text:
    Aaron Altmayer, Resp’t, v. The Metropolitan Elevated R. Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Appeal—Judgment—Omission of findings.
    An omission of the trial judge to include in his decision certain findings and conclusions found by him upon request is not ground for reversal in the absence of a motion to correct such omission.
    Appeal by defendant from judgment entered on findings and conclusions made at special term.

      Julien T. Davies and I. C. Thomson, for app’lts; Charles Gibson Bennett, for resp’t.
   Per Curiam.

It is objected as a sufficient cause for reversal that certain findings and conclusions of law found at the request -of the defendants, were omitted from the decision made by the judge. In such a condition of the case, there is no subject matter of an appeal. There is no action of the court, which may be reviewed. If the omission were irregular, the defendants might have made a motion for the correction of the omission and they would have a right to appeal from a denial of the motion. In the absence of such a motion and order the omission appears to be without objection on the part of the defendants and that evinces a consent that the case proceed and appeal he heard on the decision as made.

The other objections have been decided unfavorably to the defendants by other cases.

Judgment affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Marie T. Hauser, Resp’t, v. The Metropolitan Elevated R. Co. et al., App’lts. John Becker, Resp’t, v. The Metropolitan Elevated R. Co. et al, App’lts. Charles F. Hchus, Resp’t. v. The Metropolitan Elevated R. Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Appeals by defendants from judgments.

      Julien T. Davies and I. C. Thomson, for app’lts; Charles Gibson Bennett, for resp’ts.
   Per Curiam.

The judgments in these cases are severally affirmed, with costs.

Sedgwick, Oh. J., and McAdam, J., concur.


author: McAdam, J.

text:
    Warren N. Fitchett, Resp’t, v. Thomas Canary, App’lt.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    1. Leen—Livery stable keeper—Relinquishment.
    A livery stable keeper, who sells out his business to another and allows him to take charge of the horses kept therein without some arrangement by which the vendee is to hold the property for the vendor’s benefit and the preservation of his lien for keeping the same, thereby relinquishes such lien.
    2. Same—Conversion.
    Plaintiff’s horse was sold at auction to satisfy a claim of defendant. At such sale defendant purchased it for plaintiff at his request, but shortly thereafter removed it from the state without plaintiff's consent. Held, that such removal constituted a conversion.
    The action was for the conversion of a bay horse, buggy and harness belonging to the plaintiff. The defendant admits the ownership of the property by the plaintiff, and alleges in defense that the property was sold at auction to satisfy a claim due to the defendant, and that at such sale the defendant at plaintiff’s request bought the property in at $240, and that the plaintiff then pledged the same with the defendant as security for all his charges aggregating $342.16. The defendant did board and feed the horse until J une 1, 1888, when he sold his stable to Heineman Bros., and they took possession of the plaintiff’s property and charged the expense of caring for it to him. They subsequently changed the charge to the defendant, but no arrangement was made between the latter and Heineman Bros., that the property was to be kept on his account or in preservation of his lien.

      The plaintiff denied the alleged pledge of the property, which was after the sale removed by the defendant to Hew Jersey without the plaintiff’s permisssion.
    The acts aforesaid constitute the conversion complained of. The jury rendered a verdict in favor of the plaintiff for $900. A motion was made on the minutes for a new trial, and from the judgment entered on the verdict, and the order denying the application for a new trial, the defendant appeals.

      A. I. Sire, for app’lt; Chas. Blandy, for resp’t.
   McAdam, J.

The defendant waived his lien when he transferred the stable to Heineman Bros., and delivered the plaintiff’s property to them, under a new arrangement, by which the expense of keeping it was charged to the plaintiff. Heineman Bros, became the plaintiff’s agents, their possession his possession, and this voluntary surrender was a relinquishment of the defendant’s lien, which could only be preserved by some understanding made .at the time, by which the Heinemans were to hold the property for the benefit of the defendant and for the preservation of bis lien. See Geneva, etc., R. R. Co. v. Sage, 35 Hun, 95; Bigelow v. Heaton, 4 Den., 496. No such arrangement was ever made. The answer does not plead a stable keeper’s lien given by the statute, Laws 1872, chap. 498; Laws 1880, chap. 145, nor a common law lien by agreement of the parties, but a sale by the plaintiff’s authority, a buying in by the defendant on plaintiff’s account, and a subsequent pledge until $342.16 was paid.

