text:
    People of the State of New York, Resp’ts, v. Amariah H. Bradner, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887 )
    1. Criminal law—Practice—Reversal only given on argument—Code Crim Pro., § 539.
    A judgment of conviction in a criminal action cannot be got rid of by the default of the district attorney, a reversal can only be given upon argument which satisfies the appellate court that the judgment should be reversed, even though the district attorney failed to appear in the case
    2. Same—Case—Must be settled by judge—Code Crim Pro , § 456 AND 459.
    The attorneys are not authorized to settle a case in a criminal action; the case and the bill containing the exceptions must be signed by the presiding judge and filed with the clerk. At the time appointed the judge must settle and sign the bill of exceptions.
    8. Same—Motion for new trial.
    Motion made in the appellate court for a new trial on the ground of newly-discovered evidence, must fail if the evidence taken on the trial is not before said court.
    4. Same—Evidence of declarations.
    The evidence of the declarations of persons is received with great caution - and must not be given undue weight. It is not entitled to the same weight as many other kinds of evidence.
    6. Same—Grand larceny— What sufficent proof of.
    The evidence on the part of the people was that an old German lady, seventy four years old, had received a pension of $1,800 from the government and deposited it in a' certain bank; that in returning from said bank she met the defendant upon the sidewalk near a certain private bank, and was congratulated by him upon getting her pension claim allowed, and he offered to borrow the money of her and pay her interest that she refused to loan it, saying she wished to use it, but said to him that she was indebted to him $100 upon a mortgage that he held upon her house and wanted to pay him that; that they went into said private bank together, and defendant wrote what she supposed to be a check for $100; that he gave her a paper which was in an envelope, which she supposed was the mortgage A few days thereafter she found the check given by her was for $1,500, and the paper a certificate of deposit in said private bank for that a-mount, and immediately she demanded the money from said private bank, which was not paid, ana accused the defendant of getting her money from her. Held, there was sufficient to sustain a conviction for grand larceny .-
    Appeal from a judgment entered upon a verdict at the Livingston court of sessions convicting the defendant of' the crime of grand larceny in the first degree, and also from an order denying motion for new trial upon the minutes of the court and affidavits of newly discovered evidence; also appeal from an order of the same court, dated the 23d day of June, 1886, denying motion to vacate the judgment and grant a new trial on the ground of newly discovered evidence; the defendant also moves for a new trial in this court on the ground of newly discovered evidence. The people move to dismiss the appeal from the order dated the 23d day of June, 1886, upon the ground that such an order was never made or entered.

      George W. Daggett, district attorney, and Ralph T. Wood, for resp’ts; James Wood and Lucius H. Bangs for app’lt.
   Haight, J.

The appellant, in May, 188u, was indicted by the grand jury of Livingston county for the crime of grand larceny in the first degree. The defendant, upon affidavits tending to show that Ralph F. Wood, the counsel assisting the district attorney in the prosecution of this case, appeared before the grand jury and gave advice in reference- to the indicting of the defendant and how the indictment should be prepared, moved to dismiss the indictment. Affidavits on the part of the district attorney and Mr. Wood were read in opposition, which tend to show that Wood appeared before the grand jury as a witness, and was sworn as such; that he gave no advice other than that which was given to the district attorney outside of the grand jury room. The opposing affidavits satisfactorily explain the conduct of Mr. Wood before the grand jury, and the motion to dismiss the indictment was properly denied.

There is no other question presented by the appeal book which we can properly consider, unless it is the motion of the district attorney to dismiss the appeal from the order dated June 23, 1886. The appellant caused to be prepared and settled a bill of exceptions. It states that the district attorney offered certain evidence and asked certain questions, which were objected to by the defendant; that the objection was overruled and exception taken It does not, however, state whether such evidence was in fact received, or what it was, so that we are unable to determine w'hether or not the defendant was prejudiced. There is also printed in the appeal book what purports to be the minutes of the stenographer taken upon the trial. They are not, however, made a part of the bill of exceptions; they have not been signed or settled by the judge presiding at the trial, and have no business in the appeal book.

It is true that the attorneys have stipulated that the minutes or notes of the stenographer may be incorporated in or attached to the judgment toll, required to be made up by the clerk by section 4S5 of the Code of Criminal Procedure; and that the minutes of testimony so incorporated or attached to the judgment-roll may be referred to for the evidence to which exceptions were taken on the trial, as appears from the bill of exceptions filed in the clerk’s office; and that the judgment-roll, with the minutes of testimony so incorporated or attached, shall have the same for ce and effect as though the notes had been made and settled, including the testimony given on the trial and attached to the judgment-roll. But the attorneys are not authorized to settle a case in a criminal action. A judgment of conviction in a criminal action can not be got rid of by the default of the district attorney, for a judgment of reversal can only be given upon argument which satisfies the appellate court that the judgment should be reversed, even though the district- attorney failed to appear in the case. Code of Grim. Pro., § 539. It is consequently provided that a bill containing the exceptions must be settled and signed by the presiding judge and filed with the clerk. Section 456. And, again, at the time appointed the judge must settle and sign the bill of exceptions. Section 459. Whether these minutes as printed are correct or not is not even shown by the stipulation of the attorneys. In some instances they are at variance with the bill of exceptions, as settled and signed by the judge. It does not appear whether a whole or a part of the minutes have been printed; and where the contention is that the verdict is against the weight of evidence, it should appear that the case contains all of the evidence. Spence v. Chambers, 39 Hun, 193.

For the same reasons, the motions for new trial on the ground of newly discovered evidence must fail. The evidence not being before us, we can not well judge as to the materiality or importance of the newly discovered evidence, or whether it is cumulative or would be likely to affect the result in case a new trial should be granted.

As to the motion on the part of the people to dismiss the defendant’s appeal from the order of June 23, 1886, it appears from the affidavits of the district attorney, Mr. Ralph T. Wood, the county clerk and his deputy, that no such order was ever made in court or entered in the clerk’s office. The certificate of the clerk, as presented by the defendant in the appeal book, does not show that the order therein printed is a copy of one on file in the office of the clerk. The certificate covers the affidavits printed, but does not mention the order. We have, however, since the argument of this appeal been handed a certified copy of an order of the Livingston court of sessions, dated the 16th day of March, 1887, directing that the order appealed from be entered as of the 23d day of June, 1886. We regard this order as disposing of the motion to dismiss the appeal, and that we must consider the questions raised by it; but here we. meet the difficulty standing in the way of the consideration of the motion for new trial on the ground of newly discovered evidence, and as long as this obstacle exists, it does not appear necessary to determine the question of the power of the court of sessions to open the judgment and entertain the motion.

We have, however, examined this case upon the theory that the stenographer’s minutes were, by the stipulation of the attorneys, settled and made a part of the bill of exceptions. The first exception, as stated in the bill of exceptions, is that “the plaintiff offered to prove that Barbara Leiter obtained a draft from the Bank of Dansville on the Seventh Ward National Bank of New York for $600; that said draft was not paid on presentation, and offered in evidence a certificate of a notary public that the draft was presented for payment and of non-payment, which draft and the certificate of the notary public were attached to the judgment roll and marked exhibit ‘E.’ The defend.ant’s counsel objected to this evidence; the objection was overruled- and the counsel for the defendant duly excepted. ” Upon referring to the stenographer’s minutes we find that Charles H. Rose, being examined as a witness by the district attorney, testified that he was acquainted with the handwriting of Luther Grant. His attention was then called to the draft, and he was asked in whose handwriting the signature and the body of it was and he answered that he should say that it was in the handwriting of Mr. Grant. -Mr. Vanderlip, the counsel for the defendant, then stated that they would concede that the draft was issued' by the bank and dishonored, not paid, and the $600 was endorsed on the certificate of deposit. Mr. Daggett, the district attorney, then offered the draft and protest in evidence. It was objected to, overruled and exception. The stenographer’s minutes do not show whether it was, in fact, read and marked as an exhibit, and it is quite immaterial whether it was or not for the stipulation made in open court, by the attorney of the defendant, covered the entire ground, and the reading of the draft and notice of protest would prove nothing more than was embraced in the admission.

Again, the defendant had given evidence tending to prove that a firm, or persons, doing business in the name of the Bank of Dansville, assigned certain securities held by them for Barbara Leiter on account of a certificate of deposit issued to her, and that she had been paid the sum of $1,200, which was applied thereon. On the examination of the defendant in his own behalf, the district attorney asked him how he learned the fact of payment. He answered that he saw the money before it was paid to her in the hands of Amariah Hammond. He was then asked where did he get it. This question was objected to; the objection was overruled and the defendant excepted; By referring to the stenographer’s minutes we find that he got the money of one William Richardson, of Hornellsville;. that the defendant had procured it, and that it passed through his hands. It appears to us that this evidence was. competent. The defendant had given evidence to the effect, that he was not pecuniarily interested in the Bank of Dansville; that the bank had loaned Mrs. Leiter’s money; that he had not any of it; and in view of this testimony it appears to us that it was proper for the people to show his interest in the matter, and that he in fact made the payments that were made upon this certificate of deposit, and that from his own money or that which he procured from others.

The district attorney also offered to prove that the securities referred to, which were assigned for the benefit of Barbara Leiter and others, were assigned after an action was commenced against the firm or persons doing business under the name of the Bank of Dansville and a receiver appointed. Which evidence was objected to by the defendant’s counsel. The objection was overruled and the defendant excepted, as appears by the bill of execution.

The stenographer’s minutes, however, fail to show any objection, ruling or exception. They do show that the-assignment was made before the receiver was appointed," and consequently the district attorney failed in the proof offered by him.

Again, the district attorney, on the further examination of the defendant, offered to prove by him the execution and delivery of the $600 draft above referred to, the circumstances connected with obtaining it, and its subsequent dishonor. This evidence was objected to by the counsel for the defendant. The objection was overruled and the defendant duly excepted, as appears from the bill of exceptions.

The stenographer’s minutes, however, fail to show any objection, ruling or exception upon the subject. The evidence was given upon the cross-examination of the defendant, and relates to the particulars of the obtaining, of the draft for $600.

The bill of exceptions does not point out to us the particular answer that the defendant claims was prejudicial to him. The evidence extends over two or three pages, and, in view of the previous admission of the defendant of the issuing and dishonor of the draft, we discover no testimony upon this subject that points to any error.

A paper was shown to the defendant which he testified was part in his handwriting and part in the handwriting of Luther Grant, which paper is attached to the judgment record, and is marked exhibit No. 16. The district attorney offered to read this m evidence. The counsel for the defendant objected, the court overruled the objection, and the counsel for the defendant excepted. In this case the stenographer’s minutes fail to show that the paper was objected to, or that it was in fact received in evidence; but assuming that it was received under the objection and exception of the defendant, it was proper as tending to contradict the defendant in the testimony that he had given to the effect that he was not interested in the Bank of Dansville, that his interest was only sympathetic, and that he occasionally advised the cashier.

