author: Daniels, «T.:

text:
    AGNES WALSH, Appellant, v. THE FLATBUSH, NORTH SHORE AND CENTRAL RAILROAD COMPANY, Respondent.

      Settlement of action — by client, where attoi'ney is interested in the recovm-y — effect of, on rights of attorney.

    In this action, prosecuted under an agreement with plaintiff’s attorney, that he should receive one-half the recovery for his services, the defendant having no notice of such agreement, settled with the plaintiff before trial, held, that'the settlement was good as against the claim of the attorney, unless made by the defendant in bad faith, and that the defendant was entitled to an order discontinuing the action.
    Appeal by plaintiff and her attorney from an order directing a discontinuance of this action, without costs.

      Daniel It. Lydd/y, for the appellant.

      Edwa/rd E. /Sprague, for the respondent.
   Daniels, «T.:

The action was brought to recover damages sustained by reason of a personal injury. It was prosecuted under an agreement with the plaintiff’s attorney that he should receive one-half the recovery for his services and disbursements. Notice of the existence of the agreement was not given either to the defendant or its attorneys. The information given to the clerk of the attorney by the plaintiff as to her desire to send for her attorney was not evidence of the fact against the defendant. And besides that it was denied by one of the attorneys for the defendant, who swore that she positively declined to have her counsel present, as that was not deemed to be necessary. Notice, under this state of the proof, was not established. Neither was there any thing from which its existence could be inferred. In that respect there was a material difference between this case and that of Coughlin v. New York Central and Hudson River Railroad Co. (8 Hun, 136), for it appeared there that notice had been given to the defendant before the claim was settled. Without such notice, the plaintiff had the right to settle the case, even if by so doing she defeated the purpose of the agreement made between herself and her counsel. (Shank v. Shoemaker, 18 N. T., 489; Pulver v. Harris, 52 id., ; Wade v. Orton, 12 Abb. [N. S.], 444.)

The case seems to be an unfortunate one for the counsel, but under the circumstances the corn! has no power to relieve him from the effect of the settlement made, unless he can show that it was the result of bad faith; and an opportunity to do that has been secured by the order made on the disposition of the motion.

The order should be affirmed, but, under the circumstances, costs should not be awarded against the counsel who has been deprived of the benefit of the agreement made with his client.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with costs.


source: Caselaw Access Project

author: Davis, P. J.;

license: Public Domain

text:
    FRANCIS D. MOULTON, Appellant, v. HENRY W. BEECHER, Respondent.

      Additional allowance — if the cause 7ms even' been at issue, though there be no issue at the time of its discontinuance — an allowance may be made.

    Appeal from an order of the Special Term, granting an additional allowance.
    This action was brought for malicious prosecution. Tbe defendant demurred to tbe complaint. Tbe demurrer was sustained at Special Term. On appeal to tbe General Term tbe order sustaining tbe demurrer was reversed, and leave was given to tbe defendant to answer. Tbe defendant thereupon answered tbe complaint, and upon tbe issue thus joined moved, at Special Term in Kings county, for an order changing tbe place of trial, which was laid in tbe complaint in tbe county of Kings. While that motion was pending, and before its decision, tbe plaintiff amended bis complaint by changing tbe place of trial stated therein, from Kings county to tbe city and county of New York. Tbe Special Term of Kings county thereupon ordered tbe motion to change tbe place of trial to be beard in tbe city and county of New York, where tbe same was afterwards beard, and an order was subsequently made changing tbe place of trial to tbe county of Delaware. Tbe plaintiff thereupon obtained an ex ftwte order at General Term in Kings county, ordering that tbe action be discontinued on payment by plaintiff of defendant’s costs to be taxed, and served a copy thereof-with notice requesting tbe defendant’s attorney to procure tbe costs therein to be taxed, and offering to pay tbe taxable costs pursuant to tbe order of discontinuance. After tbe service of this order and notice, defendant served an amended answer, which, was returned by the plaintiff’s attorney on the ground that the action had been discontinued. The defendant gave notice of this motion for an additional allowance of costs, and served a bill of costs with notice of taxation of the same by the clerk. The amount of this bill of costs was immediately offered by the plaintiff’s attorney to the defendant’s attorney, who refused to. receive the same except without prejudice to the pending motion for an extra allowance. The plaintiff’s attorney thereupon tendered the same unconditionally, and left the amount on the table in the office of defendant’s attorney. The motion for an additional allowance was heard at Special' Term, and the sum of $250 was granted.
    The com-t at General Term said: “"We concur with the court below that there had not been such a final adjustment of costs in the case as precluded the motion for an additional allowance, and we are also of opinion that the case is one in which an additional allowance should be granted. The case had been at issue twice, once by demurrer, and that issue had been displaced by the decision of the General Term and the service of the answer allowed by such decision. The service of -the answer made an issue of fact, and upon that issue the motion to change the |>lace of trial was made and granted. If that issue was destroyed by the service of a complaint amended merely as to the place of trial, nevertheless the fact that the issue had existed in the case, and had been made the basis ■ by the court of the order changing the place of trial, is not taken out of the case. It is not necessary to decide whether the service of the answer to the amended complaint before the notice of this motion, and before the payment of costs under the order of discontinuance, was a joinder of issue in the case. There had already been issues, we think, sufficient to be the basis of the motion for an extra allowance under section 309 of the Code. The language of that section is as follows: £ In difficult or extraordinary cases, where a defense has been interposed, * * * the com-t may also, in its discretion, make a farther allowance to any party not exceeding five per cent upon the amount of the recovery or claim or subject-matter involved.’
    In this case we think a defense has been interposed within the meaning of the Code, and we think, also, that the case is shown by the papers on this appeal to have been a difficult and extraordinary one.”

      Roger A. Pryor, for the appellant. Thomas G. Shearman, for the respondent.
   Opinion by

Davis, P. J.;

Daniels, J., concurred.

Present — Davis, P. J., Brady and Daniels, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: Beady, J.;

text:
    JOHN HERRLICH, Respondent, v. MATTHEW T. BRENNAN, Sheriff of the City and County of New York, Appellant.

      Notice — of fraudulent intent of vendor — what sufficient to establish.

    Appeal' from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.
    The defendant levied upon certain articles under and by virtue of an execution against one Pickhardt, and sold them.
    The plaintiff, claiming to have purchased them in good faith, and for a valuable consideration, brought this action to recover the damages he sustained by the unlawful seizure. Pickhardt, on the 30th of August, 1872, sold the property to the plaintiff, taking notes for the consideration, extending over a term of nearly two years, but payable at different periods during that time. The plaintiff also agreed to pay what was due to the workmen then in the employment of the vendor. On the 3d of September, 1872, Pickhardt also assigned to the plaintiff all the outstanding debts due and amounting to about $1,500. For these the plaintiff paid by discharging debts due from Pickhardt. On the 9th of January, 1873, the sheriff made the levy already mentioned.
    The court at General Term said: “The defendant’s counsel requested the justice presiding, to charge, among other things, ‘That to establish notice to a purchaser of the fraudulent intent of his vendor, it is sufficient to prove that the facts and circumstances are such as ought reasonably to have excited his suspicion and led him to inquiry,’ and this was refused- The case was one to which the principle involved in the request was applicable, and the request itself was good law.
    “The case of WilUámson v. Brown (15 N. Y., 354) establishes this proposition. If the facts and circumstances are such as ought to have excited suspicion and led to inquiry, the purchaser is regarded as having received notice of a fraudulent intent and required to investigate, and on the trial to explain or in some way overcome the effect of the notice thus given. Purchasers, under the circumstances suggested, cannot shut them eyes and shield themselves by proof of the payment of a consideration. They further and perfect the wrongful intent of the debtor when they assist him to dispose of his property.”

      L. S. Chatfield, for the appellant. F. It. Coudert, for the respondent.
   Opinion by

Beady, J.;

Davis, P. J., and Daniels, J., concurred.

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


author: Davis, P. J.; Brady and Daniels, JJ.,

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM M. TWEED, Impleaded with the Mayor, etc., Appellant.

      Ohap. 49 of 1875, constitutional — Summoning talesmen to fill up a struah jurry— , Stipulation ofpm'ties— Gowrt — how fa/)' bound by— Gou/rt acting as trier— Ohap. 437 of 1878 — constitutional—Mxdence — latitude allowed, in action for conspiracy by public officers to defrcmd a municipal corporation.

