text:
    The People, Resp’ts, v. Frank B. Brown, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Abduction.
    Defendant was jointly indicted with N. and Mrs. N., charged with the crime of abduction, in that they inveigled one L. to the city of Syracuse and into a certain hotel for the purpose of prostitution and sexual intercourse, she then being an unmarried female of previous chaste character, under the age of sixteen. On the trial L. testified that the four being together Mrs. N. suggested that they go to Syracuse, which they did, stopped at a hotel, drank freely, and that 3ST. suggested that all sleep together, that this was not done, but that shortly after, at Mrs. N.’s suggestion., she went to bed, leaving the door open and defendant entered her room, spent the night, and had sexual intercourse with her, that she had never had intercourse with any person before that night, and that defendant spent the following night with her. Defendant registered at the hotel under an assumed name; he admitted his intercourse with L., but testified that he knocked at her door, which was locked, and she let him in, and that previous to the Syracuse trip he had perpetrated several acts of sexual intercourse with her in his hotel, and he called witnesses who gave evidence tending to show that she had allowed such intercourse. This evidence was contradicted. Seld, that a verdict of guilty should not be set aside.
    . 3. Same—Evidence.
    In such case it was not error to allow the complainant to state the interview with Mrs. R. in the presence of defendant when the talk was had as to the excursion to be made to Syracuse, and that on that occasion all drank together, or that when she and Mrs. R. reached the city she inquired where they were to stop.
    3. Same.
    It was not prejudicial to defendant to allow complainant to testify that on the day of the arrival in Syracuse R. proposed to her to have intercourse with him and was refused.
    4. Same.
    The evidence of complainant that R. proposed they all sleep together, but that defendant refused, and that she was intoxicated at the time, and when defendant first came to her room, was properly received.
    5. Same—Chabge.
    In such case no error was committed by the court in refusing to charge the jury that “they must find that there was a conspiracy between the defendant and R. and his wife by which the girl L. was to be inveigled into the hotel or some other place for the purpose of sexual intercourse or prostitution,” he having already charged that if defendant had enticed the girl for such purpose the .offense was made out as to him.
    6. Same.
    The court properly refused to charge “ that the jury would not have the right to find from the evidence that the defendant personally and alone induced or enticed and inveigled the girl into the hotel for the purpose of prostitution or sexual intercourse.”
    Defendant was jointly indicted with Arthur Nunn and Nellie Nunn, charged with the crime of abdúction. The first count charges the inveigling of Lilly Long to the city of Syracuse, “she being then and there an unmarried female of previous chaste character, into a certain hotel in the city of Syracuse, known as the Clarendon Hotel, for the purpose of prostitution and sexual intercourse.” The second count charges that the same defendants did, on the 15th day of September, 1891, at the village of Bridgeport, in the town of Sullivan, county of Madison, “ inveigle and entice one Lilly Long, she being then and there an unmarried female of previous chaste character, from said village of Bridgeport and town of Sullivan, to the citv- of Syracuse in this county, and into a certain hotel in said city of Syracuse, known as the Clarendon Hotel, for the purpose of prostitution and sexual intercourse.” The third count charges that the defendants “ feloniously did take, receive, employ, harbor and use, and cause and procure to be taken, received, employed, harbored'and used, one Lilly Long, she being then and there an unmarried female under the age of sixteen years, for the purpose of prostitution and sexual intercourse, against the form of the statute in such case-made and provided.” A trial was had at the Onondaga sessions and appellant was convicted. A motion for a new trial was made and denied and the defendant was sentenced to States prison at Auburn for the term of four years and seven months. Defendant appeals from the judgment and the order denying the motion for a new trial.

      William Kennedy, for app’lt; B. J. Shove, dist. att’y, for resp’ts..
   Hardin, P. J.

In August, 1891, the defendant kept a hotel in the village of Bridgeport; he sent for Lilly Long to come to his hotel and employed her and she commenced her services on the seventeenth of August; in the month of September Nunn and his-wife visited the hotel, and while spending an evening there some wine was procured and a conversation held in respect to going to-the city of Syracuse to attend the State fair, which was to be held there in September. Mrs. Nunn suggested that they could stop-at her cousin’s on Bear street. On Monday, the week of the fair,. Mrs. Nunn sent word by the defendant Brown that she would be, ready to start Tuesday morning.

On that morning, September 15th, Lilly Long went to Mrs. Nunn’s and joined her, and they started for the city of Syracuse,, driving a horse. Brown and Nunn started together, and overtook them and passed them. When Mrs. Nunn and Lilly reached the city they drove to the Clarendon Hotel, and found Nunn, standing out in front; they alighted and went up into the sitting room, and Brown and Nunn followed, taking some wine, and they all four of them partook thereof, and had dinner shortly after.. Free use was made of wine thereafter by the parties while they were together for some three days in the city of Syracuse. Apparently Lilly first protested against the use of wine, but was assured by Mrs. Nunn that it would do her no harm. During the-afternoon Nunn made some solicitation or proposition to Lilly,, which she rejected, and they went to Gang’s saloon and obtained a meal, and were supplied with more wine; apparently they remained there until near eleven o’clock at night, when the four-went back to the Clarendon Hotel, and from there to another saloon kept by a woman, at which they had more to drinlc; then they returned to the hotel, and Nunn made some proposition that they all sleep together. After some conversation had between the two men one side, Mrs. Nunn took the complainant into a bedroom, and told her to go to bed, and left her there; the complainant undressed and went to bed, and shortly after she had gotten to sleep the defendant Brown approached her room, opened the door, “and that woke” her up. The complainant testified, viz.: “ Brown spent the night with me there, and had sexual intercourse with me that night; I had never had intercourse with any other person before that night; in the morning Brown said: ‘I wonder if Nunn has gone home yet; he said if be got me in trouble that I could ask Mrs. Nunn, and she would see about getting me out; he said he wondered if Arthur had signed his right name: and I savs: ‘ Wbvdidn’t you ? ’ and he said: 1F. B. Baker; ’ and I saw Mrs Nunn that morning in her bedroom ; she occupied room 26 on the second flight; that was on the floor above number 6.” It appears also by her testimony that the four parties stayed at the hotel partaking of wine, and that the defendant would get it sometimes, and sometimes Nunn, and that they remained at the hotel until dinnertime; they wentout onto the streets Wednesday after dinner,and the defendant bought a dress for Lilly, and then the four went back to the hotel, and the defendant hitched up his horse and took Mi's. Nunn and Lilly to a saloon where they remained until evening; when they returned to the Clarendon they went into the sitting room and apparently they were all somewhat intoxicated. After the complainant went to bed the appellant visited her room and occupied the room with her that night. “ Nunn and Mrs. Nunn stayed in number 1 on the same floor with number 6 that night.” None of the parties visited the fair; they started to return to Bridgeport Thursday, and the complainant and Brown rode together until they approached the village and just beyond Messina Springs, when they all went to'Mrs. Nunn’s house sometime after midnight, where they were supplied with whisky ; the •complainant remained there all night, and she returned to Brown’s hotel on Friday afternoon, and worked that afternoon. In the course of defendant’s testimony he admits occupying a room with the complainant on Tuesday night; he states, however, that when he reached her room “ she got up and unlocked the door, and I went in and went to bed and stayed there all night; when I got in the room the girl was getting into bed; she was disrobed; ” and in referring to the second night, he says • “ I got the key of my room at the office, and the girl went to bed first; in twenty minutes or half an hour afterwards I went to bed. When I got up to the room Miss Long was in the room ; she had her clothes off •and must have been in bed ; the door was locked that night, and I knocked; she wanted to know who was there, and I told her, and she got up and unlocked it; after I got in there was nothing of any account said between us that I remember. * * *

After we went to bed that night she told me that Nunn bad been to the room and that she wouldn’t let him in. She said that Arthur had been to the room, but he couldn’t get in while I was around there. I remained all night with her and got up, perhaps, eight ■o’clock the next morning; we all four had breakfast there at the hotel; we was around the city as usual that day. * * * I bought her a dress there; she asked me for some money at the Clarendon ; she said. she wanted while here to get a dress and some things, and I told her to go to Dev’s and get what she wanted and I would happen around there and pay for it, and she and Mrs. Nunn went up there, and before they came out I went up and they had got their stuff whatever it was, and I paid for it.” The defense made to the charge contained in the indictment seems to have been upon the theory that the complainant was not of previous “chaste character,” and to substantiate it the defendant ■testified that previous to the occasion of being at Syracuse with her he had perpetrated several acts of sexual intercourse with her in his hotel, and he called witnesses who gave evidence tending to show she had allowed sexual intercourse prior to the excursion to Syracuse. Such evidence was contradicted.