The plaintiff denies that any such understanding was had or agreement made. The conflict was submitted to the jury, and they adopted the plaintiff’s theory that no such contract or pledge was made.

The defendant, shortly after the auction sale, removed the property to the private stable of one Sire, at no. 211 West Fifty-eighth street, where it remained a few days under defendant’s control, and from thence it was removed by him to the farm of Sire, at Morris Farms, New Jersey, and from there to the farm of the defendant at Hew Brunswick.

There being no lien, and no sale divesting the plaintiff’s title, the removal of the property out of the state, without the consent of the plaintiff, was an unwarranted assumption of control of his property, not justified by necessity or by any warrant whatever, and constitutes in law a conversion for which the defendant is answerable. Cow. Tr., § 629 ; 2 Hilliard on Torts, 4th ed., 32 et seg. The defendant had no more right to take the plaintiff’s property to Morris Farms or Hew Brunswick than he would have to take it to Texas or to Europe.

Assuming to one’s self the property and right of disposing of another man’s goods is a conversion. The fact that the defendant comes lawfully into possession forms no objection to the action. It is the breach of the trust or the abuse of such lawful possession which constitutes the conversion. Murray v. Burling, 10 Johns., 172. The using a thing without the license of the owner, or contrary to it is a conversion. Assuming the right to dispose of it, or exercising dominion or an unwarranted control of it is a conversion.

Any asportation of a chattel for the use of the defendant or some third person, is a conversion of it, because it is an act inconsistent with the general right of dominion which the owner of the chattel has in it, for he is entitled to the use of it at all times and in all places to suit his pleasure. Addison on Torts, 3d ed., 310.

The jury upon ample evidence as to value, assessed the damages at $900. The verdict is sufficiently sustained by the proofs, and is not excessive in amount. The exceptions taken are without merit, and the motion for a new trial was properly denied.

For these reasons, the judgment and the order denying the motion for a new trial must be affirmed, with costs.

Sedgwick, Oh. J., concurs.


author: Martin, J.

text:
    In the Matter of Betsey Ann Mason, a Supposed Lunatic. Betsey Ann Mason, App’lt, v. Alanson Hicks, Petitioner, Resp't.

      (Supreme Court, General Term, Fourth Department,

      Filed May 8, 1891.)