    Ajppeal by defendant Tweed from a judgment entered on a verdict and from an order of the court denying a motion for new trial on the minutes of the judge for insufficient evidence and for excessive damages, and from an order granting an extra allowance.
    This action was brought under an act passed by the legislature March 12, 18Y5.
    The complaint sets up an act of April 26, 18Y0, which provides that claims against the city of New York should be audited by the mayor, the comptroller and the president of the board of supervisors, and adds that the defendant Tweed held the latter office, and that he and one James Watson conspired together to have fraudulent claims set up, allowed and paid; that pretended claims to the amount of $6,198,957.75 were certified to have been audited which were all false, fictitious and fraudulent, and did not represent any real or actual liabilities, and that the defendant and Watson obtained warrants for that sum, and got the money and converted it to their own use. It alleges further that the defendant, the mayor, etc., set up and pretend to some interest in the premises. The amount demanded is $6,198,957.75, with interest from September 1, 1870.
    A jury had been impanneled in the same court in a ease between the same parties, distinguished as No. 2, but no other proceedings had been had in that action when the trial thereof was adjourned pursuant to a stipulation.
    In impanneling the jury in case No. 2 certain exceptions had been taken involving objections to the jury.
    The stipulation above referred to, entered into between the parties, among other things, provided “that if the plaintiff shall so elect, action No. 1 (which is the present action) shall be first tried by the jury now impanneled in action No. 2 * * * with the same force and effect as if the jury already impanneled had been struck and impanneled in action No. 1 * * * the defendant Tweed, however, to have the benefit of all objections and exceptions to which he is now entitled, provided, also, that the plaintiff give the defendant Tweed five days’ notice of such election.” Due notice of such election was given, and when this case came on for trial the jury, as the case states, that had been impanneled in action No. 2 was, pursuant to such stipulation and notice, impanneled and sworn in this action.
    The court at General Term said, as to the constitutionality of chapter 49 of the Laws of 1875 : “ That question is res adgudÁeata in this court. (People v. Tweed, 12 Sup. Ct. E. [5 Hun], 382-390).”
    In reference to the several questions arising upon the challenge to the array of the special jury (struck for the trial of action No. 2 and by stipulation made the jury for this case), the court said, “ The several questions arising upon this challenge were examined by the learned judge at Circuit in a very elaborate and careful opinion, which is reported in 50 Howard’s Practice, 80, we have ourselves examined the same questions with care and the result is a full concurrence in the conclusions expressed in the opinion referred to, and we adopt that opinion as our own.”
    A sufficient number of jurors could not be obtained from the special struck jury, and the court ordered the summoning, by a coroner, of talesmen for the purpose of filling up the jury, the sheriff being a substantial party in interest in the suit.
    As to the power of the court to make these orders, the court said: “ Upon these questions also the learned judge pronounced a carefully considered opinion, reported in 50 Howard’s Practice, 286. That opinion covers the entire ground, and we are fully satisfied with its correctness. Its adoption as part of our own opinion saves the necessity of further considering the question.”
    On the question as to whether the stipulation made as to using, in case No. 1, the special jury struck in case No. 2 could be deemed to have brought into case No. 1 the several challenges to individual jurors in the impanneling of the jury for the trial of action No. 2, and the evidence taken upon such challenges and the rulings of the court thereon and the exceptions to such rulings, the court said: “ The language of the stipulation is broad enough, we think, to have this effect, and the only question is whether the court is bound to regard these proceedings as part of the trial of this case, because the parties have stipulated to treat them as though they had taken place upon the trial of the present action. * * * It is a serious question whether the court can or ought to be bound by any stipulation between the parties which seeks to bring with that jury into this action any alleged errors in examining and impanneling them in respect to another action. * * * We are strongly inclined to
    the opinion that the exceptions taken upon the rulings on the challenges in action No. 2 are not properly before us for consideration. * * * So far as the questions arise upon the challenges to the favor, the findings of the court are not the subject of exception and not reviewable here. (People v. Mather, 4 Wend., 229; Oostigcm v. Oivyler, 21 N. Y., 134; Scmehez v. People, 22 id. 147.) ”
    It was objected that the court was not competent to sit as trier of challenges to the favor, and common-law triers were demanded. The court said: “ This question depends upon the validity of the statute of 1873, authorizing the disposition of such challenges by the court. We have no doubt of its constitutionality. The same practice has long prevailed in the federal courts under an act of congress, and no one seems to have doubted its constitutionality.”
    The court further said: “ The exceptions taken during the progress of the trial are too numerous to be noticed in detail. The gist of the action was an alleged conspiracy between the defendant Tweed and one Watson to defraud the city and county of New York of large sums of money. The evidence that may be given in such actions is not to be restricted by narrow and technical rules. Whatever tends to prove the conspiracy and its objects and purposes, and, if sufficient evidence be given to carry the case to the jury upon the question of conspiracy, whatever declarations or acts of either party that tend to prove its objects or purposes,- or accomplishment, are always admissible.”

      Field & Bayo, for the appellant. Wheeler H. Peehham and James 0. Garter, for the respondent.

       This case was decided at the January term, 1877.

       Chapter 437 of 1873.

   Opinion by

Davis, P. J.;

Brady and Daniels, JJ.,

concurred.

Judgment and order affirmed, with costs.

Order granting additional allowance also affirmed, with costs.


author: Mullin, P. J.:

text:
    AMY J. ANDERSON, Respondent, v. JACOB VAN BUREN and others, Appellants.

      Mortgage — given by indorsor of notes to secure the same — indorsee paying less than the face of the notes — may recover on the mortgage their full amount.

    Jacob Van Burén sold to Joseph Van Burén a canal boat for $4,000, and took from him for the price thereof, twenty-one promissory notes, secured by a chattel mortgage upon the boat. Subsequently he sold the notes and mortgage to Morgan Van Burén for $3,500, and gave to the latter a real estate mortgage for $4,000 to secure the payment of the notes. Meld, that Morgan was entitled to enforce the real estate mortgage for its full amount, $4,000, less the amounts received on the notes and realized from the sale of the boat under the chattel mortgage, and that his security thereunder was not limited to the price paid for the notes, $3,500.
    Appeal from the order of the Comity Court of Oswego comity, confirming the report of a referee in proceedings to distribute surplus moneys, arising from a sale on a judgment in foreclosure.
    There was a surplus arising from a sale on foreclosure of a mortgage, given by defendant to tbe plaintiff, of $1,946.69.
    Claims to this surplus were made by Morgan Yan Burén, Harlow C. Le Roy, and by defendant Jacob Yan Burén. Morgan Yan Burén claimed to be entitled to tbe surplus as bolder and owner of a mortgage given to him by the defendant Jacob Yan Burén and wife for the sum of $4,000, dated the 20th April, 1874. The condition of said mortgage was in the words following, viz.: “ This grant is intended as a security for the payment of the sum of $4,000 and interest thereon from this date in manner following, viz.: In accordance with the terms of twenty-one promissory notes of even date herewith, made by Joseph Yan Burén and payable to the order of Jacob Yan Burén, and indorsed by him, to secure which said indorsement this mortgage is made and is collateral.”
    On the day of the date of said mortgage Jacob Yan Burén, the mortgagor, was the owner of a chattel mortgage made by Joseph Yan Burén upon the canal boat John Hobbs, given to secure the payment of $4,000, which amount was also embraced in the twenty-one notes. The notes and mortgage were given to secure the price of the boat, which had been sold by Jacob to Joseph.
    On the 20th April, 1874, Jacob Yan Burén sold and assigned to Morgan, for the sum of $3,500, said mortgage and notes, and on the same day Jacob and wife executed the mortgage under which Morgan claims to be entitled to the surplus, as collateral security to his indorsement on the notes above mentioned.
    Prior to the 5th May, 1876, $1,089.70 had been paid on the notes, and on that day Morgan Yan Burén, to whom had been assigned the mortgage on the boat and the twenty-one notes, to,ok possession of said boat by virtue of the mortgage and sold her .for $1,270.
    The claim of Le Boy was upon a judgment, junior to the above-mentioned mortgage, for $500 and interest from the 4th October, 1876. The counsel for the judgment creditor requested the referee to find and decide, that the mortgage under which Morgan Yan Burén claimed was given as collateral security for the payment of the chattel mortgage and promissory notes sold by Jacob to Morgan, and that it was at no time a lien upon the mortgaged premises for an amount greater than the sum which the mortgagee paid to the mortgagor, to wit, $3,500 and interest thereon.
    The same judgment creditor and the mortgagor requested the referee to find and decide that all payments made to the holder and owner of the promissory notes,' chattel mortgage and real estate mortgage, and the moneys received from the sale of the canal boat inured to the benefit of tbe mortgagor in tbe real estate mortgage, and should be deducted from tbe $3,500, and that Morgan- was entitled to no greater sum than tbe balance shown, by computation made in tbe manner requested.
    Tbe same claimants requested tbe referee to find and decide that there was unpaid on tbe mortgage under which Morgan claimed a price not exceeding $1,487.60.
    Tbe referee refused to find as requested in each of said requests, and tbe claimants excepted.
    Tbe referee found and decided that there was due on the notes transferred to Morgan Yan Burén -on tbe 5th May, 1876, $1,984.54, and that Morgan was entitled to tbe whole of tbe surplus money.
    Tbe exceptions taken on tbe bearing before tbe referee were beard by tbe County Court, and tbe report confirmed.

      Howe (& Pice, for tbe appellant.

      Pa/rckis Piper, for tbe respondent.
   Mullin, P. J.:

Tbe twenty-one notes were given by Joseph Yan Burén to Jacob, together with tbe chattel mortgage, to secure tbe payment of $4,000, being tbe amount which Joseph was to pay Jacob for tbe boat.

Jacob sold tbe notes, with bis indorsement thereon, together with tbe chattel mortgage, to Morgan for tbe sum of $3,500, and be gave him tbe mortgage under which Morgan claims tbe surplus as collateral security to bis indorsement. In other words, Morgan stepped into Jacob’s shoes in tbe dealing between Joseph and Jacob. It follows that Jacob was entitled to have tbe avails of tbe boat applied in satisfaction of bis liability on tbe notes, and was liable to Morgan only for what should remain unpaid upon tbe notes, after applying tbe avails of tbe sale of tbe boat. That sum Morgan was entitled to recover upon tbe real estate mortgage, and bis ben was transferred from tbe land to tbe money. He was entitled to tbe amount out of tbe surplus money.

This amount tbe referee bolds Morgan entitled to receive out of tbe surplus moneys.

The order must be affirmed, with ten dollars costs and disbursements.

Present — Mullin, P. J., Taloott and Smith, JJ.

Ordered accordingly.


text:
    ANDREW MALONEY as Administrator, etc., of EDWARD MALONEY, Deceased, Respondent, v. JAMES A. WOODIN, Appellant.

      Letters of administration — Seal of surrogate — may he affixed, at any time after issuing of.

    Upon tlie trial of an action brought by an administrator, letters of administration offered in evidence by him were excluded on the ground that the seal of the surrogate was not affixed thereto. Upon an adjourned hearing the same letters, with the seal affixed, were offered in evidence and received against the defendant’s objection that the seal could not be affixed after the commencement of the action. Held, that they were properly received; that it was sufficient that the seal was upon them at the time they were offered and received in evidence'.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      George K. Gczrroli, for the appellant.

      Crorrvwell <& Gonlcm, for tbe respondent.
   Mullin, P. J.:

In tbe spring of 18Y5 defendant owned and was in possession of a farm at North Bay, in the county of Oneida, on which was a hotel in which he lived. Being out of health, he desired to sell the property aforesaid, together with the furniture in the hotel, and applied to plaintiff’s intestate to procure him a purchaser, and, if the intestate succeeded in finding a purchaser for the whole property, defendant promised to pay him $300 for his services.