The complainant testified that defendant had intercourse with her Tuesday night in the Clarendon Hotel, and that she “had never had intercourse with any other person before that night.” After seeing the witnesses and hearing all the evidence, the jury have found a verdict of guilty. There was such a conflict in the evidence that it was for the jury to ascertain where the truth was, and to determine the questions of fact presented at the trial. We cannot say the verdict is contrary to the weight of the evidence. It was natural that the jury should distrust and disbelieve the evidence given by the defendant and his witnesses as to the acts of sexual intercourse alleged against her and a want of chastity of the complainant prior to the occasion of the defendant’s intimacy and intercourse with her at the Clarendon Hotel. We are not inclined to disturb the verdict upon the questions of fact presented to the jury by asserting our belief of the defendant’s testimony instead of the evidence furnished by the prosecution. Section 282 of the Penal Code provides that “a person who * * * 2. Inveigles or entices an unmarried female of previous chaste character into a house 'of ill-fame, or of assignation, or elsewhere, for the purpose of prostitution or sexual intercourse, is guilty of abduction.” As already intimated, we think there was evidence before the jury which warranted them in finding all the material facts required to bring the defendant’s case within the provisions of the statute. People v. DeLeon, 109 N. Y., 226; 14 St. Rep., 847. We think there was sufficient evidence given tending to corroborate the complainant, and that the trial judge was warranted in saying, as he did, in the course of his charge: “ It is for you to say whether this girl has been corroborated, or, in the language of the statute, supported.” People v. Brooks, 131 N. Y., 321; 43 St. Rep., 294; Penal Code, § 283; People v. Brandt, 14 St Rep., 419; People v. Everhardt, 104 N. Y., 594; 5 St. Rep., 793.

The appellant insists that a new trial should be had because of ■alleged errors committed upon the trial by the court, and we must •consider the exceptions:

1. It was not error to allow the complainant to state the interview she had with Mrs. Runn in the presence of the defendant when talk was had as to the excursion to be made to Syracuse, or the fair, and that on that occasion all four of the parties drank together. Ror was it prejudicial to the defendant to allow the complainant to state that when she and Mrs. Runn reached the city she inquired where they were to stop. It was the theory of the prosecution that Runn and his wife were acting in concert with the defendant, and it was proper to show the acts and doings when carrying forward the plans to visit Syracuse, and what took place between them while acting together under a plan which the defendant had helped form and facilitated the execution thereof. The remark of Runn in the absence of the defendant to the complainant tended to show the relations he held to her, and though it be said to have been improperly received, it did not prejudice the defendant. People v. Gonzalez, 35 N. Y., 49; People v. Brooks, supra; § 542 Code Criminal Procedure.

2. The complainant testified that Wednesday evening after the-four returned to the Clarendon hotel that some one of them spoke about going to bed ; she was then asked, “ Who spoke about going to bed ?” This was objected to by the defendant and the objection overruled and the" defendant excepted ; she answered,. “Nunn did; he wanted us all to sleep together again, and then that Brown said he wouldn’t. * * * I sat down in a chair because I was so dizzy and sick to my stomach, and then in a., little while she told, me to go to bed" and shut the door and went, out; I was intoxicated then; Mr. Brown came in the room that night and occupied the room with me that, night; Nunn and Mrs. Nunn stayed in No. 1 on the same floor with No. 6 thatnight.”' The evidence was properly received, as it bore upon the conduct of-the defendant and tended to establish the important elements of the crime with which he was charged.

3. Defendant testified that he registered at the Clarendon as “ F. B. Baker;” his counsel asked him “ Why did you register that way ?” It was objected to and the objection sustained.

In his cross-examination he testified, viz.: “ At the time I registered I had concluded that I would have sexual intercourse with this girl and wanted to stay over night; I registered under the name of Baker because I didn’t want to do anything to hurt myself or the -reputation of the girl; I didn’t want everybody to know I was there, and on account of my wife; I thought of my wife a good many times; it first occurred to me that I wanted to put Baker down on account of my wife when I signed my name; I didn’t want to do anything to hurt anybody’s reputation.” It would seem that he was allowed to and did sufficiently elaborate upon the reason why he registered “ that way,” and the exception ought not to avail the appellant.

4. The acts and declarations of defendant, testified to by Eva Fox in her cross-examination, tended to show defendant’s intimacy with and relations to the complainant, and to some extent, bore upon the witness herself unfavorably, and were not improper on cross-examination.

Some other rulings are referred to in the argument of the learned counsel for the appellant. We have looked at them and are of the opinion that they do not present prejudicial error, and that under the rule laid down- in § 542 of the Code of Criminal Procedure we ought not to disturb the verdict by reason thereof. People v. Burns, 33 Hun, 296.

In the course of the charge delivered by the trial judge he-referred to § 282 of the Penal Code, repeating its language to-the jury, and also informing them that the indictment charged the defendant with having enticed Lilly Long to visit Syracuse and the Clarendon Hotel, for the purpose of.sexual intercourse, “ she then being an unmarried female of previous chaste character.” Hez then repeated the issues for the jury to consider, and he defined a portion of the statute by saying, “To inveigle, entice, persuade, induce, they all have a meaning of about a similar character, all those words have. And you readily apprehend what the language of the statute means when it states that a person who inveigles or entices another, an unmarried female of previous chaste character. How, chastity in law has a plain, simple meaning. It relates to the question whether a woman has improper sexual relations with a man or not. In the case of an unmarried woman it relates to the question whether she has had sexual intercourse with any man or not.” He then further commented upon the evidence, informing the jury that it was for them to say whether the girl was corroborated, and in that connection he called their attention to § 283 of the Penal Code, and while commenting upon that he very properly observed, as we think, as follows: As to that particular branch of the case the defendant himself corroborates her, that he did have ■sexual intercourse with her, but that is not the offense charged, it is only a fact in the case from which you may draw such con•clusions as may logically follow as to the purpose of her being taken to that hotel. How as to whether there is any supporting evidence or not upon the question of her being enticed or inveigled to come herethen he somewhat in extenso refers to other evidence tending to corroborate the testimony of the complainant and left the question to the jury to determine whether she was corroborated or supported by other evidence. In that respect his charge was in accordance with the rule laid down in People v. Everhardt, supra. We think no error was committed in refusing to ■charge the jury that they must find that there was a conspiracy between the defendant and Hunn and his wife “ by which the girl Long was to be inveigled into the hotel or some other place for the purpose of sexual intercourse or prostitution.” The court understood the request to be that he was requested to charge: “ If Brown is not shown to have enticed her then, in order to convict, they must show a conspiracy.” It is to be borne in mind he had •already charged the jury that if Brown had inveigled or enticed the girl for the purposes of prostitution or sexual intercourse, that the offense was made out as to him. We think the position taken by the trial judge was sufficiently favorable to the defendant and that the judge properly refused to charge: “ That the jury would not have the right to find from the evidence that the defendant personally and alone induced the girl or enticed and inveigled the girl Long into the hotel for the purpose of 'prostitution or sexual intercourse.” It was for the jury to determine the questions of fact involved in the request. We think the defendant failed to obtain an exception to any refusal to charge or to any part of the charge as delivered which requires us to interfere with the verdict. The great trouble with the defendant’s case is that the jury believed the complainant and such evidence as was brought tending to support her version of the matters referred to and involved in the charges contained in the indictment, and failed to believe the testimony of the defendant, and of such witnesses as •he called tending to support his theory of the case.

Conviction, order and judgment of the court of sessions of. Onondaga county affirmed and the clerk directed to enter judgment and certify a copy of the entry to the clerk of Onondaga county pursuant to § 547, etc. of the Code of Criminal Procedure.

Merwin and Parker, JJ., concur.


source: Caselaw Access Project

author: Hardin, P. J.

license: Public Domain

text:
    Ellen I. Ballard, Ex’rx, Resp’t, v. The Hitchcock Manufacturing Co., App’lt.

      (Supreme Oourt, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Master and servant—Negligence.
    On the trial of an action against a corporation for damages for the death of plaintiff's testator, an employe of defendant, caused by explosion of a boiler near where he was working, evidence was given tending to show that the boiler had been out of repair for at least four months before the explosion; that one O. had been called upon to repair its horizontal seam, which he did by “callring it,” but that upon attempting to use the boiler the calking was blown out. 0. stated as a witness*that the calking done by him “ was not a good job;” that he attempted to show H., the engineer, how to do it, and that before he left he told one of defendant's directors that the seam was defective. Held, that defendant owed deceased the duty of using reasonable care and diligence to keep the place where he was required to perform his services reasonably safe and shielded from injuries like the one caused by the explosion.
    2. Same.
    In such case defendant, by delegating the performance of the duty of repairing the boiler to O. and H., made them its representatives, and for the time being they stood in its place in the discharge of that duty.
    3. Same—Evidence.
    In such case expert evidence was properly admitted tending to show that the explosion was caused by improper calking, and the court was. warranted in submitting to the jury that question, and whether such calking was done by 0. or H., and if done by H., whether he was authorized to do it, and the jury’s findings favorable to the plaintiff on those questions should be sustained.
    Trial at the January circuit, 1892, in Cortland county. Yer-dict for the plaintiff for $3,000. Motion for a new trial on a case and exceptions made and denied. Appeal from the judgment and order. On the 30th of May, 1887, William P. Ballard died, leaving a last will and testament, which was proved in Cortland county, and letters testamentary issued to the plaintiff. The defendant is a domestic corporation carrying on business in the village of Cortland, owning two large buildings “ full of machinery, viz.: Punches, shears, trip-hammers, saws, plainers, shapers, sunders and mortice machines. That for the purpose of creating the power to run such machinery, and of the steam to heat said two buildings, defendant had in said two buildings three tubular boilers and three engines, one of which boilers was known as the big boiler and the other two as the old boilers.” Plaintiff’s complaint alleges that her testator, on the 30th of May, 1887, “ was in the employment of the defendant, tending a mason by the name of Franklin H. Scott, who was laying up a brick wall partition immediately in front of and near by said big boiler and between the boiler room and the adjoining building. That plaintiff’s testator was employed by defendant to perform services in a part of the said wooden building remote from the place where said big boiler was stituated; * * * he commenced upon the performance of said work un warned by defendant of the defective condition of said boiler.” It is also alleged, ‘‘That for want of due care and attention to its duties towards its employes * * * and while the plaintiff’s testator was in the employ of defendant, and in said employment was working within a few feet of said boiler, in the capacity as aforesaid, and without any contributory negligence or fault of plaintiff’s testator, the boiler known as the big boiler by reason of said unsafeness, said defectiveness, of said neglect of defendant * * "* exploded * * * and plaintiff’s testator received severe and mortal injuries therefrom,” and in consequence of said injuries died on the 30tli of May, 1887. The answer of the defendant denies that the injuries were received by plaintiff’s testator through the carelessness, negligence or improper conduct of the defendant, &c.

