author: Clement, Ch. J.

text:
    Ann Barrett, Resp’t, v. Martha Kling, Adm’rx, App’lt.

      (City Court of Brooklyn, General Term,

      Filed October 26,1891.)

    1. Appeal—Exceptions.
    No exceptions to findings of fact are necessary to enable the appellant to raise the question that such findings are against the weight of evidence, provided it appears that the case contains all the testimony.
    3. Partnership—When partner not chargeable with errors in the
    BOOKS.
    Although by the articles of copartnership one partner was to have full control of the financial management of the business and sole power to sign checks and disburse money, yet where it appears that the entries in the books were made not only by himself, but by the representative of the other partner and by the bookkeeper of the firm, he is not liable to his partner for errors in such books.
    Appeal from, judgment in favor of plaintiff in an action for dissolution of a partnership and for an accounting.

      Hirsh & Rasquin, for resp't; Wm. Lane O'Neill, for app’lt.
   Clement, Ch. J.

This case was tried before a referee, and judgment rendered in favor of the plaintiff.* The counsel for the appellant has devoted four pages of his brief to a review of the conduct of the referee. There is nothing in the case to show, or tending to show any misconduct on his part, and there is nothing to show that the alleged facts ever occurred, except the statement of counsel. We do not understand why a lawyer, after a case is decided against his client, should go out of his way to make a personal attack on the officer who so decided the case. If it was necessary to protect the reputation of the referee in this case, we should order that the first four pages of the brief of the counsel for appellant be suppressed as scandalous. If the referee conducted himself as stated, the defendant should have moved to vacate the order of reference, and not have waited until after an adverse decision before disclosing the charges to the court.

Tne defendant filed no exceptions to the findings of fact. Exceptions were filed as to each" decision of law, and three requests to find were made:

1. That the partnership should be dissolved.

2. That the testimony showed that the defendant was entitled out of the assets to $3,587 or $2,014.50.

3. That judgment should be rendered in favor of defendant, with costs.

Mo exceptions have been filed to the refusal of the referee to find the second and third requests. The counsel for the plaintiff contends that there is nothing before the court for review, except the question whether the findings of fact justify the conclusions of law. He also contends that this court has no power to review the findings of fact or. to determine whether they are against the weight of evidence. It appears from the certificate of the referee that the case contains all the testimony, and we hold, on the authority of Porter v. Smith, 107 N. Y., 531; 12 N. Y. State Rep., 479, that under the new Code no exceptions to findings of fact are necessary to enable the appellant to raise the question that such findings are against the weight of evidence, provided it appears that the case contains all the testimony. See, also, Porter v. Smith, 7 Civ. Pro., 195; Mead v. Smith, 3 id., 171.

After a very careful review of the record m this case, we are of the opinion that two material findings of fact are clearly against the weight of evidence, and that the testimony was insufficient to justify either of said findings. The two findings are to-be found at folios 489 and 490. The referee has charged the defendants with the sum of $2,905.55 for money received by the co-partnership and not accounted for, and for $1,778.98 for debts paid by the receiver, the excess of debts which did not appear on the books of the co-partnership. The referee substantially holds that Mr. Kling was bound by the books: that, if money received was not entered in the books, or if debts due by the firm were not entered, the estate of Kling, who is now dead, must be held liable for the same. While it is true that, by the articles of co-partnership, Kling was to have full control of the financial management of the business, and was to have sole power to sign checks and disburse money, yet it appears that entries in the books were made not only by Mr. Kling, but by Mr. Barrett, the representative, in the business, of the plaintiff, and by the bookkeeper. During the entire time when it is charged that the books were incorrectly kept Mr. Barrett had access to the same, and repeatedly examined them. The moneys due to the firm were received by Kling, Barrett and the bookkeeper indiscriminately. That the books were carelessly and incorrectly kept is undisputed, but we do not think that the estate of Kling should be charged with the errors which appear in the books without evidence to connect him with such errors. The bookkeeper was employed by the firm and not by Mr. Kling, and he collected moneys due to the firm. Suppose he retained the collections, Mr. Kling would not be liable. If the bookkeeper made mistakes or was dishonest, Barrett was as responsible for his faults as Kling, because he was employed by both partners. The referee has charged the Kling estate with all the debts which were paid by the receiver and which did not appear in the books. There is no evidence that the debts were not just, or that the firm did not receive the benefit when such, liabilities were incurred. If the firm received the benefit, why should the one partner be charged with the debt? The referee erred in assuming from the evidence that Kling was liable for all amounts which did not appear in the books. For the errors in such books Barrett was equally in fault with Kling. It seems unnecessary to prolong the discussion of the question, and, for the errors above stated, the judgment should be reversed on the law and the facts, the order of reference vacated, and a new trial granted, costs to abide the event.

Van Wyck and Osborne, JJ., concur.


source: Caselaw Access Project

author: Van Wyck, J.

license: Public Domain

text:
    Orville T. Jarvis, Resp’t, v. The Brooklyn Elevated Railroad Co., App’lt.

      (City Court of Brooklyn, General Term,

      Filed October 26,1891.)

      1. Railroad—Negligence.
    While waiting for a train on defendant’s road plaintiff went in search of the urinal along a dimly lighted passage, and fell from the unguarded end thereof to the street. It appeared that the architect’s plans called for a guard at that place, hut it was intended to change them and place the guard nearer the steps. Held, that the question of defendant’s negligence was one for the jury, and that their verdict in plaintiff’s favor would not be disturbed.
    2. Same—Evidence.
    As negligent or defective construction was the basis of the charge of negligence, evidence to show that on all other elevated railroads the exposed edges of the platforms were guarded in some way, was admissible. So, also, evidence that urinals were in use at elevated railroad stations was proper.
    Appeal from judgment in favor of plaintiff for $5,896,83, entered on verdict, and from order denying motion for a new trial.

      M. L. Towns, for resp’t; Hoadley, Lautefbach & Johnson, for app’lt.
   Van Wyck, J.

This is an appeal from a judgment in favor of the plaintiff for injuries claimed to have been caused solely by the negligence of defendant, and from order denying motion for new trial.

There is testimony in this case which, if credited, would justify the jury in finding that plaintiff, at twelve o’clock at night, while sober, and desirous of using defendant’s road, ascended the stairs to the station platform, which was located between the down and up tracks; that when he reached the platform, which was dimly lighted near the head of the steps, and not at all on the other parts thereof, he saw in front of him the waiting room, and desiring to relieve his bladder, he went forward in search of a door to the urinal; that this waiting room was in the middle of the platform, with a three feet wide passage-way on each side thereof, one along the up and the other along the down track; that at the end of the passage-ways there was no guard, rail or fence to warn or prevent one from stepping or falling in the street;'that the plaintiff proceeded along one of these passage-ways in search of the door, and stepped or fell off the end of this unprotected platform into the street, thirty-one feet below, and received thereby serious injuries; that no one warned him of the dangers, and it was too dark to discern the same; that it was the only point on the platform from which he could have fallen to the street, for the other parts were all guarded, except along the tracks, and the fall there would only have been a short distance to the track; that the guard rail or fence is in common and universal use along the exposed edge of all elevated railroad stations; that the architect’s plans of this very platform contemplated such guard rail a* this very point, though the superintendent said they intended to change plan in this respect by placing such a guard rail across the other end of such passage way nearest to the steps. The verdict indicates that the jury, in the exercise of their prerogatives, believed this testimony. In our opinion, upon these facts, the court was bound to impose upon the jury the duty of deciding whether or not the defendant and its servants used that degree of care which persons of ordinary prudence and experience should have done under such circumstances; and also whether or not the plaintiff was guilty of contributory negligence. After a critical examination of all the evidence, we see no reason to disturb the jury’s disposition of these questions. “Plaintiff’s Exhibit Ho. 1 ” was produced by defendant and shown to be the architect’s drawing of the guard rail contemplated to be placed at this end of the platform, though the superintendent testified they contemplated a change of this plan by placing the guard rail across the end of this passage way nearest to the steps, which would have served as a like protection. This tends to show that it was recognized by defendant to be a necessary protection.

“ Plaintiff’s Exhibit Ho. 2 ” was also produced by the defendant and shown to be a correct diagram of the station, and error cannot be predicated thereupon. The exceptions were not well taken. Where negligent or defective construction is charged, it is usual to admit testimony to show that structures of a similar class are or are not generally constructed in the same manner. Therefore, the plaintiff was properly permitted to show that on all other elevated railroads the exposed edges of the platform were guarded in some way. The testimony that urinals were in use on elevated railroad stations in no way injured the defendant, and tended to explain plaintiff’s search for one on this occasion. The court properly refused to allow defendant’s superintendent to testify that he never heard of any one walking off elevated railroad platforms, for it was not shown that there were any such unguarded platforms to walk off, except the one in question, and he did testify that no such accident had happened there before. The defendant’s requests to charge at folio 259 and 263 bad been covered by the judge’s charge that the plaintiff could not recover unless he established the negligence of defendant by a fair preponderance of evidence. This disposes of the exceptions called to our attention by appellant’s counsel.

The judgment and order must be affirmed, with costs.

Osborne, J., concurs.


author: Lewis, J.

text:
    John F. Parkes et al., Resp’ts, v. Miles A. Stafford et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Sale—Statute of frauds.
    Plaintiffs refused to sell lumber to S., who was to construct a hotel for defendants, and was introduced to defendant Stafford, and informed him that if defendants would become responsible the lumber would be shipped in their name, to which Stafford assented. Held, that this was not an agreement to answer for the debt of another.