The intestate undertook to find a purchaser, and did, after a time, find a purchaser for part of the property, to wit; the hotel and furniture and one acre of land; the residue of the land was not taken by the purchaser. Defendant valued the whole property at $11,000; the purchaser paid for what he bought $9,100. The plaintiff claimed of defendant the whole sum that defendant agreed to pay the intestate for finding a purchaser for the whole property. Defendant refused to pay any thing, except a small amount for carriage hire, and thereupon this action was brought.

On the trial the plaintiff’s counsel offered as evidence the letters of administration issued to the plaintiff, which were not sealed with the seal of the Surrogate’s Oourt, and their introduction in evidence was objected to by the defendant’s counsel on that ground, and the objection was sustained by the referee. The hearing was then adjourned, and on the adjourned day the letters were again offered, having on them the surrogate’s seal, which had been affixed since the day on which the hearing was adjourned.

The defendant’s counsel renewed his objection to the reception of the papers, on the ground that the seal could not be affixed after the commencement of the trial, and that it must still be treated as without a seal. The objection was overruled and the paper received. I am not aware that the law has prescribed a time when the seal of a court or officer must be affixed to a certificate or other instrument. If a seal is required, and is upon the instrument when offered in evidence, it is enough.

The paper was properly received in evidence. The evidence of the employment of the intestate, and that he procured a purchaser for the defendant’s property, is not as clearly proved as it would seem to me it might have been; yet I think the referee is justified in finding an agreement between the parties and the performance of it by the intestate.

The defendant’s letters recognize the employment, and concede performance, in part at least, of the contract by the intestate,

Judgment should be affirmed.

.Talcott, J., dissents.

Present — Mullin, P. J., Talcott and Smith, JJ,

Judgment affirmed.


text:
    MORGAN L. BIRDSALL, Respondent, v. PHILANDER S. FULLER, EMORY S. PARDEE and DANIEL PARDEE, Appellants.

      Action for false mpmorment — relationship between judge and pcm'ty.

    The firm of P. & 0. having assigned to the defendant Fuller an account for goods sold and delivered to the plaintiff, Fuller commenced an action before a-justice of the peace against this ihaintiff, Birdsall, to recover the same. Issue was joined, and the hearing adjourned. Upon the adjourned day Birdsall did not appear. Fuller applied and obtained leave to amend his complaint by alleging that the goods were obtained tortiously, obtained a judgment and issued an execution thereon, under which plaintiff was arrested. Plaintiff brought this action for false imprisonment against Fuller, the justice, and P., alleging that P. was a brother of the justice, and was interested in the claim. Held,

    That even though the justice were ignorant of the fact that his brother was interested in the claim, yet, as he was so in fact, the judgment 'was void and the justice liable.
    That the justice had no authority to issue an execution directing the arrest of plaintiff, as the only claim Fuller had was upon an account, and if P. & 0. had any right of action for any tort connected with the sale of the goods, they had not assigned it to Fuller.
    That the justice was guilty of a gross abuse of discretion in allowing the amendment to the complaint.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe verdict of a jury.

      R. H. Tyler, for tlie appellants.

      Kermecby & Tracy, for tlie respondent.
   Mullin, P. J.:

In September, 1812, tlie defendant Fuller commenced an action before tbe defendant E. S. Pardee, a justice of tbe peace of tbe county of Oswego, against tbe plaintiff Birdsall, by service of summons. On tbe return day of tbe summons, tbe parties appeared and Fuller complained against Birdsall for goods sold and delivered to Birdsall by Pardee and Chamberlain, tbe claim for which was by them assigned to Fuller, and claimed judgment for fifty dollars and eighty-three cents.

Birdsall denied the complaint and by consent the trial was adjourned till the eighth of November, at one p. m.

On the adjourned day Fuller, the plaintiff in the suit, appeared, but Birdsall did not appear, as the justice’s minutes of the trial show.

Before proceeding to give evidence on the adjourned day, Fuller applied to the justice for leave to amend his complaint, by alleging therein, that the goods mentioned in the complaint were obtained by said Birdsall from Pardee and Chamberlain fraudulently and tortiously.

Daniel Pardee, one of the defendants, was then sworn as a witness on the part of Fuller. Judgment was rendered by the justice in favor of Fuller and against Birdsall, for the sum of fifty dollars and eighty-three cents and the costs of the action.

Subsequently an execution was issued on the judgment by the justice, whereby the constable was commanded to collect the amount thereof of the goods and chattels of the defendant therein, and in default of goods and chattels to take his body and commit him to the jail of said county, to be there detained until discharged according to law.

Birdsall was arrested on the execution and for want of property to satisfy the same committed to the jail, and there detained for some thirty days.

^After Birdsall’s discharge from imprisonment he commenced this action for damages for falsely imprisoning him, against Fuller, the plaintiff in the action before the justice, against the justice who issued the execution, and Daniel Pardee one of the assignors of the claim, on which the action before the justice was brought, on the ground that he was a brother of the justice and interested in the cause of action.

The defendants justified the arrest and imprisonment of Birdsall, under the judgment rendered by and before Justice Pardee above mentioned and the execution issued therein.

On the trial of said action the plaintiff put in evidence the docket of the justice showing the proceedings in the action, the rendition of the judgment and execution against the body of said Birdsall. The docket says the complaint was for goods’ sold and assigned by Pardee and Chamberlain, and that the amendment was as follows, to wit: “ Plaintiff amended his complaint and alleges that the goods in said complaint were obtained tortiously.”

The justice was examined as a witness on the trial and testified that his best recollection was that the assignment of the account sued on before him was in writing, signed by Chamberlain, and it was produced before him. Chamberlain, one of the vendors of the jiroperty, testified that his firm had an account against Birdsall for goods sold and delivered. The only recollection he had of the transfer of the account to Puller, is some offer being made for the account by Puller; he took the account and had an assignment written upon it and gave it to Puller. The account was a bill of items of the goods sold and their dates and the assignment was of that account. It was proved that Daniel Pardee had said he had an interest in the account sued before his brother, and that he directed the arrest and imprisonment of Birdsall. A copy of the evidence given on the trial before Pardee by Daniel Pardee was produced, and he testified that Birdsall came to him to get credit and said he had arrangements to get glass of Caswell at Cleveland and would furnish glass to pay for the goods. On the strength of that, they gave credit of fifty dollars and eighty-three cents. , ITe had no such arrangement.

It was also proved on the trial of this action that the judgment, some four years after its rendition, was sued over before another justice, and judgment recovered for the amount then due thereon and costs. No suggestion was made on the trial that either of the defendants was entitled to be separately discharged. It would seem to have been concluded that if any were liable, all were.

But if such a question could now be raised, it would not avail either of the defendants.

Puller is unquestionably liable as the one who set on foot the action before the justice, obtained the execution on which the arrest was made and the plaintiff imprisoned. Daniel Pardee admitted his direction to make the arrest, and no ground for his interference is shown unless it be that he had an interest in the claim and was using his brother to enforce it. The justice, we must presume, was not aware that his brother was interested in the claim in suit before him.

But his ignorance does not aid the judgment rendered by him. It was utterly void whenever and wheresoever the fact of his relationship to one of the owners of the demand was proved. (1 Wait’s L. and P., 78.)

Again, the justice had no authority to issue an execution against the body of the plaintiff. The action commenced before him was upon contract. The claim assigned to Puller was an account for goods sold, and not a claim for damages for a tort. It is spoken of by all the witnesses as an account. (Graves v. Waite, 59 N. Y., 156; Prouty v. Bioift, 51 id., 594.)

Puller was not vested with any interest in a claim for tort, if there was one committed. He obtained the account only. (Hicks v. Cleveland, 39 Barb., 573; Battle v. Coit, 26 N. Y., 404.)

The justice was guilty of a gross abuse of the discretion vested in him as to allowing amendments of pleadings, especially after the issue had been joined, and no suggestion made that any tort was imputed to the plaintiff. It was allowed in his absence, and without any notice that any such change of the pleadings was thought of.

It was a fraud' on the plaintiff which the comb cannot permit to be practiced upon suitors. (Beard v. Yates, 5 N. Y. S. C. [T. & C.], 76; Ransom v. Wetmore, 39 Barb., 104.)

At the close of the evidence the court submitted two questions to be answered by the jury with their verdict in the case. The first was, “ was Daniel Pardee interested in the suit before E. S. Pardee, justice of the peace ? ” The second was, “ did Daniel Pardee give any instructions or requests to have Birdsall arrested and committed to jail?” Both questions were answered in the affirmative, and they found a verdict in favor of the plaintiff for $275.

The defendants appeal from the judgment entered on the verdict.

The defendants’ counsel insists that upon the proof of a judgment recovered upon the one rendered before Pardee, the plaintiff is estopped from questioning the validity of that judgment.

I am unable to discover how the estoppel is made out, and cannot, therefore, give it effect as such.

Judgment must be affirmed.

Present — -Mullin, P. J'., Talcott and Smith, JJ.

Judgment affirmed.


author: Smith, J.:

text:
    REUBEN P. CALKINS and ISAAC CALKINS, Appellants, v. FISHER W. GRISWOLD, Respondent.

      Mutual mistake of fact — Accord and satisfaction — when it may he corrected.

