text:
    Jette Grunberg, Adm’rx, Resp’t, v. Hugh J. Grant, Sheriff, App’lt.

      (New York Common Pleas, General Term,

      Filed April 3, 1893.)

    1. Sheriffs — Excessive and oppressive levy of- attachment.
    Atrase of process by a sheriff, e. g., intentionally taking property not authorized to be taken by the writ, makes him a trespasser db initio, and so answerable for all the consequences óf his unlawful entry and seizure.
    2. New triar — Improper evidence.
    On appeal from order denying motion to set aside a verdict as perverse and contrary to evidence, the court at general term may grant a new trial, although no exception appear, if prejudicial evidence were wrongly admitted ana justice will be promoted.
    Appeal from, judgment on verdict and order denying new-trial. Action for excessive levy and abuse of process of attachment.
    The present plaintiff was substituted on the death of her husband.

      W. Bourke Cockran and Wales F. Severance, for app’lt; Samuel D. Sewards and Myron H. Oppenheim, for resp’t.
   Pryor, J.

If, as contended by the appellant, the action were only for an excessive levy, a reversal of the judgment would be the obvious and necessary conclusion. But, as is apparent, equally from the complaint and from the charge, the action is not for an excessive levy merely, but is also for an abuse of the process of the court.

It was shown, and indeed is conceded, that, in the execution of the attachment, the defendant took papers he was not authorized to take by the writ, Hergman v. Dettlebach, 11 How., 46, and committed other acts in abuse of his process. Thus he became a trespasser ab initio, and is answerable for all the consequences of his unlawful entry upon plaintiff's premises and seizure of her goods. Carnrick v. Myers, 14 Barb., 9; Allen v. Crofoot, 5 Wend., 507; Adams v. Rivers, 11 Barb., 390; Dumont v. Smith, 4 Denio, 319, 321; Six Carpenters’ Case, 8 Coke, 146; 1 Smith L. C., 259; Duke of Brunswick v. Slowman, 8 Mann. Gr. & S., 317; Garden v. Sabey, 10 W. Dig., 33. Indeed, upon the evidence, we are. bound to say that the conduct of the defendant’s deputies was rather a raid than a levy.

In view, then, of the nature of the action, it is apparent at once that-the acts of the defendant’s deputies, in execution of the attachment and in pretended pursuance of the process, were competent and material evidence; and that the amount of the verdict could be restrained within no defined limits.

At the same time, because of the character of the wrong, which tended so strongly to inflame the passions of the jury, and because of the wide range allowed them in the estimate of damages, it is our duty to scrutinize the record to see if any evidence were wrongly admitted which probably swelléd the verdict beyond the measure of justice. Hinman v. Hare, 1 Silvernail, Ct. App., 241, 246; 5 St. Rep., 504.

A witness for the plaintiff, her son, was permitted, against objection, to testify that he had sued the defendant for taking away some of his papers, and that after a year and a half of delay his claim was satisfied. Thus, the wrong to the plaintiff was aggravated by the addition of another wrong to her son, and by proof of an extorted confession of the wrong by the defendant. The evidence was indisputably incompetent and of inevitable prejudice to the defendant.

So, likewise, evidence was received of the taking of the property of the wife, son and daughter, a fact which could not fail to> augment the indignation of the jury against the defendant. True, no objection was interposed to the evidence; but in review of an order denjdng a motion to set aside a verdict as perverse, excessive in amount, and contrary to the law and evidence, the court, at general term, in the exercise of its discretion, may award a new trial, although no exception was taken. Standard Oil Co. v. Amazon Ins. Co., 79 N. Y., 506, 510.

Again, the computation of plaintiff’s damages, as submitted to the jury and presented to us on the argument, included 600 American gold dollars and 1,285 Russian roubles, which the plaintiff swore was the property of her children. Indeed, she testified “ that none of the money belonged to my husband ; they took no money from Mr. Gfrunberg, but only goods." And yet for this money, the property of others, the plaintiff has recovered.

The case discloses other allegations of error,, some of apparent merit; but enough is already shown to necessitate a new trial.

As was intimated by the learned trial judge in his opinion, the true theory of the action was misconceived by the parties; and it is not to be doubted but that the interests of justice will be promoted by another trial.

Judgment reversed and new trial ordered, costs to abide event.

Bischoff, J., concurs.


source: Caselaw Access Project

author: Pryor, J.

license: Public Domain

text:
    Susan Geoghegan, Admr’x, Resp’t, v. The Atlas Steamship Co., App’lt.

      (New York Common Pleas, General Term,

      Filed April 3, 1893.)

    1. Negligence — Action governed by law op place where act committed.
    In an action for the death of one by the act of another committed abro id, it is incumbent on the plaintiff to prove that such dealh was an actionable wrong- by the law of the place where the act was committed. Ports, bays and harbors, to the distance, at least, of a marine league from the shore, are within the territorial jurisdiction and subject to the munici- . pal law of the sovereign of the adjacent land.
    3. Same.
    In an action for the death of one by an act on board of a vessel lying in the port of a foreign country, at a point not more than two miles from the shore, a failure by the plaintiff to show that, by the law of that country, such death was an actionable wrong, is fatal to a recovery.
    3. Same — Absence op contributory must be shown.
    In an action for negligent injury it is incumbent on the plaintiff to prove his non-negligence; and in the absence of evidence to the point, he should be non-suited.
    4. Same — Master and servant.
    The relation of master and servant is ascertained, not by the relative rank of the two, but by the nature of the act to be- done. If the act he within the duty of a servant, no matter what his rank, the one doing it is a fellow-servant of the one injured by its negligent per formance.
    5. Same.
    If a master provides a safe place for work, it is the duty of a servant, by attention to details of arrangement and execution, to guard it against insecurity; and if a servant be injured by neglect of such details, no matter by whom, the negligence is that of a.fellow-servant.

      Appeal from judgment on verdict and order denying new trial.

      Wheeler, Cortis & Godkin, for app’lt; R. M. Sherman, for resp’t.
   Pryor, J.

The action is by an administratrix for damages from the death of her intestate, who, by the alleged negligence of the defendant, fell overboard from its steamer, a British vessel, in the bay of Savanilla, United States of Colombia.

That the actionable quality of an alleged wrong depends upon and is determined by the municipal law of the place of the transaction ; that in a suit here proceeding upon alleged wrong committed abroad, the court, in the absence of evidence to the contrary, will presume the common law to be the law of the locality; that if by the principles of the common law such alleged wrong be not the subject of an action for private redress, the plaintiff, in order to recover, must prove it to be so by the law of the place of the transaction; that by the common law the death" of a human being is not the subject of a civil action; and that, by consequence, whoever seeks reparation in our courts for the death of another abroad must establish, by affirmative evidence, that such death is an actionable wrong by the Jaw of the place of the occurrence; are now elementary principles in the jurisprudence of the state of New York. Whitford v. Panama R. R. Co., 23 N. Y., 465; McDonald v. Mallory, 77 id., 546; Leonardo v. Columbia S. N. Co., 84 id., 48; Wooden v. W. N.Y. & P. R. R. Co., 126 id., 10; 36 St. Rep., 387.

Incontestably the decision of the appeal, in one of its aspects, is . suspended upon the application oE these principles to the case in controversy, Counsel for the respondent so conceded on the trial ; and accordingly maintaining that the locus of the transaction was a British vessel on the high seas, and invoking the recognized rule that the law of the flag is the law of a vessel so situate, McDonald v. Mallory, supra. he introduced in evidence Lord Campbell’s act, by which the death of a human being by the wrongful act of another is made the subject of a civil action. The appellant challenged the contention ; and assuming the position that as it appeared by uncontroverted proof that the act in litigation was committed within the territorial jurisdiction of the United States of Colombia, and as no evidence was adduced that by the law of that country the alleged wrong is actionable, he moved to dismiss the complaint.

We are of the opinion that the ground upon which the appellant stood is impregnable; and that the learned trial judge erred in denying the motion.

When the plaintiff rested it was in evidence, by the log-book, that, at the time of the accident, the vessel was in the harbor of .-Savanilla, where the port authorities were received, where passengers and mails were discharged, and where the cargoes were delivered and taken in. A witness for the plaintiff testified: “I couldn’t tell how far the shore was from the ship when this accident happened; I couldn’t calculate the distance: we could see the shore from the ship, but I couldn’t tell the distance; I should think it wouldn’t be three miles.” On the part of the defendant the evidence as to the locality of the vessel Was, that “ she was in the bay of Savanilla, a mile and three-quarters or two miles from the shore.”

Upon this uncontested state of fact, the question was one of law for decision by the court, whether at the time of the accident the vessel was on the high sea, as claimed by the plaintiff, or within the territory of the United States of Colombia, as asserted by the appellant.

That the vessel was not on the high sea, but was within the dominion and subject to the laws of the United States of Colombia, is, upon the authority of the publicists, an obvious and undeniable proposition. “ The maritime territory of every state extends to the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea enclosed by headlands, belonging to the same state. The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon shot will reach from the shore, all along the coasts of the state. Within these limits its rights of property and territorial jurisdiction are absolute, and exclude those .of every .other nation.” Lawrence’s Wheaton, part ii, chap, iv, § 6, page 320. “ The exclusive dominion of a state unquestionably extends to those portions of the sea adjoining its territory embraced by harbors, gulfs, bays, and estuaries, and into the open sea to the distance of a marine league." 1 Kent’s Com., 29-30 marginal pages.

“ The ports and roadsteads are unquestionably a part of the territory and subject to the exclusive dominion of the state to which they belong, to the same extent as the land itself. They áre governed in all respects by the municipal law.” Pomeroy on Inter. Law, § 145.