      B. A. Benedict, for app’lt; Franklin Pierce, for resp’t.
   Hardin, P. J.

On the morning of the 30th of May, 1887, when plaintiff’s intestate received the injuries from which he died, he was at work attending a mason, who was building walls for a room, and was at a point about twenty-five feet from the large boiler used by the defendant for running its machinery. Defendant’s large boiler, which had been in use some two years and was sixty-six inches in diameter and sixteen feet long, containing 103 three inch tubes, exploded, causing the death of plaintiff’s . testator. His body was found about twenty feet from where the front end of the boiler was. when it exploded. Evidence was given tending to show that the boiler had been out of repair for at least four months before the time of the explosion. In January, one Osborn was called upon to repair the first horizontal seam on the right side of the boiler looking from the front, which seam ran along underneath the dome of the second section of the boiler; he repaired the whole length of the seam by calking it.” Upon attempting to use the boiler the calking was blown out, and some evidence was given tending to show that it was weakened along the seam.

Thereafter Adams was called and again calked the boiler along the horizontal seam. The boiler was leaking steam, and it was difficult for him to make a firm job, and he used a testing tool, going along the seam to stop the leaking. Osborn stated as a witness that the calking done by him “ was not a good job.” He made explanations and attempted to show William Howard, the engineer, how to do the calking. Before Osborn left he called upon Gleason, one of the directors, and informed him that this seam in question was defective and needed repair. Evidence was given tending to show that after the calking was done by Osborn and Adams the boiler continued to leak steam along the horizontal seam more or less down until the time of the explosion, and that Howard continued calking along the horizontal seam from Januuary until the time of the explosion. During the trial'a portion of the horizontal seam claimed to have been injured by the calking was brought before the jury and the injuries thereto were pointed out by the witness, Professor Thurston, an eminent writer on the subject of boiler explosions, and he testified that the calking along the edge of the lap was not well done; also: “ The metal being chipped first by a chisel to a smooth, even bevel' from the upper to the lower surface of the sheet, and then the calking tool would be applied so as to produce a change in the thickness ■of that bevel, by forcing the iron on the lower edge against the iron on the lower sheet so as to seal that leak. Improperly done, the calking would produce an irregular edge, such as is seen at this special point upon which I place my finger, where the iron has been forced back and the straight line on the edge has been broken .and the edge of the sheets upset, and the metal forced in between it and lower sheet. The depth of the cut in the lower sheet, I should say from its appearance as lying there on the table, was nowhere more than one-sixteenth of an inch, and in many places less. • The tendency in that cut, from expansion and contraction, would be to produce a line of fracture, and the effect would be to produce a fracture such as is seen in bending a piece of tin along a certain definite line. * * - * The calking is designed to close that seam and prevent the leak, but this wedging action would ■open it still further.” He also testified that an explosion only ■occurs where there is a general weakness along considerable line of space, and that he found such a line of weakness along the horizontal seam; and he added that the break from rivet to rivet would contribute to make this a general line of weakness and ■cause the explosion. Other evidence was given tending to indicate that the horizontal seam had been badly calked and the weakest part of the boiler was in the horizontal seam.

When this action was before the court on the first appeal, 51 Hun, 188 ; 21 St. Rep., 548, in the course of the opinion delivered by Kennedy, J., it was assumed that the defendant “ was required to exercise reasonable care and diligence to ascertain that the boiler was reasonably safe and fit for the purposes to°whioh it was to be applied.” Plaintiff’s testator was entitled to “a safe and proper place in which to prosecute his workand it was the duty of the defendant to furnish him.such a place, and the'defendantis liable for a failure to discharge such duty if the injury was occasioned by' the non-performance of such duty. Pantzar v. Tilly Foster Iron Mining Company, 99 N. Y., 368. The rule is repeated in Probst v. Delamater, 100 N. Y., 272, by Ruger, Ch. J., in the following language: “ The duty of the master to furnish ■safe, suitable and sound tools, machinery a,nd appliances for the ■use of the servant in the performance of the work of the master, and to keep them in repair, is not an absolute one, and is satisfied by the exercise of reasonable care and prudence on the part of the master in the manufacture, selection and repair of such appliances. This is a duty which cannot be delegated to a servant so as to excuse the master from damages occurring through an omission to perform it, yet when the master has exercised all of the care and caution which a prudent man would take for the safety and protection of his own person, the law does not hold him liable for the consequences of a defect which could not be discovered by careful inspection or the application of appropriate tests to determine its existence.”

The doctrine was again repeated in Fredenburg v. N. C. R. Co., 114 N. Y., 582; 24 St. Rep., 550, in which case it is asserted to be the duty of the master to use care and to make the place reasonably safe for its employes.

The rule is again approved in Dobbins v. Brown, 119 N. Y., 188; 28 St. Rep., 957, and it is there said the neglect must be proved by direct evidence, “or by proof of facts from which the inference of negligence can be legitimately drawn by the jury; ” and it is added: “ The mere fact that an accident occurred, which caused an injury, is not generally of itself sufficient to authorize an inference of negligence.”

In Butler v. Townsend, 126 N. Y., 110; 36 St. Rep., 508, Finch, J., in delivering the opinion, says : “ The rooms of a factory have been deemed 1 places ’ for work which the master was bound to make safe by the exercise of reasonable care.” From these cases it is apparent that the duty that the defendant owed to the deceased was to use reasonable care and diligence to keep the place where he was required to perform the services in which he was engaged, reasonably safe and shielded from injuries like the one caused by the explosion. It is therefore the defendant’s duty to keep its boiler in suitable repair, and in the discharge of that duty it became incumbent upon the defendant to make use of the proper instrumentalities in causing the repairs to be made. The trial judge submitted to the jury the question of whether the duty of keeping the boiler in proper repair was discharged; and incidentally in that connection he submitted to the jury to say whether Adams, Osborn and Howard, in their efforts to put the boiler in a suitable condition, were the efforts of the defendant. Defendant, by delegating the performance of that duty to Osborn, Adams and Howard, made them its representatives, and for the time being they stood in the place of the defendant in the discharge of that duty.

When this case was before us on the second appeal, 39 St. Rep., 842, it was said in the course of the opinion that “ The evidence was not sufficient to authorize the finding that Howard had sole charge, and it should have been so held as a matter of law. Crispin v. Babbitt, 81 N. Y., 516. He was there as an engineer running the engine and boiler. There was a superintendent and- an assistant, both of whom were the superiors of Howard, and who. had charge of the entire works, including the boilers and engines. They, and not Howard, stood in the place of the master ; ” and later on in the opinion it was said, “ So far as the ordinary running of the engine and boilers was concerned, Howard was only a co-employe. As to the repairs, it is quite clear that he didn’t have full or sole charge; it was not a part of his duty personally to make the repairs, nor was the duty on him to select and employ the parties who should do it.” While we adhere to the opinion then delivered, we are also now of the opinion that the evidence warranted the judge in submitting to the jury the fiestion whether the boiler exploded at the horizontal seam rough the groove caused by the improper calking and in consequence of the improper calking, and whether this negligent calking was done by Osborn, Adams or 'Howard, and if it was done by Howard, whether he was authorized by the defendant to do the callring, and that upon all the evidence the verdict of the jury finding favorable to the plaintiff on those questions should be supported. While there is much adverse evidence in the case upon the subject, we think, under all the circumstances, that the question was one of fact for the jury to consider.

It was said in Mullan v. Philadelphia & Southern Mail Steamship Co., 78 Penn., 25, that whether the servant represents the master in respect to acts complained of or occupies the position merely of a co-servant is a question of fact to be determined by the jury upon sufficient evidence warranting a finding to that effect. Upon all the evidence it was a question “ whether the corporation by any of its agents failed to exercise due care to prevent injury to the plaintiff’s testator from defects ” and improper repairs to the boiler in question, near which he was required to discharge his duties. See Bushby v. N. Y. L. E., & W. R. R. Co., 107 N. Y., 383; 12 St. Rep., 9.