Again, it is urged that the verdict is against the weight of evidence, and that the judgment should be reversed for that reason. Upon this branch of the case, the evidence is in substance that Mrs. Leiter, an old German lady, seventy-four or seventy-five years of age, had received a pension of eighteen hundred odd dollars from the government, and had deposited the same in the First National Bank of Dansville; that in returning from the First National Bank she met the defendant upon the sidewalk near the Bank of Dansville, and was congratulated by him upon her getting her pension claim allowed; that thereupon he offered to borrow the money of her and pay her interest; that she refused to loan it, saying that she wished to use it in repairing her house and did not want to loan it out; that she then said to him that she was indebted to him in the sum of $100 upon the mortgage that he held upon her house and lot, and she wanted to pay that; that thereupon they went into the bank together; that the defendant sat down and wrote something which she signed, supposing it to be a check for $100; that the defendant gave her a paper, which was placed in an envelope, which lie told her-to take and put in her pocket and take care of; that she supposed the paper so given her was the mortgage which she went in there to pay up.

A few days thereafter she found that the check given by her, instead of being a $100 check, was a $1,500 check, and that the paper that she had in the envelope was a certificate of deposit, in the Bank of Dansville, for $1,500. She tells us that she and her husband immediately went down to the bank and that she then accused the defendant of getting her money from her; that the defendant then told her that she could have her money most any time when she wanted it, and that thereafter he put her off from day to day making promises to pay, etc. The evidence, on the part of the defendant, is to the effect that. Mrs. Leiter called uoon him and wanted to deposit the money in the Bank of Dansville, where she could get interest upon it; that she fully understood that she was giving a $1,500 dollar check for that purpose; and that she received a$1,500 certificate of deposit knowing it was such a certificate, and not the mortgage, fully contradicting her in nearly every particular. A question of fact was thus presented for the jury. The people’s evidence, if true, warranted the jury in finding a verdict of guilty. The question of veracity between the defendant and Mrs. Leiter was. purely a question for the jury, and this court, on review, cannot say that the jury should have believed the story told by the defendant and not that told by Mrs. Leiter. The verdict is not against the evidence, neither can we say that it is' against the weight of evidence.

The motion for new trial, upon the ground of newly discovered evidence, is based upon affidavits of three or four persons, who make affidavits as to conversations had with Mrs. Leiter. It is that of declarations only. That of McQuarter is to the effect that Mrs. Leiter said to him that she let Bradner have the money; that he said he would pay her interest on it and she let him have it, etc. That of Squiers was to the effect that she showed him her certificate of deposit for $1,500 and asked him if it was all right, etc. That of Taft, that she had showed him the certificate of deposit at the Bank of Dansvlle for $1,500, drawing five per cent, interest, and said that she liad taken the same from Faulkner’s bank; that they would not pay her interest and the other bank would. In reply the people read affidavits of Mr. Squiers, in which he explains his former affidavit, and says that Mrs. Leiter stated to him how the defendant got the money from her; that it was by having her sign a paper for a larger amount when she supposed she was signing one for a smaller amount; that he thinks it was for $100 to pay a mortgage.

McQuarter makes affidavit correcting his former one, in which he stated that Mrs. Leiter told him and the members of his family in his presence that Bradner got her money ($1,500) by getting her to sign a check which she supposed was for $100, just as she swore upon the trial; that he made this statement to the attorneys at the time his affidavit was prepared to read upon the motion for a new trial, but that this matter was not incorporated in it. Further affidavits were read tending to show that Mr. Taft was mistaken in his affidavit.

It is contended on behalf of the people that this court has no power to entertain an original motion for a new trial upon the ground of newly discovered evidence; that the application for new trial must be made before judgment under section 466 of the Code of Criminal Procedure.

But without stopping to consider this question, we are of the opinion that a new trial should not be granted because of this newly discovered evidence. The evidence of the declarations of persons is received with great caution and must not be given undue Weight. It is so easy for one person to misunderstand, misinterpret or forget the precise words of another, that courts have come to regard such evidence as not entitled to the same weight as is ordinarily given to many other kinds of evidence. The newly discovered evidence is cumulative. The affidavits the witnesses made in reply explain and practically do away with the statement made in the moving affidavits, and it is consequently apparent that the evidence would not change the result in case a new trial should he granted.

We are, therefore, of the opinion that the judgment and ' orders should be affirmed, and the motion for new trial denied, and the proceedings remitted to the court of sessions of Livingston county to proceed thereon.

So ordered.

Smith, P. J., and Bradley, J., concur.


source: Caselaw Access Project

author: Smith, P. J.

license: Public Domain

text:
    Micajah W. Jackson, Resp't, v. The City of Rochester, App’lt.

      (Supreme Court, General Term, Fifth Department.

      Filed March, 1887.)

    1. Injunction— Continuance op a nuisance may be bestiíained by.
    The contimlance of tlie use of a sewer, the operation of which as such has been previously adjudged a nuisance, will be restrained by injunction.
    3, Same—Municipal corporation amenable to the same hules in regard THERETO AS AN INDIVIDUAL.
    The fact that the defendant is a municipal corporation, affords it no im rnunity from the rules applicable to an individual in a like situation, and it may be enjoined from creating or maintaining a nuisance productive of irreparable injury.
    Appeal from a judgment entered on a decision of the court upon a trial at the Momoe equity term.

      Joan Powers, city attorney, and Henry J. Sullivan, assistant city attorney, for app’lt; George A. Benton, for resp’t.
   Smith, P. J.

— The action w-'as brought to recover damages for the pollution and increase of flow of water and sewage in a natural stream running along the west and north boundaries of plaintiff’s premises, by reason of the construction and use by the city of a sew-er called the Norttt Avenue outlet sewer, emptying into said stream, and for a perpetual injunction against the continuance thereof.

The facts that the defendant is chargeable with the acts complained of, and that they constitute a nuisance for which the defendant is hable to the plaintiff in damages, were adjudged' in a previous action brought by the plaintiff against the defendant to recover damages for the same alleged nuisance. That action resulted in a verdict and judgment for the plaintiff, which was subsequently affirmed by this court upon the authority of the case of Hooker v. The City of Rochester (37 Hun, 181). That was an action for like damages sustained from the same cause by the owner of other lands upon the same stream.

The matter presented by this appeal is, therefore, res adjudiccita, except the question whether the plaintiff is entitled to the injunction awarded by the judgment. It is found by the trial court, upon ample evidence, that the outlet sewer in question drains a large and densely populated territory in the north-eastern part of the city of Rochester; that the defendant has turned into it, and permitted to be turned and carried into it, a steady and increasing flow of sewage, including contents of water closets and urinals, constantly increasing in number, and the amount of offensive _ matter discharged, and the number of sewers draining into said outlet is constantly increasing; that by reason of said artificial discharge of said sewage into said stream its waters have been made foul, and on its banks have been lodged decaying animal, vegetable and fecal matters, brought down and left upon and near the plaintiff’s premises, emitting foul and noxious gases and odors, whereby the comfort and enjoyment of the "plaintiff’s dwelling-house has been greatly impaired; his premises have been rendered unfit for habitation, and the health of himself and his family has been endangered and enfeebled. It is also found that said sewage, percolating through the soil, has entirely destroyed a well on the plaintiff’s premises, and rendered another substantially unfit for use.

No discussion is needed to show the jurisdiction of a court of equity, and the propriety of exercising it to restrain by injunction the continuance of a nuisance productive of injury so substantial as that found in this case, and which threatens to be not only continuous, but continually increas-' ing; especially where its character as a nuisance “has been settled by a verdict. Kerr on Injunctions, p. 394, §§ 35 and 36, and cases cited in notes; Campbell v. Seaman, 62 N. Y., 568; Michel v. Supervisors of Monroe County, 39 Hun, 47.

The fact that the defendant is a municipal corporation, affords it no immunity other than would be accorded to an individual in a like case (Noonan v. City of Albany, 79 N. Y., 470, and cases cited by Earl, J., p. 476; Hooker v. City of Rochester, supra), and it may be restrained by injunction from creating or continuing a nuisance productive of irreparable injury. Brower v. The Mayor, etc., of New York, 3 Barb., 254; The People ex rel. Negus v. Dwyer, 90 N. Y., 402; Johnson v. The City of Rochester, 13 Hun, 285; Beach v. The City of Elmira, 22 id., 158.

The judgment appealed from, by its terms, was not to take effect until six months after notice of its entry. The evident object of the provision was to give the defendant a reasonable time to provide some other outlet for its sewers before the injunction should operate. Whether it has delayed making such provision until the result of its appeal should be known, we are not informed; but lest that may be the case, we think it judicious, in view' of the public interests involved, to provide, in affirming the judgment, that the defendant have leave to apply at special term on notice for an extension of such time if it shall be advised to do so.

The judgment should be affirmed with such leave, etc., with costs.

Haight and Bradley, JJ., concur; Barker, J., not voting.


text:
    Joseph Meigs, Resp’t, v. The City of Buffalo, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1887)
    1. Evidence—Competency op statements as to condition op invalid.
    Upon the trial of-an action for damages for loss of his wife's services, through the negligence of the defendant, the husband was asked how long ' his wife needed the care and attendance of somebody IMd, that the question, so far as it was a statement of the condition of the invalid, was proper, and so far as it called for a conclusion as to her condition, was within the discretion of the court to allow.
    2. Same—Motion to strike out—Granting op is discretionary.
    The granting or refusal of a motion to strike out a question, already answered by a witness, is within the discretion of the court.
    3. Same — Statements by invalid as to physical condition — Competency op.
    The statement by the wife, made to her physician, that she is not as strong as she used to be, is competent within the rule allowing as original evidence the representation of a sick person as to the nature, symptoms and effects of the malady with which he or she may be suffering.
    4. Municipal corporation—Liability por injuries sustained through UNSAFE CONDITION OF STREETS
    The jury were charged that it was the duty of the city to keep its walks in a reasonably; safe condition. This instruction was immediately followed by the instruction that, in order to hold the city liable, it must be shown that it had notice of the defect in the street through the presence of which the injury was received, and further explained by the remark that the city were not insurers, and that the other elements referred to must exist in order to enable the plaintiff to recover. Held, that the charge was correct.

      Appeal from a judgment of the Erie county court entered, on a verdict, and from an order denying a motion for a new trial on the minutes.

      Win. F. Worthington and Frank C. Laughlin, for app’lt; A. Bartholomew, for resp’t.
   Smith, P. J.

Action to recover damages for plaintiff’s loss of the services of his wife and expenses incurred by him in consequence of injuries sustained by her in falling upon the sidewalk in Massachusetts street, one of the public streets of the city of Buffalo, which the defendant is alleged to have negligently permitted to be out of repair.

The sidewalk was of plank, laid crosswise upon sleepers that ran lengthwise with the walk. Evidence was given tending to show that at the time of the accident, and for from four to six months previously, several planks were loose at and near the place where the plaintiff’s wife was injured, so that when stepped on at one end, they would be thrown up at the other end. The plaintiff’s wife testified that on the occasion in question she was walking - on the sidewalk in company with her brother .-in-law; that she did not discover anything wrong with the sidewalk; and the first she knew, the board raised up and she pitched over and received the personal injuries which are the the basis of the plaintiff’s claim.

