text:
    Betsey Dutcher, as Administratrix, etc., Resp’t, v. Horatio S. Dutcher, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Executors — Agreement before, appointment.
    An agreement by a widow, without the assent of all the next of kin, that one of the next of kin, in consideration of providing for her for life and paying decedent’s debts, should have all the decedent’s personalty, does not preclude her, upon her subsequent appointment as administratrix, from suing, as such administratrix, to recover possession of the personalty delivered under such agreement.
    Appeal from a judgment enter on a verdict in favor of plaintiff,, and from an order denying a motion for a new trial.
    The plaintiff’s complaint alleges that William Butcher, at the time of his death, was the owner and in possession of the articles of personal property mentioned in the complaint; that they were of the value of $300; that he died in the town of Gonstantia, on the 6th day of March, 1893 ; that on the 8th of February, 1894,. Betsey Butcher was appointed administratrix, and qualified as such ; and that on the 3d of March, 1894, she, as such administratrix, demanded possession of all the property mentioned in the complaint, and the defendant refused to deliver the same, and therefore the plaintiff seeks to recover damages for the conversion of the same. The answer admits the death, and the appointment and qualification of the plaintiff as administratrix. The jury rendered, a verdict for the plaintiff of $240.

      O. M. Reilly, for app’lt; Piper & Rice, for resp’t.
   Hardin, P. J.

— In March, 1893, William Butcher died, leaving-him surviving his widow and five children ; and on the 8th day of February, 1894, Betsy Butcher, his widow, was appointed his administratrix, and took upon herself the duties of such. After having made a demand of the personal property in the possession of the defendant, at the time such demand and such refusal thereof were made, and which are particularly described in the complaint, she brought this action for conversion of the same. In the third answer of the defendant it is alleged that on the 6th of March, 1893, the plaintiff and defendant, “together with William H„ Butcher and Washington H. Butcher, who are brothers of this defendant, and sons of the said William Butcher, deceased, made and entered into an agreement by the terms of which the plaintiff herein was to come and live with this defendant, and to make her home with him, as long as she should live, and that defendant should support, maintain, and provide for said plaintiff at his said home, and should pay all expenses and debts of said deceased, including funeral expenses of his said father ; and in consideration of said agreement so made and entered into between the said plaintiff, William H. Butcher, Washington H. Butcher, and this defendant, all of the personal property and effects of the said William Butcher, deceased^, were to be delivered over to this defendant, and were to be his absolutely.” The answer also alleges that, pursuant to the agreement, the property described in the answer was delivered to the defendant. The answer further alleges that the plaintiff, William H. Butcher, and Washington H". Butcher were, at the time of the contract, “the only heirs at law and next of kin of the said William Butcher, deceased, and the only persons and creditors interested in said estate.” It is also alleged that the plaintiff, pursuant to the arrangement, on or about the 8th of March, 1893, went to live with the defendant at his home,, -and was supported and provided for by him from the 8th of March,.1898, up to thé 30 th qf December, Í893, when the plaintiff herein, of her own accord, and without any fault on the part of this defendant, left his said home, and has not since been there. During thé trial it appeared that the deceased left three ■•sons and two daughters, — in all, five children; that at the time of the alleged agreement the sisters were not present. There was no averment in the answer that the sisters took part in the agreement, ndr was it alleged that they ratified the agreement. However, upon the trial, it was claimed that, after the agreement was made, the twd sisters ratified the same. It is to be observed that ■the defendant in hiS offér stated that, at the ’ timé the agreement ■entered into' between the three persons and the widow, in effect, the sisters did not take part therein, as it is alleged that they subsequently ratified the agreement. In the offer the defendant •claimed to show that all the personal estate which was left by William Dutcher Should be taken by the defendant; and that, in consideration of that, he should maintain and support the plaintiff at ■his home during the term of her natural life ; and that he should •also pay the funeral expenses and whatever expenses there were, •or debts, against the estate; and that he was to have all of the property for supporting the plaintiff during her natural life, and’ paying the funeral expenses and debts; and that the agreement was by paml. The evidence was objected to on sundry grounds; among others, that it was inimaterial and incompetent and inadmissible under the pleadings. The offer was rejécted and the evidence mentioned therein excluded and the defendant took an exception. At the time of the alleged agreement, the plaintiff was not administratrix of the estate. It- is claimed, however, in behalf of the defendant, that, as she was subsequently appointed, the •agreement which she made before her appointment was binding upon her as administratrix. We think the offer was not in accord.ance with the allegations to the answer.

In Smith v. Robinson, 30 Hun, 273, after discussing the rule which is to the effect that letters of administration, when granted, have relation to the time of the death of the intestate, and legalized all the intermediate acts of the administrator^, it wad said by Barker, J., at page 273, that the administrator “ is not permitted to question the validity of his own agreements and contracts, which he may have entered into in good faith prior to his appointment, Concerning the property and debts of the intestate.” And he adds: “Without the protection of this rule of law, great wrong and injustice would at times be done to innocent persons, trading and dealing with an individual in the actual possession of the assets of the deceased person.” In thé case in the hand the defendant was aware of the facts and circumstances relating to his father’s estate, and must be presumed to have known that the widow had no legal right to bind the heirs at law who were not ■present at the time of the alleged agreement; and presumptively ■he knew that the widow, before having been appointed administratrix, had no legal title tb the property. It is difficult, therefore do say, upon the evidence disclosed at the trial or upon the circumstances in addition thereto embraced in the offer, that the defendant was acting in faith that the widow had the full right to sell or transfer the property left by his deceased father. The legal title to the property came into the possession of the plaintiff, and she received letters of administration; and when she made a demand for the possession of the property, she was acting in behalf -of all the heirs at law, as well as herself. Inasmuch as the defendant had not acquired, in good faith, the legal title to the prop> erty, he wrongfully refused to deliver possession of the same when i\ demand was properly made by the representative of his father’s estate, to whom the legal title passed upon the appointment of the widow as administratrix.

The case in hand differs from Allen v. Eighmie, 9 Hun, 201, as in that case the defendant was the only next of kin, and plaintiff was his widow, and the agreement entered into between them was such a one as comternplated a payment by the defendant of all the debts and demands against the estate, and it was therefore held that the agreement made before the plaintiff’s appointment was binding, and was properly pleaded in the answer to the complaint, seeking to recover moneys that had come to the hands of the defendant. In the case in hand the sale of the property does not seem to have been made in terms, but it -was rather a personal agreement, attempted to be entered into by the widow witli one of tlie sons of the deceased, looking at her own personal advantage, rather than to the adjustment of the estate in the usual formal mode.

In Bellinger v. Ford, 21 Barb. 314, after stating that the general rule that letters testamentary, when issued, related back to the death of the testator, and legalize all intermediate acts, Bockes, J., said:

“But this must be understood to cover those acts only which might have been done had he been executor at the time; and since the Revised Statutes, the law of relation is limited still more in its applications."

In Deobold v. Opperman, 111 N. Y. 539 ; 20 St. Rep. 81, Ruger, C. J., said:

“We conceive it to beyond the power of an executor or administrator to bind the estate they represent, to any use of its funds, by contract with third persons having knowledge of the character of the property transferred, except in the ordinary and usual course of administration of the trust, and in furtherance of its objects. * * * It would be contrary to the policy of the law to allow an administrator, at the outset of his administration, by contract, to place the funds of the estate beyond the reach of the court, and irreclaimable until after the duties of administration have been performed by the administrator.”

It is apparent, from the proofs given and from the proposed offer, that the plaintiff administratrix was not “the only person entitled to the beneficial ownership of the intestate’s property,” and she did not hold the estate exclusively in her own right. The case, therefore does fall within the rule mentioned in Blood v. Kane, 130 N. Y. 514; 42 St. Rep. 549. See, also, In re Mullon, 145 N. Y. 104; 64 St. Rep. 551.

We think the exceptions taken at the trial to the rulings of the court in respect to the offer do not present an error requiring us to disturb the verdict. It is suggested in behalf of the appellant, that the property in question belonged to the widow, under the statute of 1842, and that she had a petfect right to do with it as she saw ñt, and that the same was exempt from the creditors of her husband. We do not find that question was raised at the trial. We, therefore, find no occasion to express an opinion upon that view of the case.

The foregoing views lead to the conclusion that the order denyying the motion for a new trial and the judgment should be sustained.