      2. Same—Charge.
    The court refused a request to charge that if the jury found that Stafford's promise was a mere guarantee of payment of the S. bill plaintiffs could not recover, but subsequently charged that plaintiffs must establish that the lumber was shipped and sold to defendants and that they promised to pay for it. Held, that defendants were not prejudiced by the refusal
    Appeal from a judgment of the supreme court, entered in the Erie county clerk’s office, October 25, 1890, in favor of the plaintiffs against the defendants, for the sum of $597.86, and from an order denying a motion for a new trial on case and exceptions.
    A. C. Calkins, for resp’ts; Le Roy Parker, for app’lts.
   Lewis, J.

This action was brought to recover a balance alleged to be due for a bill of lumber sold by plaintiffs to defendants.

' A Mr. Sinclair had contracted with the defendants to build for them a hotel. He negotiated with the plaintiffs, who were operating a planing mill, to furnish materials for the hotel.

The plaintiffs ascertaining that Sinclair was pecuniarily irresponsible, refused to furnish him the materials.

Sinclair, therefore, introduced the plaintiffs to the defendant Stafford, as one of the firm for whom he had agreed to construct the hotel. The plaintiffs informed Stafford that they were not willing to sell to Sinclair, but if the defendants would become responsible for the pay for the materials, they would ship the stuff in the name of the defendants. Stafford consented, and plaintiffs shipped the materials to them.

The goods were not sold to Sinclair, but to the defendants, and charged to the defendants. Sinclair owed nothing to the plaintiffs. Hence it was not an agreement to answer for the debt or default of Sinclair.

Had the goods been shipped to Sinclair, a very different question would have been presented.

While the language used by Stafford was that he would be responsible for the pay, his agreement was to pay his own debt

The defendants were witnesses for the defense. Their testimony tended to show that Sinclair was the debtor to plaintiffs, and not the defendants. The jury adopted the plaintiffs’ theory of the case.

At the close of the charge to the jury, the defendants’ counsel asked the court to charge that “if the jury find from the evidence that Stafford’s promise was a mere guarantee of the payment of the Sinclair bill, that in that case the plaintiffs are not entitled to recover.”

The court replied : “I decline to change my charge upon that subject, and give you an exception.”

It may be, in view of the defendants’ evidence, that this request should have been granted, but the defendants were not prejudiced, for thereafter the defendants’ counsel repeated the request in different phraseology, and the court replied: “ I charge that I have so told the jury that the plaintiffs must establish, to the satisfaction of the jury from the evidence, that that lumber was shipped and sold to the defendants, and that they promised to pay for it”

This presented the matter before the jury correctly, and we are not able to see how the jury could have been misled by the former refusal.

We find no errors in the case requiring a reversal.

The judgment and order appealed from should be affirmed, with costs of the appeal against the appellants.

Dwight, P. J., and Macomber, J., concur.


text:
    The People, Resp’ts, v. Jeremiah C. Keating, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Homicide—Evidence.
    Defendant was indicted for manslaughter in the first degree in aiding.an unprovoked assault upon one J., which resulted in his death. It appeared that he kept off interference while his confederate heat J. until he broke his neck. Held, that the evidence was sufficient-to justify a conviction, and that evidence as to the blood on the wall directly back of where J. was. standing was competent as part of the res gestae.

      2. Same—Witness.
    It is proper for the district attorney, on cross-examination of one of defendant’s witnesses, who was one of his party at the time in question, to ask him “ if he wanted to see J. get a thrashing."
    8. Same—Jurors—Challenges.
    As such crime is punishable, in the discretion of the court, by imprisonment for more than ten years, the defendant is entitled to twenty challenges, and it is error to restrict him to five.
    Appeal from a judgment of the Livingston county court of sessions entered in the office of the clerk of that county on the 5th day of March, 1891, adjudging the defendant guilty of the crime of manslaughter in the first degree and directing his imprisonment in the state prison for the term of five years.

      J. M. Hastings, for app’lt; L. O. Reed, district attorney, for resp’ts.
   Lewis, J.

The circumstances attending the commission of the crime of which the defendant was convicted were exceedingly cruel and brutal. The defendant was one of four men who Efanned the assault which was made upon the deceased, William i. Joslyn, and which resulted in his death. Joslyn was assaulted when standing quietly upon the sidewalk, in the village of Mt. Morris. Daniel J. Keating, one of the defendant’s party, made an attack Upon him, striking him in the face with his fists, knocking him down, and continued beating him while down, until he succeeded in breaking his neck, causing his death. The defendant stood near by aiding and encouraging the assault. When the witness James McNealy attempted to interfere and make peace, the defendant seized McNealy and forced him away. McNealy returning, the defendant took off his coat, pushed McNealy into the gutter, saying “let them have fair play,” and the beating continued until the defendant directed Daniel Keating to desist, and Joslyn was then dead.

The evidence of the defendant’s guilt was ample to justify the verdict

The evidence as to the blood upon the wall of the hotel directly back of where the deceased was standing when assaulted was competent as part of the res gestae.

The question put to Jeremiah Keating, “if he wanted to see Joslyn get a thrashing,” was competent. Keating belonged to the defendant’s party; stood by during the assault. He was called as a witness for the defense, and had given important testimony. It was proper for the district attorney to ascertain if he was an impartial and unprejudiced witness.

The important question in the case arises on the ruling of the court that the defendant was entitled to but five peremptory challenges.

The indictment was for the crime of manslaughter in the first degree, which is punishable by imprisonment for not less than five nor more than twenty years. Section 873 of the Code of Criminal Procedure is as follows; “Peremptory challenges must be taken in number as follows: First. If the crime charged be punishable with death, thirty: Second. If punishable with imprisonment for life, or for the term of ten years or more, twenty; Third. In all other cases five.”

The appellant’s contention in this case comes under the second subdivision, that he was entitled to twenty peremptory challenges; that the crime that he was charged with committing was punishable by imprisonment for ten years or more.

The defendant’s right to peremptory challenges was purely statutory. It was not derived from the constitution nor the common law.

At common law, the People had the right to peremptory challenges, but the accused had not.

We are not referred to any adjudication in this state where the questions raised here were presented.

A brief review of the legislation touching peremptory challenges may aid in the solution of this question. By the Revised Statutes, every person put on trial for an offense punishable with death, or with imprisonment in a state’s prison for ten years, or an.v longer time, was entitled to twenty challenges.

For offenses punishable with imprisonment for a term of less than ten years, no challenges were allowed. To remedy this the act of 1847 was enacted. By that act every person on trial for an offense not punishable with death, or with imprisonment in a state’s prison for ten years, or for a longer time, was entitled to five challenges. By the act of 1858, chap. 332, on a trial of any offense punishable with death, or by imprisonment for the term of ten years, or for a longer term, the People were given ten peremptory challenges, and on the trial of an offense punishable by imprisonment for a term of less than ten years, three challenges.

Prior to the adoption of the Criminal Code, the provision of the Revised Statutes was as follows: “ Every person arraigned and put on his trial for an offense punishable with' death, or with imprisonment in a state’s prison for ten years, or any longer time, shall be entitled peremptorily to challenge twenty of the persons drawn as jurors for such trial, and no more.”

In the case of Dull v. The People, 4 Denio, 92, the defendant was indicted for burglary in the second degree, and on the trial claimed the right to peremptory challenges of the jurors, which was denied by the trial court.

He was convicted and sentenced to imprisonment in the state’s prison for ten years, that being the maximum penalty for that offense. The trial court held that as the minimum was less than ten years, the prisoner was not entitled to peremptory challenges. The court on appeal, Chief Justice Bronson delivering the opinion, held that the offense being one for which the defendant was liable, or subject to be punished with imprisonment for ten years, his case came within the express words of the statute, and the conviction was revérsed.

The contention of the district attorney is that the change in the phraseology of the statute, by the use of the word “ term ” in subdivision 2 of § 873, the legislature intended to fix a period of time limited by termini; one terminus being imprisonment for the term of ten years, and the other imprisonment for life, or for .a longer term than ten years.

We have seen from the history of the legislation upon this subject that the tendency has been to enlarge and increase the number of peremptory challenges in criminal cases.

The statute which was displaced by § 373 of the Code of Criminal Procedure, as the section of the Revised Statutes has been construed by the court in Dull v. The People, gave to the person charged with a crime, the punishment of which might be imprisonment for ten years or more, twenty challenges. If the construction contended for by the People’s counsel be correct, § 373 abridged the number of challenges which the defendant would have been entitled to under the former statute.

We are not able to see by the change in the language suggested evidence of an intention on the part of the legislature to thus abridge the defendant’s right to challenges.

“ Where the statutes of a state are revised after the manner generally pursued in our states, the Revised Statutes receive the former interpretation wherever a contrary intention does not affirmatively appear. Slight changes in language are not presumed to change the meaning, since it was one of the special objects of the revision to introduce an improved and more uniform phraseology. To produce a change of interpretation the intent to change the law must affirmatively appear.”. Bishop on Stat. Crimes, § 98, and authorities referred to in margin; Hughes v. Farrar, 45 Me., 72.

The crime the defendant was charged with committing is punishable by imprisonment, in the discretion of the court, for ten years or more.

The meaning of the word “ punishable ” is not “ must be punished,” but “ liable to be so punished,” and was so held in the case of State v. Frederick Neuner, 49 Conn., 233; also in Miller v. State, 58 Georgia, 200.

“ Punishable ” includes an offense which may under some circumstances be punished, in the manner designated, although under others it may not be.

