern, 122 N. Y. 539, 34 St. Rep. 218. In that case the defendants were proprietors of a retail store, in which there was a department for the sale of ready-made cloaks. The plaintiff was there to make a purchase of a cloak for herself, and, for the purpose of trying on the cloak which she intended to purchase, she took off her own cloak, and, there being no other place to put it, laid it on a counter directly in front of a clerk, near a mirror in front of which the clerk who was waiting upon her stood, with one of the defendant’s cloaks, to have her try it on, which she did. She did not ask and was not told, where to put her cloak. The clerk who was waiting upon her, and the one at the counter, observed her as she laid it down, but neither said anything. After trying on the cloak, plaintiff went for her own, but it could not be found, although careful search was made ¡for it. It appeared that' no instructions had been given by the ■defendants to their clerks as to the disposition of garments removed by customers in order to try on those offered for sale. It was. held by the court in that case that the defendants, as volunteer custodians, for profit to themselves, were bound to use some care for plaintiff’s property, which she had laid aside by their implied invitation; that the evidence showed an omission to exorcise this care, and so they were properly held liable. In that ■case the court laid great stress upon the fact that the property of the plaintiff was properly brought to the store of the defendants, and necessarily laid aside, by their implied invitation, in order to attend to the business in hand. They were, therefore, bound to use some care for the plaintiff’s property. The court also concluded that the defendants, as voluntary custodians, for profit to themselves, were bound to exercise some care over the plaintiff’s cloak, and that on account of their absolute failure in this regard they were properly held liable by the court for the damages which she sustained. It will be seen, however, that there is a material difference between the Base of Bunnell and tne case of this plaintiff. In this ■case there was no implied invitation on the part of the defendants to the plaintiff to lay down her pocketbook containing'her money. It was not necessarily laid aside by her for the purpose of trying on the bonnet which she intended to purchase, and therefore there-was no implied invitation for her to do so. The defendants Vere neither voluntary custodians of any kind, and therefore they were under no obligation to use any care for the protection of her property. The testimony offered by the plaintiff to prove the duty of a floor walker was properly excluded by the court, and the exception to such an exclusion presents no error. Moreover, it is plain from the evidence that the plaintiff was guilty of negligence which not only contributed to, bnt was the actual cause of, her loss. It 'was a careless act to lay down a pocketbook containing money upon the counter of a public store, and lose sight of it. If money is to be carried upon the person in a public place, ordinary care requires it to be carried in some secure place, and its exposure is a manifestation of great want of care. The negligence of the plaintiff was therefore sufficient to defeat her action. We fail, however, to find any negligence on the part of the defendants or their employes. The judgment should be affirmed, with costs.

All concur.


author: Per Curiam.