Without further detailing the circumstances of the occurrence, it is enough to say that the testimony warranted the conclusion that the plaintiff’s wife was free from negligence.

There was no proof that the city had actual notice of the defective condition of the sidewalk, and so the judge charged; but he submitted to the jury the question whether the proper officials of the city, in the exercise of ordinary, reasonable care and diligence, ought to have known of the condition of the walk, and he instructed them, in substance, that upon answering that question in the affirmative they would be justified in charging the defendant with negligence. The appellant’s counsel contends that the evidence- was insufficient to establish constructive notice, and consequent negligence, inasmuch as it appeared that a passer-by could not discover the defect by looking at the surface of the walk at the time when the plaintiff’s wife was injured. But there was testimony tending to show that at times while the sidewalk was out of repair, -the defect was visible. Mrs. Coon testified that sometimes the plank was “loose and tom up;”' “some boards were down, and some up;” “the sidewalk was all rotted; I guess it was in that condition four or five months.” Dr. Parmenter testified that the sidewalk was in- " bad condition; the boards were loose and the planks were loose; at one time they were off the sleepers altogether; they were re-placed; sometimes they were put back; and to the best of his recollection the sidewalk was in bad condition for six months. It appeared that certain of the police force of the city were charged with the duty of patrolling Massachusetts street and ascertaining thé condition of its sidewalks and reporting it, and that one of the police charged with that duty passed over the sidewalk in question twice a day in going to his house. Although he testified that the condition of the sidewalk was good so far as he knew or observed, the question was fairly presented by the evidence, whether, in the exercise of reasonable care and observation, he ought not to have noticed the defect. If he ought, the defendant was chargeable with constructive notice and neglect of duty.

It is contended that the court erred in permitting the plaintiff to be asked “how long did your wife need the care and attendance of some one to take care of her.” The objection was that it was not the proper way of proving her condition, and also that it called for the opinion or conclusion of the witness, and was incompetent. The witness had previously testified, without objection, that his wife “needed somebody’s care all that summer, until about election time, before she could get around at all to speak of, and from that time she lingered on.” His answer to the question objected to was as follows: “She needs the care, to the present day, of somebody; I mean at times; I mean that she needed care to take care of her, needed to be waited upon clear up to within a few days of election that fall; a few days before election she got around so that she would be around the house may be a day, and the next day she would be in bed again, and that is the way she kept on until we called Dr. Snow that winter; that is the continued way her health has been up to the present time; she feels right enough some days, and other days she is just the other way.” We do not think the question can be regarded, by fair interpretation, as calling for a mere opinion, such as the opinion of an expert. It did call for a conclusion, but it was a conclusion as to a matter of fact, based upon other facts, and the witness stated not only his conclusion, but also the facts on which he formed it. His answer was but a repetition of what he had previously testified to without objection, except the statement that the invalid needed care to the time of the trial, and in respect to that he stated the facts on which his conclusion was based. We think that, so far as the question called for a statement of the condition of the invalid, it was proper, and so far as it called for a conclusion as to her condition, it was discretionary with the trial court to allow it or not.

The defendant’s objection to the following question, put to the plaintiff. “ Did you have this boat to run for the season last year?” was too late. It was not made till after the question was answered. The refusal of the motion to strike out, the answer was not error, it being discretionary with the coui't to grant the motion or deny it.

It was not error to permit the physician to testify that when he called on the plaintiff’s wife and was learning her symptoms, she complained, among other things, that she was not as strong as she used to be.

The testimony was objected to on the ground that it was not competent to show what she said about her former condition. The objection was groundless. The only effect of the testimony was to show that she complained to her physician of the present loss or diminution of strength. It was proper within the rule that the representation by a sick person of the nature, symptoms and effects of the malady under which he is laboring at the time, are received as original evidence (1 Green. Ev., § 102). If made to a medical attendant, they are of greater weight as evidence; but, if made to any other person, they are not, on that account, rejected'. Id; Matteson v. The New York Central R. R. Co., 35 N. Y, 487.

It is contended that the judge erred in charging the jury that it was the duty of the city to keep its walks in a reasonably safe condition. That the remark was not intended by the court, or understood by the jury, as an instruction that the duty of the city in that respect was absolute under all circumstances, is apparent from the instruction immediately following it, that in order to hold the city liable it must be shown that it had notice of the defect and neglected to repair it. And when the attention of the judge was called to the remark by an exception, he distinctly told the jury that the city are not insurers, and that the other elements referred to must be found to exist to enable the plaintiff to recover, “but,” he continued, “ as a primary proposition, I charge you as I stated before.” With that explanation the charge was unexceptionable.

There are no other questions in the cáse requiring comment.

The judgment and order should be affirmed.

Haight and Bradley, JJ., concur; Barker, J., not voting. •


author: Bradley, J.

text:
    John Burlingame, Resp’t v. William H. Manderville, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.)

    1, Judgment—When former judgment need not be pleaded.
    The terms of the contract involved in this suit had been conclusively established by a judgment entered in a suit brought for a similar purpose by and between the same parties as herein Held, Tint it was not necessary to plead the former judgment as an estoppel, but that It was properly and with like effect received as evidence
    2. Statute of frauds—Agreements not to be performed within a tear.
    An oral agreement which was not by its terms "not to be performed within one year from the making thereof, ' although capable of a longer continuance than one year, is not within the meaning of the statute of frauds and is valid. Following Trustees, etc , v. Brooklyn Fire Ins. Co , 19 N. Y„ 305.
    Appeal from judgment of Cattaraugus county court entered upon a verdict of a jury and from order of that court denying motion for a new trial

      Charles E. Cary, for appl’t; J. H. Waring, for resp’t.
   Bradley, J.

The action is upon an oral agreement alleged to have been made between the parties, by which the defendant undertook to pay to the plaintiff ten per cent of the premiums received by him for insuring in insurance companies represented by him as agent, risks furnished him by the plaintiff, and a like per cent of the premiums so received for renewals of the insurance of such risks._ The parties were agents of insurance companies, and it seems that a certain class or classes of risks, the plaintiff was not permitted to take for the company he represented, while the defendant was less restricted in that respect by some of the companies of which he was agent, and that the proposition of the plaintiff to furnish such as he could not take, to the defendant resulted in the alleged agreement, pursuant to which the plaintiff, in .1877, furnished to the defendant the application of one Jones for insurance on his mill, which was taken by the defenda nt, and a policy or policies of one or more of the companies represented by him, made to Jones for $6,000 on his mill. And this insurance was afterwards from year to year renewed by the defendant, and the premiums paid to him. He paid to the plaintiff ten per cent of the premium received upon the original insurance, and declined to pay to the plaintiff any part of the premiums received for ‘'the subsequent renewals of the insurance. And in 1879 the plaintiff brought an action in justices court to recover ten per cent of the amount received by the defendant for the renewals made in 1878 and 1879, extending the insurance into the year 1880, An issue in that action made by answer to the complaint was tried, and judgment recovered by the plaintiff upon the merits. The action was on appeal to the county court of Cattaraugus, there tried with a like result; and, on appeal to this court, the judgment was affirmed. See MSS. opinion of Haight, J., and 22 N. Y. W. Dig., 123.

The present action was brought in 1884, in the county court, to recover ten per cent, of the amount of the premiums received „by the defendant for the renewals of the-insurance of the Jones mill in 1880, 1881, 1882 and 1883, extending the insurance into the year 1884, and a verdict was directed for the plaintiff for the amount of such, percentage. Upon the trials of the action first commenced, the terms of the agreement were litigated.

The plaintiff gave evidence to the effect that its terms-were as before stated, while the evidence on the part of the defendant was that the agreement to pay ten per cent of the premium related only to the original insurance, and did not embrace any renewals of the risk. The determination of that question -of fact against the defendant, and the judgment thereupon entered conclusively, established the terms of the contract as the plaintiff claimed them to be. The record of the judgment was put in evidence in this-action, and by it and the evidence showing what was litigated there, effectually disposed of the question as to the agreement. And for that purpose it was not necessary to-plead the former judgment as an estoppel. It was properly and practically with like effect received as"evidence. Krekler v. Ritter, 62 Ñ. Y., 372.

The contention on the part of the defendant, that the agreement was void because it was evident that so far as related to renewals it could not be performed within one year, does not seem to be supported because the agreement was not, by its terms, “not to be performed within one year from the making thereof,” within the meaning of the statute, although capable of a continuance longer than a year. Trustees, etc., v. Brooklyn Fire Ins. Co., 19 N. Y., 305; Smith v. Conlih, 19 Hun, 234.

The defendant offered to prove that in 1879 he told the plaintiff “that he should issue no more renewals on.this insurance under any arrangement he had made with him, and that he told him the same in the early part of 1881,” and took exception to the exclusion of the evidence.

It is not apparent that the agreement and its operation could be terminated in that manner.

We think this evidence offered was of no value for any purpose. The agreement m question here is the same as that involved in the former action, when recovery was had on account of premiums received by the defendant for re • newals of the insurance of the same property And those in question here are further renewals of such insurance of it.

The question hei’e is, therefore, not res nova, but is controlled by the determination of the former action on the appeal to this court.

The judgment and order should be affirmed.

Smith, P. J., and Haight, J., concur; Barker, J., not voting.


text:
    COURT OF APPEALS.
    Filed November 23, 1886,
    JULIA RILEY, Administratrix, etc., App'lt, v. ALBANY SAVINGS BANK, Resp’t.

      William R. Guthrie, for app'lt; Leonard G. Hun, for resp’t.
   Order affirmed, and judmenl absolute ordered against appellant, on stipulation, with costs. _


text:
    SAMUEL G. CRAIG, Administrator, etc., Resp’t, v. MANHATTAN RAILWAY App’lt.

      Edward 8. Rapadlo, for app’lt'; Peter Mitchell, for resp’t.
   Judgment affirmed, with costs


text:
    PETER MOLLER, Jr., et al., Executors, etc., Resp’ts, v JOSEPH W. DURYEE et al., Executors, etc., App'lts. SAME v. SAME.

      Carlisle Noi'wood, Jr., for app’lts, William Man, for resp't.
   Judgment affirmed, with costs


text:
    ABRAHAM B. CONGER et al., v. SARAH W. DURYEE, App’lt, ISAAC C OGDEN. Resp’t.

      Carlisle Norwood, Jr.', for app’lt, William Man, for respt.
   Order affirmed, with costs._


text:
    WILLIAM E. SMITH, Resp’t, v. THOMAS NELSON et al., Executors, ETC., APP'TS

      E. P. Johnson, for appl’ts, Geo W. Weiant, for tesp’t.
   Judgment affirmed, with costs.


text:
    SUSAN E. BEDELL, Administratrix, etc., Resp’t, v. LONG ISLAND R. R. CO., App’lt.