In Commonwealth v. Pemberton, 118 Mass., 36, it was held that a statute providing that murder committed in the commission of, or in the attempt to commit, any crime punishable with death, or imprisonment for life is murder in the first degree, includes, all offenses that may be so punished.

If subdivison 2 of § 378 read, If the crime charged may be punished with imprisonment for life or for a term or period or ten years or more,” it would not be contended but that the defendant was entitled to the twenty challenges. It was the liability of the defendant to receive a sentence of a term of ten years that determined the number of challenges he was entitled to, and not his liability to receive a less term. Stress is laid upon the employment of the word “ term ” as indicative of an intention to alter the previous statute. An imprisoment for any definite period of time is certainly for a term. We must assume that the codifiers were aware of the prior statutes and the construction which the courts had given them. If they had intended to change the law they would, we think, have provided for the cases where a crime was punishable with the term of ten years or less.

We think the learned court below fell into error in holding that the defendant was entitled to but five peremptory challenges, and that the judgment of conviction for that reason should be reversed and a new trial granted.

Dwight, P. J., and Macomber, J., concur.


text:
    The People, Resp’ts, v. Stephen F. Sherman, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Larceny—Penal Code, § 528.
    Defendant was the general manager of certain elevators in the city of Buffalo, and had complete control of the grain therein with power to cause the same to be transferred from one to the other. The evidence tended to show that some of the grain had been removed. Held, that he had the grain in his possession as the agent or officer of the elevator and came within the provision of § 528, Penal Code.
    2. Same—Evidence.
    Evidence of a delivery of grain the day previous to the removal claimed is competent to account for the apparent shortage, and defendant was not prejudiced by its admission.
    3. Same.
    Where a witness on the part of the People gives his testimony in a different manner from that given by him before the grand jury, and it appears that he has conversed with defendant in relation thereto, it is proper to call his attention to his testimony before the grand jury for the purpose of refreshing his memory and eliciting the truth from him.
    4. Same.
    Evidence is admissible of a device by double weighing resorted to by defendant’s employes to cover the apparent shortage although defendant was not present and it is not proved that he directed it to be so weighed.
    Appeal by the defendant from the judgment of conviction of the crime of grand larceny in the first degree, rendered against him in the court of oyer and terminer held in the county of Erie on the 23d day of January, 1891, and from, an order made by the court on the same day denying defendant’s motion for a new trial.

      Truman C. White, for app’lt; William L. Marcy, for resp’ts.
   Lewis, J.

It was charged in the indictment that, at all the times mentioned, the Buffalo Elevating Company was and still is a body corporate engaged in the receiving, storing, discharging and elevating of grain in the city of Buffalo, and that there also ■existed in Buffalo a corporation known as the International Elevating Company engaged in the same business; also one known as the Lake Shore Elevating Company, and that these three incorporated companies were combined and associated together in the common business of receiving, elevating, storing and discharging of grain under the name, style and designation of the Associated Elevators, and that the defendant was a manager and director in each of these corporations, and was also the manager, clerk, servant, officer and agent of their association of elevators; and, being such director, manager, etc., of the Buffalo Elevating. Company, and, also, of the Associated Elevators, he had on the 22d day of September in the year 1888, in his possession, custody and control, a quantity of wheat,- the property of the Buffalo Elevating Company, and that he feloniously appropriated to his own use 8,250 bushels and thirty pounds of wheat of the value of $1.35 per bushel, the property of the Buffalo Elevating Company, with intent to deprive and defraud the Buffalo Elevating Company of said wheat and did feloniously steal the same. The corporation known as the Buffalo Elevating Company owned and operated two elevators, the Dakota and the Sturgis. The three coi-porations named in the indictment had entered into a mutual arrangement by which they employed a common manager to conduct their business affairs. The business carried on by this association of elevators in the year 1888 was very great, requiring many employees. All of them were under the control of the defendant as suc^i manager. Books of account were kept by each corporation, and also at the central office of the association of elevators. The •8,250 bushels of wheat which the defendant was charged with embezzling was in the elevator known as the Dakota.

The evidence upon which the People relied to convict the defendant was largely circumstantial and very voluminous ; it covers more than 400 pages of a printed case. There being no eye witness to the larceny, there being so many employes, the quantity of grain in the elevator being so large, and portions of the same, for the purposes of convenience, being frequently transferred from one elevator to another, proof of the commission of the crime became very difficult; there were many facts and circumstances shown which the People claim tended to prove the guilt of the defendant. None of the facts taken alone would seem to be very significant to prove the commission of the crime, but taken together, they tended to show his guilt. The defendant had, theretofore, occupied a respectable position in the business community ; he held a position of great trust and responsibility. The defense was conducted with great vigor and ability. The jury, after a long and careful trial, pronounced him guilty of the crime charged against him. A rehearsal of all the facts and circumstances proved tending to establish his guilt would require so much labor and space as to be impracticable. A careful perusal ■of the testimony has convinced us that the verdict was sustained by the evidence, and unless errors were committed upon the trial .requiring reversal, the judgment of conviction should stand.

The defendant was the general manager of the elevator in which .¡the grain was stored. He had complete control of the grain; he had power to cause it to be transferred from one elevator to another, and must be held, we think, to have had the wheat in his possession, custody and control as the agent or officer of the elevator, and to come within the provisions of § 528 of the Penal Code.

The trial court permitted evidence of the removal of 8,002 "bushels of wheat from the same elevator the day prior to the removal of the wheat the defendant was charged with stealing. It was claimed by the People, and the proof tended to show, that there was a shortage of about 16,000 bushels in the quantity of wheat in the Dakota elevator. The defendant being the general manager of the elevator, this deficiency in the quantity of wheat belonging in the elevator was an important fact, and this evidence was competent as tending to show such shortage. We do not see that the defendant could have been prejudiced by this evidence.

One Prank A. Klives was a witness before the grand jury and gave important evidence for the People against the defendant. He was called as a witness upon the trial. The prosecuting attorney claimed to be disappointed in his evidence given upon the trial; he claimed that he was attempting to shield the defendant by testifying differently from his testimony given before the grand jury. The People’s counsel was allowed by the court to •call the witness’ attention to questions propounded to him when he was testifying before the grand jury and his answers to the ■questions. He testified that after giving his evidence before the grand jury he was interviewed .by the defendant and frequently saw the defendant at defendant’s residence, and that the subject ■of his evidence before the grand jury was discussed and defendant made suggestions to him in reference to it, telling him that some things he had testified to before the grand jury were not true. The objection of defendant’s counsel was premature; the answers of the witness were harmless; they did not prejudice the defense. The examination, we think, under the circumstances, was proper, not for the purpose, as was suggested by the trial court, of impeaching the witness, but for the purpose of refreshing his mind and eliciting from him the truth. People v. Ricker, 22 N. Y. State Rep., 652; People v. Kelly, 113 N. Y., 647-651; 22 N. Y. State Rep., 969.

The evidence of Crowley and Murphy as to the device resorted to, to make the quantity of the grain in the Dakota appear to hold out, was competent as tending to show that - there was in fact a shortage of grain in the elevator. They testified, in weighing the grain, to ascertain how much there was in the elevator, they so arranged the machinery as to reweigh nine or ten thousand bushels of the wheat; that amount added to -the conceded deficiency of 2,500 bushels made about the shortage of the grain in the elevator as finally ascertained. It was not proved that the defendant personally directed this double weighing of the grain. It, in fact, was done when he was absent from the city. It was done, however, by men who had no interest, so far as appears, in making the grain hold out; and they were men under the control and. management of defendant.

We find no error committed upon the trial which could have prejudiced the defendant’s case. The case seems to have been presented to the jury fairly, and they were justified from the evidence in finding that the defendant directed the wheat to be removed from the Dakota elevator with a view of appropriating it to his own use, and was, by so doing, guilty of the crime ■ of larceny, as charged in the indictment.

The judgment appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.


text:
    Lafayette Cole, App’lt, v. The Fall Brook Coal Co., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    New trial—Negligence—Newly discovered evidence.
    On a trial of an action for injuries caused by negligence the plaintiff testified that his hips were crushed; that he could do no manual work without pain, and that his injuries were of a permanent character. Defendant offered no testimony as to plaintiff’s physical condition. Upon affidavits showing that plaintiff worked after the trial, defendant moved for a new trial, but was met by affidavits showing that plaintiff’s labor was attended with great pain and suffering and that he was compelled to work by the necessities of his family, and the motion was denied and the denial affirmed, with leave to renew. The motion was renewed on affidavits showing that subsequent to the trial plaintiff performed feats of strength for the amusement of friends; assaulted a brakeman, showing great agility and strength, and had admitted that he was a strong and vigorous man. Held, that this was not cumulative evidence, and that a new trial was properly granted.
    Appeal from an order granting respondent a new trial on the ground of newly discovered evidence.

      Jacob Schwartz, for app’lt; Gabriel L. Smith, for resp’t.
   Lewis, J.

The plaintiff was injured while in the employ of the defendant as brakeman on the 9th of November, 1887, and brought this action to recover damages for his injuries. The trial took place at the Monroe circuit before Justice Rumsey in 1889, the plaintiff recovering a verdict of $8,000.

The plaintiff’s evidence tended to show that, while in the act of coupling a switch engine to a section of a train, he was caught between the end sills of the tank and a gondola car and was severely crushed, and that the accident occurred in consequence of the absence of one of the bumpers upon the gondola car.