And the same doctrine is promulgated by the tribunal in this country of highest authority on the subject. “ Between nations the minimum limit of the territorial jurisdiction of a nation over tide-waters is a marine league from its coast.” Manchester v. Massachusetts, 139 U. S., 240, 258. “It is part of the law of civilized nations that when a merchant vessel of one country enters the ports of another for the purposes of trade, it subjects itself to the law of the place to which it goes, unless by treaty or otherwise the two countries have come to some different understanding or agreement” Wildenhus' Case, 120 U. S., 1, 11.

Upon a critical examination of the cases cited by the respondent we find nothing to the contrary of the proposition, that the rights of the parties to this litigation are to be determined by the law of the United States of Colombia.

The act upon which the suit proceeds having been committed abroad, the burden was on the plaintiff to prove it an actionable wrong; and as she produced no evidence in support of the proposition, the complaint should have been dismissed.

Assuming, however, that at the time of the accident the vessel was on the high sea, and so subject to the law of England which authorizes an action for the death of a human being; still, upon a familiar principle, the law of the forum regulates the burden of proof and the quantum of evidence requisite to a recovery.

It is a settled rule in the jurisprudence of this state, that, to maintain an action for an injury by the negligence of another, it is incumbent upon the plaintiff to establish the fact that no negligence of his own contributed to cause that injury. Proof of the fact need not be positive, but may be circumstantial; still the non-negligence of the plaintiff must result as the rational conclusion from adequate evidence.

It cannot rest in surmise or conjecture only; nor is it shown when the circumstances are equally consistent with its presence or its absence. These propositions are upheld by irresistible authority and illustrated in a variety of adjudged cases. Hart v. Bridge Co., 84 N. Y., 56; Hale v. Smith, 78 id., 480; Wiwirowski v. L. S. & M. S. R. R. Co., 124 id., 420; 36 St. Rep., 405; Cordell v. Railroad Co., 75 N. Y., 330; Bond v. Smith, 113 id., 378; 22 St. Rep., 666; Riceman v. Havemeyer, 84 N. Y., 647; Reynolds v. Railroad Co., 58 id., 248; Conlin v. Rodgers, 39 St. Rep., 51 (Com. Pleas); Powell v. Railroad Co., 2 Silvernail (Ct. App.), 9; 14 St. Rep., 74.

In the case before us, no one saw the accident. The only facts in evidence are: that the place was dark; that the door in the side of the vessel was open and the vacant space insufficiently guarded by a rope; that a man was seen struggling for a moment in the water and then disappear; and that upon a muster of the crew the decedent was missing. Supposing him to have fallen in the sea by accident, what circumstance appears to repel an inference of his negligence ? “ There is no presumption that a person exposed to danger will exercise care and prudence in regard to his own safety.” Wiwirowski v. Railroad Company, supra. The woman Dinsrnore had just before gone to the same spot, without incurring a similar casualty; who can say that proper care on decedent’s part would not have averted the catastrophe ? Beyond all controversy, the evidence is of no significance in negativing an inference of decedent’s negligence; and the learned trial judge should, on that ground, have granted the motion to dismiss.

Indeed, conceding defendant's negligence, the action might well have miscarried for want of proof that it was the cause of plaintiff’s injury. Dobbins v. Brown, 119 N. Y., 188; 28 St. Rep., 957; Conlin v. Rogers, supra.

Again; assuming negligence as the cause of the injury, it was the negligence of a fellow servant.

The relation of master and servant is not determined by gradation of rank or" superiority, Wright v. Railroad Co., 25 N. Y., 562, 565; but by the nature of the act, the cause of the injury. If that act be one the performance of which is incumbent on the master, the delegation of it to a servant does not discharge the master from liability for its negligent performance. If the act be one within the duty of a servant, its negligent performance is the negligence of a fellow servant, and the master is exempt from liability. Crispin v. Rabbitt, 81 N. Y., 516; McCosker v. Railroad Co., 84 id., 77; Cullen v. Norton, 126 id., 1; 36 St. Rep., 359.

It was the defendant’s duty as master to furnish the decedent a safe place in which to work; but, “ the place which the master furnished was the ship itself,” Hogan v. Smith, 125 N. Y., 775; 35 St. Rep., 870; and as the company had supplied iron doors to bar the gap through which it is supposed the decedent fell, it had discharged its duty in protecting him against the peril incurred.

It is argued, however, that the negligence which caused the injury was the omission to close the doors or otherwise prevent passage through the port; but to do this was the duty of a servant, and the master is irresponsible for its nonperformance. Hogan v. Smith, 125 N.Y., 774; 35 St. Rep., 870; Cullen v. Norton, 126 N. Y., 1; 36 St. Rep., 359; Harvey v. R. R. Co., 88 N. Y., 481; Quebec S. S. Co. v. Merchant, 133 U. S., 375; Ford v. R. R. Co., 2 Silvernail (Ct. App.), 460; 27 St. Rep., 246; Hudson v. S. S. Co., 2 Silvernail (Ct. App.), 75; 16 St. Rep., 416; Byrnes v. R R. Co., 113 N. Y., 251; 22 St. Rep., 936; Judson v. Village, 2 Silver. (Ct. App.), 414; 26 St. Rep., 707.

The negligence, therefore, which caused the injury, though that of the first officer or the captain even, was the negligence of a fellow servant with the decedent; and for this reason too the learned trial judge should have dismissed the complaint.

But although the injury was from a defect in the place or appliances, the defendant is not responsible for want of proof or knowledge of the defect, or its equivalent. Devlin v. Smith, 89 N. Y., 470; Wright v. R. R. Co., 25 id., 562, 566.

Judgment reversed, and new trial ordered, costs to abide event.

Bischoff and Gtegerich, JJ, concur.


author: Macomber, J.

text:
    Esther C. Townsend et al., App’lts, v. Joshua Rackham et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Trust — Mortga&b.
    The grandmother of the plaintiffs, without their knowledge, executed a deed of certain property, and took back a mortgage < onditioned for payment of a certain amount to herself for life, and of certain sums to them five years after her death. Subsequently various dispositions of the property were made by her, and finally she took a mortgage which contained no provision for plaintiffs. It appeared that it was the sole intention of the grandmother, in making the deeds and receiving the mortgages, to make provision for herself during life and a testamentary provision for her grandchildren, and that the scrivener to whom she applied to make a will stated that he could fix it in this manner. ITeld, That no trust was created in behalf of plaintiffs as the grandmother did not intend to create an irrevocable interest in the lands.
    2. Witness — Evidence.
    A former grantee of the premises, which are held by a bona fide purchaser, is not incompetent to testify to conversations with the deceased grantor in which she took no part.
    ApPEAL-by the plaintiffs, Esther 0. Townsend and Willard Brown, from a judgment entered in Orleans county, March 15, 1892, on decision of the court at special term, dismissing their complaint upon the merits.

      Henry M. Davis, for app’lts; George Bullard, for resp’ts.
   Macomber, J.

The maiden name of the plaintiff Esther C. Townsend was Esther C. Lutts. The plaintiff Willard Brown is the assignee of the administrator of the estate of Maria Leach, who died July 12, 1890, in the state of Iowa. These two persons, Esther C. Lutts and Maria Leach, were grandchildren of Catherine Farnham, hereinafter mentioned.

On the 26th day of September, 1857, Catherine Farnham, who was seventy-three years of age and a widow, deeded to her two grandchildren, the defendants, Almeron C. Wilson and Valentine A. Wilson, a deed of her farm in the town of Carlton, Orleans county, FT. Y., and received back from the grantees a mortgage containing the following condition: “ This grant is intended as a security for the payment of the following sums of money, to wit: seventy-five dollars on the 1st day of January, and twenty-five dollars on the 1st day of July, in each and every year hereafter during the natural life of the party of the second part, to be paid to the said party of the second part at the house of the party of the first part in the town of Carlton; and the further sum of $1,500 to be paid as follows:

“ One thousand dollars to be paid to Maria Leach, or her heirs, five years from the death of the said party of the second part, and $500 to be paid to Esther C. Lutts five years from the death of the said party of the second part (the several sums herein, mentioned is for the purchase money of said premises). And, as a further consideration to these presents, it is agreed between the party that, in addition to the sums already mentioned and agreed to be paid, the said party of the first part agrees to and with the said party of the second part to provide her, the said Catherine Farnham, a home at their home, or homes, at all times when she may choose during her natural life, and provide for her board and all necessary clothing and all things necessary and proper for her comfort and support during her natural life. And this conveyance shall be void if such payments be made as hereinafter specified, and in case default shall be made in the payment of the above sums hereby intended to be setiured, or any part thereof, or in case default be made in providing for and “taking care of the said party of the second part as above provided, it shall be lawful for the party of the second part, her executors, administrators or assigns, at any time thereafter to sell the premises hereby granted, or any part thereof, in the manner prescribed by law, etc.”

On the 12th day of October, 1857, this mortgage was discharged by Catherine Farnham, and the discharge was delivered to the mortgagors, whereupon they gave her a second mortgage containing the same conditions as the first, except that in the condition for support these words were added, “ while living with the party of the first part.”

This second mortgage was in turn discharged on the. 15th day of October, 1858, by Catherine Farnham, and the Wilsons thereupon conveyed the lands back to her. She then deeded to Susan A. Wilson, wife of Valentine A. Wilson, the north half of the farm, and to Lovina L. Wilson, wife of Almeron 0. Wilson, the south half thereof, and took back from each a mortgage for her support, containing these provisions: “While living with the party of the first part, $37.50, semi-annually, and as security for the payment to Esther- C. Lutts of $250, and to Maria Leach $500, five years after the death of Catherine Farnham.” The other conditions of the mortgage were the same as those contained - in the first mortgage. On the 11 th day of May, 1861, Catherine Farnham discharged these last two mortgages, and delivered the discharges to Lovina L. Wilson and Susan A. Wilson, respectively, and they in turn deeded back to her the farm previously deeded to them. Thereupon Catherine Farnham deeded the south half of the farm to Almeron C. Wilson, and the north half to Valentine A. Wilson, and took back from each of them a mortgage containing the same conditions as the last two mortgages, except that her annuity was stated to be $15 semi-annually, instead of $37.50. On October 1, 1868, Valentine Wilson deeded his north half of the farm to Almeron 0. Wilson. On December 11, 1870, Catherine executed a discharge of the mortgage given by Almeron .0. Wilson on the south half of the farm, and Almeron C. Wilson gave the mortgage thereon to one Isaac Cochrane for $1,500 for money borrowed. After this last named mortgage was recorded, and on January 2, 1871, Almeron C. Wilson gave Catherine Farnham a mortgage on this half containing the same conditions as his mortgage of May 11, 1861.