    Tlie defendant, in pursuance of a contract made willi tlie plaintiff, sold and delivered to Mm 55,959 pounds of grapes at one and a-lialf cents per pound. Tire plaintiff Raving paid a portion of the purchase-price, an accounting was subsequently had, at which neither party knowing accurately the weight of the grapes, or the crates in which they were delivered, and having no memoranda from which such weight could be computed, it was agreed to call the weight of the grapes 65,000 and that of the crates in which they were delivered 600 pounds. The plaintiff having' paid the amount appearing to be due by these figures, subsequently brought this action to recover the price of the grapes erroneously admitted to have been delivered. Held,

    That as there was a mutual mistake of fact as to the weight of the grapes delivered, the plaintiff was entitled to recover back the money paid in consequence ■ thereof.
    That his right so to do was not affected by the fact, that the accounting amounted in law to an accord and satisfaction.
    Appeal from a judgment in favor of the defendant, entered on the report of a referee.
    The action was brought to recover money had and received by the defendant, which was alleged to belong to the plaintiffs, and also for money alleged to have been paid by the plaintiffs to the defendant by mistake. The defense set up was an accord and satisfaction. The amount claimed by the plaintiffs was over $160. The referee reported in their favor for thirty-four dollars and twenty-two cents only (being twenty seven and one-half dollars, with interest), and the defendant entered judgment for his costs, less that sum. The facts found by the referee were, substantially : That, in 1871, plaintiffs purchased of defendant his crop of grapes at one and one-half cents per pound. The whole quantity delivered was 55,959 pounds, amounting to the sum of $839.38, and plaintiffs owed defendant ten dollars for work, making in all $849.38. Prior to March, 1872, plaintiffs paid defendant on account of said grapes $598 in cash and twelve dollars and fifty cents in brandy, in all $610.50, leaving due on that day the sum of $238.88. On that day the plaintiff Reuben P. Calkins and the defendant had an accounting of the dealing between the parties, which included the balance due the defendant for his grapes. On such accounting neither the weight of the grapes nor of the crates in which they were delivered was known with accuracy by either party, nor were they able, from recollection or the memoranda then before them, to determine the weight of the grapes or the crates correctly at that time. They thereupon agreed that the whole quantity of grapes, including crates, was 65,600 pounds, and that there should be deducted therefrom 600 pounds for the weight of the crates, and that upon the basis of those items and weights, allowing to each party the other items above stated, respectively, the balance due from the plaintiffs to the defendant was $403.26. The plaintiffs thereupon paid to the defendant, and the latter accepted in full of such balance, the sum of $402, of which $400 was received by the defendant upon a promissory note, which the plaintiffs dekvered to him for that purpose. At the time of such accounting Galkins claimed there should be deducted 1,600 pounds for weight of crates, and the defendent claimed that only 600 pounds should be deducted on that account. The referee also found that in calculating the amount owing on the basis of said agreement, Calkins made a mistake which neither he nor the defendant then discovered, in caking such amount $403.26; that the true and correct amount owing upon the basis of the items then agreed upon was $374.50, and that in consequence of such mistake the payment then made exceeded the amount due by twenty-seven dokars and fifty cents; that before suit, the plaintiffs, claiming there was a mistake, demanded of the defendant the sum overpaid, which they claimed was about $120, but the defendant refused, alleging that there was no mistake. The referee decided, as matter of law, that the agreement of the tenth of March operated as an accord and satisfaction in respect to the several items included therein, and precluded the plaintiff from recovering the excess paid on account of the grapes, but that the overpayment of twenty-seven dokars and fifty cents having occurred in consequence of the mistake which arose in determining the sum necessary to make satisfaction upon the account, the plaintiffs are entitled to recover the same, with interest.

      F.- B. Pottle, for appellants.
    If the transaction amounted to a settlement, and a mistake was made by which defendant got more money than was due him, the plaintiffs were entitled in this action to recover it back. (.Franklin Bank v. Raymond, 3 Wend., 69; Bwrr v. Yedd&r, 2 id., 412; Wheadon v. Olds, 20 id., 174; Qandl Bank v. Bank of Albany, 1 Hill, 287; Bank of Commerce v. TTivion Bank,, 3 N. Y., 230; Bank v. Fttinge, 40 id., 391; 11 Abb. [N. S.], 116; 4 id., 34; Bank of Troy v. Bank Few York, 43 N. Y., 452; Ha/rlem R. R. Co. v. Mansh, 12 id., 308; Westerloo v. Dewitt, 36 id., 340; Ma/rtw% v. McCormick, 8 id., 331.)

      H. M. Field, for the respondent.
   Smith, J.:

It is an elementary principle of law, as well as of the plainest equity, that where money is erroneously paid by one person to another, in consequence of a mutual ignorance as to facts, which, if known, would have prevented the payment, the money so paid may be recovered back. (Burr v. Veeder, 3 Wend., 412.) An error of fact takes place, either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist. (Mowatt v. Wright, 1 id., 355, 360.) A contract made upon an assumed state of facts, as to which there is a mutual mistake, may be rescinded on discovering the mistake, and the party paying money upon it may recover it back. This principle applies to every form of contract, express or implied, including an account stated, and an accord and satisfaction. The principle of an accord and satisfaction is, that a party who has a legal right of action against another may accept of some other legal thing in discharge of his claim. JBut if the parties to an accord and satisfaction, in settling a claim, act under a mutual mistake of facts, there is nothing in the nature of the transaction which prevents a court of law from correcting the mistake or relieving from its consequences, in a proper action for that purpose. In Wheadon v. Olds (20 Wend., 174), the prinmple was applied to a case somewhat analagous to this. There, the defendant agreed to sell to the plaintiff from sixteen to twenty hundred bushels of oats, at forty-nine cents per bushel. The delivery of the oats was commenced by removing them from a store-bouse to a canal boat; tallies were kept, and when the tallies amounted to 500, it was proposed to guess at the remainder; and after a while it was agreed to call the whole quantity 1,900 bushels, and the plaintiff accordingly paid for that quantity at the stipulated price. When the oats came to be measured it was ascertained that there were only 1,488 bushels delivered. It was then found that the mistake had happened by both parties assuming as the basis of the negotiation fixing the quantity of 1,900 bushels, that 500 bushels had been loaded in the boat at the time when they undertook to guess at the residue, whereas, in fact, only 250 bushels had been loaded — the tallies representing half bushels and not bushels — and that the parties supposed that the quantity loaded was not a gucurter of the whole. The action was for money had and received, to recover back the excess paid by mistake. On the trial, the defendant proved by one witness that the plaintiff said that he would take the oats at 1,900 bushels, hit or miss, and by another that he had acknowledged that he took the oats at that quantity at his own risk. He further proved that before the boat left the store-house, on dissatisfaction being expressed by a friend of the plaintiff who was to advance the money for him, as to the mode of ascertaining the quantity, he told them if they were dissatisfied with the quantity, to put the oats back into the store-house and pay him for his trouble. The plaintiff recovered a verdict, and the defendant moved for a new trial, which was denied. Cowen, J., delivering the opinion of the court, said that the mistake, as proved, went not only to the quantity measured, but the jur-y found, under the charge, that relatively it influenced the entire agreement to take the oats at 1,900 bushels; and that being the case, the learned judge said he was not aware of any case or dAdmm, that, because part of the agreement was to take at the party’s own risk, or, as the parties expressed it, hit or miss, it therefore formed an exception to the general rule. The agreement to risk was, fro tcmto, annulled by the error. The foundation of the arrangement to take the plaintiff’s risk was a misreckoning, one number being put instead of another, “ which,” says Domat (pi. 12), “is a kind of error, in fact different from all other errors, in that it is always repaired.”

In the present case the referee has not found, indeed, in terms, that the parties acted under a mutual mistake, but he has found that, at the time of the accounting, they did not know or recollect accurately the weight of the grapes or the crates ; that they agreed to call the crates 600 pounds, and the grapes, after deducting the crates, 65,000 pounds, and that in fact the whole quantity of grapes delivered was 55,959 pounds. lie has not found that there was any dispute as to the quantity of grapes, and the uncontradicted testimony shows there was no dispute on that subject, the plaintiff having suggested the quantity, and the defendant having agreed to it without question. There was a difference between them as to the weight of the crates, but the defendant compromised nothing in that respect, as his claim was acceded to by the plaintiff. There is no finding inconsistent with the fact of a mutual mistake, and we are therefore to look into the evidence to see what it establishes in that respect. There is uncontradicted evidence in the case, which leaves no doubt that Caulkins, at least, acted under a mistake as to the weight of the grapes. He so testifies, and upon no other reasonable theory can his proposal be accounted for to pay for several thousand pounds more than had been delivered. It is equally manifest from the evidence that the defendant also was mistaken as to the quantity of the grapes, unless he was practicing a fraud upon Caulkins. There is no ground for the suggestion that he merely kept silence on the subject. Caulkins testified that the defendant said he thought the figures were about right, as they were about as he had them at home.

The defendant did not deny the statement, and he himself testified that when the plaintiff announced, after figuring a long time, that he made the defendant’s account to be 65,600 and some pounds, the defendant replied that “ may be that was right,” although proposing at the same time to examine the matter before settling. If he Tm&w the correct amount at that time, his own account of the conversation shows that he was not acting in good faith. There is some evidence of his subsequent declarations, tending to show that he did know the true amount at the time of the accounting and that he took advantage of the mistake of Caulkins, but as the report of the referee is silent upon the question of fraud, it is to be implied that his decision upon that issue was adverse to the plaintiffs, and there is not such a decided preponderance of evidence the other way as to lead to the conclusion that the implied finding is against the weight of evidence. The only other conclusion, then, warranted by the. evidence, is that the defendant particpated -in the mistake of the plaintiff as to the quantity of grapes. The mistake was mutual, and it entered into the accord and satisfaction. The parties “ jumped accounts ” as the defendant expressed it, upon the mistaken assumption that the quantity of grapes delivered was 65,000 pounds. But for that mistake, the sum fixed upon would not have been agreed to. And as there was no dispute about price or quality, it is apparent that if the parties had known the correct quantity at the time, they would have agreed on the sum which it now appears was the true amount owing upon the contract. The accord is not a bar to the correcting of a mistake by which the accord was induced.

The referee very properly held the plaintiffs entitled to recover the money paid, in consequence of the mistake made in computing the amount'due upon the basis of the accord. He should have gone further and allowed to the plaintiffs the money paid by mistake for grapes in excess of the quantity delivered. The same principle which corrects the one mistake will correct the other. In either case it is unconseientious that the defendant should retain the money ; it equitably belongs to the plaintiffs, and no rule of law stands in the way of their recovering it.