The defendant’s evidence sharply controverted the plaintiff’s evidence as to the defective condition of the car. The plaintiff’s -own testimony was substantially all he produced as to the manner in which the accident occurred. He testified that he stepped in between the gondola car and the switch engine to effect the coupling, and that because of the defective condition of the bumper "upon the gondola car he was crushed into a space of about six inches; that he was standing with his sides to the cars, and that the pressure was upon his hips. He testified that his hips were from 'sixteen to seventeen inches broad at the place where the pressure came; that before the accident he was an exceptionally strong, robust man, able to perform severe manual labor; and in describing the effect of his injuries, be testified that he was' confined to his house some eleven or twelve weeks; that since the accident he had tried to do manual work, but could not; his strength gave out; that he had no nerve; “ when I endeavor to lift or stoop over it hurts me terribly, so I cannot do it; I can .stoop over, but not to raise up with any heft or weight; the pains take me through my hips and across my back, and extend up my "back to the back of my head, and sometimes in the temples; when I stoop over in that way, or attempt to do any manual labor, it makes me sick or faint; any exercise or quick action, or anything of the kind, makes me nervous, and faint and trembly ; in attempting to do work I fainted 'away a number of times since; I .am home now, and have been ever since; I cannot walk very far at a time; after going about so far, my legs refuse to carry me and give out; I have no control of them; there don’t seem to be any use of the muscles, and they give out, and I have got to get down or fall down.” He produced other evidence tending to show that his injuries were of a permanent character.

The defendant offered no testimony as to plaintiff’s physical condition.

The defendant moved for a new trial before Justice R,umsey upon the ground of newly discovered evidence, and produced affidavits tending to show that the plaintiff was not the physical wreck he claimed to be, but that very soon after the recovery of the verdict he engaged in physical labor and was apparently able to do a man’s work. The plaintiff met the defendant’s.motion by his own affidavit, stating that while he had done some work since the verdict, that his labor was attended by great pain and suffering; that he was not, in fact, able to work, but that he was driven to it by the necessities of a large family; “ he was obliged to work ■or starve.” He produced other affidavits to sustain his contention, and the motion was denied. The defendant appealed to the general term from the order denying its motion; the general term affirmed the order, with leave, however, to the defendant to renew the motion upon new papers.

The motion was renewed and on the hearing of the second motion numerous affidavits were read by the defendant. Many of them were made by the same affiants and stated substantially the same facts as those contained in the ones used on the first motion; but they were re-sworn to. Other affidavits were presented showing facts and circumstances occfirring after the trial and after the making of the first motion, which tended very stongly to show that the plaintiff commenced almost immediately after the trial to perform manual labor and doing the work of a strong and able-bodied man. These were practically the same facts as stated in the affidavits upon the former motion ; but defendant’s affidavits; described acts performed by the plaintiff after the trial consisting-of physical feats which it would have been impossible for him to perform had he been in the physical condition he had testified he was. These feats were performed in a store in the neighborhood where he resided, for the amusement of spectators, and not for the purpose of earning bread for his family. The affidavits further stated that he assaulted a brakeman in a railroad car, and in the contest demonstrated that he possessed great agility and physical strength.

They further stated that after the trial the plaintiff, admitted, that he had recovered his health, and was a strong, able, vigorous-man. The plaintiff presented his own and other affidavits controverting the facts stated in the moving affidavits; the plaintiff, however, did concede that he attempted to perform the feats referred, to in the moving affidavits, but in so doing did not use much, physical strength.

Justice Rumsey upon the second motion, after a careful examination of the very voluminous papers, granted the motion for a. new trial. We think in so doing he exercised his discretion wisely. The facts presented to him on the second motion were much stronger than those presented on the first motion. In deciding the first motion he assumed that the plaintiff, in working, did so with great pain and suffering, but was compelled to work to keep his family from starving. On the second motion it was-shown that the plaintiff admitted that he had exaggerated and overstated his condition upon the trial of the case. If plaintiff performed the physical feats mentioned in the moving affidavits, he in a most unmistakable manner contradicted his evidence given on the trial.

This latter class of evidence was not cumulative. Ho evidence of that character was given upon the trial. It did not then exist. In the case of Strout v. Stewart, 63 Me., 227, the plaintiff sought-to recover for professional services rendered by him as an attorney for the defendant upon the employment of another attorney. The defendant denied that he had ever authorized the employment of the plaintiff, and had a verdict in his favor on this evidence. The plaintiff moved for a new trial on the ground of newly discovered evidence, and produced affidavits showing that the defendant had admitted after the trial that the plaintiff was-his counsel in the ease. The court held that this was not cumulative evidence. Gardner v. Mitchell, 6 Pick., 114; People v. Superior Court, 10 Wend., 294.

If the injuries sustained by the plaintiff were not permanent,, if, in fact, he has substantially recovered his health, the verdict was excessive in amount, and justice demands that the defendant should be allowed to present to another jury the newly discovered evidence, with a view of at least lessening the damages. If the affidavits presented by the defendant are true, the plaintiff deliberately misrepresented his physical condition with a view of deceiving the court and jury. It is apparent to a layman, familiar with the anatomy of the human body, that had the plaintiff’s hips, which he testified were sixteen or seventeen inches wide, been compressed by a force applied to the sides thereof into a space of six or seven inches, the surgeon who attended him would not have been, as he testified he was, in doubt whether any of the plaintiff’s pelvic bones were broken by the accident.

If plaintiff was, in fact, injured as he claims, his case will suffer no injury by being retried.

The order appealed from should be affirmed, with costs to abide the event

Dwight, P. J., and Macombek, J., concur.


author: Lewis, J. Macomber, J.

text:
    Abigail De Puy, App’lt, v. William Quinn, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Jurors—Civil damage act.
    The fact that jurors entertain a prejudice against the business of selling liquor does not disqualify them from sitting in an action under the civil damage act, so long as they testify that they are indifferent between the parties and can give an impartial verdict according to the evidence, irrespective of what they think of the business.
    2. Same.
    The exclusion of jurors on that ground is reversible error, although a competent jury is afterwards obtained. (Macomber, J., dissents.)
    3. Same—Estoppel.
    The plaintiff in such a case is not estopped from objecting to such ex" elusion by the fact that he had previously obtained a ruling that jurors who entertained a prejudice against the civil damage act were disqualified from sitting. (Macomber, J., dissents.)
    Appeal from a judgment entered in the Cayuga county clerk’s office in favor of the defendant, and from an order denying a motion for a new trial on the minutes.

      F. D. Wright, for app’lt; Lyon & Pierce, for resp’t.
   Lewis, J.

This action was brought under the civil damage act to recover damages against defendant for the loss of the means of support of the plaintiff caused by the death of her son while intoxicated, which intoxication the plaintiff alleged was caused in whole or in part by intoxicating liquor furnished him by defendant.

The only question which it is necessary to examine upon this appeal is the one raised by the plaintiff’s exception to the ruling of the trial justice sustaining the defendant’s challenge to the proposed jurors, George C. Graham and W. F. Tuller, who were members of the panel of jurors in attendance upon the court.

Graham,- when called, was challenged by defendant, and the following proceedings were had: he was sworn as to his competency as a juror, and was examined by defendant’s counsel, and testified that he did not think much ‘of the business of selling liquor; that he had a prejudice against it; and that were he to sit as a juror in the case he would go into the box with a prejudice against the business. He further testified that he had no prejudice against the defendant; that he could sit and hear the evidence, and give an impartial verdict according to the evidence in the case irrespective of what he thought of the business itself. The trial j ustice allowed the challenge, and excused the juror, and the plaintiff excepted.

Like proceedings were had, and testimony to the same purport was given when Tuller was called, and there was a like ruling by the court, and an exception by the plaintiff.

The parties exhausted their peremptory challenges. A panel of jurors was secured; the trial proceeded and resulted in a verdict for the defendant.

The trial judge was required to decide the question of fact: “Were the proposed jurors indifferent between the parties.” That question § 1180 of the Code provides must be tried and determined by the court only. Either party may take an exception and the determination of the court is reviewed in the same manner as when an issue of fact presented by the pleadings is tried by the court, and the case is required to contain the matters necessary to present the facts upon which the determination excepted to was based. In empanelling jurors a liberal discretion is vested in the trial court. Such discretion conduces to the just and correct administration of law in the trial of causes by jury. Yet litgants are entitled to the benefit of the provisions of law governing the empanelling of juries.

Section 1166 of the Code of Civil Procedure provides that the twelve persons who appear as their names are drawn and called and are proved as indifferent between the parties and not discharged or excused must be sworn to constitute a jury to try the ■ issue.

The court cannot arbitrarily excuse a proposed juror who is in all respects competent to sit. If the facts presented fail to prove that Graham and Tuller were disqualified to sit as jurors in the case it was error to exclude them ; and it was so held in the case of Hildreth, v. The City of Troy, 101 N. Y., 234.

The ground of challenge in that case was that the juror was incompetent because he was a resident and taxpayer in the city of Troy.

The challenge was sustained. The charter of the city provided tho t the grounds mentioned did not disqualify a person as a juror in a case in which the city was defendant; and Justice Andrews in his opinion, says: “Jurors differ in intelligence, judgment and fitness to act as jurors. It is, we think, the legal right of a party to have the jury selected from the competent names in the jury box, and that the range of selection shall not be limited by excluding, without cause, competent jurors from the panel.