The trial justice has found as a fact, which finding is well supported by the evidence, that' neither Maria Leach nor Esther C. Lutts had any knowledge of the execution and delivery of, or in' any manner accepted or assented to, any of the mortgages described above, or any of the provisions in any of these mortgages in their favor, prior to such satisfaction. No claim was ever made by them, under any of these mortgages, until this action was brought. On the 7th day of February, 1873, Catharine Farnham executed a discharge of the mortgage given by Almeron C. Wilson, January 2, 1871, and also the mortgage given by Valentine A. Wilson, May 11, 1861, and took back from the former a mortgage on the 15Í acres for her support and for the payment to her of sixty dollars a year, to pay her funeral expenses and to erect suitable grave stones at her grave, etc. Catherine Farnham continued to reside in the families of Almeron C. Wilson and Valentine A. Wilson from September, 1857, to the time of her death, which was August 20, 1883.

The defendant, Joshua Rackham, is a grantee in good faith and for value of these lands from Almeron C. Wilson. The defendant, Fred. Gf. Coann, is the owner of another mortgage upon these premises in the sum of $1,800, which he received through various assignments, and this mortgage, too, the trial court has found to have been taken and is held in good faith and for value.

The plaintiffs seek to work out an interest in these lands through a supposed trust created by the mortgages above mentioned. If this position had any foundation for its support under the instruments as they were originally drawn, the plaintiffs, having no knowledge thereof and never having taken advantage of the same, prior to the rescission thereof, could not work out a trust in their behalf susceptible of enforcement, só long as the relation of cestui que trust and trustee appears not to have been established. Acton v. Woodgate, 2 Myl. & K. 492.

But, clearly, there was no trust created in behalf of either Miss Lutts or Miss Leach by these instruments. There was no consent to the creation of a trust either by the mortgagor or mortgagee. Indeed, the very negative of this proposition is abundantly established by the strong circumstances pervading the case, which indicate that it was the sole purpose of Catherine Farnham, in making the deeds and receiving back these mortgages, to make •provision for herself during her lifetime, and to make a testamentary provision, also, for her two grandchildren, Esther 0. Lutts and Maria Leach.

It appears, furthermore, that she sent for her scrivener, and stated to him that she wished to have a will drawn, and thereupon the scrivener said he could fix it for her by way of a deed and mortgage. She was informed by him that this arrangement would be just the same as a will, and that she could revoke it at any time in the same manner as she could a will. She expressed her purpose to control the property while she lived, and desired to have it arranged in a safe manner for her, so she could make any changes she pleased. Under this evidence, but especially under the persuasive circumstances attending the history of these several instruments, the learned justice was well justified, we think, in finding, as a matter of fact, that Catherine Farnham did not intend at any time to create any irrevocable interest in these lands in either Esther C. Lutts or Maria Leach, thus taking the case out of the operation of the decision in McPherson v. Rollins, 107 N. Y., 316; 12 St. Rep., 488. If parol evidence was required to characterize the purpose of those deeds and mortgages, the same is competent under the decision of this court in Kelsey v. Cooley, 11 N. Y. Supp., 745; 33 St. Rep., 775.

Objection is made that the evidence of Lovina Wilson was incompetent, and that, as the same was objected to, and the objection finally overruled by the court, a new trial should be granted upon the ground of the exception taken to such ruling. But Lovina Wilson had no interest in the action, although she was made a party thereto. She had no interest in the result, because the property had passed into the hands of a bona fide purchaser, Joshua Rackham. She was not in any sense an interested party to the subject matter of such conversation, and took no part therein, and hence was a competent witness. Simmons v. Havens, 101 N. Y., 428; Cary v. White, 59 id., 336; Kelsey v. Cooley, supra.

It follows that the judgment appealed from should be affirmed.

Judgment appealed from affirmed, with costs.

Dwight, P. J., Lewis and Haight, JJ., concur.


text:
    Augustus F. Purdy, App’lt, v. Hezekiah C. Bennett, Impl’d with William M. Smith, Resp’t. (Two cases.)

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Ejectment — Assignee—Parties.
    These actions were brought to recover possession of real property from Bennett, in which judgments were entered under an agreement between the parties providing that plaintiff should have judgment for certain portions, and Bennett should have the privilege of leasing the same for five years. Respondent Smith was the purchaser at sale on foreclosure of a mortgage given by the person under whom Bennett’s possession originally existed, and had recovered judgment against Bennett. Held, that respondent was an assignee of Bennett within § 1536 of the Code, and that the court properly opened the judgments and allowed him to be made a party.
    Appeal in each case by Augustus R Purdy, the plaintiff, from an order of the Brie special term, made September 19,1892, opening judgments which had been entered in these actions in the Allegany county clerk's office, February 25, 1890, and allowing the petitioner, the respondent William M. Smith, to interpose a defense in each of them, and making him a party defendant therein.

      G. W. Harding, for app’lt; John S. Rockwell, for resp’t.
   Macomber, J.

The respondent, William M. Smith, presented his petition to the court, under § 1526 of the Code of Civil Pro^ cedure, asking that he might be made a party defendant. This application was granted, and from the order entered thereon this appeal is taken.

The petition alleges that William M. Smith is the owner of certain premises described in the complaint, known as the north half of the village tract of the Caneadea reservation, in the town of Hume, Allegany county, His title was procured as follows : One Joseph M. Paul, who was then the owner in fee of the premises, executed, with his wife, a mortgage to the petitioner, upon those premises, dated the 17th day of April, 1886, to secure the payment to the petitioner of the sum of $2,000 ; that default was made in the payment of such mortgage, and thereupon the same was foreclosed, which proceeding resulted in the conveyance of the lands by the sheriff of Allegany county to the petitioner. These allegations are not disputed by the appellant.

After obtaining his deed, the petitioner found that Hezekiah C. Bennett, the defendant above mentioned, was in possession of the premises and refused to surrender the same to the petitioner, whereupon an action was brought by the petitioner against him, which resulted in a judgment in favor of Mr. Smith, on the 11th day of March, 1892, for the possession of these lands.

Bennett’s possession and right of possession originally existed under Joseph M. Paul, to whose rights the petitioner had succeeded, as above mentioned. Not until after the judgment was procured by the petitioner against Bennett was it that the petitioner learned that the plaintiff, Augustus F. Purdy, made claim to the premises. One of the above actions was brought on the 23d day of August, 1880, and the other March 9, 1886. On the 27th, day of September, 1889, an agreement was entered into between Purdy and Bennett, providing that Purdy should take judgment against Bennett for certain portions of this village tract, and that Bennett should have the privilege of leasing the same from Purdy for five years, which agreement resulted in the judgments of February 25, 1890, above mentioned.

The respondent brings himself clearly within the provisions of § 1526 of the Code of Civil Procedure. This section provides that in an action of ejectment wherein judgment was obtained by the plaintiff, “ otherwise than on the trial of an issue of fact,” the court within five years after the judgment roll is filed, upon the application of the defendant, his heir, devisee or assignee, * * * “ must make an order vacating the judgment, and granting a new trial, if it is satisfied that justice will be thereby promoted, and the rights of the parties more satisfactorily ascertained and established, but not otherwise.” The respondent is certainly the assignee of Hezekiah C. .Bennett, within the meaning of this provision of the Code, and within the decision of Howell v. Leavitt, 90 N. Y., 238.

The only question, therefore, which was before the special term was, whether the court should grant the prayer of the petitioner, upon the terms stated in the order, or whether it should drive him to his affirmative action of ejectment against Purdy, and we are satisfied^ equally with the special term, that justice will be promoted by opening these judgments and letting the petitioner defend the actions.

The orders appealed from should be affirmed.

Order in each case appealed from affirmed, with one bill of ten -dollars costs and disbursements of appeal.

Dwight,, P. J., and Haight, J., concur; Lewis, J., not sitting.


text:
    Ella J. Van Koughnet, Resp’t, v. Louis Dennie, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Estoppel — Former adjudication.
    In a former action by plaintiff’s husband against defendant the complaint set forth the same matters as in this action. They were allowed therein, but were more than overcome by the counterclaim interposed. The plaintiff was a witness in such former action, and it appears that without her testimony her husband could not have maintained his action. - Held, that while the former judgment was not technically a former adjudication, because the action was not between the same parties or their privies; yet that plaintiff was estopped by her acts from alleging or prov'ing any fact inconsistent with the integrity of such judgment.
    Appeal by the defendant, Louis Dennie, from a judgment of the county court of Wayne county, entered March 28, 1890, affirming a judgment of a justice of the peace on appeal to that court on questions of law only.