In Penn, & N. Y. Canal Co. v. Mason, 109 Penn., 296, it was said, “ A master is bound to furnish his servants with such machinery as is reasonably safe and suitable for the work. If he employ other servants to construct or repair such machinery, he is responsible to his servants who use the machinery for any negligence in the work of construction or repairing." In the course of the body of the charge the trial judge submitted the question to the jury to determine whether the defendant, by its principal officers, had knowledge “ and permitted Howard to do the calki ingand he added, “ Then I charge you that that is equivalent to an authority. So that, if there was negligence in the calking of this seam and it was done by Howard, under permission of the defendant, then the negligence of Howard is the negligence of the defendant and for which the defendant is liableand he stated, “If you shall find, however, that the seam was negligently calked and the calking was done by some one with the authority or permission of the defendant, then I charge you, gentlemen of the jury, that you shall find that the defendant has been guilty of negligence. If you find that the defendant has been guilty of no negligence, your verdict must be for the defendant.” At the request of the defendant he also charged: “ The evidence must establish personal fault on the part of the defendant and master, or its equivalent thereto, and that the defendant is entitled to the benefit of the presumption that he has performed his duty until the contrary appearsand he also charged; “ That if the fault has been by an agent authorized to make these repairs by the defendant, that that is equivalent to a personal fault of the master.” In various other expressions the judge repeated the substance of his charge, and refused in some instances special requests which he deemed a call from the counsel to express in different language the same idea which he had delivered to the jury in the body of his charge.

Our attention is called to Brick v. Rochester, N. Y. & P. R. R. Co., 98 N. Y., 211. The duties that Thompson was performing at the time of the injuries “ were those of a fellow servant and not of the master, and hence if he was chargeable with negligence, it was that of a fellow servant and not of the master within the principle of well considered cases.” It was, therefore, held in that case that it was error to hold the defendant liable for the negligence of Thompson. In the case in hand the jury have found that Howard, as well as Adams and Osborn, were, discharging the duties of the master in callring the boiler, and that a failure to perform that duty was the failure of the master rather than the failure of a co-employe. Therefore, the case in hand differs from the Brick case.

Our attention is called to Hussey v. Coger, 112 N. Y., 614; 21 St. Rep., 848, and in considering the facts in that case, the opinion at page 620 states: “It was no part of the duty of the master to remove hatches, or direct the particular mode of doing so, any more than to direct workmen in the use of the tools with which they performed their work. There were customary and established modes of performing such services, and each employe was expected to do his work in the manner and style to which he was accustomed without special directions in respect thereto. It was entirely immaterial whether the superintendent undertook to perform the work of removing hatches or ordered it to be done by others; he was, in either case, engaged in performing the duty of a workman.” We think that case differs from the one before us. We are of the opinion that no error was committed in refusing to grant a nonsuit at the close of the evidence.

(2) The trial judge permitted the jury to find that the defendant or its officers knew that Howard was calking the boiler at different times. The defendant asked the court to charge that there was no evidence that the defendant knew it,and that the affirmative evidence was that the defendant did hot know it. The court declined and an exception was taken. We think the court was not in error. There was proof that defendant’s officers were in and about the boiler room frequently, if not daily. There was proof that steam was seen or heard escaping on many different times and days., and the witness Cady says: “ Mr. Howard would take the calking tools that was left there by this boiler maker, and an armful of gunny sacks and go up on the boiler. He would go up on the boiler with his gunny sacks and bags, and sit on them, and use the calking tools for calking, and would calk the seam, more or less, for several days ; and sometimes when became down off the boiler you could’nt see or hear scarcely any escape of steam, but it wouldn’t last long before it would appear again, and he would go up again; sometimes it would be one day right after the next day; sometimes it would skip three or four days or a week.” The witness Bailey testified that he had heard steam escaping; and the witness Barton says that he noticed it on several occasions ; and the witness Shirley says he heard it occasionally ; he was in the boiler room nearly every day and heard steam in the direction of the dome. The witness Bunn testifies that he saw it several times; saw small quantities of steam. It is true that witnesses were called to gainsay the testimony given upon that subject by the plaintiff, and the evidence of the employes and officers, presented to the contrary, produced a conflict upon that subject which we think was properly referred to the jury, and that the verdict ought not to be disturbed finding the essential facts as claimed by the plaintiff in that regard.

(3) We think the defendant was not prejudiced by allowing the witness Hitchcock to state in the course of his cross-examination in answer to the following question: “ Did you know Mr. Howard was absent from the boilers and left Mr. Fuller there in charge?” The answer of the witness was, “I presume he was out more or less.” We think the statement made by the witness did not prejudice the defendant.

(4) A witness was called who testified that he went to Mr. Gleason and told him the condition the boiler was in. Thereupon the court observed “ The general statement that he told him of the condition of the boiler is not competent, and the part of the answer that he told him of the condition of the boiler may be stricken out, but you can read anything he said to liim as to the condition of the boiler.” An exception was taken to the ruling which we think presents no error. The witness then proceeded to state what condition he told him it was in, to wit, that it was “ in a dangerous condition; I thought it would have to be repaired ; I told him I had just been calking it; I stated to him the condition the boiler was in; I can’t tell you what he asked me; I .can’t tell the words exactly I said to him now and remember to word it word for word; I can’t do it, but I can tell what he did say'; I said to him the boiler was in a bad condition, it would have to be repaired and that right away ; and then he wanted to know how and in what way and what it would cost, and I went on and gave him an explanation.”

Considerable more evidence was given touching the conversation had with Gleason in respect to the condition of the boiler and its need of repairs. Gleason was secretary of the company and was frequently in and out of the boiler room down to about the 28th of April. It seems to have been proper to give the information that was communicated to Gleason with a view of determining the extent of the knowledge of .the defendant as to the condition of the boiler antecedent to the accident. Stephens v. Hudson Valley Knitting Co., 52 St. Rep., 795.

(5) It is claimed by the defendant that some error was committed by receiving evidence on the trial as to communications to Howard. When the defendant was about to give evidence to show that Howard was a competent man to do the work, the court stated that it had ruled that the communications to Howard were immaterial; and the plaintiff’s counsel stated that “We are willing that all the evidence bearing upon the competency of Howard may be stricken out.” Thereupon the court observed to the jury: “ You are to disregard all evidence as to Mr. Howard's competency, because the question as to the competency of Mr. Howard is no longer in the case.”

Among the requests made by the defendant to charge the jury was the following : “ That the declarations in evidence, made to or by Howard, as to the condition or safety of the boiler in question, are not the slightest proof of the condition or safety of the boiler, and the jury must not use or consider them in determining its condition or apparent safety.” In response to that request the court observed: “ I so charge you. And, gentlemen, there has been stricken out of the case all evidence of the declarations of Osborn and Adams to Howard in reference to the safety or defects of the boiler.” To that response exception was taken by the defendant.

Thereupon the defendant made the following request: “ That said declarations to Howard, or Howard’s failure to make them known to the defendant, or its officers, are not competent evidence as bearing upon the question of. the defendant’s having discharged* its duty towards the deceased in the employment of competent fellow workmen or otherwise, and the jury must not use or consider them in determining that proposition.” The court responded, “I so charge you.” It is to be presumed that the instruction to the jury was complied with. Holmes v. Moffat, 120 N. Y., 159; 30 St. Rep., 779. It was also held in that case that, “ Where the court instructs the jury to disregard testimony, improperly received, and there is other evidence to support the verdict, it will be assumed that the instructions were obeyed and the error in its admission cured.”

The foregoing views, as well as those expressed by Smith, J., in an opinion delivered at special term, lead us to advise an affirmance of the judgment and order. ,

Judgment and order affirmed, with costs. !

Merwin and Parker, JJ., concur. \


author:
Parker, J.
      Hardin, P. J.

text:
    Louisa Hayden, Resp’t, v. Mary R. Pierce, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Bills and Notes—Payment.
    In an action against an executrix upon a note given by her testatrix to plaintiff for past and future services, and payable one year after death, the answer alleged that the note had been paid by testatrix conveying to plaintiff a house and lot. On the trial plaintiff’s witnesses testified that testatrix told them, prior to such conveyance, that she had not done enough for plaintiff, and wanted to do xriore for her than the note, and would buy her a house and lot and deed it to her. Held, that a finding by the jury that it was not testatrix’ intention to satisfy the note by the deed was justified by the evidence.
    3. Executors and administrators—Limitation.
    In such case it appeared that testatrix died in January, 1890, that the will was admitted to probate in April, 1890, that in December, 1890, an order of publication for creditors was granted, that about January 25, 1891, plaintiff’s claim was rejected by written notice, and that the action thereon was begun after December 14, 1891, the date of the summons, which was served by publication, the defendant then being, and having been for years, a resident of Illinois. Held, that defendant’s defense of the short statute of limitations provided in § 1822 of the Code as a bar to the action was not established.