text:
    Santi Peri, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

      Í. Damages — Personal injuries.
    In an action for personal injuries, the plaintiff, if entitled to recover, is entitled to be compensated for the pain and suffering which he endured by reason of the injury, and for the diminution of his ability, if any, to work and earn money.
    3. Same — Excessive.
    A verdict for $10,000 for the loss of a foot was held, under the circumstances of this case, to be excessive.
    Appeal from a judgment entered on a verdict rendered at circuit in favor of plaintiff, and from an order made at special term denying a motion for a new trial made on a case and exceptions.
    The opinion of Mr. Justice Childs, reducing the amount of the recovery and denying the motion for a new trial, is as follows:
    The plaintiff received an injury which resulted in the loss of his foot, and this action was brought to recover the damages sustained thereby, upon the claim that such injury was occasioned wholly by reason of the negligence of the defendant, and without any negligence on the part of the plaintiff contributing thereto. Upon the trial, testimony was given by the plaintiff tending to establish his cause of action, and by the defendant tending to establish its defense, and disprove the allegations of negligence on its part. At the close of the testimony, the court held that questions of fact arose upon the testimony and submitted the case to the jury, and a verdict was rendered in favor of the plaintiff and against the defendant for the sum of $10,000. The testimony given upon the trial has been again, and upon this motion, carefully examined and considered, and the conclusion again reached that a case was-made for the jury, and that there is no such balance of testimony in a favor of the defendant as to authorize the court to set aside the verdict as against the evidence.
    The defendant’s claim that the verdict is excessive presents a more serious question. The plaintiff is a laborer and accustomed to earn about $1.50 per day. If he was entitled to recover, he was •entitled to be compensated for the pain and suffering which he •endured by reason of the injury, and for the diminution of his ability, if any, to work and earn money. But little testimony was given relating to the question of damages. " It appeared that the plaintiff had lost one foot, and that he had not been able to labor since the accident, a period of about eleven months ; that he was twenty-four years of age, and suffered some pain at the time of the trial. Beyond these facts the jury were left to conjecture as to the future results or effect of the injury. It did not appear that the case differed from the ordinary one where the loss of a foot was suffered, or that there would not be in the plaintiff’s case as •complete recovery as is expected or secured in such a case, or that the ability of the plaintiff to labor would be seriously or to what extent impaired. In this situation, it becomes the duty of the •court to examine the testimony for the purpose of determining whether the jury, in rendering the verdict, was controlled by the testimony given and the legitimate inferences to be drawn therefrom, or whether an excessive verdict has been rendered, — a verdict unsupported as to the amount of the evidence. Interest upon the verdict rendered in this case would exceed the amount the plaintiff could earn, if employed every working day in the year at $L.50 per day, by the sum of $150 yearly, and this leaves out of the question the principal sum. Governed by experience and observation, in so far as the testimony comes short of supplying a more definite guide, the mind is led to the conclusion that the plaintiff, suffering from the disability occasioned by the loss of his foot, is still able to labor, and to earn wages not much diminished in amount from the sum earned by him previous to the accident, •and that this fact should have an important bearing in estimating what amount would compensate the plaintiff for the injury sustained, In view of the condition of the testimony, as stated, it cannot be said that the jury was governed by the rule of compensation in reaching its verdict, but rather by some mistaken view, which resulted in an excessive verdict.
    Having reached this conclusion, it follows that the verdict must be corrected by consent of the plaintiff, or that a new trial of the action must be granted. My conclusion is that the verdict should be reduced to $5,000, which sum would s'eem to be ample compensation to the plaintiff for the injury which he has sustained. An order may be entered setting aside the verdict and granting a new trial herein unless the plaintiff shall, within five days after the entry and service of a copy of such order, stipulate to reduce the verdict to the sum of $5,000.

      Charles A. Pooley, for app’lt; George W. Cothran, for resp’t.
   Per Curiam.

— Judgment and order affirmed on opinion of -Childs, J., at special term.


text:
    Hester A. Tompkins, Resp’t, v. William H. Tompkins et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Bills and notes — Lost instrument.
    A recovery for a debt cannot be resisted on the ground that the debtor had given a note for such debt, where the note, while in the defendant’s hands, was destroyed.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.

      Richard N. Arrow (Francis Larkin, of counsel), for app’lts; Walter P. Fiero, for resp’t.
   Dykman, J.