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

Present — Mullin, P. J., Talcott and Smith JJ.

Judgment reversed and new trial ordered before another referee, with costs to abide event.


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    ISAAC HOWELL, Executor, etc., of DAVID HOWELL, Deceased, Plaintiff, v. SARAH TAYLOR, Defendant.

      Decla/i'ations of testator as to disposition of Ms propm'ty — admissible— Qode,% 399 — “Personal transaction” — meaning of — “Assignee” — who included by- — Testi mony of non-expert as to sanity of deceased.

    This action was brought to recover certain personal property alleged to have belonged to the estate of plaintiff’s testator, which defendant claimed by virtue of a gift from him. Upon the trial the defendant was allowed to prove declarations of the testator, made a few days before his death and after the making of the will, to the effect that he had not disposed of the property by his will, and that he calculated to dispose of it in his lifetime. Held, that the evidence was competent as showing an intention, on the part of the deceased, consistent with the claim of the defendant.
    The words “ personal transaction,” as used in section 399 of the Code, do not mean private transactions, and the fact that the party against whom the testimony is offered was present at the interview and is living, and might be examined at the trial, does not authorize a party to the action, or one who is interested in the event thereof, to testify as to what was said to him by the testator at such interview.
    The word “assignee,” as used in said section, includes a donee of personal property.
    Although a non-professional witness cannot express an opinion on the general question of sanity, yet he may be examined as to matters within his own observation bearing upon the competency of the testator, and may characterize as, in his opinion, rational or irrational, the acts and declaration as to which he testifies. '
    Motion by plaintiff for a new trial on exceptions taken at tbe Circuit, and ordered to be beard at tbe General Term in tbe first instance, after a verdict in favor of tbe defendant.
    Tbe action was brought to recover tbe value of certain shares of bank stock of tbe value of $1,000, and a gold watch of tbe value of $100, claimed to have been tbe property of tbe plaintiff’s testator, David Howell, at tbe time of bis death. Tbe defendant claimed tbe property by gift from tbe testator in bis lifetime. Tbe testator was unmarried and bad no children, and tbe defendant was bis cousin and was bis housekeeper several years, and took care of him and nursed him in bis last sickness. Tbe cause was tried by a jury, who rendered a verdict for tbe defendant.

      G. 0. Rathbone, for the plaintiff.

      & JS. Crqpsey, for the defendant.
   Smith, J.:

The only questions in this case are presented by exceptions to rulings upon points of evidence, and to a refusal of the judge to charge as requested.

It is argued by the plaintiff’s counsel that the court erred in excluding the testimony of the plaintiff’s witness James Howell, as to a conversation about the watch that took place between him and the testator, in the presence of the defendant, almost six days before the testator’s death. The witness was a brother of the testator, and a legatee and devisee in his will. And as the testator was unmarried and had no children, the witness was also one of his heirs at law and next of kin, unless the testator left his father or mother living, as to which there is no evidence. The case was probably tried upon the assumption, on both sides, that the testator’s brothers were his heirs and next of kin, as the point is not now taken that such was not the case. The points now urged are that section 399 of the Code does not apply, because the question called for what deceased said in presence of defendant; and because a donee of the deceased person is not within the section. The first point is not well taken. The question called for a conversation between the deceased and the witness, who as one of his next of kin, was directly interested in the event of the suit. The conversation was a personal transaction and communication between such witness and the deceased, and the presence of the defendant made it none the lesss so. “ Personal transaction,” etc., as used in the section, does not mean private, and the fact that the party against whom the testimony is offered was present and is living, and might be examined, is not a reason for allowing the witness to testify. (Hatch v. Peugnet, 64 Barb., 189 ; Brague v. Lord, Ct. App. Dec., 1876 ; 2 Abb. N. Cases, 1, and note 12.) The point that the defendant is not within the section, presents a question of more difficulty. Her relation to the deceased is that of a donee of personal property. The word donee ” is not used in the statute. But the term “ assignee ” is used, and the defendant, I think, is within the meaning of that term. Indeed, as a part of the property claimed by her is a chose in action, to wit, a certificate of shares in the stock of a bank, she is, as to that, perhaps, within the letter of the statute. On the whole, I think the objection to the question was properly sustained.

Next, it is insisted that the court erred in overruling the plaintiff’s objection to proof of declarations made by the testator a few days before his death, to the effect that he had not disposed .of the watch by his will, and that he calculated to dispose of it in his lifetime. Although this testimony did not point to the defendant as the person to whom the testator intended to dispose of the property, yet, as it indicated a purpose to dispose of it during his life, and not by will, and as the defendant claims it by a gift inter vivos, the testimony was competent as showing an intention on the part of the deceased consistent with her claim, though it was by no means conclusive. The testimony of the witness Oropsey, who drew the will, which is the subject of another exception, is of a like character. He testified, under objection, that- when he read the will to the testator, the latter said he did not want any thing more in it. The latter item of testimony was, at the least, harmless, since the will itself, which was in evidence, raised the presumption that the testator did not intend to make a testamentary disposition of the property in controversy, as it was not embraced in any of its provisions.

Isaac Howell, the plaintiff’s witness already mentioned, testified that a week before the testator died he seemed to have no strength, sometimes only moved his lips when witness spoke to him. "Witness could make out nothing. Sometimes he appeared deranged. The case then states that to the last answer defendant’s counsel objected, and the objection was sustained, and plaintiff excepted. Assuming that the testimony was proper, the plaintiff was not prejudiced, as the objection was not taken till after the testimony was received, and it was not stricken out. But the testimony was incompetent. It was the expression of an opinion by a person not an expert, on the general question of the sanity of the testator. It is said, however, by the plaintiff’s counsel, that the ruling was inconsistent with a subsequent ruling on the trial, by which the defendant was allowed to ask the witness, Adeline Force, whether there was any thing in what the testator said to her, as she had testified, that led her to think there was any thing wrong about his mind. There is nothing inconsistent in the two rulings, and both were strictly correct. Although non-professional witnesses cannot express an opinion on the general question of sanity, they may be examined as to matters within their own observation, bearing upon the competency of the testator, and they may characterize as, in their opinion, rational or irrational, the acts and declarations to which they testify. (Clapp v. Fullerton, 34 N. Y., 190; Hewlett v. Wood, 55 id., 634.) Under that rule the testimony of the witness Force was admissible.

The only request to charge, the refusal of which is urged on this motion, was that there is no sufficient evidence of a valid gift of either the watch or the certificate. But careful reading of the testimony satisfies me that there was sufficient evidence on both points to sustain the verdict.

New trial denied, and judgment ordered for the defendant on the verdict.

Present — Mullin, P. J., Talgott and Smith, JJ.

New trial denied, and judgment ordered for defendant on the verdict.


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    ELLEN B. QUINLAN, Respondent, v. THE CITY OF UTICA, Appellant.

      Negligence, in maintaining sidewalk — evidence as to vnjjwms sustained by other persons— Charter of city of Utica — chap. 18 of 1862 — Costs against city — when allowed — ‘' Claim ” — ‘ ‘Account ” — defined.

    In 'an action against the city of Utica to recover damages for injuries sustained by the plaintiff through the neglect of the defendant to repair its sidewalk, the condition of the walk was described and photographs, measurements and models thereof exhibited, and it was shown that for several years preceding the accident the walk was in the same general condition. Subsequently plaintiff was allbwed, against defendant’s objection and exception, to show that while it was out of repair other persons had slipped and fallen on the walk where plaintiff was injured. Eeld, that the evidence was properly admitted to show that the walk, tested by actual use, was in an unsafe and improper condition at the time of the accident.

      Section. 128 of the city charter providing that “no costs shall be recovered against the city in any action brought against it for any unliquidated claim which has not been presented to the common council to be audited,” does not apply to claims ex delicto, e. g., a claim for damages for injuries sustained by a neglect of the city to repair its streets.
    Appeal from a judgment entered on a verdict for the plaintiff, rendered at the Oneida Circuit in April, 1816, and from an order denying a motion for a new trial on the minutes; also from an order awarding costs to the plaintiff.
    The action was brought to recover damages because of injuries to plaintiff’s person, caused by the alleged neglect of the defendant to keep one of its sidewalks in a safe and proper condition.

      O. Artlvu/r WJvite, for the appellant.

      S. M. JLmdsley, for the respondent.
   Smith, J.:

The evidence presented questions of fact as to the alleged negligence of the defendant, and contributory negligence on the part of the plaintiff, which were properly submitted to the jury, and there is nothing in the evidence which requires us to disturb their verdict upon those questions.

It is contended on the part of the appellant that the court erred in permitting the plaintiff to prove that other persons had slipped and fallen, at various times, on the sidewalk where she was injured. The condition of the walk was very fully and minutely described by the witnesses, and photographs, measurements and a model of the surface of the walk, showing its elevations and depressions, were put in evidence. There was testimony showing quite conclusively that for several years immediately preceding the accident, including the various times to which the testimony under consideration referred, the walk was in the same general condition that it was in when the plaintiff received her injuries. It is claimed by the counsel for the respondent that, under these circumstances, the evidence in question was properly received, on the ground that it tended to show that the walk, tested by actual use, had been demonstrated to be in an unsafe and improper condition, and that such was its condition at the time when the plaintiff was injured. We are inclined to sustain the ruling on that ground. Upon an issue as to the utility, proper condition or safety of any worlc of human construction designed for practical use, evidence tending to show how the article has served when put to the use for which it was designed, would seem to bear directly upon the issue, and often may be of the most satisfactory and conclusive character. It is objected by the appellant’s counsel that the testimony presented new issues, of which his client had no notice, and which it could not be prepared to meet. In one sense, every item of testimony material to the main issue introduces a new issue; that is to say, it calls for a reply. In no other sense did the testimony in question make a new issue. Its only importance was that it bore upon the main issue, and all legitimate testimony bearing upon that issue the defendant was required to be prepared for. The cases cited by the appellant’s counsel, in support of the objection, are not applicable. In Sherman v. Kortright (52 Barb., 267) it did not appear', and there was no offer to show, that the road was in the same condition when the other injuries, which were offered to be proved, occurred as when the plaintiff was injured; on the contrary, it appeared that the breaks in the road of which the plaintiff complained were made the day before the accident, and after the previous injuries had happened. On that ground alone the case was properly decided, and „ what was said to the effect that the admission of such testimony would present new issues, was not necessary to the disposition of the ease. The true ground of objection to the testimony was, not that it presented new issues, but that it did not bear upon the real issue. The other cases cited are Filio v. Jones (4 Keyes, 328), Warner v. New York Central Railroad Company (44 N. Y., 465) and Ross v. Ackermam, (46 id., 210). They are so entirely different from the present case that it is not necessary to refer to them more particularly.