      C. M. Allen, for app’lt; J. W. Dunwell, for resp’t.
   Macomber, J.

The plaintiff in this action recovered a judgment before the justice of the peace in the s.um of forty-five dollars and twenty-five cents damages, besides costs. The action was brought to recover the sum of twenty-one dollars alleged to have been loaned by the plaintiff to the defendant in the year 1887, and for twenty-five weeks services rendered to the defendant by. the plaintiff. The answer consisted of a general denial and a former adjudication of the same subject matter by another justice of the peace, wherein Sylvester VanKoughnet, the husband of this plaintiff, was the plaintiff against the present defendant. The proceedings in that action were put in evidence on the trial in the case involved on this appeal; and it appears therefrom that the same matters claimed by this plaintiff against the defendant, were set forth in the complaint of her husband, and formed the basis of his action on the former trial against this defendant

That case resulted in an allowance of the portion of the claim there presented by the husband ; but the same was more than overcome by the .counterclaim set forth and proved by the defendant in that action, the result of all which was an affirmative judgment in favor of the defendant therein against Sylvester VanKoughnet. The judgment stands unreversed and undisturbed by any appeal therefrom.

The judgment in the former action, by the husband of the plaintiff against this defendant, was not a former adjudication, technically so-called, because that action was not between the parties to this record or their privies. But it appears that the plaintiff in the present action was active and mainly instrumental in prosecuting the action brought by her husband, and in establishing the claims therein which were allowed to him by the justice of the peace. At the trial of the present action, Mrs. VanKoughnet testified, that she attended the trial of the former action; that she conducted her husband to the justice’s office and back again, because he was blind ; that she heard plainly all that was said in. the room ; that she was sworn and gave evidence as a witness ; that she knew her husband was going to bring that suit before it was brought ; that she went to the justice’s office on the return day; took note of the proceedings, and, there being a bill of items demanded by the defendant for certain portions of a claim made in the husband’s complaint, the same was actually prepared and made up by this plaintiff, herself. She now testifies, that the items for twenty-one dollars for moneys loaned were, she supposed, the same as those mentioned upon the trial of her husband’s case, and that the work for which this action was brought to recover compensation was the same work which formed the basis of a portion of the complaint in the other action.

Under these facts, notwithstanding the formal assertion by her that she did not know and was not informed that her claims made in this action were litigated and determined in the other action, the plaintiff is, as it seems to us, conclusively estopped by. her acts procuring the judgment in the former case. An inspection of the record in her husband’s action leads to the conclusion that he could not have maintained his case except for the testimony given by his .wife. Having, by her own affirmative acts and testimony, .procured a judgment of a court, she now' cannot be permitted to allege and prove, as against the same party, any fact inconsistent with the integrity of that j udgment. The defendant has paid, through the allowance of his counterclaim in the former action, and its reduction by the amount of the bill then sued upon in the name of the husband, and established by the testimony of the wife, these very claims now set up by the wife, and it would be unconscionable for her to obtain payment again, in her own name, of the identical indebtedness; and it would be .a fraud upon the defendant to compel him to pay the second time. It does not suffice for the plaintiff to say that the wrong party called for payment before, for she called with Mm, and equally with him is bound by that judgment.

The learned county judge, in his opinion affirming the judgment of the justice of the peace, regards himself bound upon this question by the decision of the court in Yorks v. Steele, 50 Barb., 397. In that case the sheriff of Livingston county, by virtue of an execution against Yorks, levied upon and took from the possession of Steele a horse as the property of Yorks. Steele sued the sheriff and recovered possession of the horse. On the trial of that action, Yorks was examined as a witness in behalf, not of Steele, but of the sheriff, and gave testimony to the effect that he owned the horse.

Subsequently Yorks brought action against Steele to recover-the same horse. It was claimed in behalf of Steele that the action between him and the sheriff was a bar or estoppel to the action brought by Yorks and the trial court so decided. But the general term reversed that decision and decided that the sheriff was in no sense the agent of Yorks, but that he was the agent of the plaintiff in the execution; that the sheriff was the agent of Yorks’ adversary; that the action against the sheriff was merely to recover possession of the horse; and all that was necessary to determine was, that Steele at that time had a right of possession as against the sheriff; that Yorks never had had his day in court on the question of title, and consequently the former judgment was no bar to his action. But Yorks did not in that action give any testimony to show that either of the contending parties therein was the true owner of the horse, but on the contrary, he testified there, as he did in his own action, that he was the owner of it, and his action against Steele was in perfect harmony with the testimony which he there was called upon to give.

This case, therefore, is not brought within the line of the decision of the case of Yorks v. Steele, supra, but rests rather upon the doctrine that a person who has by his acts procured the rendition of a judgment in a given case, cannot afterwards be heard to impeach that judgment in any respect for his own benefit. This view of the case renders it unnecessary to consider any other question presented by the appellant.

It follows that the judgment appealed from should be reversed.

Judgment of the county court of Wayne county appealed from reversed, together with that of the justice of the peace, with costs in this court and in the county court.

Dwight, P. J., Lewis and Haight, JJ., concur.


author: Haight, J.

text:
    Henry A. Bernhard, Resp't, v. The Rochester Railway Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Railroad — Street—N egmgence .
    Plaintiffs driver, in a covered wagon, approached the street through which defendant’s cars run by a street which crossed it at an acute angle. After waiting for a west bound car to pass the driver looked to the west and saw no car and heard no bell, and then proceeded to cross. When almost over the rear of the wagon was struck by a car which approached from the rear at a rate of about six miles an hour. Held, that as the accident occurred at a street crossing, the vehicle and car had an equal right to cross, and neither had a superior right; that while the west bound car may have obstructed the view of both the driver and defendant’s motorman to some extent, yet the latter, on discovering the vehicle in the act of crossing, should have timely slowed up to allow it to cross in safety, and in not doing so was guilty of negligence.
    Appeal from a judgment of the county court of Monroe county, entered upon a verdict, and from an order denying defendant’s motion for a new trial made upon the minutes of the court

      Charles J. Bissell, for app’lt; John A. Bernhard, for resp’t.
   Haight, J.

This action was brought to recover the damages which the plaintiff sustained to his horse and wagon by reason of a collision with one of the defendant’s street cars. The defendant was engaged in operating a double track electric street railway in Lyell avenue in the city of Rochester; the avenue runs east and west, Sherman Street intersects the avenue at an acute angle from the northwest; the plaintiff was a grocer, and had a horse and wagon for the purpose of delivering groceries; his driver, with the horse and wagon, approached Lyell avenue through Sherman street, and on reaching the avenue stopped to allow a westerly bound par to pass; at this point he could see westerly on the avenue 200 feet; he looked, but saw no car approaching from that direction; as the westerly bound car passed he started to drive across the avenue to the southerly side thereof; the horse and the fore part of the wagon had passed the southern track when the defendant’s easterly bound car struck the rear of the wagon, causing the damages complained of.

It is claimed on behalf of the appellant that there was no negligence chargeable to the defendant, and that the collision occurred through the negligence of the plaintiff’s driver, and that the trial court erred in denying its motion for a non-suit and in refusing to direct a verdict in its favor.

We are of the opinion that no error was committed in this regard, and that these questions were properly submitted to the jury. The plaintiff’s driver testified that he did not hear the bell ring upon the defendant’s car, but other evidence tends to show that it was rung. We shall, therefore, assume that it was sounded, as testified by the defendant’s witnesses. The plaintiff’s driver was passing across the avenue on an angle coming from Sherman street, in a covered wagon, with his back partially toward the approaching car; he sat in the front of his wagon and looked west as he entered the avenue; the westerly bound car, in a measure, obstructed his view so that he did not see the car approaching upon the southerly track. He first approached the crossing and was partly across when the collision occurred; the opportunity of the defendant’s motorman to see the approach of the plaintiff’s wagon was equally as good, if not better, than that of the plaintiff’s driver to see the approach of the defendant’s car; the westerly bound car doubtless obstructed the vision, to some extent, of both the motorman and the driver, but it is apparent that had the motorman been upon his guard and had proper control of his car, he could have seen the wagon in time to have stopped his car and avoided the injury. His own evidence is to the effect that he was running at a speed of six to seven miles an hour when he struck the wagon ; other evidence tends to show that he was running at a much higher rate of speed; that he saw the plaintiff’s rig as it was coming out of Sherman street into the avenue, that the west bound car prevented him from seeing it for a while; that plaintiff’s horse and wagon was traveling diagonally across the track or street, in the same direction that the car was going; that the horse was on a trot, and so continued until the wagon was struck; that when he first saw the wagon after the car had passed, he was pretty near to it, within six or eight feet; that he rang his bell, but the plaintiff’s driver did not seem to pay any attention to it

It thus appears that he approached the plaintiff’s wagon at. a speed of six or seven miles per hour, from the rear, as it was passing diagonally across the track, the horse on a trot going with the car at the crossing where Sherman street enters the avenue, overtook the wagon and ran into it.

The plaintiff’s horse and wagon were lawfully in the street, the driver had a right to cross the defendant’s tracks, exercising reasonable care, and had the right to assume that the defendant’s motorman would exercise like care to prevent running into him. It was a public highway and each party had a common right to its use. The defendant’s cars can only run. upon the rails, they cannot turn to the right or left to avoid teams, they are, therefore, given a paramount right to the use of the tracks, but not an exclusive right. A person may lawfully drive along or upon the tracks, but he should not carelessly or wilfully obstruct the passage of 4he cars, and as one approaches he should turn off from the tracks so as to allow it to pass, and in a reasonable manner respect the paramount right of the corporation. On the other hand, the corporation must recognize the rights of the person and not carelessly run him down, but give the necessary time and a reasonable opportunity to move off from the tracks and allow the car to pass. Such is the rule of the street. Fleckenstein v. The Dry Dock, East Broadway & Battery R. R. Co., 105 N. Y., 655; 8 St. Rep., 32; Adolph v. The Central Park, North & East River R. R. Co., 76 N. Y., 530.

But at a street crossing the rule is different, the car and the vehicle each have the right to cross, and neither has a superior right to the other. The right of each must he exercised in a reasonable and careful manner so as not to unreasonably abridge or- interfere with the right of the other. O'Niel v. The Dry Dock, East Broadway & Battery R. R. Co., 129 N. Y., 125-130 ; 41 St. Rep., 107.