— This is an appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes of the court. The action was tried at the circuit before a jury, and a verdict rendered in favor of the plaintiff for $500. The defendants are the son and daughter-in-law of the plaintiff. Upon the cross-examination of the plaintiff, the fact was disclosed that the defendants had executed two^ promissory notes to the plaintiff for the indebtedness upon winch this action is based, — one note for $500, and one note for $450,— and that some time afterwards, when the plaintiff was sick, she delivered the notes to her son, one of the defendants, for safe keeping. After her recovery the plaintiff demanded the notes of the defendants, but they were not returned. They were subsequently destroyed in a fire at the dwelling house of the defendants, to their knowledge. So the ground upon which the motion to dismiss the complaint was based had slid from beneath the feet of the defendants before the motion was made, and it was properly denied. The notes were overdue at the time of the commencement of this action, and, as they were in the possession of the defendants when they were destroyed, they encounter no danger by a recovery in this action, based upon the original indebtedness for which the notes were given. The defendants did not deny the reception of the money, but they say the wife took it. The theory of the defense was that the money was received upon an understanding that the defendants were to keep the plaintiff and her sister and care for them while they lived. Both the defendants testified that the money was received by the daughter-in-law under that agreement, and the whole case was fairly submitted to the jury in a charge to which there was no exception taken. The jury found a verdict for the plaintiff for $655. It must be assumed, therefore, now, that the jury received the testimony of the plaintiff as the truth of the case, and upon that assumption the verdict is fully sustained. In fact, it is difficult to believe that the defendants would have given their promissory notes to the plaintiff for the money delivered to them, unless they received it as a loan. If the money was an advance payment for board and care to be furnished to the plaintiff and her sister, it would have been unnatural for them to give their notes therefor, because in that view they would have been under no-obligation to repay the money. They would then give the plaintiff no evidence of a debt, because there was none. The-record discloses no error, and the judgment should be affirmed,, with costs. All concur.


author: Dykman, J. Pratt, J.

text:
    John P. Handshaw, App’lt, v. John S. Arthur, Resp’t.

      {Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Justice of the peace — Pebsohal liability.
    An action, in justice's court, is, ipso facto, discontinued by the failure of the plaintiff to appear on an adjourned day, though the justice, at the request of the plaintiff, had the day before adjourned the trial to a subsequent day, and subsequent acts of the justice are without jurisdiction and he is liable to defendant for damages sustained by the issuance of an execution.
    Appeal from a judgment, dismissing the complaint.

      Livingston Smith, for app’lt; Ackerly & Miles, for resp't.
   Dykman, J.

— The defendant, John S. Arthur, is a justice of the peace of the town of Smithtown, in Suffolk county; and on the 21st day of April, 1894, Charles 0. L’Hommedieu commenced an action before the defendant, as such justice of the peace, against John P. Handshaw, the plaintiff in this action, to recover $28.40, which he claimed Handshaw owed him. The summons in that action was signed on that day by the defendant, Arthur, and the same was made returnable on the 28th day of April, 1894. It was delivered to the constable on the day it was signed, and it was duly served on Handshaw on the same day by the constable, who-made his return thereon to Justice Arthur before the return day thei'eof, in the manner prescribed by law. On the return day of the summons the lawyer for the plaintiff, L’Hommedieu, appeared before Justice Arthur, with a letter from Handshaw, addressed to Justice Arthur, in which Handshaw demanded a jury trial, and requested Justice Arthur to adjourn the case until May 5, 1894. In accordance with the demand of Handshaw, Justice Arthur drew a jury and issued the venire summoning the jury to appear on the 5th day of May, 1894, and adjourned the case to that day. In consequence of the neglect of the constable to whom the venire was delivered, the jury was not summoned, and did not appear on the 5th day of May, and neither of the parties (either the plaintiff or the defendant) appeared on that day. When the lawyer for the plaintiff learned that the constable had failed to summon the jury, he called on Justice Arthur, on Friday, May 4th, and told the justice that it would be necessary to summon another jury. The justice expressed some doubts to the lawyer as to the legality of the procedure, but finally yielded to his demand, and drew another jury, and issued a venire therefor, returnable on the 10th day of May, jL894, and adjourned the case to that day. The constable summoned the second jury, and on the 10th day of May the jury appeared, together with the plaintiff, L’Hommedien, and his counsel. The defendant, Handshaw, did not appear. The jury was then drawn, and, after hearing the evidence for the plaintiff, returned a verdict in his favor for $28.40, — the full amount of bis claim against the defendant. The judgment was docketed by Justice Arthur, and in a short time thereafter, on demand of the lawyer for the plaintiff, Justice Arthur issued an execution thereon, under which -the constable thereafter levied upon and sold certain articles of personal property belonging to the defendant, Handshaw. This .action was then brought by Handshaw against the justice of the peace, Arthur, to recover damages For issuing the execution under which the levy and sale was made.' The action was first tried ■on the 28th day of June, 1894, before a justice of the peace and a jury, and the jury rendered a verdict for the defendant. Handshaw then appealed for a new trial to the county court of Suffolk ■county, and the same was brought on for trial at the county court on the 31st day of December, 1894, before the county judge and a jury; and, after hearing the evidence, the plaintiff was non-suited, and judgment dismissing the complaint was thereafter ■entered. From that judgment the plaintiff, Handshaw, appeals to this court.