“ The law prescribes the qualifications of jurors. The court cannot add to or detract from them. It cannot itself select the jury directly or indirectly. It cannot in its discretion or capriciously set'aside jurors as incompetent whom the law declares are competent, and thus limit the selection of the jury to jurors whose names may be left. If this is done a legal right is violated for which an appellate court will give redress.”

It was a question of law that was presented for the decision of that court in the case of Hildreth v. The City of Troy. In the case at bar the trial judge was required to decide the question of fact, “ Was the proposed juror indifferent between the parties.” The question to be litigated in this case was, did the defendant sell or furnish to the deceased liquor, which wholly, or in part, caused his intoxication.

The propriety or morality of selling liquor was not in question any more than were the political or religious views of the defendant. The jurors stated they had no prejudice against the defendant; that it would not require any greater evidence, in a case tried before them, when one party was engaged in that business, than if he was engaged in any other business; that they could sit and hear the evidence and give an impartial verdict, according to the evidence in the case, irrespective of what they thought of the business of selling liquor. They were, so they testified, indifferent between the parties. Had one of the parties been a lawyer, minister, or dealer in stocks, jurors could be found having a prejudice against their business, and yet in a litigation where one of them was a party it would scarcely be claimed that a juror who entertained such prejudice was disqualified for that reason to sit in the case.

A very large proportion of persons who have arrived at their majority entertain opinions as to the propriety of selling liquor to be used as a beverage. The majority of them undoubtedly think it does not tend to elevate and improve mankind, and such an opinion is not confined to the classes not engaged in the business. Substantially every one has an opinion upon the subject. They either think it is, or is not, a beneficial calling. If one who, like Graham, does not think much of the business, is adjudged incompetent to sit, a person entertaining an opposite opinion ought also to be held incompetent, and jurors would necessarily have to be selected from those persons who had never given the subject sufficient reflection to have formed an opinion, if such could be found possessing the qualifications required by § 1126 of the Code, “ in the possession of his natural faculties, intelligent, of sound mind, good character, and able to read and write the English language understandingly.”

It does not seem to us that the fact that Graham and Tuller entertained a prejudice against the business of selling liquor disqualified them to sit as jurors in the case so long as they testified they were indifferent between the parties, and could sit and hear the evidence and give an impartial verdict according to the evidence in the case, irrespective of what they thought of the business. It is suggested that the trial court having the juror before him had a better opportunity to judge of the qualifications of the juror than the appellate court; that he saw the juror, his manner of testifying and his appearance generally.

We must, however, assume that no unfavorable impressions were thus obtained by the trial court, as the case fails to so state. There is the usual certificate in the case that it contains all the evidence and proceedings in the action.

If their manner and appearance afforded to the trial court evidence of their unfitness, that fact should have been stated in the case, and would be decisive of the question before us. To go outside of the case and indulge in speculations as to what might have influenced the'mind of the trial court would render nugatory the provisions of the Code providing for the review of the rulings of the trial court on such questions.

The respondent further suggests that the appellant had induced the trial court to hold that a juror was disqualified if he was prejudiced against the civil damage act, and that he had thereby established a precedent and should be held to be estopped from objecting to the enforcement of the rule against him.

It may well be doubted if the questions were alike in principle. The jury when empanelled became an important part of the court which was to be asked to enforce the law if it had been violated, and if a juror who is opposed to capital punishment is disqualified to sit as a juror on the trial of a person charged with a crime where the punishment is death, it might perhaps be correctly held that a person entertaining a prejudice against the act in question is disqualified as a juror in such a case; but we do not think the doctrine of estoppel can be held to apply to such a question.

The evidence, we think, failed to show that Graham and Tuller were incompetent to sit as jurors, and that it was error to exclude them for which the judgment should be reversed.

The judgment and order denying a new trial should be reversed, and a new trial granted, with costs to abide the event.

Dwight, P. J., concurs.

Macomber, J.

(dissenting)—The motion for a new trial, the denial of which is claimed to be an error, was made upon the following grounds:

(1) That the challenge interposed by the defendant to each of two jurors was erroneously sustained by the court.

(2) That the verdict was against the weight of the evidence and should have been for the plaintiff.

It is quite clear that the jury must have rejected the testimony of the plaintiff’s two witnesses, Dorr Baker and Simeon Baker, as wholly unworthy of credit and insufficient to support a verdict. The character of these witnesses for truth was necessarily before the jury, and the latter’s determination thereof ought not to be disturbed by the court; for it is impossible to discover in the verdict any evidence that the jury was actuated by prejudice or any other unworthy motive. The account which these two witnesses respectively give of themselves and of their connection with the case and its incidents was well calculated to "produce upon the mind of the persons passing upon the question of fact a keen distrust of them and a lively apprehension that a verdict could not be safely rendered upon their testimony. This may, indeed, be a misfortune to the plaintiff; jet the defendant ought not to be held in damages except upon evidence given by witnesses worthy of belief. This part of the case, therefore, is easily disposed of upon reading the testimony of the witnesses upon whom the plaintiff’s case almost wholly depended, and which the jury had a right to discredit.

But there is a question more elaborately discussed in the brief of the learned counsel for the appellant, which merits serious attention. The action was brought under the civil damage act, chap. 646, Laws of 1873, for the loss to the plaintiff of the means of support afforded by her son, who was her main reliance. The son was drowned April 20, 1889, in the raceway leading from Owasco lake to the Auburn Water Works Company, caused, as was alleged, by the intoxication produced, in whole or in part, by intoxicating liquor furnished to the deceased by the defendant.

The peremptory challenges to the jurors allowed by the statute at that time (two in number), bad been exhausted; but whether before or after the challenges made to the two jurors in question does not distinctly appear in the case. Two jurors, Graham and Tuller, were called and challenged by the defendant, which challenges were sustained by the court. The questions and answers of the two jurors and the objections made respectively to them were so nearly alike that they may, for the purposes of this review, be grouped together. They were respectively asked whether they had a prejudice against the liquor business. Bach answered that he had, and that be would carry the prejudice against that business into the jury box; and it was claimed by the defendant that such prejudice would influence his verdict.

Graham answered as follows:

“ Q. So that if you were to sit as a juror in this case you would go into the box with a prejudice against the business, would you. not? A. I would, against the business ; yes, sir.”

On examination by the plaintiff’s counsel he stated, that he had no prejudice against the defendant, and that he could sit and hear the evidence and give an impartial verdict according to the evidence, irrespective of what he thought of the business. The juror Tuller further answered as follows:

“ Q. So that if you were to sit as a juror in this case you would go into the box with that prejudice existing in your mind? A. Yes, sir; I think I would.”

This juror also said that he had no prejudice against the defendant, and that he could decide impartially upon the evidence. The challenge to each juror was sustained by the court and an exception was taken, and upon these two exceptions the appellant mainly relies for a reversal of the judgment.

The first clause of § 1166 of the Code of Civil Procedure provides as follows: “ The first twelve persons who appear as their names are drawn and called, and approved as indifferent between the parties and not discharged or excused, must be sworn and constitute the jury to try the issue.” By § 1180, “An objection to the qualifications of a juror is available only upon a challenge. A challenge of a juror, or a challenge to the panel or array of jurors, must be tried and determined by the court only. Either party may except to the determination, and it may be reviewed, upon a question of fact, or a question of law, or both, as where an issue of fact presented by the pleadings is tried by the court; except that where one or more exceptions are taken to the rulings of the court, made after the jury is empanelled, an exception to the determination of a challenge must be heard at the same time; and the case must contain the matters necessary to present it, upon the facts, or the law, or both.”

Had the learned justice presiding at the trial ruled otherwise than as he did upon this question (assuming in passing that the challenge was for principal cause), such ruling clearly enough would not have been disturbed upon any review of it; for we are of the opinion that the objection of a juror to the business in which the defendant was shown to be engaged, namely, that of retail liquor selling, was not a legal disqualification on a challenge for principal cause, and that so long as it appeared that the juror could hear the evidence and render a dispassionate verdict he was competent within the meaning of the statute. But it by no means follows that the ruling actually made by the learned justice must result in a reversal of the judgment. The challenge was not for principal cause, as it seems to me, but to the favor and for actual bias. Had the challenge been placed upon the ground that the juror was not competent to sit, and was actually disqualified by the terms of the statute by reason of entertaining such prejudice, the ruling of the learned judge would have presented clearly a legal error; that is to say, an error in law, and not merely an erroneous conclusion upon a question of fact.

These two sections of the statute above quoted must be considered and construed together. Taken as a whole they properly give to the trial judge an ample discretion. By § 1180 the decision is reviewable according to the nature of the objection, either as a question of law or a question of fact. Where, however, the question, as in this case, is undertaken to be reviewed by appeal as arising upon a question of fact; that is to say, where the conclusion of the learned trial judge as to the competency of the juror under a challenge for actual bias is drawn in question, then recourse must be had to the provision of § 1166. Under this section each of the jurors must be approved as indifferent between the parties. The judge at the trial had means of accurately determining the capacity and integrity of the jurors, which a court, on appeal, can not possibly possess from an inspection of the printed record alone. The jurors’ mode of answering questions, intelligence, appearance, together with their apparent candor, general character, and the many little things -which appear on the voir dire, but which are incapable of being reproduced in print, were elements which necessarily entered into the final determination of the trial judge in his selection of the twelve men. So long as it appears clearly, as it does in the case before us, that twelve indifferent and impartial men were actually empanelled to try the case, the appellate branch of the supreme court should be lath to reverse the results of the trial simply upon the ground that the members of that court might have, come to a different conclusion, acting solely upon the printed testimony, from the one arrived at by the trial judge. From the nature of the case, much latitude must be given to the judge at the circuit. Were the obverse of the question presented, namely, a juror retained by the court who ought to have been excluded, and a case thus presented which would raise a suspicion of a tainted verdict, an entirely different question would be presented.