      Edward E Sprague, for app’lt; George Wallace, for resp’t.
   Judgment affirmed, with costs


text:
    JOSEPH YOUNG, Administrator, etc., Resp't, v NEW YORK CENTRAL AND HUDSON RIVER R R CO, Applt

      Frank Loomis, for app'lt, Daniel P. Rays, for resp t.
   Judgment affirmed, with costs


text:
    DORLESCA M. VAN ALSTYNE, Administratrix, etc., Respt, v NEW YORK CENTRAL AND HUDSON RIVER R R CO, Applt.

      O. D. Prescott, for app'lt, D 3.. Morrel, for resp t
   Judgment affirmed, with costs


text:
    RE JUDICIAL SETTLEMENT OF ACCOUNTS OF JOHN HOHMAN et al., Executors etc.

      Bichard W Mclncrow, for app'lt.s F J Finche, for resp't.
   Judgment affirmed, with costs


text:
    BETSEY SQUIRES, App'lt, v COLEMAN ROBINSON, Executor, etc., Resp’t.

      W Farrington, for app'lt; Ambrose Ryder, for resp’t.
   Judgment affirmed, with costs


text:
    PEOPLE OF THE STATE OF NEW YORK, App’lts, v. WILLIAM C. MOORE, Resp’t.

      John VanVoorhis, for motion, W 11 Adams, contra.
   Motion to dismiss appeal granted.


text:
    Filed November 30, 1886.
    RE APPLICATION TO COMPEL PAYMENT UNDER WILL OF MARY McPHERSON
   Motion to advance case granted, etc


text:
    PEOPLE OF THE STATE OF NEW YORK ex rel., JOHN F. BRIDGMAN, Resp't. v BENJAMIN H. HALL, App’lt.
   Motion to advance case granted, etc.


text:
    ENSIGN v BAISE; SAME v. SAME.
   Motion to advance denied, with costs. '


text:
    METROPOLITAN TRUST CO., App’lt, v TONAWANDA VALLEY AND CUBA R R CO. et al., Resp’ts.
   Motion for reargument denied, without costs

See 2 N Y". State Rep , 09 _


text:
    JOHN FISCHER, App'lt, v GEORGE F LANGBEIN, et al., Resp’ts. SAME v SAME.
   Motion for rcargumcnt denied, with costs

Motion for extra'costs denied, with costs

See 2 N Y' State Rep , 768_


text:
    MOSES P. ROBERTS, App’lt, v. WILLIAM ELLWOOD, Resp’t.
   Motion for substitution granted, etc


text:
    Filed December 7, 1886
    LEOPOLD WISE, et al., etc., App’lts. v ANDREW W. MORGAN, Resp’t

      Raphael J Moses Jr , for app’lt, P R Vernon, for resp't.
   Judgment affirmed, with costs


text:
    STEPHEN BROWN, Executor, etc., Resp’t, v GEORGE M CRIPPEN, App’lt

      L B Pike and John R Putnam, for app'lt, Lyman R Nm'thrup, for resp’t.
   Judgment affirmed, with costs


text:
    BRIDGET COOPER, Administratrix, Resp’t, v. CENTRAL STOCK YARD AND TRANSIT CO., App’lt.

      Ira D. Warren, for app'lt; Mark Ash, for resp’t.
   Judgment affirmed, with costs._


text:
    ELNATHAN SWEET, Resp’t, v. DORILUS MORRISON, App'lt.
   Motion for reargument denied, with costs.

See 2 N. Y. State Rep., 78L__


text:
    EDGAR MUNSON et al., App’lts, v. SYRACUSE and CORNING R. R. CO et al., Resp’ts.
   Motion to amend remittitur granted, etc.

See 3 N. Y. State Rep , 31.__


text:
    Filed December 14, 1886.
    EDGAR T. BRACKETT, Admr. Resp’t, v CHESTER GRISWOLD, Impleaded, etc., App’lt
   Motion for reargument denied.

See 4 N. Y. State Rep , 219_


text:
    MICHAEL J. DERLETH, Resp’t, v HENRY P. DeGRAFF et al., App’lt.
   Motion to dismiss granted, with costs.

See o N. Y. State Rep , 619._


text:
    CITY OF BROOKLYN v. COPELAND
   Motion to advance denied, without costs.


text:
    BERNDHEIMER v. RUNDSKOFF. SEYMOUR v MACK.
   Motions to advance denied, without costs.


text:
    PORTEOUS v WILLIAMS.
   Motion to withdraw granted, with thirty dollars costs and ten dollars costs of motion. _


text:
    Filed December 17, 1886
    IDA MAY MORSE, Adm’rx., etc., App’lt, v N. Y. C and H. R. R. CO., Resp’t

      Louis Marshall, for app’lt; F. E. Eiscock, for resp’t.
   Order affirmed on the merits and judgment absolute ordered for defendant, with costs. _


text:
    SARAH McCALLUM, Adm’rx., Resp’t, v LONG ISLAND R. R. CO., App’lt

      William J Kelly, for app'lt. Peter Mitchell, for resp’t
   Judgment affirmed, with costs.


text:
    FRANCIS E. JOHNSON, Adm’r, Resp’t, v. ANDROS B. STONE et al., App'lts

      John 8. Davenport, for app'lts, Francis 0. Heed, for resp t
   Judgment affirmed, with costs.


text:
    DENNIS SULLIVAN, Admr, etc., Resp't, v BUFFALO GRAPE SUGAR CO., App’lt

      Rogers, Locke & Milburn, for app'lt, J E & O W. Stevens, fcr respt
   Judgment affirmed, with costs.


text:
    JOSEPH T. WATSON, Adm’r, etc., Resp’t, v. BROOKLY CITY R. R. CO., App’lt.

      Samuel D. Morris, for app'lt; John Henry Hull, for resp’t.
   Judgment affirmed, with costs.


text:
    BENJAMIN WRIGHT, Receiver, etc., App’lt, v. MARY A. NOSTRAND, Impleaded, etc., Resp’t.

      Erwin J. Spink, for app'lt; Edward P. Wilder, for resp’t.
   Order affirmed, with costs.


text:
    RE FINAL ACCOUNTING OF JOSEPH B. SPENCER, Testamentary Trustee, App’lt.

      Nathaniel 0. Moak, for app'lt, William It. Woodin, for resp’t.
   Order affirmed, with costs _'_


text:
    RE APPLICATION OF NEW YORK, LAKE ERIE AND WESTERN R. R. CO., App’lt, to accuire land of Sprague et al., Resp’ts.

      Spencer Clinton, for app’lt. Ain&ley Wilcox, for resp’ts
   Order affirmed, with costs.


text:
    LIZZIE H. CLARK, Resp’t, v MARVIN R. CLARK, App’lt.

      Edward P. Wilder, for app'lt-, Abram Wakeman, for resp’t.
   Appeal dismissed, with costs.


text:
    JOHN R. HINTZ, Adm’r, etc. Resp’t, v JOHN H. STARIN, App’lt.

      John A. Beady, for app'lt; Martin J Keogh, for resp’t.
   Appeal dismissed, with costs.


text:
    ALEXANDER S. TURNER, App'lt, v. WILLIAM W. WESTON et al., Resp'ts.

      Roswell R Moss, for app'lt, D H. Bolles, for resp’ts.
   Order affirmed, with costs _


text:
    JACOB HAAG et al., Resp’ts, v CHARLES HILLEMEIR, App’lt.

      Bartlett, Wilson & Hayden, for app'lt, Joseph S. Wood, for resp"-
   Order affirmed on opinion below, with costs.

Reported below, 41 Hun 390_


text:
    ANGELINE C. JOHNSON, Administratrix, Resp’t, v. MARY J. MYERS, Executrix, App'lt
   Motion for reargument denied, without costs.

Sec .3 N. Y. State Rep , 655


text:
    PEOPLE OF THE STATE OF NEW YORK, Resp’ts, v. PETER SMITH, App'lt
   Reargument ordered ___


text:
    ANN E MONTFORT, Administratrix, etc., Resp’t, v. LONG ISLAND R R CO., App'lt.
   Judgment affirmed, with costs


text:
    EDMUND S. HAMILTON et al., Executors, etc., Resp’ts, v. CASSIUS H. READ et al., App’lts. SAME v SAME.
   Judgment affirmed, with costs


text:
    JAMES J O’DEA, Administrator, etc., App’lt, v JAMES NORCROSS, etc., App’lts

      E. Countryman, for app'lt; Nathaniel G. Moak, for resp’t.
   Judgment affirmed, with costs


text:
    Filed January 18, 1887.
    JOHN McD. McINTYRE et al., App’lts, v. H. McINTYRE COAL CO., Resp’t.

      John E. Pa/rsons and Geo. L Steelman, for app'lt, E. Countryman, for resp’t.
   Reargument ordered.


text:
    CHRISTIAN BECHT, Administrator, etc., App’lt, v H. CLAUSEN & SON BREWING CO., Resp’t

      Henry Wehle, for app'lt, Samuel Untermeyer, for resp’t.
   Judgment affirmed, with costs.


text:
    MARY McGRATH, Administratrix, etc., App’lt, v. BROOKLYN CITY R. R. CO., Resp’t.

      Carpenter & Roderick, for app’lt, Morris & Pearsall, for resp’t
   Judgment affirmed, with costs.


text:
    LUSH v. ADAMS.
   Motion to dismiss grantd, without costs.


text:
    PRENDERVILLE v BONNEROTT.
   Motion to withdraw granted, without costs


text:
    BELL v SMITH.
   Motion to dismiss granted, without costs.


text:
    Filed January 25, 1887
    RE APPLICATION OF ALAN CAMPBELL, COMMISSIONER OF PUBLIC WORKS, etc.

      Hamilton Wallis, for app’lt; Frank E Smith, for resp’t.
   Appeal dismissed, with costs.


text:
    ALONZO BRADNER et al., Ex’rs., etc., v. LAUREN C. WOODRUFF, et al., Surviving Trustees, etc.

      Martin W. Cooke, for resp’ts; Theodore Bacon, for-app’lts.
   Order affirmed, with costs._


text:
    CHARLES P. DeGRAFF, et al., Resp’ts, v PATRICK H. CUMMINS, App’lt

      M, L Stover, for app’lt; W. L. Yandenberg, for resp’ts.
   Order affirmed, with costs.


text:
    PEOPLE v. BANK OF DANSVILLE-RE PETITION OF GEORGE ENGER et al.

      Martin W. Cooke, for app’lt; Charles J. Bissell, for resp’t.
   Order affirmed.


text:
    ESTELLE D. BOWERS, Respt, v FREDERICK C. DURANT, et al., App’lts

      Carlisle Norwood, Jr., for app’lts, John M. Bowers, for resp’t
   Appeal dismissed, with costs.


text:
    JAMES P. CONNOR et al. Ex’rs, etc., Resp’ts, v. JOSEPH DUBEE et al., App’lts

      Edward D. McCarthy, for appl’ts, Henry Thompson, for resp't.
   Motion for reargument denied, without costs ;

See 4 N. Y. State Rep . 216


text:
    ELGIE v CITY OF TROY.
   Motion to dismiss denied, ten dollars costs


text:
    HONG KONG, etc., BANKING CO. v COOPER.
   Motion to dismiss denied, with costs


text:
    PEOPLE v KURTZ.
   Motion'to dismiss appeal granted, with costs


text:
    PEOPLE ex rel. HAUGHTON et al., Appl'ts, v. ANDREWS, et al., Resp’ts.