Courts of justices of the peace are courts of inferior and limited jurisdiction, and do not proceed according to the course of the common- law. They are confined strictly to the authority conferred upon them, and can take nothing by implication. Such was the rule previous to the Code of Civil Procedure, and now the rule has been embodied in the Code by section 2861, as follows: “A justice of the peace has such jurisdiction in civil actions and special proceedings as is specially conferred upon him by the statute, and no other.” When they have jurisdiction, their errors and irregularities cannot be reviewed collaterally; but, if they proceed without jurisdiction over the person, then their proceedings and judgments are void. It was also settled in this state, before the Code, that where the plaintiff failed to appear upon the return of the process, or upon the day to which the case had been adjourned for trial, the action was unequivocally discontinued, and the parties stood as if the same had never been commenced. Wailing v. Toll, 9 Johns. 140; Hubbard v. Spencer, 15 id. 244. That rule has also been codified, and is contained in the Code, in this language: ’

‘Judgment of nonsuit with costs must be rendered against the plaintiff prosecuting an action before a justice of the peace in either of the following cases : * * * (2) If he fails to appear within one hour after the summons is returnable or within one hour after the time to which the trial has been adjourned.” Section 3013.

When, therefore, the plaintiff failed to appear on the 5th day of May, the time to which the trial of that action had been adjourned, the jurisdiction of the justice over the parties ceased; and he "was then required, by the peremptory demand of the statute, to render judgment of nonsuit against the plaintiff, with costs. He retained control of the case for no other purpose. The failure of the plaintiff to appear on the adjourned day deprived the justice of jurisdiction over the defendant, and the adjournment of the case, and the subsequent proceedings thereon, were without jurisdiction and void. They were more than erroneous. The distinction is this : Where the justice of the peace has jurisdiction, but errs in its exercise, then his acts are not void, but voidable only, and he incurs no personal liability therefor. But where he has no jurisdiction whatever, and then undertakes to act, his acts are coram non judice and void, and render him personally liable for their consequences. Butler v. Potter, 17 Johns. 145. It is very true that the defendant, as justice of the peace in the original suit, acquired jurisdiction of the parties down to the 5th day of May, but did he have any jurisdiction or discretion over the question of adjournment? If he had, then the adjournment made by him on that day is only an error in judgment, and it is contrary to established principles to impose personal liability for a judicial act. But reflection has conducted me to the conclusion that he had no jurisdiction to exercise in relation to the adjournment which he made in the absence of the parties on the 5th day of May. The plaintiff then failed to appear within one hour after the time to which the trial had been adjourned, and in that case the statute commanded the justice to render judgment of nonsuit against the plaintiff, with costs. He had no power to do more, or otherwise. When, therefore, he undertook to adjourn the case upon his own motion, he exceeded his authority and jurisdiction. The conclusion seems to be inevitable, and we cannot vary general rules of law, or refuse to apply them to meet extraordinary cases. The judgment should be reversed, and a new trial granted, with costs to abide the event.

Brown, P. J., concurs.

Pratt, J.

(dissenting). — It is conceded that on May 5th, when the parties failed to appear, the justice should have entered a judgment of nonsuit. Mistaking his duty, he adjourned the cause, on his own motion, to May 10th. Of that adjournment both parties had notice, — the plaintiff’s attorney giving notice to the defendant. On the adjourned day the plaintiff appeared, and, in the absence of defendant, proved his case. Judgment was entered, execution issued, property sold, and the justice is now sued in trespass. There was, obviously, no intentional injustice; and we think it clear the the action complained of was judicial in its character, for which the justice is not responsible in damages. Lange v. Benedict, 73 N Y. 12. The error was in failing to give a proper judgment. The remedy was by appeal. Judgment •affirmed, with costs.


text:
    Ellen E. Weed, App’lt, v. Boltus M. Brush, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Trespass — Damage—Jury viewing premises.
    Failure of plaintiff, in an action for trespass, to give evidence from which the jury can estimate the amount of damage, is cured by allowing the jury to view the premises.
    Appeal from a judgment in favor of defendant.