The collision in this case, as we have seen, occurred at the crossing of Sherman street, or at the place where Sherman street intersects the avenue. The plaintiff’s driver was properly passing across the avenue to the right side thereof, intending to continue east along the avenue; he first approached the track, was partially across when struck; the car had no superior right to the crossing, and the motorman finding the vehicle in the act of crossing should have timely slowed up so as to have allowed it to cross in safety.

The judgment should be affirmed.

Judgment and order affirmed, with costs.

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


text:
    George Lowenthal, Resp’t, v. Maria Elizabeth Lowenthal, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Divorce — Alimony—Conditions.
    The court cannot impose a condition in granting alimony that the wife shall waive her right to a jury trial and consent to a trial before the court or a referee, although otherwise the case may not be reached in a long time.
    Appeal from so much of the order of the Monroe special term granting alimony to the defendant as imposes a condition that she consent to a trial before the court or a referee.

      J. & Q. Van Voorhis, for app’lt; Daid Hays, for resp’t.
   Haight, J.

This action was brought to procure an absolute divorce on the ground of adultery. The parties had been living together in the plaintiff’s house. After the action was commenced the plaintiff absented himself, leaving the defendant and their three children in the house, and for a time he continued to furnish them with the necessary money for their support The defendant-made a motion for alimony and counsel fee. The motion for alimony was denied, on the condition that the defendant continue to reside with her children in the plaintiff’s house, and he continue to support her and the children therein, but with leave to the defendant to renew the motion at any time in case the plaintiff should fail so to provide for her; and if the defendant should elect to reside elsewhere than in the plaintiff’s house and apart from her children, then, and in that case, the plaintiff should pay her six dollars per week for her maintenance during the pendency of the action.

It was further ordered that the plaintiff should pay to the defendant, or her attorney, a counsel fee of $100 in case the defendant should consent to a trial at once before a referee or the court. But in case she does not so consent, the plaintiff should pay to the defendant the sum of fifty dollars counsel fee.

Subsequently the plaintiff removed his children from the house and from the custody of the defendant and then ceased to supply her with money for her support and maintenance. A second motion was then made on her behalf for alimony, which resulted in an order that the plaintiff pay her six dollars a v^eelc commencing October 7, 1892, “ provided and on condition that the defendant file and serve on plaintiff’s attorney before the first day for serving notice of trial for December, 1892, equity term, a stipulation waiving trial by jury and consenting to trial before the court at an equity term, or before referee, if both parties consent to a reference. In default of such stipulation this motion for alimony is denied.” _ It is from the condition so imposed this appeal is taken.

Section 1769 of the Code of Civil Procedure provides that where an action is brought to obtain a divorce or for separation “ the court may in its discretion during the pendency thereof from time to time make and modify an order or orders requiring the husband to pay any sum or sums of money necessary to enable the wife to carry on or defend the action or to provide suitably for the education and maintenance of the children of the marriage or for the support of the wife, having regard to the circumstances of the respective parties.”

It will thus be seen that by the express provisions of the Code alimony pending the trial is discretionary. Ordinarily the general term will not interfere with purely discretionary orders, but where there has been a palpable abuse of the discretion vested in the court at special term or where it has been controlled by improper considerations the general term will review the order. Hanover Fire Ins. Co. v. Tomlinson, 58 N. Y., 215; Douglass v. Haberstro, 82 id., 572; People v. Globe Mutual Insurance Co., 27 Hun., 539.

° The court, as we have seen, awarded alimony, thus adjudging that it was a proper case, but it imposed a condition that the defendant should stipulate to waive the right of a trial by jury, etc. The reason for imposing this condition we are told is, that in the county in which the venue is laid it will take nearly a year to reach the case on the circuit calendar.

The right to a trial by jury of the question of adultery when put in issue has existed ever since the power was given to the courts of this state to grant divorces. This power was transferred from the legislature to the court of chancery by the Laws of 1787, chapter 69, and was continued in the revision of the statutes. 2 R. S., 145, § 40; Batzel v. Batzel, 42 N. Y. Supr. Ct., 561; Conderman v. Conderman, 44 Hun, 181; 7 St. Rep., 789.

The right to such a trial existed at the time of the adoption of the constitution of 1846, and is, therefore, continued by the provision, “ The trial by jury in all cases in which it has been heretofore .used shall remain inviolate forever.” This right is also preserved by the Code. Code Civil Procedure, § 1757.

Temporary alimony, although discretionary, is, under the practice of our courts, granted in proper cases. If the courts can properly impose a condition of the nature of this appealed from it follows that in counties where there is an accumulation of work in the circuits, wives, in divorce cases, may be deprived either oí their right to alimony Or of their constitutional right to a trial by jury, whilst in other counties their right to both is still preserved to them.

We cannot sanction sucha practice as just and equitable. It introduces a species of coercion which ought not to be tolerated. If the defendant is guilty of misconduct, or improperly delays the trial, the court may deprive her of alimony, but if her only fault is that she resides in a county where the courts are behind with their work, she ought not to be punished therefor by either being deprived of her support, or of her right to a trial in the form secured to her by the Constitution.

Our attention has been called to the case of Sigel v. Sigel, 19 N. Y. Supp., 906. But in so far as that case is in conflict with, the views above expressed, we think it ought not to be followed.

So much of the order as is appealed from should be reversed, with ten dollars costs and disbursements.

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


text:
    Carrie A. Thomas, Ex'rx, App'lt, v. Alice Peck Fuller et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. G-iet — Inter vivos.
    Plaintiff’s intestate, who held a note given by defendant’s father, called at defendant’s house and gave her the note, and on being asked what she should do with it, told her to do as she liked; that it was hers, and .went away leaving it with her. There had been friendly relations between them, and he had often spoken of her kindness to his granddaughter, who was her stepdaughter. Held, that the inference was permissible that he intended to give defendant the note.
    2. Same — Mortgage.
    Subsequent to giving the note, defendant’s father conveyed certain real estate to her by deed, containing a covenant that she would pay said note. Thereafter, she gave a mortgage to plaintiff’s testator, conditioned to pay said note. Held, that the note and mortgage must be read together to fix her liability, and that the discharge of the note would operate to satisfy and discharge the mortgage.
    Appeal from a judgment entered upon the report of a referee in Orleans county, dismissing the plaintiff’s complaint upon the merits.

      Irving M. Thompson, for app’lt; John Cunneen, for resp’ts.
   Haight, J.

This action was brought to foreclose a mortgage given by the defendant Alice Peck Fuller to Calvin Baker in his lifetime. The defense interposed is that the mortgage has been canceled by a gift of Baker to the defendant Alice of the indebtedness which the mortgage was given to secure.

Baker died on the 20th day of March, 1889, leaving a and testament, which has been duly proved and admitted to probate. On the 15th day of August, 1880, Horace Peck borrowed of Baker the sum of $500, for which he gave his promissory note nayable on 1st day of November, 1891. On January 15, 1886, Horace Peck conveyed to the defendant Alice Peck Fuller, his daughter, about one hundred acres of land in the town of Clarendon, in the county of Orleans, containing a covenant that she, as part of the consideration for the premises, should pay the amount of the promissory note given by him to Baker. The deed was delivered to and accepted by her. And on the 7th day of October thereafter she executed and delivered to Baker the mortgage in suit upon the real estate so conveyed to her, conditioned as follows: “ This grant is intended as a security for the payment of five hundred dollars, which Horace Peck, of Clarendon, Hew York, owes the party of the second part, and for which he holds the note of said Horace Peck, dated August 15, 1880, or so much of said amount as now remains unpaid, to be paid in annual installments of fifty dollars, with interest on all principal unpaid.”

The defendant, Marvin Fuller, married for his first wife the daughter of the said Calvin Baker, who died nineteen years ago, leaving one daughter her surviving. Subsequently the defendant Marvin married the defendant Alice. And his daughter by his first wife has ever since continued to live in his family, and to be cared for by the defendant Alice.

The referee has found as facts: “ That in the fall of 1888 the said Baker called upon the said Alice Peck Fuller at her house in the town of Clarendon, and taking out his pocketbook and taking therefrom the promissory note given by said Horace Peck as aforesaid, he handed the same to her, saying: ‘ There is the note.’ That she then inquired: 1 What shall I do with it? ’ That said Baker replied: ‘Do what you are a mind to with it. It is yours.’ That he thereupon left the house, leaving the note with her.”

And as a conclusion of law the referee found: “That in and by what occurred between said Baker and the said Alice Peck Fuller, as hereinabove set forth, the said Baker intended and designed to, and that the same did constitute a valid gift and delivery of said note to the said Alice. That she thereupon became the owner thereof, and that such gift and delivery extinguished and satisfied said mortgage to foreclose which this action was commenced.” And concluded by ordering the complaint dismissed.

A criticism lias been made upon the report of the referee to the effect that he has not found as a fact that there was an intentional gift of the note by Baker to Alice. True no such finding appears among the facts, but it does appear in his conclusions of law. And on review in support of the judgment it is our duty to treat these conclusions as facts found. Matter of the Judicial Settlement of Mary J. Clark, as executrix, 119 N. Y., 427 29 St. Rep., 682.

Does the evidence support the findings ? This question is important and calls for a careful examination of the evidence. The fact that Baker handed the note to the defendant Alice and told her that it was hers is not disputed. The note was in her possession and was by her produced upon the trial with the word “paid” written across its face. Her own version of the transaction, as testified to by the witnesses Thompson and Thomas, is that Baker handed her the note, and she said to him : “ What shall I do with it?” And he replied: “What you are a mind to. It is yours.” Adda A. Fuller, her daughter, testified that Baker came to their house the fall before he died; that he sat down- a few minutes, and then moved his chair over near her mother, and took out his pocketbook, which had several papers in it, and looked them over, and then handed the note to her mother. She said: “What shall I do with it?” He said: “Do what, you are a mind to with it It is yours, and I have no doubt you will do what is right”

Other evidence was given tending to show that Baker usually visited the Fullers three or four times a week ; that his visits were quite regular; that he was on friendly terms with .them, and often spoke to others of the kindness of the defendant, Alice, to his granddaughter. It further appears that he had made presents to his other children.