The conclusion of the justice upon the question of the actual bias of the jurors ought not to be disturbed unless the party appealing has been prejudiced. It cannot be said that a party is prejudiced in law by a ruling of the court that excluded from a panel of jurors persons that were hostile and opposed to the business carried on by his opponent. Maretzek v. Cauldwell, 5 Rob., 660. In the case of criminal actions, the expression or formation of an opinion or impression in reference to the guilt or innocence of the defendant, or a present opinion or impression in reference thereto, is not a sufficient ground for a challenge for actual bias to any person otherwise legally qualified, if he declare on oath that he believes such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied that he does not entertain such a present opinion or impression as would influence his verdict.

In analogy to this statute for the trial of criminal cases, where the general provision for the empanelling of a jury is the same as in civil actions, why should not the trial court be left untrammeled in its effort to exclude from the jury box every person having an actual bias against the business of one of the parties when such occupation is neither malum in se nor malum prohibitum ? While, therefore, the rejection of a competent juror may be deemed ground of error, although the jurors who actually try the case are competent, as was held in the case of Hildreth v. City of Troy, 101 N. Y., 234, where the error of the trial judge was one of law holding that a juror was incompetent by reason of being an inhabitant of the city which was the defendant, yet, where the objection goes to actual bias and the determination thereof was at most but an error of fact, and that, too, in an effort to obtain an impartial jury; and where there appeal’s to be no objection to the twelve jurors actually empanelled, I am of the opinion that the error is unimportant and not prejudicial to any legal rights of the appellant, and that, consequently, there should be no review of such determination except in the case of abuse, or an arbitrary use of power by the trial judge, of which there is not the slightest suggestion in the case before us.

There is another reason why the appellant ought not to be allowed to prevail upon this appeal, and that is, that prior to the challenge made to the jurors, Graham and Tuller, the plaintiff’s counsel had examined three jurors who had stated in answer to his questions that they were prejudiced against the enforcement of the civil damage act; and thereupon the counsel asked for and obtained a ruling of the court that such jurors were not competent to sit The plaintiff, therefore, appears in the attitude of a person who had, through great diligence of counsel, obtained a decision of the trial court upon the qualification of jurors under this statute (assuming that such challenge was for principal cause), and he ought not now to be heard to complain if, after procuring such ruling, the court felt bound to be entirely consistent, and applied the correlative proposition in favor of the defendant’s contention, namely, that prejudice against the business of liquor selling was also a disqualification. If one proposition is correct, the other must be also.

The judgment and order appealed from should be affirmed.

Judgment and order reversed and new trial granted, with costs to abide event.


text:
    Leonard A. Wooster, Resp’t, v. The Western New York & Pennsylvania Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Railroad—Negligesce.
    Plamtiff, a flagman in defendant’s employ, after coupling cars with an iron pin, stepped back and came in contact with a pile of stones placed there six weeks before to be used in ornamenting posts about the depot. Plaintiff’s foot slipped on the pile and he caught at the car to prevent falling and his hand was crushed. Held, that the pile had been there a sufficient time to give defendant notice of its presence, and that the questions of negligence were for the jury.
    2. Same—Damages.
    Plaintiff was 29 years old, and earning $2.30 a day before the accident. He lost a hand; canget work only with difficulty, and can now earn only one dollar a day. Held, that a verdict of $6,500 was not excessive.
    Appeal from a judgment entered upon the verdict of a jury rendered at the Brie county circuit, and from an order denying the defendant’s motion for a new trial.

      Green & Marcy, for resp’t; John G. Milburn, for app’lt.
   Lewis, J.

The plaintiff was a flagman upon the defendant’s road, and in attempting to effect the coupling of cars upon a freight train his hand was crushed between the cars, causing the loss of his hand.

There was evidence tending to show that the defendant caused to be piled contiguous to and parallel with the track upon which the train was moving when plaintiff attempted to make the coupling, a large quantity of cobble stones. The pile was from twenty-five to thirty feet long, fifteen to twenty-four inches high in the center and sloping down toward and near the track. It was at the time of the accident covered with snow. After effecting the coupling the plaintiff stepped out from between the cars, and in so doing his foot came in contact with the pile of stones. He slipped and caught hold of the car to prevent falling and his hand was crushed.

The stone had been placed there by the defendant’s employes to be used for the purpose of ornamentation about posts at the depot. They had been there from six weeks to two months at the time of the accident. It was the duty of defendant to furnnish the plaintiff with reasonably safe appliances for the hazardous work they required him to do.

It was a question for the jury whether the defendant’s negligence did not cause the plaintiff’s injuries. It did not very clearly appear by whose direction the stone were placed there. They had, however, been there sufficient time to give defendant notice of •their presence. The plaintiff used an iron pin in effecting the coupling, instead of a stick which had been provided by defendant for that purpose. It was a question for the jury, whether the use of the iron pin instead of the stick had anything to do in -causing the accident.

Plaintiff had effected the coupling, and had it not been for the presence of the pile of stone, would have probably escaped injury.

The plaintiff was, when injured, about twenty-nine years old; was earning $2.30 a day. After the loss of his hand he found it difficult to find employment and when employed was only able to get a dollar a day. He suffered pain and must through life suffer the inconvenience and mortification arising from the loss of his hand.

We do not think the verdict of $6,500 excessive.

We find no cause for disturbing the verdict. The judgment and order appealed from should be affirmed, with costs against the appellant.

Dwight, P. J., and Macomber, J., concur.


text:
    In the Matter of Proving the Last Will, etc., of Henry H. Byron, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    "Will—Costs—Stenographer’s minutes—Code Civ. Pro., § 2558, sued. 8.
    The true construction of § 2558 of the Code requires that the order should precede the furnishing of the stenographer’s minutes, and where the contestants procure copies of such minutes without an order, for use on an appeal in which they are unsuccessful, the surrogate has no power to direct the payment to them of the cost thereof.
    Appeal from a portion of an order made by the surrogate’s -court of Erie county, dated October 24, 1890, directing the appellants to pay out of the funds of the estate to the contestants, the special guardian of Maude Kirby, an infant, and Bobert Byron, the sum of $456.80 expended for a copy of the stenographer’s minutes of the evidence upon the trial of the proceedings for the probate of the will of Henry H. Byron, deceased.

      Hosea S. Heath, for app’lts ; J. M. Humphrey, for resp’ts.
   Lewis, J.

There was a contest in the surrogate’s court of Erie -county over the probate of the will of Henry H. Byron, deceased. A decree was entered on the 10th day of September, 1890, admitting the will to probate. It was directed by the decree that the question of the costs be reserved to be determined by the further •decree of the surrogate’s court A motion was thereafter made by the contestants to be allowed as disbursements the sum of $456.80 paid for a copy of the stenographer’s minutes of the evidence taken upon the trial. They presented upon the motion affidavits showing that by direction of their counsel they procured of the official stenographer of the surrogate’s court a copy of the minutes of testimony, and thatByron paid the sum named therefor. No order was obtained prior to the furnishing of the minutes, directing them to be furnished to the contestants. The proponents opposed the motion and their affidavits show that they had procured a part of the stenographer’s minutes for use upon the trial at an expense of $332.00, and had them at the time the contestants procured their copy.

This appeal is upon a question of law and not from a decree rendered upon the trial by the surrogate of an issue of fact, and the case required by § 2576 of the Code of Civil Procedure was not necessary. The practice suggested in Bedfield’s Law and Practice in Surrogates,’ Courts was followed, and we think correctly. All the papers are before us upon which the surrogate acted in making the supplementary decree appealed from.

Section 2558 of the Code of Civil Procedure provides that “The-surrogate may order a copy of the stenographer’s minutes to be furnished to the contestants’ counsel and charge the expense thereof to the estate, if he shall be satisfied that the contest is-made in good faith.”

The contestants having been unsuccessful in the litigation were not entitled to any costs. They were not entitled at the expense of the estate to reimbursement for moneys they may have paid for minutes of testimony without an order of the surrogate’s court. The court being one of limited jurisdiction, its power to grant the-order was derived from the section of the Code mentioned, and that section, it will be seen, contemplates that the application for the order shall precede the furnishing of the minutes. The proponents were entitled to notice of such application. In the Matter of the Probate of the Will of Budlong, deceased, 33 Hun, 235.

Had the application been made before the minutes were furnished, it would have been made to appear to the surrogate that, his official stenographer had already furnished a copy of most of the testimony to the proponents, for which he had charged them the sum of $332. An investigation would have undoubtedly shown that the stenographer, when he made the copy for the appellants, took a duplicate impression and had on hand an extra copy of the evidence. It would have afforded the appellants an opportunity to loan to the contestants their copy of the evidence and thereby save the expense of another copy.

This case very aptly illustrates the propriety of the provision of the Code requiring that the application for the order should precede the furnishing of the minutes. The course pursued gave to the stenographer an opportunity to secure $456.80 for an exceedingly small outlay on his part. If properly regulated, the services of a stenographer probably facilitate the business of our courts. They at least conduce to correctness, but unless a careful supervision is exercised over them by the courts their charges become, exceedingly burdensome to the litigants.

If this order is allowed to stand, there will be taken out of this-estate for the work of a mere clerk in copying the minutes of the trial §788.80. The stenographer of the surrogate’s court receives a salary for talcing the original minutes. We are not advised as to the value of this estate, but assuming it to be an average estate the stenographer's charges would make a serious inroad into the accumulations of the testator.