      A J. Dittenhoefer, for app’lts; Charles W Dayton, for resp’ts.
   Motion to advance and prefer granted, without costs.


text:
    VILAS v PAGE.
   Motion to revise and put on calendar granted.


text:
    COLLYER v. COLLYER.
   Motion to put on calendar and prefer denied, with ten dollars costs.


text:
    Filed February 1, 1887.
    SUSAN RAYNOR et al., Admr’s, etc., App’lts, v. SAMUEL S. CARMAN et al., Resp’ts.

      J. T. Marean, for app’lts; H. E Bichéis, for resp’ts
   Judgment affirmed and judgment absolute ordered for the defendants, on stipulation, with costs _


text:
    MICHAEL COFFEE, Adm’r, etc., Resp’t, v. NEW YORK, BUFFALO AND PHILADELPHIA RAILROAD CO., Apt’lt.

      John O. Milburn, for app’lt; James Fraser Gluck, for resp’t.
   Judgment affirmed, with costs.


text:
      Re ESTATE OF NATHANIEL GILMAN, Deceased.

      B. J. Moses, Jr., for app’lt; Henry E.'Znox, for resp’t.
   Appeal dismissed, with costs.


text:
    NICHOLAS RUCH, Adm’r, etc., Respt, v NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, App’lt.

      Norris Morey, for app’lt; James Fraser Gluck, for resp’t.
   Judgment affirmed, with costs.


text:
    MARGARET KEARNEY, Adm'x, etc., Resp't, v GEORGE H. THOMPSON et al., App'lts

      John Van Voorhis, for app'lt; J. A. Stull, for resp’t.
   Appeal dismissed, with costs


text:
    PATRICK LEARY, an Infant, by Guardian, App’lt, v PRESIDENT, etc., DELAWARE AND HUDSON CANAL COMPANY, Resp’t.

      E. Countryman, for app'lt. Edwin Young, for resp’t
   Judgment affirmed, with costs


text:
    ANNA M. HOLCOMBE, Ex’rx, App'lt, v KNEELAND J. MUNSON et al., Respt's

      James Lansing, for app’lt, Esek Cowen, for resp’ts.
   Motion for reargument denied, with costs.

See 4 N. Y. State Rep., 250


text:
    Filed February 8, 1887.
    RE ASSIGNMENT OF L CHRISTIAN MEYER.

      L Ruser, for app’lt. W. Z. Larned, for resp't
   Appeal dismissed, with costs


text:
    HIRAM SMITH et al., Resp’ts, v CITY OF ROCHESTER, App’lt.

      Ivan Powers, for app’lt, Theodm-e Bacon, for resp’t.
   Judgment affirmed, with costs


text:
    RE ESTATE OF HOOD.

      E. P. Wilder, for app’lt; John J. Macklin, for resp’t.
   Motion for reargument denied, with costs.

See 5 N Y State Rep , 501


text:
    CLARISSA LAMMER et al., App'lts, v. HELEN G. STODDARD, Ex’rx, et al., Resp’ts.

      P. V R Stanton, for applts, Johnson & Lamb, for respt’s.
   Motion for reargument denied, ten dollars costs.

See 4 N. Y State Rep., 225.


text:
    LULA V. JONES, Resp’t, v. LEWIS JONES et al., App’lts.
   Motion for reargument denied, ten dollars costs.

See 5 N. Y State Rep., 610.


text:
    GARDNER v. MEADE.
   Motion for reargument denied, ten dollars costs.


text:
    EMMERICK v. HEFERAN.
   Motion to dismiss appeal, etc., granted, with costs.


text:
    RE BULL.
   Motion to dismiss granted, with costs.


text:
    MAYOR, etc., OF THE CITY OF NEW YORK v. STARIN.
   Mo-aton to put on calendar for day certain granted, without costs.


text:
    February 11, 1887
    J. DANIEL ACKERMAN et al., App'lts, v. ISAAC P. POWERS, Resp't.

      W H. Hubbard, Jr., for app lts, Hannibal Smith, for resp
   Judgment affirmed, with costs


text:
    ELVIRA VICK, Adm’rx, etc., Appl’t, v N Y CENTRAL AND HUDSON RIVER R. R. CO., Resp’t.

      W. S Oliver, for app’lt, Hamilton Harris, for resp't.
   Judgment affirmed, with costs


text:
    PEOPLE ex rel. SIDNEY DILLON et al., App’lts, v. EDWARD GILON et al., Assessors, etc., Resp’ts.

      Traman H. Baldwin, for app’lts. D J. Bean, for resp’ts.
   Order affirmed, with costs _


text:
    SARAH M. SIMMONS, App’lt, v. ZACHARIAH E. SIMMONS, Resp't.

      Charles H Woodbury for app’lt, W O Beeeher, for resp't "
   Order affirmed, with costs _


text:
    PEOPLE ex rel PRESIDENT, etc., DEL AND HUD CANAL CO., Resp’t, v ZACHARIAH ROOSA et al., ASSESSORS OF MIDDLETOWN, App’lts.

      Newton Fiero and A T. Clearwater, for app’lts; P. Gantine, for resp't.
   Appeal dismissed, with costs.


text:
    RE APPLICATION OF THE STATEN ISLAND R. R. CO. TO ACQUIRE LANDS OF THE NEW YORK DYEING, etc., ESTABLISHMENT.

      William M. Mullen, for app’lt; Albert B. Boardman, for resp't.
   Appeal dismissed, with costs


text:
    RE APPLICATION OF THE STATEN ISLAND R. R. CO. TO ACQUIRE LANDS OF CHARLES K HAMILTON et al.

      N Pendleton Schenek, for app’lt, Albert B Boardman, for resp’t
   Appeal dismissed, with costs ■


text:
    ROBERT WILLETS, et al., Ex’rs, Resp’ts, v. SARAH A. WILLETS, et al., App’lts.

      Henry BeForest Weekes, for app’lts; A. J. Vanderpoel an! B. M. Morgan, for resp’ts.
   Motion for re-argument denied, without costs.


text:
    Filed March 1, 1887.
    PEOPLE OF THE STATE OF NEW YORK, Resp’ts, v. ALEXANDER H. REAVEY, App’lt.

      A. Suydam, for app’lt; McKensie Semple, for resp’ts.
   Judgment affirmed.


text:
    WILLIAM H. VAN OSTRAND, Infant, etc., Resp’t, v. NEW YORK CENTRAL AND HUDSON RIVER R. R. CO., App’lt.

      W. H. Adams, for app’lt; Harold H. Hills, for resp’t.
   Judgment affirmed, with costs.


text:
    JOHN MURRAY, Infant, etc., Resp’t, v. HENRY A. SMITH, App’lt.

      Edward O. Ripley, for app’lt; Clwrks J. Patterson, for resp’t
   Judgment affirmed, with costs.


text:
    ALFRED TALLMAN, Resp’t, v. TOWN OF RAMAPO, App’lt.

      Garret Z. Snider, for app’lt; Cornelius P. Hoffman, for resp’t
   Judgment affirmed, with costs


text:
    WILLIAM H. DORAN, Infant, etc., App'lt, v. CITY OF TROY Resp’t.

      R. A. Pcwmenter, for app’lt; William J. Roche, for resp’t.
   Judgment affirmed, with costs.


text:
    ALLEN BLOOMFIELD et al., Executors, etc., Resp’ts, v. GEORGE CLARKE, App’lt.
    , James B. Jenkins, for app’lt; James A. Hynes, for resp’t.
   Order affirmed, with costs.


text:
    RE PETITION OF LEONARD SCOTT, to Vacate Assessment, etc.

      B. J. Bean, for app’lt; Herbert A. Shipman, for resp’t. '
   Order affirmed, with costs.


text:
    SHERWOOD STERLING, Resp’t, v. METROPOLITAN L. INS. CO. App’lt. SAME v. SAME.

      William H. Arnouce, for app’lt; John A. Straley, for resp’t.
   Appeals dismissed, with costs


text:
    EDWARD BURKE et al., Resp’ts, v. PHILIP HONE, App’lt.

      Mr. Lowrey, for app’lt; William Hildreth Meld, for resp’t.
   Order affirmed, with costs.


text:
    RE ACCOUNTING OF JOHN C. CONNER, Assignee, etc.

      Matthew Hale, for app’lt; Hamilton Harris, for resp’t.
   Order affirmed, with costs.


text:
    Filed March 1, 1887.
    RE GENERAL ASSIGNMENT OF JAMES N. TOWNSEND AND SAMUEL BAKER.

      N. C. Moak, for app’lt; L. A. Gould, for resp’t.
   Appeal dismissed, with costs.


text:
    TRUMAN SYMSON, App’lts, v. HANNIBAL T. SELHEIMER et al., Resp’ts.

      Nathaniel Eoote, for app’lt; John H. White, for resp’ts.
   Order of general term modified by providing that plaintiff’s .motion to amend is granted upon his consenting to postpone the lien of his judgment to those existing on the 5th of October, 1885, as to all real estate embraced in the assignment of the judgment debtors, dated December 15, 1884; otherwise denied. No costs to either party on this appeal.


text:
    FREDERICK BODE, Resp’t, v. HENRY MAIBERGER, Dep’t, MURPHY & MAIBERGER, Sureties, App’lts, MOIES SEISMORAN, Purchaser Resp’t.

      Edgar A. Tamil, for app’lts; James O. Be La More, for resp’t.
   Appeal dismissed, with costs.


text:
    CAROLINE M. MITTNACHT, App’lt, v. JOHN KELLERMANN, Impleaded, etc., Resp’t.

      Christopher Fine, for app’lt; Jacob L. Hanes, for resp’t.
   Motion to dismiss appeal denied, with costs.


text:
    PEOPLE ex rel. DEVERELL, v. MUSICAL UNION.
   Motion to dismiss appeal denied, with costs.


text:
    Filed March 15, 1887
    GEORGE LAHR, Resp’t, v. METROPOLITAN ELEVATED R. R. CO., App’lt. WAGNER v. SAME.

      Julian T. Baríes, Edward S. Sapallo and Bavid Budley Field, for applt; Inglis Stewart and' Q. Willett Tan Nest, for resp’t.
   Motion for reargument denied, with costs.

See 4 N. Y. State Rep., 840.


text:
    Filed March 22, 1887.
    WILLIAM P. BROOKS, App’lt, v. STATE OF NEW YORK, Resp’t.

      E. E. Harding, for app’lt; B. O’Brien, for resp’t.
   Judgment and award affirmed, with costs.


text:
    W. S. CLEMENS, Resp’t, v. STATE OF NEW YORK, App’lt.