We are aware that there is force in the suggestion that had he intended to give her the note he would have executed a discharge of the mortgage, the same as he had done when he made a present to his daughter, Mrs. Thomas. But the fact exists that he handed Alice the note under the circumstances related. It-was not hers. She was not entitled to the custody of it. And nothing was said indicating that he left it with her in trust, or for safe keeping. But instead he told her it was hers, to do with it what she had a mind to. And as one witness states, he further remarked that he had no doubt but that she would do what was right This expression strongly sustains the conclusion of the referee. It not only indicates confidence in her, but it also shows that she was expected to make a right use of that which he had just bestowed upon her.

We are aware that gifts are not usual among the ordinary business transactions where valuable considerations move the parties, and that they are frequently induced by sentiment or affection. A gift must be proved like any other fact, and the evidence must be clear and convincing. But, as "we have stated, there is no conflict in the evidence as to what took place on the delivery of the note to Alice. The contention only arises as to the inferences to be drawn therefrom. The conclusion reached by the referee appears to us to be natural and logical, such as the ordinary mind would reach upon the facts. If Baker did not intend the note as a gift, what did he intend ? Upon this question the evidence is silent, and we are left to guess and conjecture as to the motives that actuated him without the aid of an explanation or a reason given. Under these circumstances we are inclined to the opinion that the inference is permissible that Baker intended to give the defendant, Alice, the note.

It is claimed that, even though there was a gift of the note, . that it did not operate to satisfy or extinguish the mortgage, to foreclose which this action was brought Horace Peck was the maker of the note, and was the principal debtor. When he conveyed his farm to Alice, containing the covenant alluded to, and she accepted the same, she became obligated to pay it. Peck still remained liable to Baker for the indebtedness which was evidenced by the note. ' She also became liable, which was evidenced by the note and. the covenant in her deed. The mortgage in suit was given by her to secure her own indebtedness. Whether the acceptance of the mortgage by Baker operated to discharge Peck from liability on the note it is not necessary now to determine. The mortgage created no indebtedness on the part of Alice other than her undertaking to pay the note. The note only was to be paid. If it was given up, or ceased to exist, then there was nothing to be paid. The note and motgage must be read and considered together in order to fix her liability. And without the note no liability on her part could be established. We think it, therefore, apparent that a discharge of the note would also operate to satisfy and extinguish the mortgage.

It is said that the defendant, Alice, did not understand that the gift of the note to her operated to extinguish the mortgage. It appears that this was so until she obtained legal advice. But it is not apparent how her understanding, or want of knowledge as to the effect of the transaction, varies or changes the intent of Baker.

The judgment should be affirmed, with costs.

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


text:
    In the Application of The Niagara Falls Hydraulic Power & Manufacturing Co., App’lt, for the Change of the Proposed Route of The Niagara Falls & Lewiston Railroad Co., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Railroad —Change of route — Power of commissioners.
    While the commissioners appointed in a proceeding to change the route of a railroad are confined to a determination as between the route originally laid out and that proposed by the petitioner, an adoption by them of a route within the lines of the route as originally laid out is not a violation of the statute.
    2. Same — Appeal.
    ■ On an appeal from the decision of such commissioners the court is limited to the consideration and determination of questions of law, and cannot substitute its judgment as to the merits of the two routes.
    Appeal by the petitioner from the determination of the commissioners appointed to examine the route of the proposed railroad company and the route to which the petitioner proposed to change the same, pursuant to the Laws of 1890, chap. 565, § 6, as amended by the Laws of 1892, chap. 676.

      John L. Romer, for app’lt; Herbert P. Bissell, for resp’t.
   Haight, J.

The Niagara Falls & Lewiston Railroad Company was organized for the purpose of constructing, maintaining and operating a railroad for public use, for the transportation of persons and property. By its articles of incorporation it commences at a point near the easterly shore or margin of the Niagara river, at or near the village of Lewiston, and running thence southerly by the most direct and feasible route along the easterly shore or margin of the Niagara river to the village of Niagara Falls and terminating in such village. From the map of the route filed by the company in the office of the clerk of Niagara county, it appears that the line of the road as located by the company extends along the easterly shore or margin of the Niagara river near the water’s edge from the village of Lewiston to the lands of the New York state reservation in the village, now city of Niagara Falls, that the center line thereof is distant two rods from the easterly shore or margin of the river and its easterly line is two rods easterly from such center line; that at a point near the crossing of the Cantilever bridge over the river, a loop or line of the road is extended up over the high bank and around to a point known as the whirlpool.

It appears from the report of the commissioners that the petitioner, the Niagara Falls Hydraulic Power & Manufacturing Company, is the owner of a tract of land in .the city of Niagara Falls, bounded by the easterly water line or margin of the river and extending onto the high bank; that the change of route proposed is from a point where the respondent’s route, as located on its map, reaches the top of the high bank near the Cantilever bridge, in Spring street; thence through various streets specifically named, to the junction of Third street with Ontario street.

The commissioners have found as facts, that the space between the jjerpendicular or high bank and the water line of the river is capable of being used by manufacturing establishments, and tha't they can procure power by making a second use of the water after its use by the mills and manufacturing establishments of the petitioner located upon the high bank; that it is of great value, amounting to a half million of dollars pr upwards. They have also found as facts that the proposed change of the respondent’s route necessitates the crossing of the railroad" tracks of the New York Central R. R. Co. at grade, that such tracks are in frequent use, both day and night, and that such crossing would become extremely dangerous.

The commissioners, in their report, further state that after the evidence had been taken and the case submitted to them, they called the counsel for the respective parties before them and informed them that they were convinced that the railroad could be constructed and operated on a space of twenty feet in width along the lands of the petitioner and that its line on the east should be located at a distance of twenty feet from the water line or easterly margin of the river, and if the railroad company would so reduce and contract its easterly line, by a resolution of the board of directors, and would create and supply sufficient openings for the discharge of the water by the manufactories and petitioner into Niagara river, and for transferring, carrying and ’removing the stones through the openings to the water of the river, and erect and maintain its railroad tracks on such space of twenty feet from the water line or margin of the river at the height of thirty feet, the application for the change in the line or route of the railroad would be denied, but otherwise would be ordered and directed; that afterwards a resolution of the company was adopted by the directors, assenting to the conditions imposed by the commissioners, and reducing the line of its route to that indicated, and thereupon the commissioners, by their report, affirmed the route as so changed by the resolution of the board of directors of the company.

The petitioner contends that the commissioners had no power to compel or receive from the railroad company a resolution contracting or changing its route as originally proposed, and that it had no power to impose as a condition that the tracks of the company should be elevated at a height of thirty feet from the surface of the water for the purpose of creating openings for the discharge of water, etc., underneath such tracks; that the commissioners were vested with no discretion other than to affirm the route as located by the railroad company, or to adopt that proposed by the petitioner. In support of such contention, the appellant relies upon the opinion of this court as delivered by Dwight, J., in the case of the application of the Lake Shore & Michigan Southern Railroad Company, to change the route of the New York, Lackawanna & Western Railroad Company. In that case it was said “ Upon these appeals we are restricted to a review of the decision of the commissioners affirming the route as located by the railroad company, and are confined, as the commissioners themselves were, to the single alternative in each case, of affirming the route proposed by the respondent, or adopting that proposed by the petitioners.” This we understand to be in accordance with the provisions of the statute which requires the commissioners, after an examination of the routes proposed, and after hearing the parties, “ to affirm the route originally designated, or adopt the proposed alteration thereof, as may be consistent with the just rights of all parties and the public, including the owners or occupants of lands upon the proposed alteration.”

The reason for this is apparent The railroad company, in locating its route, is required to make a map and profile as adopted by it in the county, and file the same in the office of the clerk of the county. The corporation is then required to give written notice to all occupants of lands over which the route is designated. Such owners or occupants of land, feeling aggrieved, may, within fifteen days thereafter, give notice to the corporation that an application will be made to the supreme court for the appointment of commissioners to examine the proposed route and such alteration thereof as such owner or occupant shall propose. Such application must be accompanied with a map and profile of the route designated by the corporation and of the proposed alteration thereof, and notice must be given to the owners or occupants of lands to be affected by such proposed alteration. Thus, all of the parties to be affected by the two proposed routes are given an opportunity to be heard. If the commissioners should adopt neither of the proposed routes, but select a third, it might involve the locating of the road over the lands of persons who have had no notice of the proceedings or an opportunity to oppose the same. But we do not understand that the commissioners have violated this provision of the statute. They have not selected a third route extending over lands of other persons, but have confined themselves to an adoption of that which was within the lines of the route as originally located by the railroad company. True, the route, as originally located,'was four rods in width, and that, as affirmed by the Commissioners, is but twenty feet in width over the lands of the petitioner, but the twenty feet in width, as affirmed by the commissioners, is within and a part of the four rods in width of the route as originally located. We, therefore, do not regard the action of the commissioners in affirming that portion of the route located by the railroad company as in conflict with the statute or the decisions of this court.

IVe are asked to consider the case upon the merits, to reverse the determination of the commissioners and to adopt the route proposed by the petitioner. The statute provides that this court may, upon the hearing of the appeal, affirm the route proposed by the corporation, or may adopt that proposed by the petitioner. Laws of 1890, chap. 565, § 6, as amended by the Laws of 1892, chap. 676. The language of this statute is identical with that used in the Laws of 1850, chap. 140, § 28, as amended.