      Trial at the Otsego circuit; verdict for the plaintiff for the sum of $1,390. A motion was made for a new trial (on a case and exceptions and denied. Appeal from the order and judgment on the verdict entered in favor of the plaintiff. Appellant is executrix of Eliza W. Brown, deceased. The action was brought upon a “ promissory note or instrument in writing ” bearing date, Milford, January 23, 1882, and it contained the following- language: “ On or before one year after my death, for value received I promise to pay to Louisa Hayden one thousand dollars with interest from April 1, 1882, at the rate of six per cent per annum semiannually. This note is given in consideration for services in full from March, 1864, to April 1, 1882, and for services to be rendered for me from April 1, 1882, until my death. * * * ” The note was given to the plaintiff, who continued in the employ of the maker thereof until the time of her death, which occurred on the 1st day of January, 1890. She left a last will and testament in and by which the defendant was named as executrix. On the 9th of April, 1890, the will was admitted to probate by the surrogate of Otsego county, and defendant as sole executrix filed,her official oath and consented to act as executrix of said will. The answer contains several denials and alleged payment of the nbte; and that on the 2d day of October, 1886, the testatrix conveyed by warranty deed a house and lot to the plaintiff which the testatrix had just previously purchased for the sum of $1,600. The consideration named in the deed from the testatrix to the plaintiff was one dollar. The defendant in her answer alleged “ the real and true consideration for the conveyance to the plaintiff was the said written instrument and the aforesaid agreements of the plaintiff.” The answer also alleged that the plaintiff exhibited her said claim upon the written instrument on or about the 5th day of January, 1891, and that the same was disputed and rejected, and that notice of the rejection of the claim was personally served on the plaintiff on the 26th day of January, 1891. That at the time of the presentation of the claim the publication of notice to creditors requiring the presentation of claims against the estate of Eliza Brown had been commenced, and that the claim was not referred as prescribed by law “ and more than six months elapsed after the rejection of said claim before the commencement of this action, or any action, for the recovery thereof against this defendant.
    “That this action was not commenced within six months after any part of the alleged debt became due, nor did the alleged cause of action accrue within six months before the commencement of this action. And the defendant pleads as a bar to this action the short statute of limitations provided in § 1822 of the Code of Civil Procedure.” An order made by the surrogate of Otsego county dated the 29th day of December, 1890, in the matter of the personal estate of Eliza W. Brown, was granted on the application of the executrix, which provided as follows: “It is ordered that she cause to be published in the newspaper called the Otsego Republican, published at Cooperstown in said county, a notice requiring all persons having claims against said deceased to present the same with vouchers thereof to the said executrix at the law office of Edick & Smith in the village of Cooperstown, N. Y., on or before a day to be specified in such notice, which shall be at least six months from the day of the first publication of said notice.” A notice was published. January 13, 1891, in the city of Chicago the defendant wrote a letter to Messrs. Edick & Smith, in which she stated: “ I desire that you, as my attorneys, immediately serve upon said claimant a notice of rejection and disallowance and about the 25th of January the attorneys served upon the plaintiff a written notice referring to the claim presented by the plaintiff, which among other things contained the words: “ that the annexed alleged claim presented against the estate of Eliza W. Brown, deceased, is rejected and disallowed by Mary R. Pierce, as executrix of the last will and testament of Eliza W. Brown, deceased,” which notice stated the grounds upon which it was rejected and was dated January 7, 1891, and signed “ Mary R Pierce, executrix of the last will and testament of Eliza W. Brown, deceased.” This action was not commenced “ until after December 14, 1891, the date of the summons; and was thereafter begun by the service of the summons on the defendant without the state of New York, pursuant to an order for publication made on December 24, 1891.” At the close of the evidence the defendant moved the court to direct a verdict in favor of the defendant on the ground that the action is barred by the statute of limitations; the motion was denied and the defendant excepted. Thereupon the defendant asked to go to the jury upon the question of whether or not the house and lot was conveyed to the plaintiff in payment of the note; which the court allowed. At the close of the charge the defendant’s counsel asked the court “ to hold that the defense of the short statute of limitations is fully established, and that a verdict should be directed for the defendant.” The court declined and an exception was taken.
    The following is the opinion of the court below:
   Parker, J.

The claim upon which this action is brought was presented to the attorneys for the defendant at Cooperstown, in this state, and rejected, in January, 1891. At that time the defendant was, and ever since has been, a resident of Chicago, 111., and at no time prior to the commencement of this action had she been within this state. This action was not commenced until considerably more than six months had elapsed since such rejection, and the claim itself has never been referred. The defendant, therefore, claims that a recovery thereon was barred by the provisions of § 1822 of the Code. The plaintiff claims that the provisions of that section do not apply to this case, because of the nonresidency and continued absence of the executrix from this state. I so held at the circuit, and such is the question that I am now asked to review. The argument is that the provisions of § 401, in chapter 4 of. the Code, do not apply to cases provided for in § 1822; that the cases provided for in such last section are expressly excepted from the operations of § 401 by the provisions of subdivision 1 of § 414. In other words, that a claim presented to an executor and rejected is “ a case where a different, limitation is specially prescribed by law,’ within subdivision 1 of § 414, and hence the nonresidency of the defendant has no effect upon the omission to bring suit within six months after the rejection of the claim. It seems to me that this argument has been rejected by our general term, and that the question presented is no longer an open one in this department. In Titus v. Poole, 60 Hun, 1; 38 St. Rep., 627, the defendant sought to-defeat the claim against him because it was not brought within-six months after its rejection. But the court held that, although not brought within suclr period, the provisions of § 1822 did not control, because an action for the same claim had been commenced within the six months in which the plaintiff was non-suited, and that hence the provisions of § 405 authorize him to commence a new action notwithstanding the limitation prescribed in § 1822. In Wilder v. Ballou, 63 Hun, 118; 43 St. Rep., 514, the defendant sought to defeat the action on the ground that it wras barred by the short limitation contained in § 1822. But the-court held that it was not so barred, because the commencement of the action on the claim was “stayed by an order of court,” and’ that lienee, under the provisions of § 406, the time of continuance of such stay was no part of the six-months limit fixed by § 1822. Here are two distinct decisions that the limitation provided for in § 1822 may be modified and overcome by the provisions of §§ 405 and 406 in chapter 4; in other words, that a claim presented to an executor, and rejected, is not such a case as is excepted from the operation of the provision of chapter 4 by § 414. If, by virtue of the provision of § 406, the time during which an action is stayed by order of court is no part of the-six-months limit provided by § 1822, clearly § 401 can apply, and the' time during which this defendant was a non-resident,, and out of the state, is no part of such limitation. On the authority of the cases above cited, I must hold that this action was not barred.

Mooney & Shipman, for app’lt; E. M. Harris for resp’t.

Another defense set up in the answer is that the claim had been paid by the testatrix in her lifetime, by the conveyance to-the plaintiff of certain premises under an agreement that it-should satisfy and discharge the note in question, and it is now claimed that the verdict of the jury against the defendant on that issue is against the weight of "evidence in that case. The burden of proof was with the defendant to establish her claim that the conveyance of the premises to the plaintiff was in payment and discharge of the note upon which this action is brought. It may have been made in payment. It may have been an additional and gratuitous bounty, or a gift in consideration of the increased labor which the helpless condition of the testatrix imposed upon the plaintiff. Such question was peculiarly within the province of the jury, and I think that, upon the evidence in the case, they were justified in reaching the conclusion which they did reach. The motion for a new trial is therefore denied, with costs.

Hardin, P. J.

Whether the note was paid or not by the conveyance of the house and lot mentioned in the pleadings and the-evidence was a question of fact for the jury. Mrs. Margaret B.. Wilber testified in behalf of the plaintiff, and in the course of her evidence she said: “ Mrs. Brown was wheeled up to our house, and she said she did not think she had done enough for Louisa; that she, Mrs. Brown, had become paralyzed since she gave plaintiff the note, and she wanted to do something more for her, and she thought the best thing she could do would be to buy the-plaintiff a house and lot. Then she said that with the note the plaintiff had and with a house and lot the plaintiff could by doing what little work she could make a living. * * * Mrs. Brown said, 11 don’t want to change my will, but I want to deed her, the plaintiff, this house.’ Mrs. Brown was to have the rentals during her lifetime, and said ‘I have money enough to give her this house and not change my will.’ * * *" Mrs. Brown said she wanted to give the house and lot besides-the $1,000 note, and felt she had not given Louisa as much as she ought to do. I knew of Mrs. Brown giving the plaintiff the $1,000 note. She, Mrs. Brown, asked me how much she ought to give Louisa. She asked me if I thought $500 was enough, and I said no. She then asked me if I thought $1,000 was enough, and I said it was none too much. I told her, Mrs. Brown, that was not as much as plaintiff had earned.” In giving evidence of the declarations of the testatrix, the witness, Deifendorf, said r “ She said she didn’t think she had done enough for Louisa, and she had bought a house and lot and wanted to know of me what I thought about her giving her the house and lot; I told her that she couldn’t do too much for Louisa; then she said she concluded to give her a deed of that place, but to be hers as long as-she lived; that is, Mrs. Brown’s. I attended to the execution of the deed” We think the evidence just quoted, together with the-other testimony bearing on the subject, amply justified the jury in finding that it was not the intention of the testatrix to satisfy and cancel the note by the conveyance of the house and lot to-the plaintiff; we must, therefore, accept the verdict upon the question involved, as it is predicated upon evidence ample and sufficient to justify a finding that the note had not been paid by the testatrix.

(2) It appears by the evidence that the defendant resided in the city of Chicago, in the state of Illinois, when she took the letters testamentary, and she has continued to reside there. We think the defendant failed to make out a defense under § 1822 of the Code of Civil Procedure, and that the trial judge did not err in refusing to hold that the defense of the short statute of limitations was established. Code Civ. Pro., § 401; Titus v. Poole, 60 Hun, 1; S. C., 38 St. Rep. 627; Wilder v. Ballou, 63 Hun, 118; S. C., 43 St. Rep., 514 ; Hill v. Supervisors, 119 N. Y., 344; 29 St. Rep., 588. In the latter case, at page 347, Judge Gray said: “ Section 405 was enacted with reference to the enforcement of the civil remedies prescribed by the Code, and its application is to actions generally; and which the Code of Civil Procedure was enacted to regulate.” The defendant was absent from the state “and resided out of the state when the cause of action accrued.” The proof and admissions upon the trial are abundant upon that subject. Wheeler v. Webster, 1 E. D. Smith, 1; Bennett v. Cook, 43 N. Y., 537.