The moving affidavits show that Byron paid the §456.80 to the stenographer. The order provides that one-half thereof shall be paid by the executors to him, and the other half to the guardian ■of Maude Kirby. Why the guardian should receive a portion of the sum paid by Byron does not appear.

We think that the true construction of § 2558 requires that the order should precede the furnishing of the minutes and that the surrogate had no power to grant the order appealed from. That part of the supplementary decree directing the executors to pay the contestants out of the funds of the estate the amount paid .to the stenographer should be reversed, with costs.

Dwight, P. J., and Macomber, J., concur.


text:
    William E. Earl, Adm’r, Resp’t, v. George W. Crouch, Jr., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    3. Negligence—Insecure lumber piles.
    Piling lumber adjacent to the sidewalk of a city street in sucha manner that the slight force that can be applied to it by a child will suffice to topple it over, is reckless, culpable negligence.
    3. Same—Evidence.
    In an action for injuries caused by the fall of such a pile of lumber, evidence that other dealers were accustomed to leave their piles unbound when delivering lumber in small quantities, is incompetent.
    Appeal from a judgment upon a verdict in favor of the plaintiff in a case tried at the Monroe circuit in January, 1889.

      William F. Cogswell, for app’lt; Raines Brothers, for resp’t.
   Lewis, J.

The plaintiff, as administrator of the goods, etc., of William E. Earl, Jr., deceased, brought this action against the defendant to recover damages for the death of the deceased by the negligent act of the defendant. The defendant caused to be placed near the sidewalk upon Brighton avenue, in the city of Rochester, a pile of lumber five feet wide, and three feet to three feet six inches high. That part of the pile which caused the deceased’s death was composed of hemlock lumber two inches thick and six inches wide, and from twelve to fourteen feet long.

The lumber was piled by placing one piece over another in tiers.

Nothing was used to bind the tiers together. The tier nearest the sidewalk leaned about two inches from perpendicular away from the balance of the pile. The deceased was a child four years and eleven months old, residing upon the street near the pile.

He went from his home and was found dead under the lumber which composed the tier, next the sidewalk. All this tier, except the three lower pieces, had fallen out towards the sidewalk upon the child. The position of the deceased’s body and arms indicated, that he had taken hold of the lumber with his hands with a view probably of climbing upon the pile, and thereby caused the lumber to fall.

Questions of fact- are not before us for review; the appeal is-from the judgment only.

The appellant does not claim that the child was sui juris, or that its parents were guilty of negligence contributing to its death. At the close of the testimony the defendant’s counsel asked the: court to direct a verdict for the defendant

The request was refused, and defendant duly excepted. There-was abundant evidence that the lumber was piled in a negligent, careless manner, instead of piling it so that the tiers would rest, against and support each other; the tier that fell was so piled that the slight force applied to it by the child toppled it over. Fixing such a trap upon a street in an inhabited part of a city, with the strong probability that children would be playing about, it at all hours of the day, was reckless, culpable-negligence.

The question whether the timber should have been bound was-litigated.

The defendant was permitted against the objections of the-plaintiff to prove by dealers in lumber in Bochester that it was-not customary to use binders when delivering lumber in small quantities.

The manner of piling this lumber was fully described to the-jury, and they were competent to decide whether it was in a safe-condition.

Evidence that other Bochester dealers were accustomed to leave: lumber in the condition this was, was incompetent, and is so decided in many cases. In Wright v. Boller, 42 Hun, 77; 3 N. Y,. State Rep., 495, it was held that such evidence was incompetent..

Exception was taken to the charge of the court “ that in coming to the conclusion whether the lumber was piled properly, with the ordinary care of a prudent man, the question for you is not what men do do, but what men ought to do.” We find no error here; it was within the doctrine of Wright v. Boller.

Negligent conduct on the part of other dealers could not make a negligent act proper.

The judgment should be affirmed, with costs of the appeal, against the appellant

Dwight, P. J., and Macomber, J., concur.


text:
    John W. Nolan, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Negligence—Contbibutoby—Railroad cbossing.
    PlaintiS was injured by being struck by an engine while attempting to-cross defendant’s tracks at a. street crossing. He testified that he could not see to the west until he passed a car standing on a branch track; that after passing it he looked both ways and saw nothing, and upon reaching the-other track he was struck by the train. It was shown that the view to the west was unobstructed for twenty-one feet before reaching the last track, and there was evidence that plaintiff was intoxicated at the time. Held, that the verdict in plaintiff's favor was clearly against the weight of evidence, and should be set aside.
    Appeal from, a judgment entered in Monroe county, on a verdict of a jury, on the 14th day of October, 1890, and from an order denying a motion for a new trial on the minutes.
    The action was brought to recover damages for an injury received by the plaintiff by being run over by the defendant’s cars while crossing its tracks on Kent street, in the city of Rochester. The injury received caused the plaintiff to lose his leg. The verdict was for $5,000.

      Forsyth & Baker, for resp’t; Harris & Harris, for app’lt.
   Lewis, J.

We assume, in disposing of this appeal, that there was sufficient evidence of defendant’s negligence to send that question to the jury. But giving the most favorable construction to the evidence for the plaintiff, we think he failed to prove himself free from negligence contributing to his injury. The accident occurred at or near where the defendant’s tracks cross Kent street, in the city of Rochester. Kent and Oak streets run parallel with each other, and in a northwesterly and southeasterly direction. Three of the defendant’s tracks cross Kent street in an easterly and westerly direction, making a sharp angle with Kent street. The northerly track is elevated over Kent street The two southerly tracks run substantially or nearly parallel with each other upon a grade of the street. The northerly side of the grade tracks is a branch crossing Kent street, and extends westerly nearly to Oak street, and passes near the abutment of the bridge of the elevated road. The southerly track, and the one on which the plaintiff was injured, crosses Kent, street nearly parallel with the middle track, but slightly diverging therefrom to the south. The southerly track divides between Kent and Oak streets at a switch 181 feet west of Kent street, measuring along the track. The two tracks extend westerly from said switch, diverging from each other.

The elevated road bridge over Kent street stands on stone abutments eighteen feet high. The westerly abutment extends southerly to within a few feet of the northerly rail of the northerly surface track. From the south rail of the north surface track to the north rail of the south track, measuring along the west line of Kent street, is twenty-one feet. The centers of the north and south branches, measuring along the west line of Kent street, are thirty-one and one-half feet apart The north rail of the south track and the south rail of the north track at the west line of Kent street, measuring at right angles, are nine feet and three-tenths apart.

The accident happened between five and six o’clock on the afternoon of the 8th of June, 1886. The day was clear and bright. The plaintiff was residing in the vicinity of the place of the accident, and was familiar with the railroad and its surroundings. He was the only witness called upon his part who gave an account oí the accident. He testified that he approached the place of the accident walking upon the westerly side of Kent street; passed under the railroad bridge; that a freight car wTas standing upon the branch track on the westerly side of Kent street; that he was not able to look to the west along the track until he had passed around the end of this freight car; that he passed around the easterly end of the freight car, and then stopped and looked to the east and to the west along the track, and did not see or hear an approaching train; that as he got to the southerly track, an engine backing eastwardly upon the southerly track, and drawing eight or ten freight cars, “ swooped down " upon him, and knocked him down and crushed his leg.

After passing the freight car, and all the way down to the place of the accident, a distance of twenty-one feet, the plaintiff had an unobstructed view to the west along the railroad tracks on which the train was approaching for a distance of about two hundred feet He was on foot, was able to stop instantly, and a glance to the west would have advised him of the approaching train. There was no evidence that there was anything to attract his attention or to obstruct his view. He did not attempt to testify as to the speed of the train, except to say that it was running fast. Quite a number of witnesses called by the defendant testified that they saw the train approach the place of the accident, and that it was moving not to exceed four or five miles an hour. One of the defendant’s witnesses thought it was going as “ fast as a horse would trot at a pretty good jog.” It did not appear how rapidly the plaintiff was walking. If he was walking two miles an hour, and the train was moving four to six miles an hour, it was plain to be seen by him all the time after he passed the freight car down to the place of the accident. While he testifies that he looked to the west, and did not see the train, the facts of the case conclusively contradict him. If he looked he must have seen it. A number of witnesses, called by the defendant, testified that they saw the plaintiff walking along the railroad track from Oak street toward Kent street immediately before the accident; that he was very much intoxicated ; that he was struck by the tender of the engine before he reached Kent street, and dragged along upon the ground. The defendant’s account of the transaction was reasonable and probable, while that of the plaintiff was exceedingly improbable. The facts of the case-of Woodard v. The N. Y, L. E. & W. R. R. Co., reported in 106 N. Y„ 369; 11 N. Y. State Rep., 169, were much stronger for the plaintiff than the case at bar.

Woodard approached the crossing, carrying a basket of coal, and was struck by a car kicked down from the west and moving by its own momentum. When he approached to within ten feet of the track the car approaching him at the rate of four miles an hour could have been seen at a distance of 187 feet. Judge Finch, in speaking for the court, said: “ The accident occurred in the middle of a bright and clear day, when nothing existed to obstruct or hinder the sight, when the injured man was on foot and could have stopped at any instant, and when the merest glance along the switch to the west would have developed the approaching danger. So that the facts make it absolutely certain that Woodard either looked and seeing the car coming undertook to cross in front of it, or did not look when that was his duty, and went blindly upon the track, taking the chances of what might occur.” The judgment in favor of the plaintiff was reversed.