In the Matter of the Application of the Lake Shore & Michigan Southern R. R. Co. to change the route of The New York, Lackawanna & Western R. R. Co., 89 N. Y., 442, it was held that on an appeal brought to review the decision of the commissioners, only questions of law could be considered and determined. And to the same effect is the case of the application of The New York, Lake Erie & Western R. R. Co. to change the route of The New York, Lackawanna & Western R. R. Co., 99 N. Y., 388. The statute requires the court to appoint a practical civil engineer as one of the commissioners. The commissioners are required to personally examine the proposed route. They consequently have the aid of scientific advice, as well as that of personal inspection, upon which to form their conclusion as to the merits of the two routes. This court, upon review, must of necessity be confined to the evidence taken in the proceeding. If the commissioners have committed errors, or if their conclusions of law are in conflict with the facts found by them, this court may correct their determination, but it cannot or ought not to substitute its judgment in the place of that of the commissioners as to the merits of the two routes.

It is contended that the corporation was not organized for a public purpose; that it is but a revival of the Niagara Falls & Whirlpool Bailway, which was condemned by the court of appeals in 108 N. Y., 375; 13 St. Rep., 690. But we do not regard this question as now before us for determination. The commissioners were not empowered to determine the character of the corporation, and we are here reviewing only their determination.

Determination appealed from affirmed, with the costs of this appeal to respondent

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


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    Elizabeth Ziegler, Resp’t, v. Henry Ziegler, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Attachment — Secreiton op property.
    Proof by affidavit that defendant sold property of which he and plaintiff were tenants in common under an agreement by which they were to share equally in the proceeds, and plaintiff to have her share immediately on consummation of the sale; that defendant for two weeks denied having received the money, and finally refused to pay her; that he refused to say where he kept his money, saying it was in a safe place; that he jeered at plaintiff, and boasted of having caught her in a trap, is sufficient to show that he secreted his property with the intent to defraud plaintiff.
    Appeal by the defendant, Henry Ziegler, from an order of the Monroe special term, entered November 1, 1892, denying his motion' to vacate a warrant of attachment against his property. The motion was made on the same papers upon which the attachment was granted. The attachment was granted on the ground that the defendant had disposed of or secreted property with the intent to defraud his creditors.

      C. A. Keeler, for app’lt; Arthur E. Sutherland, for resp’t.
   Macomber, J.

This action is brought to recover the sum of $1,650, belonging to the plaintiff, which had been wrongfully converted by the defendant to his own use. The warrant of attachment was issued under subdivision 2 of § 635 of the Code of Civ. Pro., which permits such provisional remedy against the property of the defendant for the wrongful conversion of personal property.

It appears that the plaintiff and defendant were owners in common of certain lands described in the complaint, and that they were equally interested therein; and that they had on consultation agreed to sell and convey the same to one Herman P. Roesch and Barbara Roesch, his wife, for the sum of $3,300, payable in cash ; and that thereafter, and on September 14, 1892, a deed of such premises was duly delivered to the grantees. Before this conveyance was made it was agreed between the parties hereto that the entire consideration for the sale should be equally divided between them, share and share alike, and that immediately upon the consummation of such sale the plaintiff should receive her half thereof, namely, $1,650.

The defendant actually received the whole consideration from Roesch and wife in money. Instead of turning the share of the plaintiff over to her, or in any manner accounting for the moneys in his hands, he persistently denied, when applied to from time to time, that any money had been paid to him by the grantees, and continued such denials up to the 29th day of September, 1892, when, being confronted with the allegation or proof of his perfidy, he admitted to the plaintiff and others that he had so received the entire sum of $3,300, but refused to pay over any part thereof to the plaintiff; on the contrary, he averred that he would not pay the plaintiff anything, and refused to allow her any participation in such moneys. On being asked where he kept the money, or where it was, he refused to say anything except, “ I have got it in a safe place.” He then jeered at the plaintiff and boasted of having caught her in a trap.

This affidavit of the plaintiff is corroborated by others, and for the purposes of this motion must be deemed to be in all respects true. No fact contained therein being denied, every intendment must be made in its. behalf.

We think that the affidavit makes out a sufficient case under this provision of the Code. It was the duty of the defendant, upon receiving the money, immediately to turn over one-half thereof to the plaintiff. Having failed to do so and refusing to pay the same upon demand, he was guilty of a wrongful conversion, and this action, based on that ground, was properly brought. Under the allegations of the complaint it was not incumbent upon the plaintiff to resort to a mere accounting, but she had the right to bring her action in this form and to resort to the provisional remedy provided by the Code.

But it is argued by the counsel for the defendant that a debtor, when asked where his money is by his creditor, is not bound to tell where he keeps it This, undoubtedly, is true in a general sense, but the position is hardly tenable under the facts disclosed in this case. The persistent falsehood indulged in by the defendant for two weeks in denying that he bad the money, coupled with the boast that he had got it in a safe place, were affirmative facts sufficient to show that he had secreted his property with the intent to defraud the plaintiff.

The order appealed from should be affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements.

Dwight, P. J., Lewis and Haight, JJ., concur.


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    Clare A. Benedict, Resp’t, v. Milton T. Richardson, App’lt.

      (Supreme Court, General T&rm, Fifth Department,

      Filed April 18, 1893.)

    1. Depositions — Commission—Suppression.
    Where a commissioner returns his original commission in pursuance of the directions contained therein, although not fully executed, and the same is duly filed, he no longer possesses any power to act as a commissioner to take testimony outside of this state; and where he undertakes to do so, the deposition so taken is properly suppressed.
    3. Same — Laches.
    Where it does not appear distinctly when the deposition was filed, but the motion to suppress it is made before any term of the court at which the case might have been tried, no laches can be imputed to the moving party.
    Appeal by the defendant, Milton T. Richardson, from an order of Monroe special term, granted and entered October 81, 1892, suppressing a deposition of one Emma C. Benedict, the wife of the plaintiff, purporting to have been taken in Chicago on commission.

      C. Doremus, for app’lt; Abraham Benedict, for resp’t.
   Macomber, J.

By stipulation an order was made, at the instance of the defendant’s counsel, in June, 1891, directing that a commission issue to a person named in Chicago, to take the depositions of nine witnesses, one of whom was Emma C. Benedict, upon interrogatories annexed to the commission. A commission in pursuance of such order having been issued, the commissioner proceeded to take evidence in Chicago, and did actually take the depositions of six witnesses, but not that of Emma C. Benedict. These depositions were returned with the original commission, and properly filed with the clerk of Monroe county on the 21st day of September, 1891.

Subsequently and without any further authority conferred upon the commissioner, the latter proceeded on the 31st day of May, 1892, to take the deposition of Emma C. Benedict. It does not appear clearly when such deposition was filed.

The order suppressing this deposition under § 910, upon the .ground that it was improperly and irregularly taken, was correct and should be affirmed. When the commissioner returned his original commission, in pursurance of the directions contained therein, and the same was filed with the county clerk of Monroe -county, the proper custodian thereof, .he no longer possessed any power to act as a commissioner to take the testimony outside of the state of New York to be used in this state.

We do not think that laches can be imputed to the plaintiff in not making this motion earlier; for it does not appear distinctly when the deposition so irregularly taken was filed with the county -cleric But the motion was made before any term of the court at which the case might have been tried, and consequently the defendant could not be prej udiced by the brief delay.

The order appealed from should be affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements.

Dwight, P. J., Lewis and HIaight, JJ., concur.


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    Moses D. Tennant, Adm’r, Resp’t, v. Eugene Dudley, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Insurance (life) — When policy held only as collateral.
    A certificate of insurance was originally issued payable to the insured or his wife, but it was surrendered and a new one issued payable to defendant, and upon the death of insured the amount thereof was paid to him. In an action by the administrator of the insured for such money, it was alleged that defendant received the certificate as collaieral security for payment of an indebtedness owing to him from the insured; while defendant claimed that he took an absolute title thereto. It appeared that two months after the death of the insured defendant, with others, executed an agreement, by which he agreed to receive as his share of the insurance moneys $500 in full discharge. Held, that a verdict in favor of plaintiff was proper.
    Appeal by the defendant, Eugene Dudley, from a judgment entered in Chautauqua county, January 26, 1892, on the verdict -of a jury at circuit, and also from an order denying his motion for a new trial made on the minutes of the court.

      Cooke, Fisher & Wade, for app’lt; S. W. Mason, for resp’t.
   Macomber, J.

This action was brought to recover the amount received by the defendant upon a policy or certificate of life insurance issued by a company known as the Equitable Aid Union in the sum of $1,800 upon the life of the plaintiff’s testator, William H. Renouard. This certificate or policy was originally made payable to the insured, or to his wife, but subsequently it was surrendered and a new certificate or policy taken made payable to the defendant, Eugene Dudley. This policy was originally issued in the year 1886. In Hoveinber of that year the arrangement for a change in its terms in respect to the beneficiary or payee was made by the insured and the defendant, and the same was ratified and carried into effect by the company.

The complaint proceeded upon the ground that this assignment of the original policy, or the arrangement by which the new certificate was issued to the defendant, was made as collateral security to the defendant for the payment of an indebtedness of about one hundred and eighty dollars owing to him by the insured.

The answer averred that such indebtedness amounted, at the time of this arrangement, to upwards of thirteen hundred dollars, and that the defendant took an absolute title to the policy, and was entitled to the payment of the entire sum of eighteen hundred dollars. It was also averred in the answer and proved, that after the assignment of the policy to the defendant, the latter continued to pay all premiums falling due until the 29th day of January, 1889, the date of the death of the insured. No question was raised with the company touching the right of the defendant to receive, under the assignment, the entire sum of eighteen hundred dollars.