Judgment and order affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Hardin, P. J.

license: Public Domain

text:
    Benjamin H. Payne et al., App’lts, v. Eureka Electric Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Venue — Change—Discretion.
    Where the affidavits, used on a motion for a change of venue on the ground of convenience of witnesses, are conflicting in respect to the issues of fact, an order granting such motion is within the discretion of the court, and will not be set aside, unless such discretion has been improperly exercised.
    2. Same.
    The fact that the cause of action accrued, and that the principal transactions which are involved in the issues of fact arose, in the county, to which it is sought to change the venue, should receive due weight and force in determining whether the convenience of witnesses will be best sub-served by the proposed change of place of trial.
    Appeal from an order, changing the place of trial.
    Issue of fact was joined on the 7th of January, 1895, and the defendant’s notice of motion was served on the 12 th of January, for the special term held in connection with the Chemung circuit. Plaintiffs’ complaint alleges that, on the 29th day of October, they sold and delivered to the defendant one vertical engine, at the agreed price and value of $270; and that on the 6th day of February, 1883, they sold and delivered to the defendant another vertical engine, at the agreed price and of the value of $270 ; and that this action is brought to recover the purchase price of the two engines, to wit, the sum of $540. The answer consists of an admission that the defendant is a domestic corporation, and that the plaintiffs are copartners, as alleged, and admits the delivery to the defendant of two vertical engines, and alleges that they were delivered under a contract with the defendant wherein it was stipulated that they were not to be paid for until thirty days after the same had been duly delivered, erected, and found satisfactory to and accepted by the defendant and by the Southern Pacific Company, under the terms and conditions of the contract or agreement between the defendant and the said Southern Pacific Company for the installation by the defendant of an electric light plant on said Southern Pacific Company’s steamers. The answer also alleges that neither of the said engines was satisfactory to defendant or to the Southern Pacific Company, and neither of them was accepted by the defendant or the Southern Pacific Company, and avers they were rejected. The answer contains some denials of the allegation-of the complaint, and also sets up a counterclaim, growing out of the circumstance that the defendant entered into a contract with the Southern Pacific Company wherein it agreed to furnish and install the electric light plant on each of said ten steamers belongs ing to the Southern Pacific Company, and that by reason of the failure of the plaintiff the defendant sustained damages. It is also averred that the defendant performed work, labor, and services, and furnished materials, in and about the erection, repair, and removal of the said engines, at the request and for the use and benefit of the plaintiffs, of the value of $56.43, and seeks to recover as ■a counterclaim therefor. Defendant’s principal place and business is in the city of New York. In August, 1892, at No. 41 Dey street, the plaintiffs had an office for the transaction of business, and at that date and from that place made the proposal to the defendant, whose principal office was No. 18 Broadway, to furnish the defendant with vertical automatic engines, to be delivered as called for f. o. b. dock New York, and to furnish an engineer to ■operate each engine for three hours after it was erected. That proposition led to further correspondence and negotiations between the parties, and to a contract for the two engines mentioned in the complaint.

      Baldwin & Baldwin, for app’lts; Edwin C. Ward, for resp’t
   Hardin, P. J.

— It is very clear from the appeal book that the contract entered into between the parties in respect to the two engines mentioned in the complaint was made in the city of New York; and it is apparent that the principal transactions which are made the subject of inquiry by the issues of fact joined occurred in the city of New York. In Goodrich v. Vanderbilt, 7 How. Prac. 467, it was held that the place of trial of a transitory action should be in the county where the principal transactions between the parties occurred, unless the prepondarance of witnesses is so great as to warrant the court to retain the place of the trial in another county. Sup. Ct. Rule 48 authorizes a party who seeks to change the place of trial to state the nature of the controversy, and to show how his witnesses are material, and to “show where the cause of action or a defense, or both of them, arose and it then provides that “those facts shall be taken into consideration by the court in fixing the place of trial.” We think the special term properly gave weight and force to the circumstance that the cause of action accrued in the city of New York, and that the principal transactions which are involved in the issue of fact arose in that city and county.

2. Upon an inspection of the pleadings and the affidavits used at the special term, we see there was a substantial conflict in respect to the issues of fact presented by the papers to the special term, and that the special term was called upon to exercise its judgment, as well as its discretion, in determining whether the convenience of witnesses would be best subserved by a trial in the county of Qhemung or in the county qf Yew York. We are not prepared, to say th,at the. discretion of the special term, upon all the papers produced there, was abused or improperly exercised. It lias been held in numerous cases that the discretion, when exercised, will not be disturbed, “unless it clearly appears that it was improperly exercised.” In Gilbert v. Shortsville Cart Co., 39. St. Rep. 763, this court hqld that the discretion of the special term in granting or refusing a motion would not be disturbed, unless it clearly appears that it was improperly exercised; and in. Reuben v. Andorsky, 39 St. Rep. 764, we applied the same rule. Tlhat rule was also approved in the following cases : Schmidt v. Rochester L. & Printing Co., 31 St. Rep. 258; Carpenter v. Insurance Co., 31 Hun, 78; McConihe v. Palmer, 76 id. 116 ; 57 St. Rep. 380; Cromwell v. Romer, 18 N. Y. Wkly. Dig. 440 ; Fitzgerald v. Payn, 78 Hun, 38; 60 St. Rep. 484. In Lane v. Town of Hancock, 29 St. Rep. 635, it was said : “Unless there has been a plain and evident misuse of such discretion, the decision of the sp.ecial term must stand.” That rule was quoted and approved in Nelson v. Nelson, 50 St. Rep. 448.

We have carefully looked into the affidavits and attended to the criticisms made thereon by the appellants; and we are of the opinion that, notwithstanding the criticisms made thereon, the special term was called upon to exercise its discretion and judgment in respect tq the convenience of witnesses, and that the result reached at the special term does not indicate any impropriety in the action of the special- term or any abuse of its discretion. We, therefore, should affirm its order.

Order affirmed, with $10 cpsts and disbursements.

All concur.


text:
    Frances M. Tindle, Resp’t, v. Martha F. Powell, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Evidence — Adveb.se possession.
    Where, upon an issue as to whether possession of certain land by a party was adverse, it appeared that during his occupation his brother built a. hopse on the premises and evidence was given on the trial tending to show that the house was erected by the brother because he owned the premises, it is competent, in order to meet this evidence, to show that the latter acquiesced in the fact, that the former owned the premises and was building a house there for him.
    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.
    The action was brought by George A. Tindale to recover the possession of the lands described in the complaint, which are situated at Olark’s Mills, on the easterly side of the highway leading from Kirkland to Westmoreland. After the trial of the action, George A Tindale died, and his wife and sole legatee, the present plaintiff, was substituted. Plaintiff claimed title to the lands in question from one Liberty Powell, and it was claimed that he derived his title from two sources, — one-half acre from one Stephen Chappel, under a deed of October 31, 1844; and the other acre- and a half, it is claimed, he obtained by deed from Charles W» Powell, dated January 10, 1876. Liberty Powell died March 26,. 1886. No evidence was given on the trial that Liberty Powell, or-either of his grantors, ever occupied the one-half acre, or the acre and a half. The premises were occupied from 1845 until September, 1875, by Philo Powell; and, after his. death, his widow, Harriet Powell, and the defendant occupied the. premises, until after the trial of this action. The widow died in December, 1892, and the defendant is a daughter of Philo. Powell, and one of the six children, who were the sole heirs and descendants of PhiloPowell. When Philo Powell moved onto the one-half- acre, in 1845, there was an unpainted house and a small barn ; and in 1851 a fence was built on the half acre upon the place occupied by the old fence, and this was built by Philo Powell. There was-a fence built in 1851 or 1852, which enclosed both pieces of land in question, by Philo Powell and his sons; and he lived on the place at the time, and continued to do so until the time of his death, in 1875. He cultivated the place, and raised crops on it, every year; and afterwards, the widow and the defendant, his daughter, occupied it, the evidence showing that he held himself out as-owner of the premises. He planted trees on the place, both on the half acre and the apre and a half, and caused the trees to be grafted. The trees grew large. He moved the old barn ' back from the half-acre piece by the piece added on by the building of the new fence. He kepf the fence in repair around the place-while he lived, and the premises were cultivated as farms usually are from 1845 until 1875 by Philo, and subsequently by his widow and this defendant. It appears in the evidence that Philo- and his widow paid taxes on the place during the time they occupied it, and there is other evidence tending to show actsof adverse-possession on the part of Philo Powell and by his wife and this defendant; and. there is evidence to show that the acts were public and notorious in which they asserted ownership and possession thereof, and there is some evidence from which a jnry might infer that Liberty knew of the claims made by Philo and his widow and the defendant, and from it might be inferred he never, asserted the contrary.

      Josiah Perry, for app’lt; S. J. Barrows, for resp’t.
   Hardin, P. J.

— Upon all the evidence found in the appeal book, we are inclined to the opinion that the case should have been submitted to the jury. We think the evidence warranted a finding upon the important questions relating to adverse possession. It is-provided in the Code that, for the purpose of constituting adverse possession, land is deemed to have been possessed and occupied where it has been protected by a substantial inclosure, or where it has been actually cultivated and improved. The evidence discloses an actual occupation for over twenty years. Barnes v. Light, 116 N. Y. 34; 26 St. Rep. 654; Woodruff v. Paddock, 130 N. Y. 618 ; 42 St. Rep. 650.

It was claimed during the trial by the plaintiff that circumstances were such, as to rebut the presumption of adverse possession arising irom the occupation by Philo Powell. With a view of establishing an explanation of the possession or claim of ownership of Philo, it' was shown that, in 1875, Liberty Powell built a house upon the ■premises. At that time he was a man of wealth, and his brother seems to have been in moderate circumstances; and it is a question, upon the whole evidence, whether it was a brotherly act without pay, or whether it was an advancement upon the property by Liberty, with the knowledge on the part- of Philo that ultimately the expenses for building the barn were to be accounted for. There was some considerable evidence as to why the building was erected; ánd somé evidence was given tending to show it was -erected by Liberty Powell because he was the owner of the premises, and that Philo assented to the idea that he was the owner of it. To meet that evidence, the defendant offered to show that, at the time, Liberty Powell acquiesced in the - fact that Philo Powell owned the premises, and was building the house there for Philo. The evidence was excluded, and an exception was taken. At a later stage of the case, the defendant, in effect, offered to show by a witness “that he was riding with Liberty Powell, and the latter told him that he was building the house for his brother Philo. The evidence was excluded, and an exception taken. "We are inclined to think that, as the issue then stood, the offer ought to have been received to explain the relations of the parties to it. We think there should be a new trial.