It is also objected that in the present ease the evidence showed that in some instances the slipping of others was under entirely different circumstances from those under which this accident occurred. If so, that was for the jury to consider, under proper instructions from the court.

We are not aware of any reported cases in this State precisely in point upon this question, and none have been cited by counsel. There are actions for setting fires by the negligent use of steam engines, which seem to sustain the rule of evidence for which the respondent contends. Sheldon v. The Hudson River Railroad Company (4 Kern., 218) was an action to recover for a building which was alleged to have been set on fire by sparks from one of defendant’s engines, which passed shortly before the fire was discovered. It was held that evidence that engines of the company passing near that place on other occasions emitted sparks and coals, which fell further from the track than the building in question, was competent after evidence given tending to exclude the probability that the fire was communicated by any other means. To the same effect are Field v. The New York Central Railroad Company (32 N. Y., 339) and Westfall v. Erie Railway Company (12 S. C. N. Y. [5 Hun], 75). In Hinds v. Barton (25 N. Y., 544), which was an action for the firing of a building by a steam engine used to operate a dredge on the Erie canal, it was held that the plaintiff was entitled to give evidence of the distance at which sparks emitted by the engine had kindled fires at different points on the canal previous to the destruction of the plaintiff’s projoerty.

Some recent cases decided by the Court of Appeals seem to imply the competency of the testimony in question. They may be briefly referred to. Dougan, v. Champlain Transportation Company (56 N. Y., 7) was an action to recover for death of plaintiff’s intestate, who stepped upon an icy deck of defendant’s boat, on which he was a passenger, slipped and fell overboard, passing under the guard railing around the deck. The only proof relied on as showing negligence was the leaving the space open between the railing and the deck. Held, that there was no evidence of negligence, and that the plaintiff could not recover. Grover, J"., delivering the opinion of the court, said: “ There was no proof tending to show that any one had ever before fallen and gone overboard under the railing, or that any such danger had been apprehended by any one.” This plainly implies that proof of a similar prior accident at that place would have been competent, as tending to show that the space was dangerous, and consequently that the defendant was negligent in allowing it to remain open and exposed. Crocheron v. Worth Shore Staten Island Ferry Company (id., 656) and Cleveland v. New Jersey Steamboat Company (Ct. App., MS. opin. of Folger, J.) were of tbe bke character. A similar question was presented, and tbe like reasoning was advanced by the court.

Tbe cases in other States cited by tbe respondent’s counsel seem to sustain bis position. They are Hill v. Portland Railroad Company (55 Me., 438); House v. Metcalf (27 Conn., 631); Darliny v. Westmoreland (52 N. H., 401; S. C., 13 Am. Rep., 55); Kent v. Lincoln (32 Vt., 591); Bailey v. Trumbull (31 Conn., 581); Calkins v. Hartford (33 id., 57).

We are of .the opinion that tbe exception was not well taken. Tbe other exceptions in tbe case bave been examined, but tbey point to no error.

Tbe question as to tbe right of tbe plaintiff to costs arises upon certain provisions of tbe defendant’s charter. (Laws 1862, chap. 18, p. 28.) Section 123 provides that “no costs shall be recovered against tbe city in any action brought against it for any unliquidated claim which has not been presented to tbe common council to be audited.” Tbe question is whether this provision relates to claims ex delicto. We are of tbe opinion that it does not. Tbe section is contained in title 9, which is entitled “ of tbe auditing of claims against tbe city,” and embraces three sections. Tbe word “ claim ” occurs several times in tbe title. In tbe one hundred and twenty-first section it is used in connection with tbe word “ accounts: ” “All claims and accounts against tbe city shall be audited,” etc. Sometimes tbe word “ account,” and at .other times the word “ claim,” is used alone, and in either case tbe expression is evidently intended to embrace all demands of every nature to which tbe title relates. Thus, “ tbe common council may require £ any account,’ etc., to be verified; ” “ all damns must be presented in writing; ” “ the damns shall be audited,” etc.; “ in case tbe common council shall disallow any damn, etc., its decision shall be ft bar,” etc. The term “ accounts ” is applicable to matters of contract, and not of tort, and according to the maxim “ noscvtur a socUsf tbe word “ claim ” thus used has tbe like meaning. Section 121 provides that tbe verification shall be by affidavit, in tbe same manner that town accounts are required to be verified. Tbe mode prescribed for verifying town accounts is by tbe affidavit of tbe person presenting or claiming tbe same that tbe items of such account are correct, and that the disbursements and services charged therein have been in fact made or rendered, etc. (Laws 1845, chap. 180, § 23, and Laws 1847, chap. 490.) It is manifest that those provisions were not intended to apply to a claim founded upon tort. Again, section 122 provides that no claim or demand” against the city which has not been audited or which has not been liquidated by the common council shall bear interest, a provision wholly unnecessary in the case of unliquidated demands for wrongs, as they do not bear interest. We regard this question as settled by the case of Howell v. The City of Buffalo (15 N. Y., 512), but as the appellant’s counsel has suggested that the language of the statute in that case differed from that of the Utica charter, we have given our views of the construction of the latter act. The case of McClure v. Supervisors of Niagara (4 Abb. [N. S.], 202) is a clear authority in favor of the respondent.

The judgment and order should be affirmed.

Present — Mullin, P. J., Taloott and Smith. JJ.

Judgment and order affirmed.


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    JOSEPH W. DOTY, Respondent, v. GEORGE M. BAKER and EMMA BAKER, Appellants.

      Release of dower — promise of husband to pay his wife thm'efor — validity of — rights of creditors.

    Although a release by a wife of her inchoate right of dower in the lands of her husband is a good consideration for his paying, or his promising to pay to her • apart of «the purchase-money, yet as against the creditors of the husband, whose debts exist at the time of the conveyance, he being then insolvent, she will not be permitted to take or retain more than the actual value of such inchoate right of dower, as ascertained by the rule laid down in Jaolcson v. Edwwrds (7 Paige, 408).
    Appeal from a judgment in favor of tbe plaintiff, entered on tbe report of a referee.
    Tbe action was brought to obtain a decree of this court adjudging that tbe defendant Emma Baker bold certain lands described in the complaint in trust for the plaintiff as a judgment creditor of the defendant George, and that the conveyance thereof to her was void as against the plaintiff. The referee found that after the plaintiff recovered his judgment against the defendant George, amounting to upwards of $500, the said defendant George, who was then insolvent, conveyed a store and lot in the city of Buffalo, owned by him in fee, to one loegler, for the consideration of $14,000; that said defendant Emma, who is the wife of the defendant George, joined in the conveyance; that the defendant George caused the purchaser to execute a mortgage on said premises to the defendant Emma, to secure the sum of $4,000, part of the purchase-money; and that the defendant Emma, with a part of the avails of said mortgage, purchased the lands in question, and took a deed therefor, in her own name; that there was no consideration for the making of said mortgage to the defendant Emma, except her signing the deed to Loegler and thereby releasing her inchoate right of dower; that she was then thirty years old and her husband forty-two, and that the premises were incumbered to the amount of $7,000 by mortgages, in which she had joined; that the fact of her husband’s insolvency was known by the defendant Emma at the time of the transaction, and that the defendant George caused said mortgage to be made to his wife, and' the premises in question to be conveyed to her, to hinder, delay or defraud his creditors. The referee reported in favor of the plaintiff, and a judgment was entered accordingly, declaring the plaintiff’s judgments to be specific liens on the premises in question, and ordering that the premises be sold and conveyed by a referee, and that out of the avails the referee pay the plaintiff’s judgments and costs, and that he retain the surplus, if any, till the further order of the court.

      JE. L. Pa/rher, for the appellants.

      A. K. Potter, for the respondent.
   Smith, J.:

The facts found by the referee are warranted by the evidence. As he has not found that Mrs. Baker participated in, or was cognizant of, the fraudulent design of her husband, or that she intended a fraud upon Ms creditors, the mortgage executed to her is not wholly void as against the creditors of her husband, provided she received it for a good and valuable consideration. If the mortgage was merely a voluntary gift to her, it is void as against creditors, although she acted in good faith, her husband being insolvent at the time, to her knowledge, and intending a fraud. The only consideration was Mrs. Baker’s release of her inchoate right of dower. Is she to be regarded as a mortgagee or purchaser for value ? It has sometimes been said that while the husband lives the wife has no right, interest or estate in the land. Thus, in Reynolds v. Reynolds (24 "Wend., 193), it was held that previous to the death of the husband the wife had no right, etc., in the lands of her husband, which could be forfeited by her adultery. In Moore v. The Mayor, etc. (4 Seld., 110), it was said that the inchoate right of dower exists not as a paid of the marriage contract, but as a positive institution of law incident to the marriage relation, and that the estate of a widow, after assignment of dower, is a' continuation of the estate of her husband; a part of the fee he held while living, and it was held that the inchoate right of the wife to dower was divested by jaroceedings taken in the lifetime of her husband to appropriate the land to a public use, on making compensation to the owner of the fee. (See, also, Dibble v. Clapp, 31 HoW. Pr. R., 420.)