This action is brought to recover such sum, less the amount of the indebtedness owing by the insured to the defendant.

The evidence shows with much conclusiveness that the defendant received the assignment of this policy or certificate as collateral security only for the payment to him of any sum which might be owing by the insured to him. The verdict of the jury was in the sum of $1,196 for the plaintiff. This result is amply sustained by the clear preponderance of the evidence. Indeed, in view of a writing put in evidence, executed by the defendant, with others, on the 15th day of j^Tarch, 1889, any verdict more favorable than this to the defendant could hardly be expected, and if such verdict had been rendered, the same could not have withstood a motion for a new trial upon the ground that it was against the weight of the evidence. By this written agreement, under seal, executed within two months of the death of the insured, the defendant agreed to receive, as his part of the sum to be paid by the insurance company, the sum of five hundred dollars in full discharge of all his claims upon the policy, and the residue of that sum was to be divided in a manner not necessary to state for the purposes of this decision, except that it was to go to the supposed next of kin or heirs-at-law of the insured. With this unmistakable evidence in the case, the claim now set up by the defendant must be deemed to be wholly untenable.

Certain exceptions appear to the rulings of the court upon the reception of evidence which have been a subject of examination by us, but they are not, in our judgment, of sufficient moment to call upon us for any discussion.

The judgment and order appealed from should be affirmed.

Judgment and order appealed from affirmed, with costs.

Dwight, P. J., Lewis and Haight, JJ., concur.


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    The People, Pl’ffs, v. Edward Hodnett, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Dairy law — Milk,
    While the question as to whether milk is adulterated is to be determined from the chemical analysis alone, showing whether it is above or below the statutory standard, the question as to whether the analysis is correct, or is made from a fair sample of the milk, is still left open for the determination of the jury from the evidence in the case.
    2. Same — Evidence.
    Upon such question, evidence showing that the milk is pure and has not been tampered with; that it remained in the can over night; that the cream had separated and risen; and that the sample was taken from the lower third or half of the can, is admissible.
    3. Trial — Exceptions.
    If counsel desires to except to a proposition charged, or to a remark of the judge, he should clearly and distinctly call the attention of the judge to the proposition or remark.
    Motion on the part of the plaintiffs for a new trial upon exceptions ordered to be heard in the general term in the first instance, the entry of the judgment being in the meantime suspended.

      C. A. Dolson, for pl’ffs; G. W. Harding, for def’t.
   Haight, J.

This action was brought by Patrick J. Sutley, as assistant to the Hew York state dairy commissioner, in the name of the People, to recover of the defendant a penalty of $100, for a violation of the provisions of the Laws of 1885. chapter 183, § 3. It is charged that the defendant, on the 24th day of June, 1890, supplied to a cheese factory in the town of Hume, Allegany county, milk which was adulterated with water, and from which the cream had been taken and the strippings withheld. The verdict was for the defendant.

Upon the trial the court permitted the defendant, his wife and son to testify, under the objection of the plaintiffs, that they had not watered or skimmed the milk, or kept back the strippings therefrom To this evidence an exception was taken, which presents the question we are called upon to determine in this review.

The analysis showed that the milk contained 88.24 per centum of water and 11.76 per centum of solids, of which 2.26 per centum was' fat. The correctness of ■ the analysis was not attacked, but it was claimed by the defendant that it was made from an improper sample of the milk. The evidence submitted on behalf of the defendant quite satisfactorily shows that the sample was taken on the morning of the 24th of June of the night’s milk of the day previous. The milk had been put in a can, allowed to stand over night, was taken to the factory the next morning, put into a weigh can, and after standing for the space of not less than three minutes, was drawn therefrom through a faucet in the bottom of the can, and when from one-third to one-half of the milk had run out the sample was taken.

It will not be questioned but that milk, after the cream is separated from it, will contain a greater percentage of water and less of solids than it would with the cream before separation. It is claimed that during the night the cream had separated from the milk and risen to the top of the can ; that the cream, when once formed, would cling together in clots, and would not again become evenly and.perfectly mixed with the milk; that after stirring it up the cream would again rise quickly to the top, and that milk taken from the lower third or half of the can under such circumstances would not present a fair sample for analysis. The trial court submitted this branch of the case to the jury for its determination, and charged, in reference to whether the sample was a fair one, they might consider the evidence of the defendant, his wife and son, as bearing upon the probability. This charge was not excepted to. Had the plaintiff regarded this evidence as having no bearing upon that question, he should have excepted to this portion of the charge. As it is, he stands solely upon the exception taken by him to its reception.

The-statute prohibits the sale of, or the supplying to a butter or cheese manufactory, milk diluted with water, or from which the cream has been taken, or the strippings withheld. It also provides that in all prosecutions under it, if the milk be shown to contain more than eighty-eight per centum of water, or fluids, or less than twelve per centum of milk solids, which will contain not less than three per centum of fat, it shall be declared, adulterated. Laws of 1885, chap. 183, §§ 3, 16.

It has been held under this statute that the question as to whether the milk was adulterated was to be determined from the chemical analysis alone, showing whether it was above or below the statutory standard. People v. Kibler, 106 N. Y., 323; 8 St. Rep., 707; People v. West, 106 N. Y., 293; 8 St. Rep., 713; People v. Cipperly, 37 Hun, 324; S. C., 101 N. Y., 634; People v. Eddy, 35 St. Rep., 146; State v. Campbell, 64 New Hampshire, 402.

But the question as to whether the analysis is correct, or is made from a fair sample of the milk, is still left open for the determination of the jury from the evidence in the case. Upon controverted questions of fact the courts have always been liberal in the reception of evidence that in any manner bears upon the probabilities, so as to enable the jury to arrive at a correct determination. If the sample was taken from the milk after the cream had separated from it, it would not be a fair one nor fit for analysis. This is conceded by the plaintiff’s chemist He testified that if the cream had risen from the milk it “would have been unfit for analysis because the fat had partly wasted, and of course I could not have got that back in the condition it should have been for a proper analysis. Had there been any wasted the milk would not have been in good condition and fit for analysis.” He found the sample deficient in solids. This would be expected if the cream had been separated from it. He also found an excess of water. This would also be expected in case of such separation. The defendant had the right to account for this condition of the milk, and thus establish his innocence. To do so he showed that the milk was pure and had not been tampered with ; that the milk had remained in the can over night; that the cream had separated from the milk and risen to the top of the can; that it had not again been perfectly mixed with the milk, and that the sample from which the analysis was made was taken from the lower third or half of the can. It appears to us that the evidence objected to has a bearing upon the probabilities in aid of the defendant’s claim, and although slight, it is sufficient to justify its reception.

There may be some portions of the charge of the trial court subject to criticism, but the plaintiff has called our attention to no error therein, and none are presented by any of the exceptions taken thereto. If counsel desires to except to a proposition charged, or to a remark of the judge, he should clearly and distinctly call the attention of the judge to the proposition or remark to which an exception is taken. An exception to a charge relating to a subject containing two or more propositions is too general if any one of the propositions is correct. Baylies Trial Practice, 239, and authorities there cited.

The motion for a new trial should be denied, and judgment -ordered for the defendant on the verdict

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


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    Richard R. Gibson, App’lt, v. Henrietta J. Gibson, Impl’d, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Pleading — Irrelevant and scandalous matteb, — Limitation—Waives.
    The retention of a notice of motion to strike out irrelevant, redundant or scandalous matter in a pleading is not a waiver of the rule requiring service of such a notice to be made within twenty days.
    Appeal from an order of the Monroe special term, striking out as scandalous, irrelevant and redundant certain allegations in the plaintiff’s complaint.

      F. H. Hamlin and James A. Robson, for app’lt; Elihu M. Morse and Walter H. Knapp, for resp’ts.
   Haight, J.

It appears from the order appealed from that upon the hearing of the motion at special term an objection was made to the hearing of the same upon the ground that the motion was not noticed for hearing within twenty days from the service of the complaint; that it was then and there conceded by counsel that the complaint was served on the 22d day of November, 1892, and that the notice of motion was served on the 11th day of January, 1893. It was also conceded, on the part of the appellant, that the notice of motion was retained by Mr. Bobson, the appellant’s counsel, and that the same was not returned. The court overruled the objection and the motion was thereupon heard upon the merits.

Rule 22 provides that “Motions to strike out of any pleadings matter alleged to be irrelevant, redundant or scandalous and motions to correct a pleading on the ground of its being 1 so indefinite or uncertain that the precise meaning or application is not apparent,' must be noticed before demurring or answering the pleading, and within twenty days from the service thereof.” Brooks v. Hanchett, 36 Hun, 70; Carrillo v. Carrillo, 25 St. Rep., 425. It is, therefore, apparent that the notice of motion was not served in time.

Was the retention of the notice of motion by the appellant a waiver of the rule requiring the service to be made within twenty days? We think not. It was not such a defect or irregularity as could have been remedied by the respondent if the motion papers had been returned. The case is not one within the provisions of § 796 of the Code of Civil Procedure, or of rule 19. The case of Rogers v. Rockwood, 13 N. Y. Sup., 939; 36 St. Rep., 920, has no application.

In the case of Roosa v. Saugerties & Woodstock Turnpike Road Co., 8 How., 237, it was held that a motion to strike out irrelevant or redundant matter or to correct a pleading must be noticed within twenty days from the service thereof; that it was not necessary that the party making the motion should show that he had given the notice within the time prescribed, but that that fact should be shown as matter of defense upon the hearing of the motion. And to the same effect is Barber v. Bennett, 4 Sandf., 705. The practice, as approved in these cases, has, as we believe, been uniformly followed throughout the state and should be adhered to. It having been admitted upon the hearing of the motion that the notice was not served within the twenty days required, the motion should have been denied for that reason.

Order reversed and motion denied, with ten dollars costs and disbursements.

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