Judgment and orde» reversed, and a new trial ordered, with costs to abide the event.

All concur.


author: Lewis, J.

text:
    William H. Caine, App’lt, v. Benevolent and Protective Order of Elks, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Benevolent societies — Officers—Power.
    Where the ruler of a grand lodge of a benevolent society has authority to remove for cause any officer of the grand lodge, he cannot interfere with the action of a committee to whom the power of appointing the time and place of holding the annual meetings of the grand lodge is delegated, and has no power to remove such committee from office, though they happened also to be the trustees of the grand lodge.
    2. Same — Officers—Removal—Notice.
    Where the constitution of such society gives the ruler power to remove the other officers for cause and on notice, an attempt to remove them without notice is void.
    Appeal from an order, vacating and setting aside a temporary, injunction.

      A. C. Wade, for app’lt; Leroy Andrus, for resp’t.
   Lewis, J.

— A temporary injunction was granted in the above action by the special county judge of Cattaraugus county, restraining the defendant, its officers, agents, servants, and assistants, from holding, or attempting to hold, any annual meeting of the defendant at Atlantic City, in the-state of New Jersey, on the 19th day of June, 1894, and from paying out or expending, or contracting to pay out or expend, any of the funds of the defendant, in paying or defraying any expenses.of such meeting.

The defendant was incorporated by special act of the legislature of the state of New York, in the year 1871, as a fraternal benevolent society, for the purpose, mainly, of accumulating funds for the protection and aid of its members and their families. The order was at the time of the commencement of this action composed of a grand lodge and a large number of subordinate lodges located in various states of the Union. The subordinate lodges receive their charters from the grand lodge, and are subject to its general control and government, subject, however, to limitations provided in the charter. The constitution provides for officers of the grand and subordinate lodges with long, high-soundings titles, which for the sake of brevity will be omitted. The officers consist of a ruler, who is the head of the order, three knights, a secretary, treasurer, tiler, and a board of three trustees. These officials are elected by balloc at the annual meetings of the grand lodge. Their term of office is one year. The ruler is given the power by the constitution to appoint certain subordinate officials and such committees as may be created by law or are authorized by the grand lodge. A court of appeals consisting of three members of the order is provided for, to be appointed by the grand lodge at its annual meetings. This body is vested with the power to construe the laws of the order, and settle all controversies in accordance with the constitution, laws, and principles of the order, and decide such questions as shall be submitted to them for their decision by the grand lodge. Their decisions, when announced by the ruler, are final, unless reversed by the grand lodge at its annual meetings. The ruler is given the power to remove, for cause, any elective or appointive officer of the grand lodge. He is required to give his reasons therefor.in his annual address. Such removals are subject? to the approval of the grand lodge. Annual meetings of the grand lodge are to be held at such time and place as it shall determine. The expenses attending such meetings are to be paid by the grand lodge. Delegates to the annual meetings are appointed by the subordinate lodges, and they compose the members of the convention. The expenses of the delegates in attending upon these annual meetings were -found to be quite onerous, and at the annual meeting held in Detroit in the year 1893 this question was considered, and the convention concluded to change the practice, which had theretofore prevailed, of the convention designating by resolution the time and place for the meeting for the following year. The convention determined to appoint a committee of three, with power to fix the time and place for the annual meetings,-and the following resolution was unanimously adopted: “ That the board of grand trustees should select a time and place that-would be most convenient to the largest number of members, the place selected to be one that would offer'the best inducements and secure the lowest hotel and railroad rates.” Willard C. Van Derlip, Joseph Laube, and Peter J. Campbell were elected, by ballot, general trustees of the order at the Detroit meeting.. Their term of office was one year, and until their successors were appointed. These trustees, as snch committee, met in the city of Hew York for the purpose of considering the question submitted to them. They selected Atlantic City, Hew Jersey, as the place of meetings and June 19th as the time, and so reported to the ruler. The action of the committee did not meet with his approval. He claimed that the committee had determined upon a place of meeting without sufficient investigation, and without having made sufficient negotiations with the hotel proprietors and transportation companies of different localities, with the view of securing the best terms for the delegates. He concluded to have another place selected for the meeting, and, to accomplish his purpose, he at once, without any notice to the members of the committee, and without their having any opportunity to appear before him and give an account of their proceedings, removed them from their office as trustees. He assumed the power so to do under section 4 o'f the laws'of the order, which reads as follows:

“He (the ruler) may remove any elective or appointive officer of the grand lodge or of a subordinate lodge for cause, but lie must give his reasons therefor in his annual address, and all snch removals shall be subject to the approval of the grand lodge. He shall have such other power's and perform such other duties as are inherent in and pertain to his office, and are not in conflict with the constitution and laws.”

The ruler thereupon appointed another committee on location. The new committee selected Jamestown, H. Y., as.the place of meeting, and fixed the same time for the meeting as the first committee had. The ruler thereupon called a special meeting of the order to convene at Jamestown on the day before the time thus fixed for the convention in that city. This controversy caused much feeling among the members of the order. Delegates were appointed by the different lodges, some of them were commissioned to attend the Atlantic City meeting, and others to the Jamestown meeting. The ruler gave notice to the members of the committee on laws and appeals to assemble and determine as to the propriety of his action in the removal of the committee. One member of the committee'thereupon resigned, another gave uotice that he would not be able to attend the meeting. The ruler appointed others in their places, and the two thus appointed met with the remaining member, and, without giving notice to the members of the committee who had been removed, approved the action of the ruler in removing them. As the time approached for the assembling of the delegates to these rival conventions, this action was commenced in the name of the plaintiff, who was a member of the order and a resident of the state of Minnesota, and the injunction order mentioned was obtained, and, upon motion, the order appealed from was granted. Both meetings were held, a quorum of delegates being present at each meeting. The usual proceedings were had, including the election of officers, etc. The ruler attended at the Jamestown meeting, and reported what he had done in the removal of the committee, and that convention passed a resolution approving his action.

The legality o£ the acts of the ruler in removing the committee is the principal question presented by this appeal. If he acted within the powers conferred upon him, then the Atlantic City meeting was not legally convened, and the expenses of the delegates thereto cannot properly be paid out of the funds of the order, and the officers which were there elected are not entitled to discharge their respective duties. The power to fix the time and place of the annual meetings, as stated, is vested by the constitution in the grand lodge. The convention determined to confer the power to select the place and time of meeting to a committee of three of its members, for the .reasons stated, instead of exercising the power by a vote of the delegates. When the committee discharged the duty thus confided to it, it was in effect the act of the convention. Had the convention, at its annual meeting, selected Atlantic City as its place of meeting, no one would claim that the ruler had the power to change such determination. Selecting the place for such meeting was not one of the ordinary powers conferred upon the board of trustees by the constitution and laws of the order. Their duties are denied by section 11 of the grand lodge laws, as follows:

“The grand trustees shall have general supervision over the funds, investments, and other property belonging to, the grand lodge. They shall receive and hold the bonds and securities of such officers as are required to give security for the faithful discharge of their official duties. They shall purchase all books, papers, supplies, etc., that are necessary, and order the grand secretary to contract for all necessary printing under their direction. They shall audit the accounts of the grand secretary and grand treasurer, and report thereon in full at each annual session. For this purpose they shall obtain all necessary books, papers, etc., from those officers, prior to the annual session. They shall regularly make a report of their transactions, and they shall carry out in general the provisions of the constitution and laws of the order.”

The fact that the committee so selected happened to hold the office of trustees does not, we think, affect the question under consideration. Had other members of the order been chosen, their powers would have been the same. The power to remove such a committee as this is not, by the constitution or laws of the order, expressly or impliedly vested in the ruler, and when he assumed to exercise that power his acts were void and no effect; but had he possessed the power of removal his discretion should not be sustained, because of the manner of his procedure. He assumed to remove them without notice, and without giving them any opportunity of appearing before him and presenting their defense. He pronounced judgment upon their conduct arbitrarily, without, as far as appears from the record, any competent evidence that they had failed to fully and conscientiously perform the duties imposed upon them by the convention. After having assumed to remove them, he without authority appointed another committee upon location, thus in effect arrogating -to himself practically, t he right and power of determinating the place of meeting, -which by ■the constitution was vested in the convention at its annual meeting. The constitution of the order provides that the grand lodge may exercise the judicial powers, or delegate the same, and that a court of appeals may be-established, to-which eases may be taken on appeal. Two members of the court of appeals having refused to act, the ruler assumed to appoint others in their places. It is - quite doubtful if he possessed the power to appoint members of that committee. The power, by -the constitution and laws of the order, -seems to have been committed to the delegates composing the annual convention.