      Garrett Z. Sneder, for app’lt; Arthur S. Tompkins, for resp’t.
   Dykman, J.

— This action was commenced in a court of a justice of the peace in Rockland county, to recover damages for injuries alleged to have been occasioned to the real property of the plaintiff by the flow of refuse matter from the soda-water factory of the defendant, upon the plaintiff’s land. On the trial before the justice of the peace a judgment was rendered in favor of the plaintiff for the sum of $75 damages. An appeal from that judgment was taken by the defendant to the county court, and, by reason of the disqualification of the county judge, the appeal was removed to-the supreme court, and, by stipulation, was argued before a justice of this court, who reversed the judgment of the justice, and a judgment was entered in favor of the defendant, against the plaintiff, for the sum of $41.88. From that judgment the plaintiff has appealed to this court.

The action was for the recovery of damages for trespass upon land, and the plainitff charged that the defendant caused materials used in the manufactnre of sarsaparilla and mineral waters to escape upon her land, and also that he threw and placed around her land bottles and other refuse material, also large quantities of ground marble dust, vitriol, and other chemical substances. The complaint then charged that by means of such wrongs her land was overflowed and depreciated, and a well of water upon the premises was destroyed. The answer was, in substance, a general denial. There was evidence upon the trial to prove the fact stated in the complaint. The water flowed from a cesspool, and washed over the plaintiffs yard, and the marble dust and refuse matter was washed over her premises, sometimes every day. Glass was thrown upon her land, and there was some proof of injury to the water in the well. In any view, there was sufficient proof to justify a verdict in favor of the plaintiff. The defendant substantially admitted the overflow, but belittled the quantity, and its effects upon the land and the water in the well. The record states that at the close of the trial, “at the request of both plaintiff and defendant, and with their consent in open court, the court permitted the jury, under the charge of the constable and attendants, to personally view the premises in question, with instructions not to converse with any person, or among themselves, until the case had been submitted to them. The jury returned in about fifteen minutes, and the counsel then summed up for the respective parties.” The jury rendered a verdict in favor of the plaintiff, against the defendant, for $75 damages. The question involved in this appeal has relation to the damages, and, as'we have already said, the plaintiff was entitled to a verdict for something, and therefore the sole question is one of amount. The obstacle in the way of the defendant is the stipulation to permit the jury to visit the premises. By that permission, the jury could take ocular proof of the injury to the land. The eyes of the jurors, and perhaps their taste of the water, were permitted to testify, and their testimony is not submitted to us. We think it must be assumed that there was sufficient evidence presented to the jury and obtained from a view of the premises to justify the verdict. The case is like an appeal from a report of commissioners appointed to appraise the damages for the appropriation of private property for public use. In such cases appellate tribunals refuse to interfere with the report, upon mere questions of amount, unless the awards are so excessive or insufficient as to be palpably unjust. That rule is applicable here. We can easily see that the premises of the plaintiff must have been seriously injured, and, if the testimony of the witnesses did not fix the basis or lay a foundation for the verdict, that defect was supplied by the view of the jury. The consent to such a view must be construed into a permission for the jury to act upon what the jurors saw, and, if they discovered sufficient evidence of injury to the premises of the plaintiff to satisfy them that she had sustained damages to the amount of $75, that constituted a sufficient basis for their verdict. The testimony respecting, the injury to the crops by the marble dust which was washed from a cesspool was competent, and its reception presents no error. The judgment from which the appeal is taken should be reversed, and the judgment rendered by the court of the justice of the peace should be affirmed, with costs to the plaintiff in all the courts.