This court decided in the case of Mulligan, administratrix, v. The New York Central & Hudson River Railroad Company, 33 N. Y. State Rep., 534, that the power and the duty of the court to set aside verdicts which are clearly contrary to the just preponderance of the evidence is one recognized and enjoined by all the authorities. This is a case where the serious and terrible loss sustained by the plaintiff evidently so excited the sympathies of the jury, that sentiment, rather than the proven, facts, controlled their verdict.

We think the verdict is against the great preponderance of the evidence, and that the judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event.

Dwight, P. J., and Macomber, J., concur.


text:
    The Rochester Lantern Co., Resp’t, v. The Stiles & Parker Press Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Contract—Assignment.
    Defendant contracted with one K. [to furnish him dies to be used in manufacturing a lantern. Upon plaintiff’s incorporation K. assigned the contract to it. Held, that in the absence of a clause prohibiting an assignment, the contract was assignable, and defendant was liable to plaintiff for a breach thereof.
    3. Same—Breach—Damages.
    In an action for breach of such contract, Held, that rent paid by plaintiff for a building for the manufacture of the lantern and wages of workmen engaged to manufacture the same were recoverable by plaintiff.
    Appeal by the defendant from a judgment entered in the Monroe county clerk’s office, upon the report of a referee, for §1,119.30 damages and costs. No case has been made, and the appeal was taken upon the exceptions to the conclusions of law found by the referee.

      Theodore Bacon, for app’lt; Wm. N. Coggswell, for resp’t.
   Lewis, J.

This action was brought to recover for a breach of contract to furnish certain dies to one James H. Kelly, for the purpose of manufacturing lanterns.

The referee found that about March 19, 1887, Kelly entered into a contract with the defendant, by the terms of which the defendant agreed to make and deliver to him dies for a lantern which Kelly intended to manufacture; that the defendant agreed to deliver such dies completed to Kelly within a reasonable time' from the date of the contract; that Kelly was a manufacturer of lanterns in the city of Rochester, N. Y., and required these dies for the manufacture of lanterns which he designed to put upon the market; that the plaintiff was incorporated shortly prior to the 27th day of August, 1887, and on the 29th day of that month, by an instrument in writing, Kelly duly assigned and delivered to the plaintiff the contract with the defendant and all of his rights and claims thereunder; that the plaintiff after its incorporation succeeded Kelly in the business of manufacturing lanterns; that the defendant was not notified of the assignment of the contract to Kelly until the damages had been incurred by the plaintiff, and just prior to the commencement of the action ; that the defendant failed to carry out the contract within the time agreed, •or any time; that the plaintiff for the sole purpose of carrying on the business of manufacturing the lantern, which it was intended that the dies should be used in making, entered into certain obligations and incurred liabilities which it paid in the way of rent ■of premises for the manufacture of the lantern and the wages of employes engaged to manufacture lanterns; and that by reason ■of defendant’s failure to perform the contract as agreed the plaintiff was unable to manufacture any lanterns for the market, and sustained loss in the rent of a shop and wages of employes in the sum of $801.32, and found as a conclusion of law that the plaintiff was entitled to recover a judgment for that amount against the defendant.

The contention of the defendant is. that it never was under any obligation to make the dies in question for the plaintiff; that its contract was with Kelly and only with Kelly.

No reason is suggested why this contract should be held to be an exception to the general rule that contracts are assignable. Had Kelly died after entering into the contract, his representatives would have been entitled to the contract as an asset of his estate and could have insisted upon the defendant’s performing it. The defendant could have procured another to make the dies and if they complied with the contract, Kelly would have been compelled to accept them. Bishop on Contracts, § 603; Devlin v. City of New York, 63 N. Y., 8.

The parties could have prohibited the assignment of the contract by a provision in it to that effect, had they chosen. Not having done so, it must be held to be assignable. Sears v. Conover, 33 How. Pr., 324.

The appellant does not seriously contend but that the contract was assignable, but insists that the only damages recoverable by the plaintiff for its breach are those that Kelly had sustained at the time of the assignment If so, and Kelly had assigned the contract immediately after it was made, the defendant would have been released from its obligation to perform it. If the plaintiff could take the assignment of the contract, there would seem to be no good reason why it was not entitled to damages for its breach the same as Kelly. It may fairly and reasonably be supposed to have been within the contemplation of the parties at the time they made the contract that Kelly would require a building in which to manufacture the lanterns, and skilled workmen; Kelly would have been justified in obtaining a place of business and ■workmen for the business. If Kelly would have required workmen and a shop to carry on the business, so would the plaintiff. The damages which the plaintiff recovered were for disbursements made in procuring necessaries for the business and do not seem unreasonable in amount.

It cannot reasonably be supposed that the contracting parties contemplated that Kelly would organize a plant of the dimensions suggested by appellant’s counsel, consisting “ of himself, a small boy helper, with a work bench in the Bee Hive.” Such an establishment in this age of great manufacturing enterprises and sharp competition would not have been likely to meet with much success.

The judgment appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.


text:
    Lawrence E. McLouth, Resp’t, v. Mary E. Myers, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23,1891.)

    1. Justice of the peace—Disqualification to act—Pbbsumption.
    It will not be assumed from the fact that a justice of the peace is also a lawyer, that he was acting in the capacity of an attorney when he received an account from one who subsequently brings an action before him thereon, and writes to the debtor that the same has been left with him for collection and that the same will be sued if not paid; the presumption in such case will be that one who has been elected to that office has not been guilty of unprofessional conduct.
    3. Husband and wife—Agency.
    Defendant owned a farm, but was lame, going about on crutches, and her husband assisted her in its management. Plaintiff negotiated with her in relation to a sale of cows, and she referred him to her husband, who, after an inspection, agreed upon a sale for a specified price, and the cows were delivered at the farm. Retd, that the evidence was sufficient to warrant the jury in finding that defendant authorized her husband to purchase the cows for her.
    Appeal from a judgment of the Cattaraugus county court, affirming a judgment for the plaintiff against the defendant in a justice’s court in that county.
    A. & G. E. Spring, for resp’t; C. D. Van Aernam, for app’lt.
   Lewis, J.

The action was brought to recover pay for two cows alleged to have been sold by the plaintiff to the defendant at the agreed price of fifty dollars.

The defense was a general denial and also a breach of warranty.

The case was tried before a jury in the justice’s court. The plaintiff had a verdict for fifty dollars. The defendant appealed upon questions of law to the county court. The judgment below was affirmed and the defendant appeals to this court

On the return of the summons, the defendant presented to the justice her affidavit which stated that a few days before the commencement of the action she received a letter signed by H. R. Curtis, the justice who issued the summons against her, stating that the plaintiff had left with him an account of fifty dollars against defendant for collection, and unless it was settled the plaintiff would feel obliged to bring an action to enforce its collection. That Curtis is a practicing lawyer and also a justice of the peace, and that the account not being paid, Curtis, as such justice of the peace, issued and caused to be served the summons in the action for the collection of the demand. That she presented the affidavit “ for the purpose of raising the question of the ineligibility of said H. R. Curtis to sit in this action to hear or decide the same, by reason of his having acted as attorney and counsel in this matter for the plaintiff before this action was brought.”

The justice proceeded with the case. The plaintiff claims that the j ustice erred in not dismissing the action.

The justice and the parties all resided in the same town. All the affidavit established was that the plaintiff handed the claim to the justice and requested him to notify the defendant that it had been left to be sued if not paid within the time stated.

There is nothing showing that the account was left with Curtis as an attorney for collection or that any statement was made to him of the facts of the case.

We are not at liberty to assume because Curtis was a lawyer as well as a justice that he was acting in the capacity of attorney when he received the account and wrote the letter without further evidence than that furnished in this affidavit.

IE presumptions are to be indulged in, we assume that a gentleman who is counselor of this court and who has been selected by his neighbors to discharge the duties of a justice of the peace has not been guilty of improper and unprofessional conduct. We fail to find any evidence in the case of any bias on the part of the justice. As to the main question litigated, were the cattle sold to the defendant, we find abundant evidence to sustain the verdict of the jury.

The defendant owned the farm; she was lame, going about upon crutches. Her husband, to some extent, assisted her in the management of her affairs. The plaintiff negotiated with the defendant personally about selling the cows to her. She told the plaintiff that her husband would go up and look at them. She accompanied her husband to plaintiff’s place to examine the cows. The defendant’s husband looked at them, defendant remaining in her wagon.

He promised to call again. The plaintiff again saw defendant about the sale of the cows. She referred him to her husband. Her husband agreed to consult his wife, and, in a day or two, he called upon the plaintiff. A sale was agreed upon for the sum of fifty dollars, and plaintiff delivered the cows at defendant’s farm.

A witness testified that a short time thereafter defendant stated that she had purchased the cows of plaintiff for fifty dollars, and she thought she had made a good trade. The defendant controverted the plaintiff’s evidence, but we think there was sufficient evidence to warrant the jury in finding that the defendant authorized her husband to purchase the cows for her.

While the evidence of the plaintiff as to the value of the cows was incompetent, it was harmless, as there was no contention as to what the bargain was; the cows were purchased at a price agreed upon, fifty dollars; and the complaint was upon an agreement to pay a sum stated.

The defendant failed to prove a warranty of the cows.

The verdict of the jury is fully sustained by the evidence, and the judgment appealed from should be affirmed, with costs of the appeal against the appellant.

Dwight, P. J., and Macomber, J., concur.