      B. O’Brien, attorney-general, for app’lt; B. S. Potter, for resp’t
   Judgment and award affirmed, with costs.


text:
    DAVIS COSSITT, Sheriff, App’lt, v. HENRY WINCHELL, Resp’t.

      M. M. Waters, for app’lt; Louis Marshall, for resp’t.
   Judgment affirmed, with costs.


text:
    Filed March 25, 1887.
    MARY MOFFAT FIELD et al., Resp’ts, v. MAYOR, etc., OF NEW YORK CITY, App’lt.

      F. A. Irish, for app’lt; Frank E. Blackwell, for resp’t.
   Judgment affirmed, with costs.


text:
    WILLIAM H. BROCKWAY et al., App’lts, v. JOHN FLEMING, et al. Resp’ts.

      Oswald Prentiss Backus, for app’lt; Leonard Bonnes', for resp’ts.
   Judgment affirmed, with costs.


text:
    HENRY DAY, App’lt, v. SARAH HILL, Resp’t. SAME v. FRANCIS C. HILL.

      Gern'ge A. Strong, for app’lt; Thomas Touug, for resp’t.
   Judgment affirmed, with costs.


text:
    OLNEY L. CARPENTER, Resp’t, v. BOSTON AND ALBANY R. R. CO., App’lt.

      John Cadman, for app’lt; Charles L. Beale and B. B. Andrews, for resp’t.
   Judgment affirmed, on authority of Carpenter v. Boston and Albany B. B. Co. (97 N. Y., 497), with costs.


text:
    JOSEPHINE CORNELL, Administratrix, etc., Resp’t, v. FRANCIS R. CORNELL, App’lt.

      Gabriel L. Smith, for app’lt; J. A. Beynolds, for resp’t.
   Judgment affirmed, with costs,


text:
    GOTTLEIB WEBER, Resp’t, v. NATHAN MANNE, Assignee, Im PLEADED, etc., Appe’lt.

      Richard M. Henry, for app’lt; Abram, Kling, for resp’t.
   Order of general term reversed and that of special term affirmed, with costs.


text:
    RE ESTATE OF SUSAN A. PLACE, Deceased.

      Charles M. Wells, for app’lt; Thomas Bearish Sherman, for resp’t.
   Order affirmed, with costs._


text:
    PEOPLE ex rel. JOSE M. FERRER, Ancillary Executor, etc., Resp’t, v. MICHAEL COLEMAN et al., Commissioners of Taxes, etc., App’lts.

      I). J. Bean, for app’lt; A. B. Oruikshank, for resp’t.
   Order of general term affirmed, with costs.


text:
    PEOPLE ex rel. EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Appl’t, v. ALFRED C. CHAPIN, Comptroller, etc., Resp’t.

      Frank B. Smith, for app’lt; B. O'Brien, attorney-general, for resp’t.
   Per Curiam.—Order affirmed, with costs on authority of People ex rel. v. Chapin (6 N. Y. State Rep., 837).


text:
    FIRST DEPARTMENT, GENERAL TERM.
    Filed March 2, 1887.
    MOSES BROWN et al., Resp’ts, v. PETER BOWE, App’lt.

      F. C. Beed, for resp’t; C. F. MacLean, for app’lt.
   Motion denied, on appellant stipulating to be ready for next term, with ten ollars costs of motion to plaintiff, to abide the event of the appeal.


text:
    HENRY B. LAPAUGH v. JAMES WILSON, Adm’r, etc.

      John Andrews, for pl’ff; J. J. Townshend, for def’t.
   Order reversed, with ten dollars costs and disbursements, and order entered vacating the ex parte order


author: Per Curiam.

text:
    IN THE MATTER OF THE PETITION OF THE MANHATTAN DISPENSARY TO CHANGE ITS NAME, etc.
    Practice—When order appealable.
    Appeal from order of special term granting the Manhattan Dispensary leave to change its name to the Manhattan Hospital.

      W A.-Butler, for app’lt; J. A. Beall, for resp’t.
   Per Curiam.

The objection that the order appealed from is not appeal-able, because the order made is not one for the enforcement or protection of a right is not well taken, because the petitioners were entitled to the relief asked for, unless reasonable objection was shown, and if such right was denied unreasonably, such denial could be reviewed by the general term.

Upon the merits, it seems to be sufficient to say that there is great danger of confusion in the minds of the public, because of the similarity of the names “Manhattan Hospital” and “Manhattan Bye and Ear Hospital.” Such an order should not be granted where there is danger of such confusion, and the fact that such confusion may arise forms a reasonable ground for the refusal to grant the request of the petitioners. Therefore, the petitioner did not bring itself within the provisions of the statute, and the motion should have been denied.

The order should be reversed, with ten dollars costs and disbursements


text:
    CORTLANDT L. PARKER, Resp’t, v. COMMERCIAL TELEGRAM COMPANY et al., App’lts
    Discontinuance op action.
    Appeal from order granting leave to discontinue and denying motion to consolidate

      James B. Chandler, for app’lts; B. B. Johnes, for resp’t; Sullivan & Cromwell, for Mining Stock Exchange.
   Per Curiam.

The careful opinion of Mr. Justice Churchill rendered in this case renders it entirely unnecessary for us to add anything thereto upon this appeal, and for the reasons stated by him we think that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Lawrence, J., Van Brunt, P. J., and Bartlett, J., concur


text:
    JOHN TODD, Resp’t, v. FERDINAND A. MARSILY, App’lt.
    Security por costs—When ordered—Code Civ. Pro., § 3268.
    Appeal from order denying motion for security for costs.

      J). M. Porter, for app’lt; II. D. Hotchkiss, for resp’t.
   Per Curiam.

By the construction required to be given to section 3268 of the Code, the right of the defendant to security for costs is not absolute, but dependent upon the circumstances made to appear in support of the application. In this case the facts were such as to justify the denial of the application.

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


text:
    JOSEPH SHACKLETON, Resp’t, v. WAINWRIGHT MANUFACTURING COMPANY, App’lt.
    Service op summons on corporation, when good.
    Appeal from order denying motion to set aside service of summons

      A. D. Kenyon, for app’lt; F. Forbes, for resp’t.
   Per Curiam.

The affidavits taken together did establish the fact_ that the corporation was engaged in business in this state and that its business was managed by and under the supervision of Aspinwall, which made him a managing agent within the third subdivision of section 432 of the Code, as that has. been construed and applied in Palmer v. Pennsylvania Company, 35 Hun, 369.

The order affirmed, with ten dollars costs and disbursements.


text:
    FLEMING S. PHILLIPS, App’lt, v. THE GERMANIA MILLS, Resp’t.
    Examination op books op a corporation.
    Appeal from order vacating order for the production of the defendant’s books.

      W. J. Curtis, for app’lt; Joseph A. Shoudy, for resp’t.
   Per Curiam.

It would have been a doubtful exercise of power on the part of the court to make an order requiring a foreign corporation to bring its books from its principal office in a sister state to the state of New York for the inspection asked for in this ease, especially after it had offered to allow the inspection of its books at its office in the foreign state, if the plaintiff desired to make such inspection.

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


author: Van Brunt, P. J.

text:
    Filed March 14, 1887.
    THE FRANCKLYN LAND AND CATTLE CO., App’lts, v. AUGUST KOUNTZE et al., Resp’ts.
    Injunction—When not granted.
    Appeal by plaintiff from order of reference to assess damages upon injunction.

      Nelson S. Spencer, for app’lt; George W. Van Slyck, for respondent.
   Van Brunt, P. J.

It appearing that all the defendants except the moving parties have waived all rights under the undertaking, there seems to be no reason why the defendants, before the court, should not enforce their rights under the undertaking in question.

As far as they are concerned the record shows that it has been determined that the plaintiff was not entitled to the injunction granted, and as it appears that everybody else has released whatever rights they might have had in the undertaking, there is no reason why the defendants should not be allowed to-seek indemnity for such damages as they have sustained.

The order appealed from should be affirmed, with ten dollars costs and disbursements.


text:
    Filed March 31, 1887.
    SIMON GOLDSMITH v. CHARLES GLATZ.

      O. 5. Macbin, for pl’ff; A. Gilhooly, for def’t.
   Motion denied.


text:
    MARY A. FOSTER v. JAMES EASTON.

      L. P. Leany, for pl’ff; Wm. Vanamee, for def’t.
   Motion granted unless defendant serves appeal papers within twenty days and stipulates to bring case on for argument at the next May term; ten dollars costs of motion to abide event.


text:
    JOHN J. MANDEVILLE v. ELLIAS T. EDDY
    2. jR. Squires, for pl’ff; G. 2. Williams, for def’t.
   Appeal dismissed.


text:
    WILLIAM WILLIAMS, App’lt, v. ROBERT W. FREEMAN, Resp’t.

      Staples & Wood, for app’lt; 2 P. Stm'buck, for resp’t.
   Motion for reargument denied.


text:
    FALL BROOK COAL CO., Resp’t, v. RICHARD HECKSHER, App’lt.

      Grane & Lockwood, for resp’t; J. L. Bishop, for app’lt
   Motion for resettlement denied.


text:
    JAMES R KEENE v. ELMORE A. KENT.
    2 S. Bennett, for pl’ff; L. A. Gould, for resp’t.
   Motion for resettlement denied.


text:
    GEORGE C. GENET v. MARY R. HUNT, Etc.

      A. B. Genet, for pl'fE; Lord, Day & Loi'd, for def’t.
   Resettlement denied.


text:
    AGNES RAY v. METROPOLITAN LIFE INSURANCE CO.

      W. W. Hewett, for pl’ff; W. H. Arnoux, for deft.
   Motion granted on giving security for costs of appeal and paying costs of appeal and paying costs of motion.


author: Per Curiam

text:
    WILLIAM HOVEY, Etc., v. MELINDA R. PURDY et al.

    Practice—Papers on appeal—What they should contain.
   Per Curiam

The appeal in the present case in consequence of the glaring defects in the printed papers cannot he considered and the case must be stricken from the calender.

The action was apparently brought to obtain the construction of a will, and is claimed to have been tried at the special term before the court and without a jury.

The printed papers upon this appeal contain no evidence that the cause was ■ever tried, nor that any decree was entered by order of the court, the papers containing no findings of fact and no decree of the court.


author: Bartlett, J.

text:
    CATHARINE GEORGI, App’lt, v. ADOLPH E. GEORGI, LEOPOLD E. GEORGI et al., Resp’t.
    Mortgage—When not fraudulent as to creditors.
    Appeal by plaintiff from special term judgment dismissing the complaint upon the merits.

      Hervry P. Slarbuck, for app’lt; Samuel Untermeyer, for resp’ts.
   Bartlett, J.

This is a judgment creditor’s action to set aside as fraudulent a chattel mortgage made by a judgment debtor, Adolph E. Georgi, to his brother, Leopold E. Georgi, and also to set aside a subsequent assignment by the former to the latter of all his interest in certain claims for insurance on the mortgaged property which had been destroyed by fire.

The court below found in favor of the defendants.