Other questions are presented which we do not deem it necessary to consider, as we are of the opinion, for the reasons stated, that the action of the ruler in assuming to remove the committee on location, and change the place for the meeting from. Atlantic City to Jamestown, was without jurisdiction and void.

The order appealed from should be affirmed, with $10 costs and disbursements.

All concur.


text:
    Frank B. Lyon, Resp’t, v. Western New York and Pennsylvania Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    EvinrowoB — Pabol
    ’Where, in an action for injury to goods in transitu, the hill of lading does not specify the kind of car, the shipper may show that the company agreed to carry the goods in a ventilated car, and that the injury resulted from failure to do so.
    Appeal from a judgment of the county court, reversing a judgment recovered in justice’s court.

      Allen J. Hastings, for app’lt; Frank M. Todd, for resp’t.
   Lewis, J.

— The plaintiff, on the 8th day pf. July, 1889, at the village of Cuba, shipped by the defendant’s road 9Ó0 dozen of eggs, consigned to a firm at Wilkesbarre, Pa., which the defendant, for . value received, agreed.to transport with reasonable dispatch, and deliver to plaintiff’s consignees at Wilkesbare, in the state of Pennsylvania. Plaintiff claimed that the defendant failed to perform its agreement with reasonable dispatch, and, in consequence of such negligence, eggs, when delivered, were in a -decayed and broken condition, to plaintiff’s damage. The evidence as returned by the justice is very brief and fragmentary, and fails to give a very satisfactory statement of what occurred upon the trial. It is conceded by the pleadings that the defendant received the eggs from the plaintiff, ’and agreed, for a consideration, to transport them as stated above. 'The defendant gave evidence tending to show that it delivered the eggs with reasonable. dispatch to the Delaware, Lackawanna & Western Railroad Company, a connecting common carrier, and claims that, if the eggs were injured by delay in their delivery, it was the result of the negligence of the-Delaware, Laokawaoua. & .Western Railroad Company, and not-of the defendant.

The justice’s return; contains what purports to be a copy of a bill, of lading, delivered, to the plaintiff, at the-time of the shipment of the eggs. We assume that, the copy returned: was the one testified to by the defendant’s agent, although the justice^ return fails to so stafe. Upon- the copy thus returned appear to be- some letters, words, and, figures whicbare.claimed by the- defendant to mean that the defendant’s contract was to deliver the eggs to. the connecting ^oad mentioned, The testimony fails to,expain the meaning of the figures and letters referred, to^ and- without some explanation, we. are not informed as to-, their meaning. The plaintiff’s evidence tended to. show that he filled out at. the- time of the shipment a blank bill of lading furnished him by the defendant’s agent, and that one copy thereof, was. delivered to- him; that at the time.it was delivered to him, it did not contain the letters, words, and figures.referred to,, but that they must have been inserted by the agent or some-other.-official of- the defendant after the, execution and delivery of the bill of lading, and after the shipment of the eggs,. The evidence, does not appear from the-justice’s return to. have- been contradicted-.. The defendant haying admitted by its answer.that it agreed, to transport the eggs to. Wllkesbarre, it was liable-for- damages caused-by- the negligence of its, connecting road. Jennings v. Grand Trunk Railroad, Co., 127 N. Y. 438; 40 St. Rep. 318.

The plaintiff testified that the defendant agreed to transport the eggs fn a ventilated,car,, and; that it failed .so, to, do, and after that the injury to. tfiei eggs resulted -in, part- from their being shipped in a common, iinventilated, car. The objection, of the defendant that this testimony was inadmissible, for- the reason that it tended to vary or contradict the. terms of the bill of lading, was not,-we think well taken,. There was nothing in the copy of the instrument returned, stating th,e kind of car to be used.' The evidence, we think fairly established plaintiff’s cause, of action.

The judgment appealed from should fie affirmed.

All concur..


text:
    Monroe County, App’lt, v. City of Rochester et al., Resp’ts.

      (Supreme Court, General. Term, Fifth Department,

      Filed, June 21, 1895.)

    1. Municipal corporation — Assessments—Inequalites,
    A street agseaspient wijl be, set aside for-inequality, where the assessors, in makipg tfle assessment, adopted some erroneous,rule or principle, which resulted in great injustice to plaintiff.
    2. Same — Remedy.
    In such, case, the court has, in an action to set. asidje the assessment, power to correct the error, but would he powerless to correct it in this form of; action/ in ease the inequality resulted simply from an error of judgment on the part of the assessors.,
    Appeal from a judgment,, dismissing the. complaint.

      John Desmond, for app’lt;, A. J. Rodenbach, for resp’t.
   Lewis, J.

— The common council of the city of Rochester, in the year 1881, took proceedings for opening a street in that city, running east and west from State to Sophia streets, known as “Church street.” The common council duly designated a portion of the city deemed to be benefited by the laying out of the street, and ordered an assessment to be made upon the portion of the city so designated, to pay the expenses of the improvement. The assessment was accordingly made, which was set aside by the'judgment of the supreme court, because of irregularities of the' assessors in making the assessment. A reassessment was thereafter made by the direction of the common council. The plaintiff being the owner of a parcel of land which was assessed for said improvement, brought this action to vacate and set aside the assessment, because of various alleged errors and irregularities in the proceedings of the common council, and especially errors and irregularities of the assessors in making the assessment. The action was tried at Monroe special term, and resulted in the dismissal of the plaintiff's complaint, and the plaintiff appealed from judgment to this court. The trial court did not deem any of the alleged errors of sufficient importance to justify setting the assessment aside. Many errors and irregularities in the proceedings and determinations of the assessors were charged in the complaint, and litigated upon the trial. We agree with the conclusions of the trial court, with one exception.

We find from an examination of the case, evidence of such a gross and excessive assessment of the plaintiff’s property, as compared with the assessment of the other property assessed, that our minds are led to the conclusion that there must have been some inexcusable error committed by the assessors in making the assessment, and a perusal of the testimony, of Mr. Munn, one of the persons who made the assessment, and the only one of the assessors who was interrogated as to the rule or principle adopted in making it, strengthens and confirms the impressions made by the examination of the other evidence in the case. Plaintiff’s property consists of a lot iron ting upon the southerly side of West Main street. It is bounded on the west by Fitzhugh street on east by Irving place and on south by property of the city. It is 140.08 feet in width, and 264 feet in depth, and was proven to be worth about $250,000 .at the time of the trial. At the time the assessment was made the evidence tends to show that it was worth about $150,000, and at this same time there was upon the lot an old courthouse, which has since been torn down, and a new courthouse is ■ being constructed thereon. The sum directed to be reassessed upon all the property in the district, for the improvement, was $185,000. Of this sum the plaintiff’s property was assessed $16,082.40. The property directly east of plaintiff’s lot, on the other side of Irving Place, bounded upon the southerly side by West 'Main, 165 feet, and on the west by Irving Place, on the east-by Exchange street, and 325 feet in depth, which concededly was of much greater value than plaintiff’s lot, and an equal distance relatively from Church street, was assessed at only $8,827.12. A like inequality appears in the assessment upon the block adjoining the plaintiff’s lot on the west, across Fitzhugh street. Property across West Main street from plaintiff’s lot, which fronts upon Main street 162 .feet, and upon North Fitzhugh street 143 feet, and is occupied by the Powers hotel and stores, with its improvements, was worth twice as much as plaintiff’s lot, was assessed about $6,000. The property known as “Powers’ Block,” upon the corner of West .Main and State streets, with a frontage on West Main of 165 feet, and 171 on State street, and the width of Main street nearer Church street than plaintiff’s lot, and which was valued at more than $1,000,000, was assessed at a little more than $7,000. Many •other instances of flagrant inequalities in the assessments appear in the case. Our attention has not been directed to another piece •of property in the entire district which is assessed at anything like, in amount, the plaintiff’s assessment, relatively. The assessments ■upon lots, which, by the opening of Church street, were given a frontage upon the street, appear to be almost nominal in amounts, ■compared with the assessment in question, while plaintiff’s lot is 455 feet distant from Church street.