(3) We think no error was committed in rejecting the declaration of the deceased which the defendant sought to prove by the witness Parshall. It does not follow that because her declarations were received in evidence against her executrix that the declarations of the deceased could be used in her own behalf. The opinion delivered at special term by Parker, J., properly disposes of the questions involved in the case.

Judgment and order affirmed, with costs.

Merwin, J., concurs; Parker, J., not sitting.


text:
    Thomas A. Penfield, App’lt, v. John L. Sage, as Survivor, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Appeal—Reference.
    The general term cannot in a doubtful case upon conflicting evidence assume the place of the referee, and determine from the mere reading of the evidence who has told the truth, or is most entitled to credit.
    3. Conversion—Damages.
    In an action for conversion, where the defendant acted in good faith, the measure of damages is the value of the property as it was just before the defendant’s wrong doing began.
    "8. Same—Evidence.
    In such a case the plaintiff is not prejudiced by allowing a witness to testify as to the enhanced value of the property converted by reason of defendant’s acts therewith.
    Appeal from a judgment entered upon the report of a referee in Oneida county in favor of the plaintiff, awarding the plaintiff $36.85 damages, and allowing the defendant the sum of $150.04 ■costs, and offsetting the damages against the costs and leaving a judgment in favor of the-defendant for $121.19. Plaintiff’s complaint averred that the defendant’s firm “ took and carried away birch and maple lumber and converted the same to their own use; ” and the plaintiff “ waives the tort growing out of the transaction aforesaid.” The answer contained denials of the complaint. The report of the referee awarded damages in the sum of $36.85.

      A. C. & E. C. Woodrull and William Kernan, for app’lt; S. C. Huntington & Son, for resp’t. . ,
   Hardin, P. J.

Barker v. Mathews, 1 Denio, 335, is an authority to the effect that the plaintiff, a judgment creditor, “ cannot sustain an action against a wrong-doer (the defendant here) for taking property out of the possession of the officer.” That case was adverted to by Gridley, J., in Marsh v. White, 3 Barb., 523, but the -doctrine was not disturbed. Plaintiff’s execution upon a judgment against Burritt having been issued to the sheriff of Oswego county, was levied on the property of, and in the possession of, Burritt on the 19th. of March, 1888, and full notice thereof given to Burritt, the judgment debtor. The sheriff posted his notices of sale, and in pursuance thereof sold the logs lying in the yard at Burritt’s mill on the 22d of May, 1888, to the highest bidder, being the plaintiff; and whatever title the plaintiff acquired was ■derived under such sale and the purchase by him under the execution. Although the logs, after the purchase thereof by the plaintiff, were cut into lumber and hauled to Williamstown, some ■nine miles distance from the mill, which was at Bedfield, the plaintiff, in virtue of the title acquired by him, was authorized to pursue the lumber and take possession thereof, he not having given Burritt nor any one else any authority to convert the logs into lumber, or to make sale of the lumber. Silsbury et al. v. McCoon et al., 3 Comst., 379; Dudley v. Hawley, 40 Barb., 397; Hughes v. U. P. Lines, 119 N. Y., 426; 29 St. Rep., 564.

In March, 1888 (intermediate the levy and the sale), Burritt entered into a contract with the defendant’s firm whereby he agreed to sell and deliver a quantity of lumber to the firm, and in pursuance thereof he delivered a quantity to the defendant’s firm, and at the trial a question arose as to how much of the •lumber arising from the logs bid off by the plaintiff was delivered to the defendant’s firm subsequent to the 22d day of May, 1888, the day of the plaintiff’s purchase. That question seems to have been sharply and resolutely litigated at the trial before the referee. There was a conflict in the evidence which called upon the referee to exercise his judgment as to where the truth was to be found after considering all the evidence before him on the question. He reached the conclusion that the defendant’s firm only received 5,000 feet derived from the logs purchased by the plaintiff at the sale after the plaintiff acquired title ■under the execution sale. We are asked to overturn his finding, and reference is made to quite a volume of evidence given by the plaintiff warranting a conclusion contrary' to the finding of the referee; but as there was evidence given in behalf of the defendant which tends to support the conclusion reached by the referee, we are constrained, upon giving such influence to the findings of the referee as we think they are entitled, to accept his conclusion ■upon the facts produced before him. Roosa v. Smith, 17 Hun, 138. In the course of the opinion delivered in that case Board-man, J., said: “ But we think it very clear that a general term cannot in a doubtful case upon conflicting evidence, like the one under review, assume the place of the referee and determine from the mere reading of the evidence who has told the truth, or is best entitled to credit. This would be imposing upon us a duty unsafe to exercise and dangerous in its ordinary use. It would make of a referee to try an issue simply a referee to report the testimony to this court, which in such cases would review nothing but the evidence, giving such a decision as in its judgment upon the evidence is just.” The rule as thus stated has been .adopted, approved and applied in numerous cases by this court. Teeter v. Teeter, 47 St. Rep., 579, and cases cited in the opinion.

(2.) The referee in awarding damages to the plaintiff allowed the value of the lumber which he finds was converted by the defendant’s firm according'to the value of the plaintiff’s interest-therein at the mill in Bedfield, where the same was sawed, instead of at the value thereof enhanced by the expense of drawing to Williamstown, nine miles distance from the mill; thus awarding; to the plaintiff the value of the thirty-five birch and maple logs', containing the 5,000 feet, and the referee states the value thereof to be $30, and for that sum with the interest thereon he awards the plaintiff damages and a judgment therefor; and be finds that the defendant’s firm “converted the same to their own use;’’ and he also finds that, “On May 22, 1888, the said firm of S. Sage & Son had knowledge * * * of the sale, and Chauncey S. Sage,, one of the members thereof, forbade the sale on that day.” The referee did not find that the conversion by the defendant’s firm was willful and an intended defiance of plaintiff’s known title to-the property.

In § 503 of Sedgwick on Damages (8th ed., vol. 2), 88, in speaking of the rule of damages, he states that the prevailing view is that if the defendant acted in good faith “ the measure of damages-is the value of the property as it was just before the defendant’s wrong-doing began.” The author then proceeds to refer to Forsyth v. Wells, 41 Penn., 291 and 294, and in the course of the opinion in that case it is said: “ Where the defendant’s conduct, measured by the standard of ordinary morality and care, which is the standard of the law, is not chargeable with fraud, violence or wilful negligence or wrong, the value of the property taken and converted. is the measure of just compensation. If raw material has, after appropriation and without such wrong, been changed by manufacture into a new species of property, as grain into whiskey,, grapes into wine, furs into hats, hides into leather, or trees into-lumber, the law either refuses the action of trover for the new article or limits the recovery to the value of the original article. Where there is no wrongful purpose or wrongful negligence in the defendant, compensation for the real injury done is the purpose of all remedies; ” after the quotation which we have given the author adds: “ This case is generally followed.”

A discussion of the rule is found in Hyde & Everitt v. Cookson, 21 Barb., 92. In that case it was said: “ Where a manufacturer has expended his money and labor, in good faith, upon property, in pursuance of a contract with the owner, he cannot be regarded as a wrong-doer, or deprived of the enhanced value which he hag given to the property in an action by the owner, sounding in damages.”

We think the plaintiff was not prejudiced by allowing a witness, to testify that it was worth four dollars per 1,000 to draw the lumber from Bedfield to Williamstown; nor by evidence that it was worth three dollars per 1,000 “ to saw such lumber in 1888.” The foregoing views lead us to an affirmance.

Judgment affirmed, with costs.

Merwiit and Parker, JJ., concur.


text:
    Alexander Reichert, Resp’t, v. John Backenstross, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    Aegligence—Flooding lands—Damages.
    In an action to recover damages for injuries caused by the wrongful act of defendant in opening a ditch and letting the water therefrom flow onto the lands of plaintiff, it appeared that such flooding rendered the land useless to grow a crop on that year. Held, that the measure of damages was the value of the use of the land for such year and the cost of filling up the opened ditch.
    Appeal from a judgment of the county court of Onondaga -county, affirming a justice’s judgment upon a verdict of a jury of :$75 damages.

      D. F. McLennan, for app’lt; William Kennedy, for resp’t.
   Hardin, P. J.

Plaintiff’s ten acre lot was in part flooded by the wrongful acts of the defendant in opening a ditch and letting the water 'therefrom onto the lands of the plaintiff. There was ample evidence to sustain the allegations in the complaint as to the wrongful acts of the defendant, and plaintiff’s cause of action was amply supported by evidence given before the j ury. After a careful inspection of the evidence it is difficult to discover proof indicative that more than four acres of the plaintiff’s ten acre lot were flooded. Charles Reichert, a son of the plaintiff, was sworn in his behalf, and testified, viz.: “ The water was let in onto the oat field and flooded about half of the lot.” Again he says: u There was probably a third of the ten acres covered with water.”