    1. Evidence—As to mental strength—Experts.
    Upon a proceeding in the nature of a writ de lunático inquirendo a physician, a witness for the petitioner, testified that the supposed lunatic had not sufficient mental strength to manage her estate or conduct the business connected with it. Held, that the evidence was improper.
    2. Witness—Friendly or unfriendly.
    The appellant (lunatic) sought to show on the cross-examination of an expert witness for the petitioner that said witness, in order to become such, had obtained admission to the lunatic by fraudulent and improper means. Reid, competent as showing the bias of the witness.
    3. Evidence—Hypothetical questions.
    A witness for the petitioner was allowed to answer a hypothetical ques tion based partly upon facts and partly upon assumptions. Held, error.
    4. Witness—Credibility.
    On cross-examination the appellant’s counsel asked the petitioner if he had not offered to drop the case if the appellant paid him $15,000. This was excluded. Held, error; the evidence went to the credibility of the witness.
    5. Evidence—Medical books.
    Medical books cannot be read in evidence, nor can expert witnesses testify to statements made therein.
    On the 27th day of January, 1888, Alanson Hicks presented to the county court of Onodaga county the petition by which this proceeding was instituted, asking that a committee of the person and property of the appellant should be appointed and that a commission should issue out of that court to inquire of the apparent lunacy of the appellant.
    On the petition and affidavits accompanying it, the Onondaga county court, on that day, entered an order that a commission in the nature of a writ de lunático inquirendo issue out of that court directed to Thurston D. Brewster, Esq., to inquire by a jury of the county of Onondaga of and concerning the lunacy of the appellant and of her capability of managing her property, and that such commission be executed in the town of Marcellus, at the residence of the appellant or at some convenient place near her residence, or at some other place in said town as should be determined by the commissioner.
    In pursuance of such order a commission was duly issued to-said Brewster, directing him to inquire by the oath of a jury whether the appellant was a lunatic with or without lucid intervals, by reason of which infirmity she was incapable of governing herself or managing her affairs or property, and if so, from what time such infirmity dated, and in what manner and how such infirmity had manifested itself, and whether while in such condition she had alienated any lands, and if so, to whom and after what manner.
    Thereafter, and on the 23d day of February, 1888, the commissioner at the village of Marcellus, in said county, proceeded to execute said commission, and the matter was duly tried before said commissioner and a jury called and sworn in the manner required by law. The trial of said matter continued until March 8, 1888, when it was duly submitted to the jury, and it having duly deliberated thereon, it rendered its verdict, by which it unanimously found that the appellant was sane. The jury was thereupon discharged by the commissioner, without its having made, signed or delivered any inquisition.
    Afterwards, and on the 12th day of March, 1888, upon a paper signed by the commissioner, which was called a report, and upon the affidavits of Abel 0. Benedict and Truman K. Fuller, a motion was made in the Onondaga county court to set aside the verdict or inquisition of the jury and for a new trial in the county court. That motion was granted and the issues to be tried were thereupon settled and were as follows:
    “ First Whether Betsey Ann Mason, of the town of Spafford, in the county of Onondaga, is a lunatic with or without lucid intervals, by reason of which infirmity she is incapable of governing herself or of managing her affairs or property, or properly caring for her lands, tenements, goods and chattels.
    “ Second. And if so, from what time such infirmity dates, and in what manner and how such infirmity has manifested itself.
    “ Third. And whether,' while in such condition the said Betsey Ann Mason has alienated any lands and tenements, or transferred any moneys, securities or personal property; and if so, to what person or persons, when, where, and after what manner.
    “ Fourth. And also what lands, tenements, goods and chattels, are remaining to her.
    “ Fifth. What is the value of the lands and tenements alienated by her, and what is the value of the lands and tenements, goods and chattels by her maintained; and what the issues and profits thereof amount to by the year; and what is the value of all her real and personal estate.
    “ Sixth. And who are the nearest heirs and next of kin of the said Betsey Ann Mason, and who would be entitled to her estate in case of her death, and the age of each.”