Mr. Munn was called as a witness, and questioned as to the plan or rule adopted by the assessors in making the assessment. Here-plied that it was a long time since the roll was made out, and that he could not state positively in regard to it. When asked to give some reason for the large assessment on plaintiff’s property, he said that they divided the property into grades, and laid the assessments at amounts per foot for the different grades, that they took into account mainly the frontages the property had upon streets, and that in the case of the courthouse property they regarded the lot as having three frontages, — one on Main, another on Fitzhugh, and a third on Irving Place; and when confronted with the fact that even then the amount of the assessment would ■not have been produced, he said that they might have arbitrarily made some additions to the frontages in the case of the plaintiff’s lot. It is quite apparent from the testimony of Mr. Munn that the assessors did not adopt any rule in making the assessment in question, but arbitrarily fixed the amount, and that without the exercise of their judgment in the premises. The following questions propounded to him, and his answers thereto, tend quite ■strongly to establish this conclusion:

“Q. What is there, in your reason, that tells you the courthouse property, smaller frontage by twenty-five feet on Main street, ■receives more than twice the amount of benefits this other block has received (referring to the block on the other side of Irving Place)? A. The assessed valuation of' the courthouse. The estimated valuation of the courthouse when the first assessment for •Church street was made was $150,000, and now the board of supervisors have been trying to sell it for $250,000, and the increase in price is based principally upon the opening of Church street, •and the location of the government building; and I believe the law allows the assessors to place an assessment and benefit to the increase of property. Q. This other property is relatively the same •distance from Church street, and must, on the same principle, have increased in value, must it not? A. I don’t know, I haven’t looked into it. I haven’t, got it in. my mind. I had this' in my mi'nd principally-because that - was, in preference to the county building.- Q„ Why is it' that the-'smaller "piece of property has increased in any larger amount than the larger' piece? A. Well, that is our judgment, that is - all. Q. You haven’t any reason to-offer ? A. That is the reason*- that is all. Q. Take the Powers’ Block,- which has a frontage of 169 feet on Main- street; it is 100' feet nearer to Church street, it is 171 feet on State strees, it is valued for more than $1,000;000,. and it is assessed at a- little over $7,000 ; it has quite-as marly square feet, — -nearly as many square feet as the courthouse property. Explain upon- what rule or method you discriminated in that way between those pieces of' property. A. We assessed-according to benefits. Q-. What method, of reasoning- led you' to the conclusion that the courthouse1 property received $16,000, while this block- here of property received1 only $7,000? A. I have no-answer to offer to that.”

The answer of this witnesss- to questions' propounded to him as-to the assessments upon property in the' immediate vicinity of' Church street, and some of- it fronting, upon that street, and which were, as compared with the: assessment in question, absurdly small; iu amount; were equally unsatisfactory. That th'e assessment of the plaintiff’s property,was, relatively, grossly.unjust'-an'dunequal cannot be doubted by any one who examines the evidence. If this had resulted simply from an- error- of judgment on the'- part of the-assessors, we would be, powerless t'a correct it in' this -form- of action. Cooley, Tax’n (1st ed.) 533; Guest v. City of Brooklyn, 69 N. Y. 506 ; Hoffeld v, City of Buffalo, 130 N. Y. 387 ; 42 St. Rep. 379. We feel quite sure that improper considerations1 were -permitted .to enter.into the mi-ndh of the assessors iri making the assessment They must have adopted some' erroneous rule of - principle which resulted in this great injustice to the plaintiff, and" that, being, so we have the power here to correct the error, Elwood v. City of Rochester, 48 Hun, 102 ; 6 St, Rep: 132."

The judgment' appealed from should be reversed,- and a neW trial, granted, with costs to- abide the final award of- costs:

All concur.


author: Ward, J.

text:
    Willard E. Case, App’lt, v. Cayuga County et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Railroad' — Highway—Abutting oWnéíl
    The use of- & highway for a steam or surface railroad, by a duly incorporated-company, is not an- infringent of the rights'- of an abutting owner, whose premises go only to the boundry of the highway, where such use isreásOnaMe, and not exclusive in,its nature,, hut leaves the passage across and-through the street free for' public1 use.
    2. Same — Rower .of' board of supervisors.
    The board of supervisors havepowerto consent to the construction of a. street- railroad in a street -on Which county property abuts-.
    8. Sane.
    Such consent can only-hfe given to a-corporation that tins' the right to'construct and operate t'he street railway.

      4. Same.
    It is against public policy to permit any intermediary- to take such .consent.
    Appeal from an order, vacating- an injunction theretofore-granted.-

      John M. Brainard, for app’lt; E. C. Aiken, for resp’t.
   Ward, J.

— The plaintiff is-a taxpayer-in the city of Auburn, Cayuga county, and. brings an action under- section 1925 of the Code-of-Civil Procedure; and'also under chapter 301 of the Laws, of 1892, to prevent waste and injury to the property of the county, and to*enjoiní against a threatened illegal- act, and his complaint, alleges that the.board-of’ supervisors of the county, assuming to represent the county,, were ¡threatening to give the consent of the county to the.construction: and operation of a street surface railway upon Genesee street, in the city of-Auburn, in front of the real estate of the county, which did' not extend into the street, upon which were-located the courthouse,-clerk’s’ office, and the jail of' the county, abutting, on-said street, said railway to be constructed substantially,, and the cars- used thereon to be* drawn- or propelled by electric power, and. that such consent was to be- in a writing duly acknowledged- and proved, as required by law; to Henry S. Dunning, H. B. S. Lord, and George E. Willis, as individuals, and without consideration, with power in them or their survivors to assign, said, consent to an existing or proposed1 corporation as soon, as the same was duly chartered and organized.

An injunction wag.obtained pendente lite, from a justice of thiscourtj restraining the board from giving such consent, or any consent, to the construction and operation of a street surface railway on Genesee, street, in front of the property owned by the county; A, motion was made at the Monroe special1" term- to- dissolve this* inj unction, on. behalf of the1 defendants; and • upon- that motion many affidavits- were read, and - it- appeared that there was in the-city of. Auburn, a street railway operated by a corporation known-as the Auburn City Railway Company; and which desired- an-extension, of their railway to-that portion of Genesee street upon-which the county property was situated; There were many affidavits to the effect that in' the opinion- of the affiants, who- resided in the' city; and many of them upon- the street- in question, the construction: of the-railway; and its- operation, would not1 in any way injure the county property, but, on the contrary, would be an-advantage to it; and nothing appeared in the affidavits to indicate-that any further' occupancy of the street was contemplated than-the reasonable use thereof by a railway placed in the streets, and. operated by electricity; with the possible exception of one affidavit, which alleged, that the street was in fine condition, and npon-which there were many valuable residences; that it was macadamized,, and the effect of building the1 railway would be to tear up the-street,: and; to> some extent affect the passage over it, while the1 railway was being constructed. The special term dissolved the injunction, with $-10' costs, but ordered that further operation of the.order of dissolution, except to permit the board of supervisors to pass a resolution giving consent, be stayed until the hearing adn determination of the general term of an appeal by the plaintiff.

The appellant makes two points: First, that the board of supervisors had not the power to grant the consent of the county ; secondly, if such power existed, it could only grant consent to some corporation that had authority from the sovereign power to •construct and operate the railway at the place in question.

It may be regarded as the settled law of this state that the use of a highway for a steam or surface railroad, by a duly incorporated company, is not an infringement of the rights of an abutting -owner of lands (one whose premises go to the boundry of the highway only), and such .owner is not entitled to damages, and has •no legal redress, in the absence of negligence in the construction of the railroad, and where there was a reasonable use of the street for the road, and is not exclusive in its nature, but leaves the passage across and through the street free for the public use. Fobes v. R., W. & O. Railroad Co., 121 N. Y. 505; 31 St. Rep. 828, and cases cited; Kane v. N. Y. E. Railroad Co., 125 N. Y. 164 ; 34 St. Rep. 876, and cases cited. In Hussner v. Brooklyn City Railroad Co., 114 N. Y. 433; 23 St. Rep. 856, Judge Bradley says that ¡the abutting owner had the right to insist that the switching of steam motors, discharging smoke and cinders in front of the premises, and making such noises as to shake the buildings, was a nuisance for which he could have damages, but the judge concedes the principle of the right of the railroad company to use the highway in the manner indicated by the foregoing cases; but the abutting owner has the right to insist that the street shall be open, so that from it access may be had to his lot, and light and air furnished across the open space, and this right is an .incorporeal hereditament appurtenant to the lot, and forms an integral part of the -estate, and as to that the lot becomes the dominant, and the street ¡the servient tenement. Story v. Railroad Co., 90 N. Y. 145, 146 ; Kane v. Railroad Co., supra. The cases where this right was asserted were mainly elevated railroad cases, where the structures were permanent on the street, interfering with travel thereon, and covering the streets with railroad tracks and structures, obscuring the light, and interfering with the circulation of air, and with the sunshine. It is not perceived that the operation of a street surface railway by electricity creates any burden to the street in addition to that imposed by a horse or steam railway, but it must be governed by the same principles in determining the rights of the parties. The papers upon this appeal do not present the case of such a threatened invasion of Genesee street as would justify the equitable or legal interposition of the court in behalf of the abutting owner. The consent that is sought from the supervisors seems to be required by chapter 723 of the Laws of 1894, which provides that consents of property owners and local authorities shall be' given in writing, acknowledged or proved as a deed, entitled to be recorded, of the owners of one-half in válue of the property bounded on, and the consent of the local authorities having control of the street before the surface railroad can be built, extended, or operated. This