But in Simar v. Canaday (53 N. Y., 298), the rule laid down in Moore v. The Ma/yor {svyprd) was limited. It was there said that, as between a wife and any other than the State or its delegates or agents exercising the rights of eminent domain, her inchoate right of dower in the lands of her husband is a subsisting and valuable interest, to protect and preserve which she has a right of action, and it was held that where a husband and wife joined in a conveyance of lands of the former, the sale being induced by fraud on the part of the grantee, the wife had a cause of action against him for damages sustained in the loss of her inchoate right of dower, and she and her husband could join in one action. It .has, also, been held that a release by a wife- of her inchoate right of dower, by joining with her husband in a conveyance of the land, is a good consideration for his promise to set apart a portion of the purchase-money to her separate use, and equity will compel the husband to perform the agreement (Garlick v. Strong, 3 Paige, 440; Foster v. Foster, 12 S. C. R. [5 Hun], 557); and where a promissory note was given by the husband to the wife in consideration of her release of her inchoate right of dower by joining with him in a deed, it was held valid. (Brooks v. Weaver, 3 Alb. Law J., 283.)

In the present case, Mrs. Baker joined with her husband in the deed, in consideration of the mortgage executed to secure to her a part of the purchase-money. Upon the findings of the referee, it is to be assumed that in doing so she acted in good faith. Her knowledge of her husband’s insolvency, found by the referee, is not necessarily inconsistent with the rectitude of her intention, for she testifies that she supposed the arrangement would facilitate the payment of her husband’s debts. The mortgage to her, therefore, is not to be regarded as a purely voluntary conveyance. (Quarles v. lacy, 4 Mumf., 251.)

But although a release by a wife of her inchoate right of dower in the lands of her husband is a good consideration for his payment, or his promise to pay, to her, a part of the purchase-money, yet, as against the creditors of the husband, whose debts existed at the time (he being insolvent), she will not be permitted to take or retain more than the value of the consideration. (Shepard v. Shepard, 7 Johns. Ch. R., 57, per Kent, Ch., p. 62 ; Garlick v. Strong, supra, per Walworth, Ch., p. 452; and see Wickes v. clarke, 8 Pai., 161.)

The rule for computing the present value of a wife’s inchoate right of dower, during the life of her husband, is given by Chancellor Walworth in Jackson v. Edwards (7 Paige, 408). It is to ascertain the present value of an annuity for her life equal to the interest in the third of the proceeds of the estate to which her contingent right of dower attaches, and then to deduct from the present value of the annuity for her life the value of a similar annuity, depending upon the joint lives of herself and her husband, and the difference between those two sums will be the value of her contingent right of dower. The annuity tables furnish the means of making the computation. (McKean’s P. L. Tables, 23, § 1; Hendry’s Ann. Tables, .87, Prob. 4.) The value of the estate to which the contingent right of dower of -Mrs. Baker attaches is $7,000, being the value of the store and lot, less the amount of the mortgages thereon, which she executed with her husband. To the value of her inchoate right of dower, at the date of the deed to Loegler, should be added interest thereon from that date. The sum representing such value belongs, presently and absolutely, to Mrs. Baker. (Bartlett v. Van Zandt, 4 Sandf. Ch. [m. p.], 396.) The decree should be modified by directing a reference to ascertain and report the value of Mrs. Baker’s inchoate right of dower, upon the principles above stated, and by requiring that a sum equal to such value, and the interest on it, be first paid her out of the avails of the sale. And as the suit is not brought for the benefit of other creditors than the plaintiff, the decree should also provide that if any surplus shall remain after paying the plaintiff’s judgments and costs, it shall be paid to the defendant Mrs. Baker.

And, in order to render the sale effectual, the decree should also require both defendants to join in the conveyance to be executed by the referee.

The decree should be modified as above directed, and, as modified, affirmed, with costs of this appeal to the respondent against the appellant George M. Baker, alone.

Present — Mullin, P. J., Talcott and Smith, JJ.

Decree modified, as -directed in the opinion, and, as modified, affirmed, with ten dollars costs of appeal and disbursements to the respondent, to be paid by the appellant George M. Baker. Order to be settled before Mr. Justice Smith.


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    HEZEKIAH S. BOWEN, Respondent, v. THE NATIONAL BANK OF NEWPORT, Appellant.

      Parol evidence, as to contents of written instrument — when admissible — Declarations of agent as to past transaction — not admissible.

    In this action, brought to recover a balance of moneys alleged to have been deposited by the plaintiff with the defendant, a bank, the dispute was whether a draft deposited on June 37, 1878, was for $400 or $335. Upon the trial plaintiff, having testified that he delivered the draft to the teller on that day, was allowed to testify as to its amount. The defendant objected, on the ground that parol evidence of the contents of the draft was inadmissible, no foundation having been laid for such evidence. Held, that the evidence was properly admitted; that the amount of the deposit, and not the draft, was the subject of the controversy, and that upon the former question parol evidence was admissible.
    Where the writing is collateral to the question in issue, it need not be produced. Plaintiff was allowed to testify as to certain statements made to him by the cashier of the defendant several months after the deposit was made. Held, that the declarations were inadmissible, in so far as they related to a past transaction.
    Appear from a judgment entered on a verdict, rendered in favor of the plaintiff at the HerMmer Circuit in November, 1875.
    The action was brought to recover the sum of $180.42 alleged to, be due to the plaintff as the residue of moneys deposited by him with the defendant. The defendant is a banking corporation organized under the national bank act of congress. It appeared at the trial that the plaintiff had deposited money with the defendant at various times, and that on the 27th June, 1873, he deposited a check or draft drawn by a United States paymaster, which the plaintiff alleged was for the sum of $400. The defendant admitted that the plaintiff made a deposit on that day, but claimed that it was for only $225. The question as to the amount of that deposit was the only issue litigated.

      A. M. Mills, for the appellant

      J. A. dk A. B. Steele, for the respondent.
   Smith, J.:

The printed case states that after the verdict was rendered, the defendant’s counsel moved at the same Circuit for a new trial on the minutes, Which was denied, and the defendant’s counsel excepted. It does not appear that an appeal was taken from the order denying the motion, nor that an order was entered. The exception is of no avail, as an exception can only be taken to a ruling made during the progress of the trial. The case is before us, then, upon the appeal from the judgment, and is to be treated as if no motion had been made for a new trial, and consequently, the only questions for review are those presented by the exceptions appearing in the case to have been taken at the trial.

It is insisted by the appellant’s counsel that the court erred in allowing the plaintiff to give parol evidence of the amount and contents of the draft in question. The case was evidently tried upon the idea that parol evidence of the contents of the draft was not admissible without first having laid a foundation for it. In that view of the question the ruling was erroneous. The plaintiff had testified that he handed the draft to the teller of the bant, and left it with him, telling him to give the plaintiff credit for it. Notice had been served on the defendant before the trial to produce certain other,, papers and boots, but no notice was given to produce the draft in question, except a verbal notice given at the trial, at the moment when the plaintiff offered to give parol evidence of its contents. The defendant’s counsel stated that the draft was not in their possession. If the paper was a draft, as asserted by the plaintiff (and it subsequently appeared that it was a draft on the assistant United States Treasurer in New York,) it would not, in the ordinary course of business, be in the hands of the defendant. There was no evidence that it had been in their possession since the time when it was delivered to them by the plaintiff, which was obviously a delivery for collection. If notice was requisite, the notice given at the trial was not a reasonable notice, and was insufficient. (Gorham v. Gale, 7 Cow., 189; Insurance Co. v. Cadwell, 3 Wend., 296; McPherson v. Rathbone, 7 Wend., 216.) But no notice was necessary. The draft was not the foundation of the action. It was collateral merely. The amount of the deposit was the only subject of controversy, and upon that point parol evidence was admissible. When the writing is collateral to the question in issue, it need not be produced. (1 Gr. Ev., § 89, and cases cited in note 7.)

Again, if there was error in the admission of the parol testimony, it was subsequently cured by proof of the entries in the defendant’s books, which warranted the jury in finding that the draft in question was for $100.

It is also contended, on the part of the appellant, that the court erred in allowing the plaintiff, when testifying in his own behalf, to give evidence of the conversation between him and G-etman, the former cashier of the defendant, then deceased. The testimony was objected to, on the ground that the cashier was not living, and also on the ground that his declarations made subsequent to the transactions in question were not admissible. Tbe first objection seems to have been based upon tbe idea that tbe testimony was excluded by section 399 of tbe Code, and is untenable. Tbe second is more substantial. Tbe declarations received in evidence were made in an interview between tbe plaintiff and tbe cashier, wbicb took place on tbe 20tk March, 1874, several months after tbe deposit was made. It occurred in tbe bank, and Wooster, tbe book-keeper, was present. Tbe plaintiff inquired bow bis account stood, and, on being told, insisted there was a mistake, and thereupon, according to tbe testimony of tbe plaintiff, Getman made certain declarations, wbicb were detailed by tbe witness, respecting what occurred at tbe time of tbe deposit, what tbe books showed as to tbe amount of tbe deposit, whether there was a mistake in tbe books on that point, bis supposition as to bow it occurred, and bis statement that the draft bad been paid. Tbe declarations of tbe agent, so far as they related to past transactions, were inadmissible. Only such declarations and admissions of an agent as are made at tbe time of tbe transaction, and are part of tbe res gestes, can be given in evidence against tbe principal. (1 Gr. Ev., § 113; Thallhimer v. Brinckerhoff, 4 Wend., 394; Fogg v. Child, 13 Barb., 246.) Tbe fact that the defendant is a corporation, and that Getman was one of its officers, does not take tbe case out of tbe rule. (Baptist Church v. Brooklyn Fire Ins. Co., 28 N. Y., 153 ; Luby v. Hudson River R. R. Co., 17 id., 131; First Nat. Bank v. Ocean Nat. Bank, 60 id., 278.) The testimony undoubtedly bad its weight with tbe jury, and its admission was error.

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

Present — Mullin', P. J., Talcott and Smith, JJ.