      The issues as thus settled were afterwards and on the 6th day of February, 1889, brought to a hearing before a jury at a term of the county court held at the city of Syracuse in and for the county of Onondaga.
    The jury rendered the following verdict:
    “ Q. Whether Betsey Ann Mason, of the town of Spafford, in the county of Onondaga, is a lunatic with or without lucid intervals by reason of which infirmity she is incapable of governing herself or of managing her affairs or property, or properly caring for her lands, tenements, goods and chattels ? A. Insane. Without intervals. She is incapable by reason of infirmity caused by paralysis of July 11, 1887, to govern herself or manage her affairs, or properly care for her land, tenements, goods and chattels.
    “ Q. And if so from what time such infirmity dates ? A. July 11, 1887.
    “ Q. In what manner and how such infirmity has manifested itself ? A. By a defective memory; delusion and alienated property.
    “ Q. And whether, while in such condition the said Betsey Ann Mason has alienated any lands and tenements or transferred any moneys, securities or personal property; and if so, to what person or persons, when, where and after what manner ? A. Yes ; to Frank Callender; lands and tenements on September 17, ° 1887. Her home in the town of Spafford, by deed. A mortgage of $5,000, and "further we cannot say.
    “ Q. And also what lands, tenements, goods and chattels are remaining to her ? A Don’t know.
    “ Q. What is the value of the land and tenements alienated by her ? A. Don’t know.
    “ Q. What is the value of the lands and tenements, goods and chattels by her maintained? A. Don’t know.
    “ Q. What do the issues and profits thereof amount to by the year? A. Don't know.
    “ Q. What is the value of all her real and personal estate ? A. Don’t know.
    “ Q. And who are the nearest heirs and next of kin of the said Betsey Ann Mason, and who would be entitled to her estate in case of her death, and the age of each? A. Alanson Hicks, Walter Hicks and Mary Ann Callender.”
    On the rendition of the verdict the counsel for the appellant made a motion for a new trial, upon the minutes of the trial court, upon the grounds stated in § 999 of the Code of Civil Procedure, and because the verdict was contrary to the evidence, and contrary to law, and upon the exceptions. This motion was denied.
    Afterwards, and on the 11th day of March, 1889, a judgment or final order was made and entered, confirming the verdict of the jury, and adjudging the appellant a lunatic, without lucid intervals, and incapable of governing herself and managing her estate or property in a proper manner, and appointing Frederick W. Barker committee of her estate upon filing a bond with sufficient sureties, to be approved by that court, in the penal sum of $50,000 for the faithful performance of his duties as such committee in obedience to the order of that court. It was also further ordered that Mary Ann Callender be appointed a committee of the person of the appellant upon executing and filing a bond in the penal sum of $2,000 for the faithful performance of her duties as such committee in obedience to the order of that court.
    From this order or judgment, and from the order denying the appellant’s motion for a new trial, she appealed to this court. A case and exceptions was settled which contain all the evidence.
    A motion -was made by the respondent to dismiss the appeal in this case on the grounds:
    “ 1. That said appeal -was brought by George Barrow, as attorney, without legal authority to bring the same.
    “2. That said appeal is brought after an-acquiescence on the part of George Barrow, Esq., in the validity of said proceedings and in the appointment of a committee of the estate of said lunatic, as shown by the facts recited in the affidavits accompanying this notice of motion.
    “ 8. Upon the ground that an appeal is not the proper remedy to dispose of the committee and restore the estate of the lunatic to herself, but that the proper remedy is by application to the county court for a writ of supersedeas, which writ has been heretofore brought and a hearing had thereon and such application denied once.
    “ 4. That said appeal is not in the interest of said lunatic, but • evidently, from the facts shown, in the interest of one Francis E. •Callender, who has already acquired so large a portion of her estate, to wit, twenty-five thousand dollars and over.
    “ 5. That the same attorney should not be heard alleging in one proceeding~the invalidity of the decree in lunacy and the appointment of a committee, while in other proceedings he acquiesces in and affirms the same.
    “ 6. And upon any other ground which arises legitimately from the papers upon which this motion is made.’’
    This motion was based upon the affidavits of Truman K. Fuller, the respondent’s attorney, and A. Judd Northrup, the county judge before whom the action was tried. Affidavits of George Barrow and of the appellant were read in opposition thereto.

      M. M. Waters and Geo. Barrow, for app’lt; T. K & L. E. Fuller for resp't.
   Martin, J.

An examination of the papers read on the respondent’s motion to dismiss this appeal, has lead us to the conclusion that the motion should be denied, and that the appellant, should be permitted to prosecute her appeal.