statute imposes a duty upon the company, as a condition precedent to taking the streets for the purposes of its railroad, and the papers disclose that great importance is attached to this consent by both parties to this controversy, with regard to securing the necessary number of consents of property owners. It is important to inquire what is the nature and extent of the consent sought in this case. The supervisors have not the power to convey or transfer any of the real estate of the county, except it may be in connection with the change, disposition, or sale of the county site, or some of its buildings, under certain conditions. The statute only gives the board “thecare and custody” of the real estate. It is a body of limited jurisdiction, and cannot exceed the powers expressly conferred upon it by statute, or such as may be necessary to carry those powers into effect. If this consent is to be regarded as in any manner transferring or disposing of any portion of the real estate of the county, or of any right appurtenant thereto, and necessary for the enjoyment thereof, then such consent would be void for want of power. The question is what this consent carries with it. In our judgment it simply gives the consent of an abutting owner that the statute requires, perhaps to make up the necessary number to confer the franchise upon the railroad corporation. The consent is simply to build and operate a railroad, the operation of which works no injury to the county. Under the general powers conferred upon boards of supervisors, they have, for the county, the general management and control of the county property; they keep the property in order; make repairs; consent to temporary use of the property not inconsistent with its general purposes; discharge such duties as are imposed upon the county by statute; exercise permissive powers, like the granting of statutory consent, where the substantial rights of the county are not affected, or its property interests impaired; and we think, under those general powers, they had the right to execute a proper consent representing the county, for a surface railroad upon this street. If it were proposed to construct an elevated road upon Genesee street, or any structure that would impair the ordinary use of the street, affect the access to the county buildings, or shut out the light or sunshine from them, or if such conditions existed as appear in Hussner v. Railroad Co., supra, a very different question would arise, because then the supervisors would be parting, by their consent, with an incorporeal hereditament or right appurtenant to the county property, which would be an injury to the property, and which in our judgment the board would not have power to do. But the consent proposed is illegal in this respect. As we have seen, it is given to three individuals with the power to assign the same to an existing or proposed railroad corporation. The consent can only be given to a corporation that has the right to construct and operate a street railway. It must be given for public, and not private, purposes, and it is against public policy to permit any intermediary to take such consent that may be used for purposes of speculation or private profit, and not for the public good. A procedure of this nature, in principle, is pointedly condemned in Fanning v. Osborne, 102 N. Y. 441. The-injunction should;be modified in-this,respect: that-the-supervisors-shall-only be permitted to give-the consent to construct and operate a surface railway upon: the' street in question to- some-corporation duly authorized- by law-to construct and operate the; same.; but are restrained and prevented from executing .the consent set forth-in-the complaint in this-action;- and the-injunction thus modified, to stand; Costs of this appeal shou-ldJ not be allowed to. either party.

All concur, except Dwight,- P." J.,. not voting;


author: Werner, J.

text:
    Lafayette Cole, Resp’t, v. Fall Brook Coal Company, Appl’t.

      (Supreme, Court, General, Term, Fifth Department

      Filed June 21, 1895)

    1. Trial — Improper-statement by- counsel^-'When cured.
    The effect of an improper statement by-counsel is-obviated, where the-court calls attention to,its impropriety and,directs .the jury to-disregard; it,
    3. Evidence — Expert.
    In. actions for personal injuries, physicians may. be called, asexperts, toi testify to matters-involving-learning and skill-in tbe science- of medicine- and surgery, which beat: upon the, nature and, extent, of the injuries complained" of. . '
    3. Same:
    The expert questions were. held not-to be subject'to the objection that they called for conclusions not1 embracing matters of science or-skill-peculiarly-within the knowl)edge,of.the. witnesses:,
    4. Deposition — Physical Examination-,
    The court cannot direct, in an- action for personal- injuries, a physical examination, of: the plaintiff without his consent,
    5. Appeal — Evidence.
    The fact that two juries have found for the plaintiff-and that, the trial, court.denied defendant’s motion for a.new- trial,.are circumstances entitled, to some weight in deciding the, action of the. appellate court, upon.thequesti'on, whether there is evidence to sustain the verdict.
    Appeal from a judgment, in favor of plaintiff; and from- an order denying a motion for a new trial-,' made on a. ease and exceptions, and certain affidavits:

      Gabriel L. Smith, for app’lt; Charlies.: Marvin, for resp’t.
   Werner, J.

— The plhintiff'-was. on--the 9th day-, of November,,

1887, employed by the, defendant as: a brakeman. On, t-hjat, day, while engaged in coupling cars-, be was- caught between- the- rear end of the tender and the front end -' of a gondola ear-, and sustained seri.o.us injuries. The alleged negligence - of the.defendant,: upon which-this action, i’s brought, consisted i-n the-, use .of a,, cam from- which the -left-hand bumper was gone, thus permitting; the, cars between which plaintiff was required to-go in, making, couplings to come so closely.together as to, crush him between-thcisi,11s.. The condition- of tbe car. in- question,- the manner in- which the accident occurred, and the. nature and extent of plaintiff’s alleged i-n-juries, were all contested questions, submitted to-the. jury upon conflicting testimony. The defendant moved- for a new- trial upon, a case and exception's, and upon-an affidavit alleging misconduct on the part of plaintiff’s counsel during the trial, by which defendant’s rights were prejudiced. The motion was denied.

Before proceeding to consider the exceptions -upon which the appellant relies for a reversal of the judgment herein, we will briefly discuss the alleged misconduct of plaintiff's counsel. It -consisted in a statement to the jury by plaintiff’s counsel, in summing up, that upon the former trial the plaintiff had recovered a verdict for $8,000. This incident was brought .to the attention of the court by a note from defendant’s counsel. The presiding justice, in the course of his charge to the jury, called attention to the matter in the following language :

“The fact has crept out here, improperly, that upon the former trial the plaintiff recovered a' verdict, and the amount of that verdict has been stated to you. But the fact that the plaintiff recovered in a former trial of this action is no reason why he should recover in this action. The fact that he recovered a certain amount on the former trial has nothing to do with the amount he should recover upon this trial, if he recovers at all.” “You are aware, I take it, that the evidence which has been' furnished on either side of this trial varies very materially 'from that which was furnished upon the former trial. Witnesses have been sworn here who were not sworn there ; ■ testimony has been given here which was not given then ; and you are to dispose of this case upon the evidence which has been furnished here,- and upon that evidence alone, and not upon any evidence furnished on the-former trial, save whei’e that evidence has been read before you with a view of contradicting evidence which has been given here.”

The statement of plaintiff’s counsel as to the action of-the jury upon the former trial was manifestly improper, but it -was eliminated from the case by the very explicit charge of the court, and the error which might have been committed in permitting it to pass unchallenged was thus prevented. In Chesebrough v. Conover, 140 N. Y. 388; 55 St. Rep. 728, this identical question was discussed, in the following language:

“Where-a case has-been once tried,-it is not generally possible to keep from the jury the result of the former trial; and it would be an embarrassing and mischievous rule to- lay down that, if such result be brought out by statement or evidence, a fatal and incurable error- has been committed, and, although the jury may be instructed to wholly disregard it, yet the vice is not eliminated, and the judgment-upon the second trial is necessarily to be reversed. * * * It is like the case where, upon the trial of an action, the trial judge erroneously receives objectionable -and damaging evidence, which he subsequently strikes out, and directs the-jury to disregard. In such cases w-e have held that the vice is eliminated, and that theoretically, at least, the erroneous evidence found no lodgment in the minds of the jury.”

To the same effect is Brusie v. Peek Bros. & Co., 42 St. Rep. 803.

Defendant.contends-that error wasuommitted in permitting physicians who were-called as experts to answer certain hypothetical questions, the length of which precludes their reproduction in full here. An examination of these questions convinces us that none of the rulings of the court upon this subject transcended the now well-settled rules relating to the subject of expert testimony in actions for damages for personal injuries. The plaintiff and other witnesses had testified as to the plaintiff’s condition, and, upon the assumption that plaintiff’s evidence was to be taken as true, certain facts bearing upon his condition were established. Whether this evidence was to be believed or not, and whether plaintiff’s condition was such as he claims, were questions for the examination of the jury, and it was plaintiff’s right to fortify and corroborate that evidence by all proper means. Dr. Pratt, one of plaintiff’s experts, was asked to “describe the symptoms which would ordinarily and necessarily accompany an injury such as you found this man suffering under.” Dr. Webb, another of plaintiff’s experts, after hearing the hypothetical statement of facts which plaintiff claimed to have established, was asked this question : “Taking all these symptoms into consideration, are they the natural and ordinary symptoms that would flow from an accident of this character ?” Dr. Jonas Jacobs was asked, “Are able to state, from your observation of cases of this character, founded upon the information which you obtained from the examination of this man, what some of the ordinary and usual symptoms are, accompanying an injury of this character ?” Dr. Henry Flood was asked, “State what are the ordinary and usual symptoms from an injury in that locality, * * * from such an injury as you" found this plaintiff suffering from.” The rule is too firmly established to require the citation of authorities, that, in actions for personal injuries, physicians may be called, as experts, to testify to matters involving learning and skill in the science of medicine and surgery, which bear upon the nature and extent of the injuries complained of; and the only question we are called upon to determine is whether the questions were proper in form, and the answers thereto were within the scope of the inquiry, as to which expert testimony was properly admissible. Did these questions call for collusions of fact not embracing subjects of science or skill peculiarly within the knowledge of the witnesses to whom they were addressed ? The answer to this inquiry may be found in the language of this court in Schwander v. Birge, 46 Hun, 66 ; 10 St. Rep. 802 :

“ The governing rule deduced from the cases permitting the opinions of witnesses is that the subject must be one of science or skill, or one of which observation and experience have given the opportunity and means of knowledge, which exists in reasons, rather than descriptive facts, and therefore cannot be intelligently communicated to others, not familiar with the subject, so as to possess them with a full understanding of it.”