(2) When the plaintiff was upon the stand as a witness he was allowed to testify, viz.: “ If land had not had the water turned •onto it, it would be worth $14 or $15 an acre. I seeded it and sowed it. It would not be worth enough to pay for the labor, with the water turned on through the ditches.” The appeal book ■states, viz.: “ The above testimony was received under the defendant’s objection to each and every part thereof duly taken as incompetent, irrelevant and immaterial, and not the proper rule or measure of damages.” Thereafter in the course of the cross-examination of the plaintiff he stated: “ The rental value of land is five or six dollars an acre. This land is like the rest of the farm, worth no more per acre.” Anthony Hall was called by the plaintiff and allowed to testify against the objection of the defendant in answer to the following question: “ What would the rental value of this land be per acre if it was fitted for crops for the year 1890, provided it was dry and not flooded ? ” His answer was “ Hine dollars per acre; ” and then he was allowed to answer the following question: “Assuming that the land was fitted on the '27th of April and was flooded, and flooded May 6th and 10th, so as to be covered with water so a crop could not be sown until May 26, 1890, what would be the rental value under those conditions ? ” The question was objected to and overruled, and the witness answered, viz.: “ The land would not be worth anything. You cannot raise a crop of oats upon the land which had been flooded, sowed at that time of the year. Oats should be sown in April as early as you can get them in.”

Lambert Barton testified in behalf of the plaintiff, viz.: “The rental value of this land after being fitted would be worth nine dollars p.er acre.” Then the following question was put to him:. “Assuming this land was flooded April 27th, May 6th and 10th, what would be the rental value? ” Against the defendant’s objection he was allowed to answer, and said: “ The part that was flooded would not be worth anything. This land is loam with clay subsoil. Flooding of such land mákes it hard and unfit for taking the seed. It will dry and crack. Oats should be sown in April. Oats sown after May 20th would be a failure.” The witness Joh testified that it was worth to fill up the ditches each time a dollar.

In Easterbrook v. The Erie Railway Co., 51 Barb., 94, an action, was brought for injuries done to the plaintiff’s premises by water, in consequence of a diversion of a stream from its channel by the-defendants in constructing a culvert; and in that case Smith, J., said: “The measure of damages in that class of cases is the depreciation in the value of the plaintiff’s premises occasioned by the injury resulting from the defendant’s acts.”

In Chase v. The New York Central Railroad Co., 24 Barb., 273,, which was an action brought to recover damages for injuries done to plaintiff’s grounds by water alleged to have been turned onto-the plaintiff’s land, it was said: “ It is proper to charge the jury that the rule of damages in that class of cases is the difference between the value of the plaintiff’s premises before the injury happened, and the value immediately after the injury, taking into the account only the damages which have resulted from the defendant’s acts.”

In Argotsinger v. Vines, 82 N. Y., 309, which was an action for trespass for cutting and removing timber, it was held: “ That, evidence was properly received as to the value of the farm with the timber, and its value after it was cut; and that this difference furnished a proper measure of damages.”

In § 937 of Sedgwick on Damages, it is said : “ In estimating the value of a crop, the prevailing rule seems to be to take its actual value at the' time of trespass, not its probable value, assuming that it would have matured." 8th Ed., vol. 3, p. 50.

If it be assumed upon all the evidence that a fair value of the use of the land for the year 1890 which was lost to the plaintiff by reason of the flooding thereof amounted to nine dollars per acre, then the evidence that indicates that not more than five acres at most were flooded would give as a result of that item, estimated in that mode, forty-five dollars; if to that be added a dollar each time the ditch was filled up, say three times, the damages would be apparently forty eight dollars. It is quite apparent that by reason of the rulings complained of the verdict was excessive. Upon the argument before us the learned counsel for the plaintiff admitted the force of the foregoing view of the case and proffered a stipulation to reduce the damages.

In § 3063 of the Code of Civil Procedure, it is provided that, The appellate court must render judgment according to the justice of the case, without regard to technical errors or defects which do> ■ not affect the merits. It may affirm or reverse the judgment of the justice in whole or in part, and as to any or all of the parties, and for errors of law or of factand in § 3066 a rule for the award of costs is regulated, and in the fifth sub-division of that section it is provided, “If the judgment is affirmed only in part, the costs, or such a part thereof as to the appellate court seems just, not exceeding ten dollars, besides disbursements, may be-awarded to either party.”

Under all the circumstances of the case it seems reasonable to modify the judgment of the county court and of the justice’s court so that there shall be awarded a recovery of only forty-eight dollars damages to the plaintiff, with ten dollars costs and disbursements in the county court; with costs of the appeal to this court to the appellant.

Judgment of the county court modified hs stated in the opinion, and as so modified affirmed, without costs to either party of appeal, to this court.

Merwin and Parker, JJ., concur.


author: Lewis, J.

text:
    Helen L. Maxwell, Adm’rx, Resp’t, v. Octavius O. Cottle, App’lt.

      (Supreme Court, General Term,, Fifth Department,

      Filed October 20, 1893.)

    1. Reference.
    An account consisting of items for services and disbursements as attorney for the opposite party in several actions and in other matters is not of the character contemplated by § 1013 of the Code.
    3. Attorneys—Lien—Limitation.
    The lien of an attorney upon the papers of his client or their proceeds in his possession continues after the debt due to him has become barred by the statute of limitations.
    Appeal by the defendant from an order made at the Brie county circuit denying his motion for a new trial on the minutes; and the appellant also seeks to review an order denying a motion for a reference of the issues.

      Edmund P. Cottle, for app’lt; Frank F. Williams, for resp’t.
   Lewis, J.

The order denying the motion for a reference should be affirmed. The account of the defendant consisted of items for services and disbursements as attorney for Joshua Maxwell, deceased, in several actions and in other matters. The account was not of the character contemplated by § 1013 of the Code of Civil Procedure.

The granting of the order for a reference was a matter for the exercise of the discretion of the court. Martin v. Windsor Hotel Co., 70 N. Y., 101; Godfrey v. Williamsburgh City Fire Ins. Co., 12 Abb., N. S., 250.

The serious question in the case arises upon the rulings of the court under the statute of limitations. The action was brought by the plaintiff as administratrix with the will annexed of her husband, Joshua Maxwell, deceased, to recover $500 in the defendant’s hands, collected by him as an attorney of her deceased husband. The defendant admitted collecting the money as attorney, but claimed to have a lien thereon for services and disbursements made and rendered by him as attorney for said Maxwell ■during his lifetime. The defendant had for many years prior to the death of Maxwell acted as his attorney in various matters. He commenced to perform the services as early as about 1872. In the year 1875, Maxwell placed in his hands, as attorney, to collect, a mortgage upon real estate in the state of Wisconsin. The defendant instituted proceedings for the collection of it, and in the year 1883 received on account thereof the $500 in question. This was three years after the death of Mr. Maxwell.

There was evidence tending to show that at the time the mortgage was-placed in defendant’s hands Maxwell was indebted to him for services and disbursements as an attorney. The account accrued less than six years before the mortgage came into the defendant’s hands, and has never been paid. Before the commencement of this action, and before the defendant received the $500, the statute of limitations had run against the portion of the plaintiff’s account referred to. The court, upon the trial, ruled that the defendant had a lien upon the moneys which came to his hands for any amount then due him which was not barred by the statute of limitations; but that his lieu ceased to exist upon any demand set up in his answer which accrued more than seven years and six months before he received the money. Any lien which the defendant had upon the mortgage at the time it was converted into money must, we think, be held to have attached to the money. All there was in the mortgage upon which a lien was effectual was the money that the mortgage represented, and when it was paid his lien must be held to have been transferred to the proceeds of the mortgage. The question is therefore presented whether an attorney's lien on funds in his possession continues after the debt becomes barred by the statute of limitations. If not, the ruling of the trial court was correct.

If it continues, the defendant is entitled to a new trial; for there was evidence tending to show that there was something due him for services which were performed more than seven years and six months prior to the time the money came into his hands. The statute, however, had not run against any portion of his claim at the time the mortgage was placed in his hands for collection. It is a well settled rule that an attorney has a lien on all papers or moneys belonging to his client in his possession for the amount of a general balance due him for professional services. This rule became well established in England at an early date, and prevails not only in that country but in this. An attorney has the right to make application of the funds in his possession, upon his account, without the consent of his client, and we think, upon principle and authority, that the lien continues to exist notwithstanding his remedy by action for the debt becomes barred by the statute of limitations. Spears v. Hartly, 3 Esp., 81 ; Hurlbert v. Clark, 128 N. Y., 295, 302; 40 St. Rep., 401; 1 Jones on Liens, § 231; Overton on Liens, 26, n. 1.; Jones v. Merchants' Bank, 6 Robt., 162.

After the statute has run against the claim the remedy by action is barred; but the debt is not discharged. It still exists. Hurlbert v. Clark, 57 Hun, 559 ; 33 St. Rep., 354.

The running of the statute against a claim does not raise a presumption of its payment, but merely creates' a bar to the remedy by action. Rogers v. Murdock, 45 Hun, 30; 9 St. Rep., 660.

The case 3 Espinasse, supra, was an action of trover for a log •of mahogany. The defendant was a wharfinger, and claimed a lien on it as well for the wharfage as for the balance of a general account. The account was barred by the statute of limitations. Lord Eldon, in deciding the question, says: “If what has been stated by the defendant’s counsel be law, that the debt is discharged by the operation of the statute of limitations, no lien could be obtained by reason of it. But the debt was not discharged. It was the remedy only. I am of opinion that though the statute of limitation has run against a demand, if the creditor obtains possession of goods on which he has a lien for a general balance, he may hold them for that demand by virtue of the lien. In this case the defendant had a subsisting demand when the .goods came to his possession, and I am of opinion he may enforce it by the lien which the law has given him for his general ■balance.”

It was held in Higgins v. Scott, 2 Barnwell & Adolphus, 413, that the statute of limitations bars the remedy only, not the debt; and therefore where an attorney for the plaintiff had obtained judgment. though he had taken no step in the cause or to recover the ■amount of his bill of costs within six years, had still a lien on the judgment for his bill of costs, and the court directed the sheriff to pay him the amount out of the proceeds of the goods. Darby & Bosanquet on Statutes of Limitation, 11.