The proofs tended to show that at the time of the transaction in controversy, Leopold E. Georgi was in good circumstances financially, while his brother was without money. The trial judge says that Leopold furnished all the money necessary to start his brother in business, taking security for his advances. “ In this transaction he was not a party to any scheme for hiding his brother’s property, but rather in one to aid him to recover his lost fortune. It would require strong evidence to support a conclusion that he was attempting to defraud his brother's creditors, when surrounding him with property, the brother was without means to acquire himself.”

So forcibly was the learned judge impressed with the good faith of the defendant, Leopold E. Georgi, in thus assisting his brother, that he took the most favorable view possible of the facts relied upon to prove that the mortgage was fraudulent. While there were many suspicious circumstances, sufficient probably to sustain a finding the other way, we have not been able to reach the conclusion that the decision below was wrong.

The judgment must, therefore, be affirmed, with costs.

Van Brunt, P. J., and Daniels, J., concur.


author: Potter, J.

text:
    GRACE E. KURSHEEDT, Resp’t, v. THE UNION DIME SAVINGS INS. OF NEW YORK, App’lt.
    Seal—Recital of in attestation clause raises presumption of its existence—Form of may be rebutted.
   Potter, J.

This is an appeal from a judgment at special term in favor of plaintiff.

This case presents the same question, dependent upon the same evidence as to want of a test, upon the paper signed by Mrs. Freeis to Mr. Rowe, and purporting to be a deed of the premises in question, as the case of Tbdd against same defendant, and till two cases were argued at the same time. Having affirmed the judgment in the Todd case, the judgment in this case must be affirmed for the reasons stated in the opinion in that case.

This conclusion would render it quite unnecessary to examine or express any opinion upon the other question involved in this case, arising upon the alleged insufficiency of the foreclosure proceedings upon the part of the defendant herein, to bar the claims of one Clarke, and especially of Mrs. Long-ford, upon said premises. If it were necessary to pass upon that question, I should be of the opinion that the holding of the trial court was correct in that respect.

Lawrence, J., concurs.

      See ante, 449.


text:
    JENNIE E. MARTIN, Resp’t, v. EDWARD MARTIN, App’lt.
    New trial—When granted.
    Appeals from judgment entered on verdict of a jury in favor of plaintiff, and from order denying motion to set aside verdict, and for new trial upon the judges’ minutes, and from order denying motion for new trial on the ground of newly discovered evidence.

      Chas. Blandy, for app’lt; Chas. Putzel, for resp’t.
   Per Curiam.

In view of the fact that there seems to have been at some time or another an alteration or addition to the receipt of August 28, 1883, it would seem that the defendant should have an opportunity of contesting the question before a jury as to the circumstances of this alteration.

We are of the opinion, therefore, that a new trial should be granted in this case upon payment by the defendant of the trial fee and the disbursements of the term at which the case was tried.

The order denying motion for a new trial should he reversed and a new trial ordered upon the terms above mentioned


text:
    CENTRAL NATIONAL BANK, Resp’t, v. AMERICAN EXCHANGE NATIONAL BANK, App’lt.
    Appeal by defendant from judgment entered upon verdict directed at circuit.

      Chas Blandy, for app’lt; Francis C. Reed, for resp’t.
   Per Curiam.

The questions arising on this appeal are substantially the same as those presented in the case of the same plaintiff against the North River Bank (ante, page —), argued at this term; and the judgment herein appealed from must be affirmed, for the reasons stated in the opinion of the presiding justice, which led to an affirmance in that case


text:
    FRANCIS E. BURROWS, Resp’t, v. CHARLES M. DICKINSON, App’lt.
    Co-partnership accounts—Settlement op.
    Appeal from judgment entered on report of referee.

      J). 3. Richards, for app’lt; Abram Ming, for resp’t.
   Van Brunt, P. J.

No evidence being presented, and only the judgment-roll being before the court, the only question to be determined is whether the findings of fact of the referee justified his conclusions of law.

The parties to this action had been co-partners, and this action was brought to settle their co-partnership accounts.

The referee reported that the total of the net receipts by both parties from the business of the firm was the sum of $6,635.46, one-third of which, $2,211.82, should be allowed to the plaintiff, and two-thirds, $4,423.64, should be allowed to the defendant; and that the plaintiff should be charged with $3,157.20, including certain individual debts due from him to the defendant, leaving a balance due the plaintiff of $54.62.

In the findings in which the referee finds the total net receipts by both partners to be $6,635.46, is a statement that of this sum the plaintiff has received $587 and the defendant $6,048.46. How this sum of $587 is made up, nowhere appears. It does not seem to have been considered as a separate and distinct item, but to have been included in the sum of $2,157.20 with which the plaintiff is charged. In the absence of the evidence it is impossible for us to say how any of these amounts are arrived at. But assuming, as the referee has. found, that the plaintiff is only to be charged upon this accounting with $2,157.20, the conclusion of the referee is correct. It is true that in this computation the $587 referred to in the ninth finding is not specifically provided for, but it must have been included in the $2,157.20 in view of the finding of the referee that that is the total sum with which the plaintiff should be charged in this case, and that included receipts of the business by the plaintiff. Although this sum of $587 does not seem to be entirely explained, yet if it is not inconsistent with the findings of the referee upon which the judgment is based, nothing is to be presumed in its .favor for the purpose of a reversal of the. judgment.

The judgment must, therefore, be affirmed, with costs.

Daniels and Bradley, JJ., concur.


author: Barnard, P. J. Pratt, J.

text:
    SECOND DEPARTMENT, GENERAL TERM.
    Filed February 15, 1887.
    WILLIAM BIGGS, Resp’t, v. THOMAS BROSMER et al., App’lts.
    Assault—Breach oe contract—Damages.

      Benjamin W. Downing, for app’lts; W. J. Qaynor, for resp’t.
   Barnard, P. J.

The only question of fact in the case was found by the jury adverse to the defendant. The original agreement was for a privilege to sell crops and fruits in the chowder house on the dock. The place was changed so as to be on the dock outside of the chowder house.

After a short time the defendant told the plaintiff that he must leave the dock entirely as the company objected, “ and he would rather lose me, and if I didn’t get off he would have me arrested and taken off.” The plaintiff did not go and he “ was arrested and taken off and taken to Long Island City jail.”

It seems very hard to apply the criminal law to this state of facts, but the-plaintiff only seeks to recover damages, for the forcible removal from the dock and privilege. The value of the privilege is proven to have been $1,000, and the jury gave $500. There was no exception taken to the proof that the plaintiff had been arrested and taken off the dock. It was a fact tending to show the truth of the complaint in respect to the forcible removal and therefore admitted. The damages for the assault and those from the violated agreement grow out of the same transaction and one complaint could properly embrace them.

The judgment should be affirmed, with costs.

Pratt, J., concurs.

Pratt, J.

There was evidence which justified the jury in determining all questions of fact in favor of plaintiff. There can be little doubt that defendants-leased fo him the privilege of a stand on the dock.

The jury might well find that defendants caused his arrest from the purpose of depriving him of the privileges they had agreed he should have. The jury were cautioned not to give too much weight to the evidence of plaintiff, in reference to the damages sustained by him.

The verdict cannot be considered as excessive, and we find no errors of law.

Judgment affirmed, with costs.


author: Pratt, J.

text:
    WILLIAM H. BROWN, Resp’t, v. ATLANTIC AVENUE RAILROAD COMPANY, App’lt.
    Damages—When verdict not excessive.

      Carpenter & BodericJc, for resp’t; B. F. Tracy, for app’lt.
   Pratt, J.

Two juries have passed upon this cause, each rendering a verdict in favor of the plaintiff. This must have some weight in considering whether the verdict should he set aside as against evidence.

The amount of the verdict is large, yet we cannot say it so disproportioned to the injuries received, as to indicate passion or prejudice on the part of the jury. They might well, upon the evidence, find the injuries to be permanent in their nature.

The exceptions taken by defendants do not seem to be well founded. The charge of the court carefully suggested the considerations which favored the defendant. We do not think that the cause could properly have been withdrawn from the jury. All the requests to charge of defendants that could be sustained were granted.

We do not find grounds authorizing us to interfere with the verdict. Judgment affirmed with costs.

Barnard, P. J., concurs; Dykman, J., dissenting.


text:
    FREDERICH INGRAHAM, as Receiver, etc., App’lt, v. EAST RIVER GAS CO., Resp’t.
    Contract—What due under certain contract.
    Appeal from a judgment entered upon the report of a referee.

      B. W. Keene, for app’lt; A. T. Payne, for resp’t.
   Barnard, P. J.

The defendant, as assignee or sub-contractor of the plaintiff, agreed to do the things called for by the agreement between the plaintiff ana the city of Long Island. As compensation for this the defendant was to receive twenty six dollars for gas lamps, and one-half of the net profits.

Under this covenant it was not proper to charge for superintendence of the work. The defendant agreed to do it under fixed terms, and any superintendence needed to insure a performance of the contract the defendant was bound to furnish under the terms agreed upon between the companies.

The $1,700 allowed for this does not, therefore, constitute a charge against the plaintiff.

The charge for lanterns was proper. By the terms of the agreement between the plaintiff’s company and the city, the lanterns were to be repaired and kept in repair by the contractor. It was, under this agreement, the duty of the defendant to replace lanterns which became useless, and the city council not be asked to repay the costs.

The charge for the difference between gasoline and kerosene was proper.

It is true that the price of gasoline was fixed as between the plaintiff and the defendant, but as between the plaintiff and the city, the light furnished from gasoline was up to the standard of the original agreement.

There is no error in allowing the charges for the horses and wagons. It was a necessary expense under the contract.

As to the judgments the referee has found that they were paid at the request of the plaintiff’s company.

It became, therefore, a payment to the plaintiff equally as if it had been paid to the company.

The question of the solvency of the plaintiff’s company as between the two companies is of no moment in the absence of fraud.

The defendant is not to be charged with moneys deducted by the common council, even if these deductions were for deficiencies in the plaintiff’s performance before the assignment of the contract to defendant.

The contract was taken as a continuing contract, and payments subsequent were to be made to defendant for part performance. The deficiency in execution before plaintiff assigned should not be charged to the defendant.

The judgment should be modified by deducting $1,135.31, with interest on that sum, from the date of the judgment, and the judgment, as modified, should be affirmed, without costs to either party on the appeal.

Pratt, J., concurs

Pratt, J.

The referee allowed defendants $1,135.31 for superintendence of the work done under the contract between the two gas companies.

We do not think this credit is sustained by the evidence

The superintending was done by officers of defendant; there is no proof that it cost defendant anything.

In default of distinct proof that superintendence was necessary, and that the sum charged was reasonable, and was in fact paid by defendants for the identical service, that charge should have been disallowed.

We find no other error.

It results that the judgment that the Citizens Company is indebted to the East River Company in the sum of $2,474.36, should be modified by deducting-therefrom the sum of $1,135.31, and, as modified, the judgment should be affirmed without costs. _


text:
    THOMAS FAY, Resp’t, v. THOMAS W. WILLETTS, App’lt.
    Negligence' in permitting cattle to trespass—Weight of evidence.
    Appeal from a judgment entered upon the verdict of a jury in favor of plaintiff.