The forceful application of this language to the case at bar can best be illustrated by a brief consideration of the facts of the case ij. which it was employed. Schwander’s intestate was killed in a fire at Dirge’s factory, where he was employed. It was sought to-charge defendants with negligence, in failing to provide suitable means of escape from, the building for their employes. Defendants’ superintendent, after having testified to the existing conditions, was asked the question, “ Was that, in your j udgment, a proper and sufficient mode of access and egress from the building, under any circumstances?” This was a question requiring the witness to draw a conclusion from a purely descriptive fact, and permitting him to answer, the province of the jury was clearly invaded. The present case is one, however, in which the learning and skill of witnesses, based upon their knowledge and experience, enabled them to testify to matters not within the knowledge of ordinary men, and not capable of elucidation by a mere statement of facts showing the manner of the accident and the plaintiff’s present condition. Let us suppose that the plaintiff’s case had rested solely upon the evidence of himself and other nonexpert witnesses. The jury might have concluded that plaintiff’s condition resulted from the accident. But this conclusion, instead of being based upon evidence showing with reasonable certainty that cause and effect were considered in their logical relation to each other, would merely have given the jury an opportunity to supply by surmise and conjecture that which should have been furnished by legal evidence. It was necessary and proper for the plaintiff to show that his condition at the trial, as well as his probable future condition, were such as might, and probably would, result from such an accident as had been described, and that no intervening cause was responsible therefor. The question addressed to the plaintiff’s experts herein were not open to the objections which resulted irt the reversal of Page v. Mayor, etc., 57 Hun, 124; 32 St. Rep. 563. In that case the physician had heard only a portion of the evidence of the plaintiff. He was asked the following questions:

“ Take such a fall as he describes here, resulting from a collision of two cars, and of the symptoms following that fall, he having been theretofore a sound and healthy man. Can you state with reasonable certainty that the consequences that have flowed are natural and usual. ”

That question was not only based upon an incomplete hypotheis,, but it called upon the witness to say that the “ consequences that have flowed are natural and usual.” There is a material difference between that question and those here under consideration. In that case the “consequences” flowing from the accident are testified to In this case the evidence deals with symptoms which are “natural and ordinary” in connection witn the injury stated. The “consequences” of an injury are to be determined by the jury, but the symptoms which may aid the jury in deciding what the consequences are may properly be testified to by a qualified expert. But, even upon the assumption that there is no essential difference between the question in Page v. Mayor, etc., supra, and the questions here, we are disposed to hold that the rules which govern the admission of expert testimony in cases of this character have not been violated. In Turner v. Oily of Newburgh, 109 N. Y. 308 ; 15 St. Rep. 93, the court say:

“We see no objection to the expression of opinions by competent medical experts upon an ascertained condition of suffering or bad health, as to whether that condition might have been caused by, 'or be the result of, a previous injury. It was for .the.jury-to -decide whether the injury of suffering of which plaintiff complained were the direct result of the accident, and, to that end, it was proper "to give evidence .tending to show, in 'the opinion of witnesses •competent to speak • upon the point, that they were the result of plaintiff’s fall.”

T he long line of cases exhaustively and learnedly discussed by .appellant’s counsel, in which the admissibility of expert testimony is considered, were questions of mechanical construction, and kindred subjects are involved, having.no application to cases like this. The question whether the trial court erred in-refusing to make an order compelling the plaintiff to submit to a physical examination, at the instance of defendant, or, in default thereof, to have his evidence stricken out, need not be discussed at length. The case of McQuigan v. D., L. & W. Railroad Co., 129 N. Y. 50; 41 St. Rep. 382, sets at rest any doubt as to whether the courts had power to make such order prior to the amendments to section 873 Code Civil Proc., in.1893 and in 1894. It is true, the statutes and the. case above referred to deal with the question of power to compel sumbission to such an examination before trial. Here the application was made upon the trial. But the question of power, in the absence of statutory authority, rests upon the same principle in both cases, In some states this power has been held to exist, and has been exercised; but the courts of this state .and the supreme couj’t of the United States (Railway Co. v. Botsford, 141 U. S. 250), have held that neither the common law, nor the inherent power-of courts in the exercise of their jurisdiction, warrants or authorizes a physical examination, of a party without his consent. What is referred to by plaintiff’s counsel as an exception to the rule is really not within the rule. When a party, in open court, voluntarily submits his’ person to inspection for his own benefit, he confers upon the opposing party the right to a further inspection, precisely the same as a party who becomes a" witness must submit-to cross-examination. But the counsel for the appellant ingeniously argues that, even if- the court .was correct in ruling that it had no power to make the order asked for, -yet since the power was conferred by express statutory enactment after the trial, and before the entry of judgment, the evidence which he could have produced if the examination asked for had been ordered should be treated as newly-discovered evidence, and ■ upon that ground-a new trial should be ordered. We.cannot concur in this unique proposition. We have no means of knowing what evidence would have: been produced if the physical examination had been made. Experts were called for the defendant, and it is impossible to say that their evidence would have been different after such examination than it was without it. However, that may be, it cannot be said that evidence produced under’ such circumstances can be called “newly-discovered evidence,” within the legal meaning or that phrase.

The case-was,properly submitted to.the jury. Every material

question.-of' fact was contested. -The apparent preponderance-in volume of the testimony offered-by the defendant does not authorize us to reverse the finding of the jury. It was their province to decide upon the conflicting evidence, and it cannot be said that the testimony does not support the verdict. The fact that two juries have found for the plaintiff, and that the trial court denied defendant’s motion for a new trial, are circumstances entitled’to some weight, in deciding the action of the appellate court upon the question whether there is evidence to sustain the verdict. Ferguson v. Gill, 74 Hun, 566; 57 St. Rep. 213. The appellate tribunal is not warranted in reversing a judgment, so far as it is based upon questions of fact, upon the sole ground that in its opinion a different conclusion should have been reached upon conflicting evidence. Baird v. Mayor, etc., 96 N. Y. 567.

There are numerous exceptions in the case which have not been specifically discussed, because we believe them to be within the rules above considered, A careful examination of the record leads us to the conclusion that no material error was committed upon the trial which was prejudicial to the defendant.

These views necessarily lead us to hold that defendant’s motion for a new trial was properly denied, and that the judgment of the court below must be affirmed.

So ordered.

All concur.


author: Bradley, J.

text:
    Charles F. Huie, Resp’t, v. Henry Allen et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Principal and agent — Authority—Notice.
    A corporation may recover from a broker the amount of a check, signed in its name and given by its agent, who was authorized to draw checks against its bank account, to the broker to pay losses arising on purchases on margins made by the broker for such agent.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.

      Frank Brundage, for app’lts; Simon Fleischmann, for resp’t.
   Bradley, J.

— The subject of the action is a claim assigned by the American Preservers Company to the plaintiff, for a sum of money alleged to have been drawn by the defendants from the funds with which that company hadcredit in the Manufacturers’ & Traders’ Bank of Buffalo, H. Y. The money was drawn from the bank upon checks purporting to have been made by one Charles F. Tomes, as manager for that company. Tomes then was the business manager of the Buffalo branch of the company, having quite general power in conducting that branch of its business. He was authorized, as such manager, to indorse, for deposit, collection •or discount, notes, drafts, ór checks; to deposit in the bank moneys which came to his hands; and to draws checks against the funds so deposited. The defendants, constituting the firm of Henry Allen & Co., having an office in Buffalo, were stockbrokers engaged in the business of buying and selling stocks on the Hew York Stock Exchange, of which they were members, and in buy-ing anti selling grain in Chicago on the Chicago Board of Trade, of which they were also members. In June, 1892, Tomes became a customer of the defendants, and they in that month bought and sold wheat in the Chicago market on his account. When a transaction for him was opened by a purchase, it was followed, by a sale; and when opened by a sale, a purchase followed, to supply the requirement of the sale, and to ascertain a balance, if any, arising from the deal. The balances resulting from the transactions were against Tomes. They were covered by three checks drawn on such bank by him. The company’s blank checks were used. They were headed, ‘‘American Preservers Company,” and signed, “American Preservers Co., Charles F. Tomes, Manager.” They were payable to the order of Henry Allen & Co.; and the amounts $500, $512.50, $500. The checks were indorsed, and the amounts of them drawn, by the defendants’ firm, and charged by the bank to the account of the American Preservers Company.