It was held in Richards v. Platel, 18 Eng. Chancery Rep. (1 Craig & P.), 79, that the lien of a solicitor on the papers of his client for the amount of his bill is equivalent to a contract, and therefore a solicitor will not be ordered to deliver up such papers •until he is actually paid.

In Mackelvy's & Sterrett's Appeals, 108 Pa. St., 615, it was held that an attorney has a lien for his services upon the papers actually in his possession; that having the money in his hands he may deduct the amount due him and pay over the balance, if there is any. To the same effect is Griffith's estate, Nagle's Appeal, 147 Pa. St., 278.

It was held in McNagney v. Frazer, 27 N. E. Rep., 431, that while an attorney having taken no steps to perfect a statutory lien ■on a judgment obtained by him, and the statute of limitations having run against his action at law, he cannot sue in equity to -establish a lien on the judgment; still, if he has in his possession property pledged to secure his debt, his lien would not become extinguished if his debt should beconie barred by the statute of limitations.

It was held in Hulbert v. Clark, 57 Hun, 558; 533 St. Rep., 354, opinion Dwight, P. J., that the running of the statute of limitations against a claim did not prevent the foreclosure of a mortgage under seal to collect the amount of the claim thus barred.

This case was affirmed by the court of appeals, 128 N. Y., 295; 40 St. Rep., 401.

Earl, J., in his opinion, says : “ The statute of limitations does not after the prescribed period destroy, discharge or pay the debt, but it simply bars a remedy thereon.

“ The debt and the obligation to pay the same remain, and the arbitrary bar of the statute alone stands in the way of the creditor seeking to compel payment. The legislature could repeal the statute of limitations, and then the payment of a debt upon which the right of action was barred at the time of the repeal could be enforced by action, and the constitutional rights of the debtor ate not invaded by such legislation.

“It is a general rule recognized in this country and in England that, when the security for a debt is a lien on property, personal or real, the lien is not impaired because the remedy at law for the recovery of the debt is barred.”

There are many other authorities sustaining this doctrine, but we do not deem it necessary to refer to them.

The authorities referred to by the respondent, which it is claimed maintain a contrary doctrine, were cases where the attorney sought by an affirmative action to enforce his lien, and it was held he could not maintain the action because his remedy was barred by statute. The defendant is not asking, nor does he require, any affirmative action in his behalf. He has the money in his possession, and claims the right to retain it until his account is adjusted. We are of the opinion that the defendant did not lose his lien upon the moneys for the reason that the statute of limitations had run against his claim. It, therefore, follows that his motion for a new trial should be granted, with costs to abide the event

Order denying motion for reference affirmed.

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


text:
    Alvin P. Chapin, App’lt, v. Henry C. Overin et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Vbnxje—Affidavit for change of.
    An affidavit for a change of venue on the ground of the convenience of witnesses which fails to state that the moving party has stated to counsel the facts which they expect to prove by their witnesses, and that he advised them that such witnesses were necessary and material and that without the testimony of each and every one of them he cannot safely proceed to trial, or fails to show any reason for the belief of affiant that the witness will testify as stated, is insufficient.
    Appeal from an order of the Monroe special term granting the defendant’s motion to change the place of trial from Monroe county to the county of Hew York.

      The action was brought to recover damages alleged to have been sustained by the plaintiff by the negligence of the defendants? servant in running against him with a coach and team of horses on Broadway in the city of New York.
    The answer admitted that the plaintiff received some slight injuries to his person on the occasion referred to, and put in issue all the other allegations of the complaint.

      Abram Benedict, for app’lt; James S. Thompson, for resp’ts.
   Lewis, J.

It is quite likely that the defendants would have been entitled to an order changing the place of trial to the county of New York had their papers been prepared in accordance with the well settled practice and rules of the court upon motions of this character. The respondents must rely entirely upon the affidavit of the defendant Markert to sustain their order, for the pleadings do not throw any light upon the question. Markert’s affidavit seems to have been prepared in disregard of pretty much every rule which the courts have found it necessary to adopt and enforce in order to guard against imposition in the decision of this - class of motions.

That portion of the affidavit which it is necessary to consider is as follows: “The place where the injuries are in the complaint alleged to have occurred, and where the plaintiff did actually sustain some slight injuries, is at or near the intersection of Broadway and Fourteenth street in the city of New York The plaintiff, after he sustained such slight injuries at the said place, charged one Thomas Riley, the driver of said carriage, of having caused such injuries by his negligent driving. Immediately thereafter the said Riley went to a neighboring police station in company with one Gill, a police officer. The plaintiff was there examined by one Dr. Walsh as to the character and extent of said injury. After such examination the plaintiff made a statement as to the cause of the accident, which statement deponent believes was heard by Dr. Walsh, Officer Gill, the said Riley and the officer in charge of said station, whose name is not known to deponent. Deponent further says that the said Thomas Riley, Dr. Walsh, the said Officer Gill, the said officer in charge of said station, and both of the defendants herein are material and necessary witnesses for the defense on the trial of this cause. That without the testimony of each and every one of said witnesses the defendants cannot safely proceed to the trial of this action, that each and every one of said witnesses resides in the city and county of New York Deponent expects to prove by said Riley that the plaintiff was not struck by the pole of the coach he was driving or was struck by the said coach or horses. By the said Gill and said other police officer, that the statements made by said plaintiff at said police station did not charge the defendants’ servant with negligence. By the said Dr Walsh, that the plaintiff sustained but slight injuries. By the defendants, that they were not co-partners at the time of said accident and that Riley was not employed by the defendants as such alleged co-partners.”

The affidavit, it will be observed, fails to state that the defendants had stated to their counsel the facts which they expected to prove by their witnesses; it also fails to state that their counsel advised them that their witnesses were necessary and material and that without the testimony of eacli and every one of them they could not safely proceed to the trial of the action. These are essential parts of an affidavit on which to base a motion for a change of place of trial. Attorneys are sworn officers of the court. If, after they have been fully and fairly informed, by their client as to what he expects to be able to prove by his witnesses, the attorney advises that they are necessary and material and that he cannot safely proceed to trial without them, the courts act upon such advice. It would be quite absurd to take in the place of such advice the opinion of a party to the action who is not an attorney and presumably not qualified to determine as to the materiality of evidence. Courts have held parties to a strict compliance with these requirements.

In Onondaga Co. Bank v. Shepherd, 19 Wend., 10, the chief justice laid down the following rule: “ On a motion to change the venue or on opposing such motion the party making the affidavit is bound to allege that he has fully and fairly stated his case to his counsel and disclosed to him the facts which he expects to prove by each and every of his witnesses.”

In Carpenter v. Continental Insurance Co., 31 Hun, 78, Learned, P. J., says: “It is well to hold parties to the forms which have been settled in order that courts may reasonably determine how many witnesses will in fact be required.”

In Noye Manufacturing Co. v. Whitmore, 23 W. Dig., 524, Haight, J., says: “The strict requirements established by numerous decisions as to the contents of affidavits upon motions to change the place of trial are proper and should not be relaxed, and when the applicant fails to state in his moving affidavit that without the testimony of each and every of the witnesses named he cannot safely proceed to the trial of the cause, as he is advised by his counsel and verily believes, the motion should be denied, except, possibly, in a case where the affidavit is so full that the court can see that the party could not proceed to trial without the testimony of each witness.”

The pleadings in this latter case were made a part of the moving papers, and from them the court was able to determine the materiality of the testimony of the witnesses named independent of the advice of counsel The parties were held strictly to this rule in Anon, 7 Cowen, 102 ; 6 id., 389; 3 Wend., 425 ; Johnson v. Rogers, 3 Cowen, 14.

There is an instructive collection of authorities upon this question in a note to Brittan v. Peabody, 4 Hill, 62.

The affidavit also fails to show any reason for the belief of the affiant that the proposed witness will testify as stated.

It fairly appears from the moving affidavit that Dr. Walsh will be a necessary witness for the defense. Allusion is made in the affidavit to a conversation at the police station in New York, but the purport of the conversation is not stated, and therefore throws no light upon the question as to its materiality as evidence. The affidavit states that the deponent expects to prove by said Kiley that the plaintiff was not struck by the pole of the coach he was driving or was struck by the said coach or horses. It is difficult to understand just what the affiant meant by this statement, it can hardly be claimed to negative the allegation that plaintiff was in fact so struck. It is possible that Eiley may be an important witness, but the affidavit fails to show it. As to Gill and the police officer whose name is not given, there is utter failure to show that they are necessary witnesses.

The defendant swears to the materiality of nine witnesses for the defense, all residents of the county of Monroe. Making due allowance for the proneness of parties to exaggeration in such cases, the affidavit fairly shows the necessity for the attendance of five or six witnesses resident in that county. The defendant failed, we think, to show that the convenience of witnesses would be promoted by a change of - the place of trial to the county of New York.

We are unwilling to make a precedent by sustaining an order changing the place of trial upon such an informal and defective affidavit. It is quite likely that the attention of the learned judge who decided the motion was not fully called to the imperfections in the affidavit.

The order appealed from should be reversed, with ten dollars costs and disbursements of the appeal, with leave, however, to the defendants, upon payment of the costs of the appeal, to renew the motion upon new papers.

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