      James L. Baxter, for resp’t; Wm. Olarh Boe and Boe <6 Treadwell, for app’lt.
   Pratt, J.

This is an action for trespass, having been first tried in a justice’s court and afterwards before a jury in the county court. The question, submitted to the jury was whether the defendant negligently permitted his cattle to go upon the property of the plaintiff and injure his crops. The case seems to have been fairly tried and properly submitted to the jury. The proof was abundant and conclusive to show that the cattle belonged to the defendant. There is sufficient evidence to sustain the verdict that the cattle were negligently permitted by the defendant to go upon the plaintiff’s lands. The principal contention relates to the method of proving the damages. The plaintiff was allowed to state what he considered the amount of his damages, and the case shows that he stated all the facts specifically going to make up the damages, so that the jury could not have been misled by any estimate which he made, as the facts stated fully sustained the amount of damages given by the jury.

We are able to find no errors committed on the trial sufficient to warrant the setting aside of the verdict.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


author: Boardman, J. Hardin, J., Follett, J.

text:
    FOURTH DEPARTMENT, GENERAL TERM.
    Filed April, 1887.
    CYNTHIA M. JAMES, Resp’t, v. WILLIAM COOPER, App’lt.
    Negligence—When employer guilty of.
    Appealed from judgment on report of the referee.

      G. B. Pi'itckwrd, for pl’ff; W. L. Goodier, for def’t.
   Boardman, J.

The judgment must be affirmed, with costs.

Hardin, J.,

concurs; Follett, J., dissents in following opinion;

Follett, J.

(dissenting)—The judgment before us carries the doctrine of “ substantial performance ” far beyond any recorded precedent, and as I think, far beyond reasonable limits. James, who contracted to erect this frame, and Jones, a carpenter employed by James and sworn in behalf of the plaintiff, both testified that the defects of this frame were many and material.

Neither of these witnesses claim that the frame was erected in a good and workmanlike manner It is not claimed that the defects were accidental or arose from errors of judgment; nor is it claimed that the defendant acquiesced in the defects, on the contrary he demanded in writing on the sixteenth day of June a performance of the contract.

Although James openly concedes the existence of the defects, yet he does not claim, nor does the plaintiff, his wife, claim that they offered to remedy them. As the evidence stands, it seems to me that this presents a plain case of willful misperformance of this contract on the part of James, and that the finding of the referee that there was a substantial performance, is contrary to the evidence and contrary to his own findings of fact. The burden of showing a performance of this contract was upon the plaintiff, and she did not show that §5,000 feet of siding, or any quantity, was furnished, and for this I think a new trial should be granted.

The judgment recovered in the justice’s court is a distinct judicial affirmation that the contract was not performed; and how it can be held, as a matter of law, that bringing the action and recovering the judgment for the non-performance of the contract to build the barn was an acceptance of the barn, I am quite unable to understand.

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


text:
    FIFTH DEPARTMENT, GENERAL TERM.
    Filed March, 1887.
    JOHN BLACKMORE, Resp’t, v. CHARLES GERBER, App’lt.
    Commissions—Amount due on a certain sale.
    Appeal from a judgment entered upon the report of a referee-

      Wu/rren F. Miller, for app’lt; Humphrey <6 Lockwood, for resp’t.
   Smith, P. J.

The referee reported, in favor of plaintiff, §180 for commissions on purchases of barley made by him for the defendant; eighty-four dollars for discounts, paid by him at defendant’s request, on notes given to pay for such purchases; and §546, balance found due on account of barley sold and delivered by plaintiff to defendant, with interest on such items, respectively.

As to the items for commissions and discounts paid, there seems to be no question on this appeal, and they were undisputed, apparently, at the trial.

The referee reached the bidance due on account of barley sold, by finding that the quantity sold was 5,146 bushels at the price of one dollar a bushel, and that the defendant paid thereon $4,600.

The appellant’s counsel contends that the referee erred in not allowing the entire amount of payments established by the evidence, and we are inclined to think that the contention is well founded.

The sale of the barley was made on or about the 7th of November, 1878, as the referee found. The plaintiff admitted, in his testimony, the receipt of §4,800, avails of two notes made by defendant, to apply on the barley sold. Those items were charged in defendant’s account, as of November eleventh and twenty-first, respectively, which account was put in evidence at the trial. After the close of the evidence the referee, at the request of the defendant’s counsel, found that the defendant gave the plaintiff two notes, one for $3,000 and one for §1,800, to apply on the purchase of barley from plaintiff, and that they were paid. He also found that the plaintiff did not, on the trial, dispute certain items of the defendant’s account, including the amount of said two notes and also an item of ten dollars, for cash paid November twenty-first. The amount of payments established by uncontradicted evidence, ax>plicable to the barley sold, appears to be §4,810, instead of §4,600 allowed by the referee in his report. Making that allowance, the balance for barley sold is §336, instead of §546, stated m the report.

The referee seems to have allowed the plaintiff nothing on account of the claim in the first count of his complaint, respecting the note of $2,000 therein mentioned, nor an account of the sale of the barley to Mr. McLeish, and as the plaintiff does not appeal, those items cannot now be taken into the account.

We find no other error in the case. The result is that the judgment should he reversed and a new trial ordered before another referee, costs to abide event, unless the plaintiff stipulates within twenty days, to deduct from the judgment the sum of $210, with interest thereon, from the 1st day of March, 1879, and in that case the judgment so reduced and modified is affirmed without costs of this appeal to either party.

Haight and Bradley, JJ,, concur; Barker, J., not voting.

So ordered.


author: Lewis, J.

text:
    Henry C. Frick et al., Resp’ts, v. William B. Hughes, as Sheriff, etc., et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Conversion—Proof.
    ■ The evidence, in an action for the conversion of property sold under an execution against a third person,, was held insufficient to sustain the direction of a verdict in favor of plaintiffs.
    Appeal from a judgment entered on a verdict, directed by the court in favor of plaintiffs.

      Hudson Ansley and T. H. Dowd, for app’lts; William H. Henderson, for resp’ts.
   Lewis, J.

This action was brought against the defendant Hughes, as sheriff of Cattaraugus county and Thomas R Aldrich, deputy sheriff, for the conversion by them of some 200,000 feet of hemlock lumber. The defendants interposed an answer to the effect that on or about the 24th day of March, 1892, the First National Bank of Talamauca commenced an action in the supreme court of the state of New York against an incorporated company known as the Standard Lumber Company, and on that day obtained a warrant of attachment, which was delivered to the defendants, as sheriff and deputy sheriff of Cattaraugus county; that by virtue thereof they attached a quantity of logs on the 26th day of said month, and that thereafter a judgment was recovered in said action against the lumber company, and an execution was issued, and that thereafter another action was commenced against said lumber company in favor of Anna Stickle and others as plaintiffs, and an attachment in said ■action was issued to the defendants, as sheriff and undersheriff, by virtue of which they attached the said logs, and thereafter a judgment was obtained in said action, and an execution was issued; that, intermediate the levying of the said attachments and the issuing of the executions, the plaintiffs, with knowledge that the logs had been so attached, sawed them into lumber; that by virtue of the executions the defendants levied upon and sold said lumber as the property of said lumber company. At the close of the evidence a verdict was directed by the court for the plaintiffs for the conceded value of the lumber. Plaintiffs, in making their case, did not prove the source of their title to the lumber in question, but relied upon the presumption of ownership arising from their possession. Upon their cross-examination as witnesses, it was made to appear that in- the early fall of 1891 they entered into a contract with a corporation known as the- Alleghany Lumber Company to saw a large quantity of logs into lumber. The logs were lying, at the time of the making of said contract, in and along two streams of water in the town of Red-house, Cattaraugus county. One of said streams was known as “Quaker Run.” Upon this stream the plaintiffs’ saw mill was situated. The other stream was known as “Stony Brook,” which entered into Quaker Run a mile or so above plaintiffs’ mill. Plaintiffs entered upon the performance of their contract, and while so engaged the "Standard Lumber Company was incorporated. and the assets and property of the Alleghany Lumber Company, including the contract with the plaintiffs, were transferred to the Standard Company. The plaintiffs thereafter continued the sawing of the logs for the Standard Company under the contract mentioned. The officers and stockholders of both companies appear to have been the same, and probably the only real change was in the name of the corporation.

The plaintiffs testified that, in the latter part of December, 1891, while they were engaged in sawing the logs, they purchased of the Standard Company what remained of the logs unsawed; that they were at the time frozen in the streams mentioned. Not much information was elicited upon the trial as to the terms of this purchase. The contract of sale was in writing. Plaintiff’s counsel announced upon the trial that he had it in his possession, but did not offer it in evidence. Neither did the defendants ask that it be produced. The defendants introduced evidence showing the commencement of the actions mentioned against the Standard Company, the issuing of the attachments, and the levy upon the logs, under the first attachment, on the 30th of April. On the 28th day of March the Standard Lumber Company made a written bill of sale of these logs to a firm by the name of Stewart & Co., and on the same day, and probably as a part of the same transaction, the plaintiffs purchased these identical logs of Stewart & Co., and agreed so they testified, to pay therefor the sum of $5,000. No explanation was offered upon the trial, by'the plaintiffs, of these transfers. It does not appear that they expressed any surprise when they were informed that the lumber company had assumed to dispose of properry which the plaintiffs now. claim they were the owners of at the time. Neither did they in any way account for their agreeing to pay to Stewart & Co. $5,000 for property which they claimed upon the trial they owned and had possession of. The plaintiffs after the logs were attached by the defendants, continued to manufacture them into lumber, piling the lumber in separate piles in their mill yard. They pointed out these piles to the defendants as lumber manufactured from the logs which the defendants had attached. The plaintiffs were present at the sale of the lumber by the defendants, and did not in any manner protest against it. They did make a claim for compensation for sawing the lumber. Whéther the lumber sold under the executions was manufactured from the same logs that were attached by the defendants was left in some considerable doubt upon the trial. The plaintiff Henry 0. Frick, however, did testify that the lumber sold by the defendants came from logs purchased by the plaintiffs of the Standard Lumber Company^ We think there was sufficient evidence tending to identify the logs attached, and that the lumber sold was sawed from them, to make it a question which should have been submitted to the jury. And we think it was a question of so much doubt whether the plaintiffs ever had any title to the lumber in question,—whether it was not in fact the property of the defendant in the executions, the Standard Lumber Company,—as to make that, also, a question for the jury. The evidence relied upon by the plaintiffs to make their cause of action came from the plaintiffs themselves, who were interested witnesses. The circumstances attending these alleged transfers tended to throw considerable doubt as to their oeing Iona fide ■ sales. It is altogether improbable that the plaintiffs would have recognized them, and consented to pay Stewart & Co. for the logs, if they in fact at the time had any title to them. While the defendants were somewhat unfortunate in getting their defense before the court, we are of the opinion that there were questions of fact which should have been submitted to the jury. The judgment should be reversed, and a new trial granted; costs to abide the event.

All concur.