Those transactions with the defendants were throughout the individual affairs of Tomes, solely on his account, and were outside of the business of the company. He therefore had no authority to draw and deliver those checks to the defendants. It is urged on their part that, as it was within his power to draw checks in that manner upon the bank account of the principal the latter is es-topped from asserting his want of authority to issue those in question. If is true that, the company would be so estopped, as against the bank, but as against the defendants it is otherwise. They were chargeable with notice of the general nature of his agenncy, real or apparent. If the checks had been made under circumstances apparently within the scope of his power- as such manager, and had been taken by a person not chargeable with notice to the contrary in good faith for value, when in fact he had no authority to issue them, by reason of some extrinsic fact peculiarly within his knowledge, his principal would have been estopped from making available, to the prejudice of the party so taking them, the falsity of the fact upon which the right to make the checks depended. Railroad Co. v. Schuyler, 34 N. Y. 30 ; Bank of Batavia v. New York, L. E. & W. R. Co., 33 Hun, 589; Id., 106 N. Y. 195 ; 8 St. Rep. 209 ; Bank of New York National Banking Ass'n v. American Dock Trust Co., 143 N. Y. 559 ; 62 St. Rep. 776. The bank was at liberty to rely upon the representation furnished by the import of the checks that they were issued by Tomes pursuant to his authority as manager of the company for the company for which they purported to have been drawn. But the defendants knew, or were chargeable with notice, that they were made in transactions with Tomes on his own account, and did not relate to business of his company, and therefore that it was not within his power to draw them for the purposes for which they were issued and taken. Gerard v. McCormick, 130 N. Y. 261; 41 St. Rep. 284. In the view taken of the case as presented by the evidence, none of the authorities cited by the defendants’ counsel have any essential application in support of the defense. In Goshen Nat. Bank v. State, 141 N. Y. 379; 57 St. Rep. 599, it seems to have been within th& power of the cashier who drew the draft there in question — of his bank on its corresponding bank — to draw drafts for himself on the same terms as, in due course of business, he drew drafts for others. And it was held that the comptroller received the drafts in good faith.

We are unable to-adopt the suggestion that it was for the plaintiff to prove that nothing was due from the company to Tomes on account of his salary. When it appeared that the checks were drawn by hifn, and taken by the defendant, in transactions known to latter not to be within the scope of his agency,. they were charged, prima facie with liability ; and if any fact existed to take the case out of the operation of the general rule, and in support of the defense, the onus was with the defendants to prove it.

"The conclusion is that the verdict was properly directed for the plaintiff.

The judgment should therefore be affirmed.

All concur.


text:
    The People ex rel. Western New York and Pennsylvania Railroad Company et al., App’lts, v. Mahlon D. Adams et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Municipal corporations — Assessments.
    The city of Rochester lias no power, in order to compel the relator to depress its tracks and provide suitable bridges over them at street crossings, to determine that an existing bridge is insufficient, and to construct a new one and assess the entire costs on its property, though other property is benefited by the bridge.
    2. Railroads — Crossings—Bridges.
    The statute ef 1880, which requires relator to maintain suitable over-crossings at streets, does not require the company to maintain a bridge of sufficient strength to support the passage of heavy street cars.

      Certiorari to review an assessment for the construction of a bridge over relator’s tracks in the city of Eochester.

      Charles J. Bissell, for relatas; A. J. Rodenbeck, City Atty., for def’ts.
   Ward, J.

— The relator the Western Hew York & Pennsylvania Bailroad Company is enjoying the franchise secured from the state by chapter 326 of the Laws of 1880, whereby the banks and prism of the old Genessee Valley Canal could be occupied by a railroad from Eochester to the Pennsylvania line. Section 5 of that act imposed u pan the railroad corporation the duty within the city of Eochester of depressing its tracks below grade at the crossing of any streets in the city, and to provide a suitable over crossing thereat, under the direction of the surveyor of the city. The relator’s road crosses Bronson avenue in the heart of the city, and the relator, for a considerable time, had maintained an overcrossing or bridge over the said street for the passage of the public, which had been sufficient for public use until the summer of 1892, when a street-railway company in the city desired to extend its lines to Bronson avenue, and over said crossing, for the use of its road, upon which its cars were to be propelled by electric power. An examination of the bridge was made by a railroad engineer, and he reported that it was not safe to transport over it the cars of the street-railway company, weighing fifteen tons, followed by a trailer-weighing eight and a half tons, and that there was some weakness about the bridge, and that a new one was needed. This street-railway company communicated to the common council of the city the result of this examination, and suggested' that the relator was under statutoy obligations to provide a suitable bridge over the tracks at the place named. Bronson avenue was built up of structures, consisting of residences and business places, to the track of the railroad on either side of the street, and a large number of people were accommodated by the bridge in question. The chief benefit that the relator derived from the structure was the right of passeage thereunder along its tracks. The common council appointed a committee to confer with the relator, and induce it to make a new structure that would answer the purposes of the street railway company, but it failed in the undertaking, and then proceedings were taken by the common council to construct a new bridge at this point as a public improvement in the city, under its charter, which permitted proceedings for purposes of public improvements; the statute providing that the whole expense should be paid “by local assessment, to be assessed upon all lots and parcels of lots to be benefited thereby in proportion to the benefit which each would derive therefrom.” The common council directed the city surveyor to make an estimate of the cost of the new structure, and he reported an estimate of the expense thereof at the sum of $6,700. The common council adopted an ordinance in effect providing for the construction of the bridge; that its cost should be the amount recommended by the surveyor; and also providing that the lands of the relator within the city of Rochester (describing them) should be deemed benefited by the construction of the bridge and that the entire expense should be assessed thereon. Pursuant to this ordinance, the city assessors assessed this sum upon the relator’s property alone; and, upon the review day provided by statute, the relator appeared before the assessors, and objected to the tax and to the authority of the assessors of the city to assess it, and claimed that their proceedings were without authority, and void. No attention was paid to this protest, but the assessment roll was confirmed by the common council, and passed over to the city treasurer for collection; but, under the charter, the common council had power at any time after the confirmation of the assessment roll to reconsider the same, and to take further proceedings. The usual proceedings in such cases were taken by the common council to perfect an assessment, and to give notice to the public. It does not appear that it took any evidence except such as appealed to the senses. The petition for the writ of certiorari and the return thereto disclose, in effect, that the whole proceeding was aimed at the relator, and to make its property pay the tax, upon the theory that it was liable under the act of 1880 to construct such a bridge at this crossing as the city authorities might by ordinance require, and to enforce such obligation through the taxing machinery of the city. The petition showed, uncontradicted by the return, the facts hereinbefore stated as to Bronson avenue and the property along it and surrounding the crossing, and the people and property benefited thereby; but, as we have said, no other property was assessed except that of the relator, not even the property of the street railway for whose benefit this new structure was required. The fundamental provision of the charter that the burden of the assessment should be upon all the lots benefited thereby was utterly disregarded.

While it is doubtless true that if, after a fair examination by the council in a matter within its jurisdiction of the various properties that might be benefited by the improvement, it designates certain ones to tax, and relieves others, and its conclusions is not fraudulent, it must stand, but where the common council in effect, makes no such examination, and excludes all properties that, from the facts and surroundings, must of necessity be benefited by the improvement, and casts the burden alone upon a single property, and that with the purpose, but slightly concealed, of enforcing some extraneous right or duty claimed to exist, in no way connected with or enforceable by the statutory proceedings in which it is engaged, it proceeds upon wrong premises, and its proceedings and the assessment growing out of it are invalid. The defendants claim that the relator had the newspaper notice of the proceeding of the common council required by the city charter, and should have appeared and made allegations against such proceedings, and, failing to do so, it is concluded by the action of the city authorities. They also claim that, under the city charter, the action of the council is conclusive and final, and cannot be inquired of here. A single answer disposes of both of these contentions. It is only when city officers have jurisdiction of the subject-matter, and conduct their proceeding consistent with the statute, that their proceedings are conclusive. Assuming that the relator was under statutory obligation to build a new bridge over the street, it could only be compelled to do so by an appropriate action in which the relator could be heard as to its liability. The relator should have its day m court, which it has never had, It is possible that the city, upon giving notice to the relator to construct the bridge, and it failing to do so, could have constructed the bridge, and brought an action against the relator for the expense, and then the relator could have been heard upon the question of the necessity for a bridge and of the expense thereof. Neither of these proceedings was adopted. The city officers simply determined that the structure must be built strong enough to carry the heavy cars of the street railway company, which no ordinary bridge could withstand, and which it was not in the contemplation of the statute that the relator should be required to build. This statute of 1880, like all other statutes, should receive a reasonable construction. The legislature certainly did not intend thereby to impose upon the railroad company, in constructing its crossings over the numerous streets in the city that its tracks should intersect, the building of structures that would withstand such enormous weight, and far beyond that of the vehicles that ordinarily pass over the streets and highways. An indication of the legislative view upon this subject may be gathered from chapter 526 of the Laws of 1887, section 1 of which provides in effect, that no town shall be liable for any damages resulting to any person or property by reason of the breaking of any bridge by the traction engine weighing over four tons, crossing the same; and in the revision of the highway law in 1890 (§ 154, chap. 568), in the case of the breaking of a bridge by an engine weighing over four tons, the owner of the engine is made liable for damages.

The defendants make a point that, the assessment roll having passed into the hands of the treasurer before the certiorari was obtained, it is now too late to compel the common council and the assessors to reverse their action if they have committed error, as their power is spent. The point is not well taken, for, as before said, the common council still have the power to reconsider their action, and proceed de nova.

It is clear to us that in the imposition of this tax the city officers proceeded upon a wrong basis. They have essentially failed to comply with the statute that they have invoked in making their determination in relation to the subject-matter. They have not pursued the matter in the mode required by law, and they have violated the law to the prejudice of the relator. The assessment, therefore, and all of the proceedings leading up to the same by the common council, should be vacated and annulled, with fifty dollars costs and the disbursements of the relator to be paid by the defendants.

All concur.