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


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    ZENAS H. JONES, Respondent, v. DANIEL D. COOK, Appellant.

      Appeal from a judgment of a justice of the peace — notice under Code, § 371 — what requw'ed — Motion — what relief may he granted on — Costs.

    Where a party appealing from a judgment of a justice of the peace stated in his notice, that the judgment should have been more favorable to him in five different sums therein specified, held, that this was not a sufficient compliance with section 371 of the Code, requiring that if the appellant claims that the amount of the judgment is less favorable to him than it should have been, he should specify what should have been its amount.

      Bigshy v. Warden (62 N. Y., 27) distinguished.
    Where a motion is noticed to set aside a taxation of costs, the court may, when both x>arties appear upon the hearing, direct not only that the taxation be set aside, but also that any judgment for said costs entered thereon be vacated. Upon such hearing the court may allow costs to the successful party, even though they be not asked for in the notice of motion.

    Appeal from an order of tbe Allegany County Court, setting aside a taxation of costs, and tbe judgment for said costs, in favor of tbe defendant, and ordering costs in favor of tbe plaintiff.
    Tbe defendant appealed to tbe County Court from a judgment rendered by a justice of tbe peace for $200, stating in bis notice, as one of tbe grounds of appeal, that tbe judgment should bave been more favorable to bim in that it should bave been for five different smaller amounts specified. Tbe plaintiff made no offer to modify tbe judgment. In tbe County Court tbe plaintiff recovered $100 damages. Tbe clerk taxed costs in favor of tbe defendant, and tbe County Court, on motion of tbe plaintiff, set aside tbe taxation and tbe judgment for costs, and ordered costs in favor of tbe plaintiff, which is tbe order now appealed from..

      Rufus Scott, for tbe appellant.

      Jones <& Sponger, for tbe respondent.
   Smith, J.:

Section 371 of tbe Code requires that if tbe appellant claims that tbe amount of tbe judgment is less favorable to bim than it should bave been, be shall state what should bave been its amount. It has been held repeatedly, in this department, that a specification in the notice of appeal that the judgment should have been more favorable in two or more sums of different amounts, is not a compliance with that requirement of the statute, and is of no effect. (Putnam v. Heath, 41 How., 262 [1870] ; Wadley v. Davis, 43 id., 82 [1872] ; Murphy v. Simmons, 3 T. & C., 794 [1874].)

The appellant’s counsel claims, however, that the decisions above referred to were overruled by the Court of Appeals in Bigsby v. Warden (62 N. Y., 27). That is a misapprehension. The point there decided was that a statement by the appellant, in his notice of appeal, that the judgment “ should not have been for a larger amount ” than a certain sum specified, is a sufficient compliance with the requirement that he shall state “what should have been its amount.” Only one amount was specified in the notice of appeal in that case, and the question here involved did not arise. The cases in this department above cited have not been overruled, and they are decisive of the question in the present case.

The appellant’s counsel insists that the order of the County Court should be reversed, because it vacated not only the taxation of costs in favor of the defendant, but also “ any judgment for said costs entered thereon,” which latter relief was not ashed for in the notice of motion; also, because it gave costs of the motion which were not ashed for in the notice. The cases of Northrop v. VanDusen (5 How., 134) and Saratoga Railroad Company v. McCoy (9 id., 341) cited by appellant’s counsel, were eases of default. "Where an order is tahen by default the party obtaining it can only tahe what he ashs for in his notice. Even where both parties appear no relief will be granted, as a usual rule, except as specifically demanded, where there is no prayer for general relief. Especially, where such additional relief is distinct from and independent of that specified in the notice of motion. Thus, in Alexander v. Esten, administrator (1 Cai., 152), the object specified in the notice being to set aside an execution, the court would not allow it to be extended to the judgment; and in Smith v. Spaulding and others (30 How., 339), the Superior Court of New Yorh held that a motion to vacate an order of arrest did not embrace a motion to reduce the bail, although general relief was ashed for. Here, however, the setting aside of “ any judgment for the costs ” is incidental to the vacating of the taxation of the costs themselves, and is necessary to make that relief effectual. It is suggested that the affidavits did not show that a judgment had been entered. If none was entered, the only consequence is that that portion of the order is useless, and does no harm. As to costs, the County Court undoubtedly might have refused them, on the ground that the notice of motion did not ask for costs. But both parties having appeared, and the motion having been heard on its merits, the court could allow costs in its discretion. (Code, § 315.)

The order should be affirmed, with ten dollars costs of appeal and disbursements.

Present — Mullin, P. J., Talcott and Smith, JJ.

Order of County Court affirmed, with ten dollars costs of appeal and disbursements.


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    ELLEN GLEASON, Respondent, v. JOHN F. PEASE and others, Appellants.

      Apprentices — ‘mdentwre of — chap. 934 of 1871 — breach of — costs in action for — Gode, § 306
    An action to recover damages for a breach of an indenture given upon taking an apprentice as required by abater 934 of 1871, and to procure the same to be delivered up and canceled, falls within the class of actions provided for by section 306 of the Code, and the costs therein rest in the discretion of the court.
    Appeal from an order made at the Onondaga Circuit, allowing costs of this action to the plaintiff as against the defendants.
    The complaint alleged that Thomas. Gleason, a minor son of the plaintiff, was indentured in writing, with her consent, to the defendants, who are copartners, to learn the trade of a tinsmith; that the defendants broke the conditions of the indenture and neglected to teach him the art of said trade, whereby the plaintiff was damaged in the sum of $500, and the plaintiff asked judgment that the indenture be delivered up and canceled; that the plaintiff recover of the defendants the sum of $500, with costs, and that a fine of $1,000 be imposed upon the defendants, in pursuance of section 5 of the act entitled “ an act in reference to apprentices and employers,” passed 27th May, 1871. At the trial the plaintiff recovered a verdict for thirty dollars damages, and the court thereupon ordered that the plaintiff have judgment therefor, and canceling and annulling the indenture, with costs.

      Huger éa Jemney, for the appellants.

      Fuller <& Vcvrm, for the respondent.
   Smith, J.:

The appellants’ counsel claim that as the plaintiff recovered less than fifty dollars damages, she is not entitled to costs. To determine this point, it is necessary to refer to the provisions of the act, in pursuance of which the action was brought. (L. 1871, ch. 934.) The first section of the act provides that it shall not be lawful in this State to take any minor as an apprentice to learn a trade, without the consent of the minor’s legal guardian first obtained, nor unless an indenture be drawn up in writing and executed according to the provisions of the act. Section 2 requires that the indenture shall provide that the minor shall be bound to serve for a term not less than three, nor more than five years; that he shall not leave his employer during said term; and if he does, his return may be compelled under the penalties of the act; and that the employer shall provide suitable and proper board, lodging, and medical attendance for said apprentice, and teach him, or cause him to be carefully and skillfully taught, every branch of the business to which he is indentured, and at the expiration of his term shall give him a certificate of service. The third section provides that any person taking an apprentice without complying with the act shall be guilty of a misdemeanor, and, on conviction in the Court of General or Special Sessions, shall be subject to a fine of not less than $500. By the fourth section it is provided that indentures shall not be canceled before the expiration' of their term, except in case of death, or by the order or judgment of the County or Supreme Court for good cause; and an apprentice leaving his employer without his consent or sufficient cause, and refusing to return, may be arrested on complaint of the employer and taken before any magistrate having jurisdiction of misdemeanors, who may cancel the indenture, and, on conviction, commit the apprentice, etc. The fifth section provides that if an employer neglects or refuses to teach the apprentice the trade, etc., the parent or guardian of the apprentice “ may bring an action against said employer or employers to recover damages sustained by reason of said neglect or refusal.” The section continues in these words: and if proved to the satisfaction of the court, said court shall direct the indenture to be canceled, and may impose a fine on said employer or employers not exceeding $1,000 and not less than $100, and said fine shall be collected and paid over to said apprentice or his parent or guardian for his sole use and benefit.”

It will be observed that the act makes no provision in respect to costs. If the plaintiff is entitled to costs, her right to them must be found in the general provisions of the Code relating to the costs of civil actions. The argument, on the part of the appellants’ counsel, is that the only action given by the act to the parent or guardian is an action to recover damages for a breach of the contract contained in the indentures; that the power of the court to annul the indentures and impose a fine is a mere incident to the right of action; and that as the action is for the recoveiy of money for the breach of a contract, it is one of which a Justice’s Court has jurisdiction and as the recovery is for less than fifty dollars, the plaintiff is not entitled to costs. If the argument is sound, it follows not only that the plaintiff is not entitled to costs, but that she is liable to pay costs to the defendants (Code, § 305), notwithstanding she has succeeded in recovering damages, and procuring a cancellation of the indentures on account of the neglect and refusal of the defendants to do what the indentures required of them. It seems to me the argument involves a mistaken view of the nature of the action. The power of the court to cancel the indentures is not, as the counsel supposes, a mere incident to the recoveiy of damages — that is to say, it does not necessarily follow that the indentures are to be cancelled as a consequence of the recovery of a verdict by the .plaintiff. That result follows only when the neglect or refusal is proved to the satisfaction of the court. For that purpose the court is to try the question independently of the jury; and, in weighing the evidence and in ordering or refusing the cancellation of the indentures, it exercises a well-known branch of equity jurisdiction. In this respect, the remedy given by the act is sui generis; but the power of the legislature to create it is undoubted, and as the statute is remedial, it should be construed in such a manner as to effectuate its intent. We think the case falls within the class of actions provided for by section 306 of the Code, and that costs were properly awarded to the plaintiff in the discretion of the court.

If it be suggested that the fine which the court has power to impose is intended by the act in lieu of costs, the answer is that, by the express terms of the act, the fine is for the sole use and benefit of the apprentice, and the parent or guardian has no right to reimbursement out of it for the expenses of the suit.

Order affirmed, with ten dollars costs of the appeal and disbursements.

Present — Mullin, P. J., Talcott and Smith, JJ.

Order affirmed, with ten dollars costs of appeal and disbursements.