This brings us to the consideration of the questions involved on the appeal from the order denying the appellant’s motion for a new trial, and from the judgment confirming the verdict and appointing a committee of the person and estate of the appellant. The jury, by its verdict, found that the appellant was “Insane. Without intervals. She is incapable, by reason of infirmity caused by paralysis of July 11, 1887, to govern herself or manage her affairs, or properly care for her land, tenements, goods and chattels.” It also found that such infirmity dated from July 11,1887, and that it manifested itself “ By a defective memory, delusion and alienated property.”

The principal question decided by the jury was whether the appellant was of unsound mind so that she was incapable of governing herself or managing her property. The question was, whether she was so incompetent at the time of the trial. If it were admitted that by reason of her sickness, which commenced July 11, 1887, she was for several days or weeks incapable of governing herself or managing her affairs, still, if at the time of the trial she had recovered, and her competency was so far restored that she was then able to govern herself and manage her business, she could -not be adjudged a lunatic or deprived of the management of herself, her property and her affairs.

A careful study of the evidence contained in the appeal book seems to lead irresistibly to the conclusion that the proof was insufficient to justify the jury in finding that the appellant was at the time of the trial of unsound mind and incapable of governing herself or managing her affairs and property. While it may be said that there was some evidence that soon after her attack of paralysis and during the earlier days of her sickness, she manifested apparent delusions of mind, still the evidence demonstrates quite clearly that they were only the delusions or fancies of a sick bed, and that they passed away as she improved in health and strength. Indeed, when the whole evidence upon the question of such alleged delusions is carefully considered, it is rendered quite doubtful if, even when her disease was at its height, there was any real or substantial delusion existing in the mind of the appellant. A delusion is a belief in a state or condition of things, the existence of which no rational person would believe. The evidence to show that the appellant at any time really believed any of the pretended delusions is very meager, to say the least, but perhaps it was sufficient to justify the jury in finding that such delusions existed in the summer of 1887. There was, however, no evidence to show that she had a confirmed or continued belief in these delusions, if such they were. Her belief therein, if it ever existed, was only temporary, and passed away as she regained her health. We can find nothing in the evidence as to these alleged delusions which was sufficient to justify a finding that the appellant was of unsound mind.

It is also said that the proof disclosed that her memory was defective, and that that was evidence of unsoundness of mind. The alleged defects of memory related to the times when certain occurrences transpired, and to a failure on her part to give correctly the details as to securities held by her, their amounts and the names of the persons against whom they existed.

In some of the instances relied upon it is far from certain that the appellant was not correct, and those who testified to the contrary, mistaken. In some of those instances the weight of evidence was to the effect that her statement was correct Again, when we consider the uncertainty of the human memory, the fact that many persons of sound and even of brilliant minds have very defective memories, and when we consider the circumstances under which the most of the statements were made by the appellant, which were relied upon as showing the defect in her memory, we are not at all surprised that she was not able to give every incident of her life or every incident of which she ever had knowledge and all her business transactions with accuracy and in detail. Had she been able to do so, we should have regarded her as possessing a memory of very unusual strength. There was no proof of any change in the appellant in this respect. That she, prior to her sickness, had a more retentive memory, or a clearer recollection of the transactions inquired into, was not shown. The proof at most shows that as to a few of the many matters stated by her she was mistaken as to dates and events. We think her examination tends to show that she possessed at least an ordinarily accurate and clear memory of the things and events to which her attention was called. Nor can we believe that promptness and accuracy of statement are no evidence of a sound mind.

Again, it is claimed that the fact that the appellant transferred to her nephew her homestead, and cancelled a mortgage for $5,000-which she held against his property, was evidence of unsoundness of mind. In determining whether this transaction was such evidence, it becomes necessary to consider the relations of the parties, the circumstances attending the transaction and the purposes of such transfer. At the time of these transfers the appellant was about sixty-four years of age. She was possessed of an estate of the value of about fifty thousand dollars. The property transferred was of the value of about fifteen or twenty thousand dollars. She had no children. One had been born to her, but died in childhood. She had two brothers and a sister living. Her sister had an only son, who had lived near the appellant many years. He had been a daily visitor at her house since the death of her own child, and she had been very fond of him from his youth up. When he arrived at man’s estate, and after the death of her husband, the appellant had leased him her farm on shares, and thus they had been members of the same household for several years.

The evidence tended to show that he had been kind to her and treated her with the utmost consideration. Her husband before-his death had often talked with her in relation to making provision for this nephew, and they had agreed that they would do well by him. After her attack of paralysis, and after she had substantially recovered from its effects, realizing the uncertainty of life, she began to consider the question- of disposing of her property, and also of securing for herself a home where she would be cared for by the tender hands of friends. To accomplish this purpose and to carry into effect the long cherished plan of herself and her husband, “ to do well by this nephew,” she transferred to him the homestead farm and cancelled the mortgage she held against him. In consideration of this transfer and cancellation of mortgage, he agreed to take care of her for the remainder of her life. To secure such care, she took to herself a life lease of the farm. Under these circumstances, who can justly say that this transaction was evidence of an unsound mind? Surely there was nothing unusual in such a proceeding. What more natural than that the appellant should desire to provide for herself a home in the family of her favorite nephew, and what more natural than that she should amply reward him for such care by transferring to him a portion of her property, and thus cany out her own desires as well as those of her deceased husband.

But it is said that she did not have the agreement of her nephew to take care of her reduced to writing. That is true. But the papers were.prepared by her lawyer, and the method of transacting this business was presumably left to him. He had a life lease given to her to secure her maintenance. That she was guided in the transaction of this business by the advice of her lawyer, is not evidence of mental incapacity. If such a transaction is to be regarded as evidence of unsoundness of mind, many a fond father and mother are liable to be involved in, and have their estates dissipated by, litigations similar to that imposed upon the appellant in this case. We cannot think that a transfer of property or surrender of a security made under the circumstances shown by the proof in this case, any evidence of unsoundness of mind.

When we consider all these grounds together, and consider all the proof in the case bearing upon the question, we do not think they furnish sufficient evidence to justify a finding that the appellant was of unsound mind. We are, therefore, of the opinion that the evidence was insufficient to sustain the finding of the jury, and that the learned county judge erred in denying the appellant’s motion for a new trial on that ground.

Our attention is also called to other errors which seem to require a reversal in this case. On the trial a physician who was called as a witness for the petitioner was permitted to testify under the objection and exception of the appellant, that she had not sufficient mental strength to manage her estate or conduct the business connected with it

In Matter of Arnold, 14 Hun, 525, where a physician was called as a witness and permitted to testify that the testator was not possessed of testamentary capacity, it was held error and the decree was reversed. If it is not competent for an expert witness to testify to want of sufficient capacity to make a will, it must be incompetent for such a witness to testify to the absence of sufficient capacity to manage an estate. The principle of that case is decisive of the question. We think the evidence should have been excluded.

Abel 0. Benedict was called as an expert witness by the petitioner. The appellant sought by cross-examination to show that the witness procured admission to the house where the appellant was living so that he might become a witness, by fraudulent and improper means, without the consent and against the will of those there present, and in the absence of her attending physician, whom they desired to have present. This evidence was objected to by the petitioner and excluded by the court Its purpose was to show the means adopted by Benedict to make himself a witness in the case. On the cross-examination of a witness the party should be allowed to show whatever may indicate the probable-relations between the witness and the party, and whether they be friendly or unfriendly, is always admissible for the purpose of affecting the degree of credit which his evidence should receive. Wallace v. Marks, 13 W. Dig., 399.

A witness may be asked any question tending to show that he is not impartial, and if he denies the facts suggested he may be contradicted. Stephens’ Dig. of Ev., 186. A witness may be required to explain whatever would show bias on his part. 1 Wharton on Ev., § 545. We think this evidence should have been admitted and that the appellant was entitled to show by the witness the facts sought to be proved as bearing upon the credit to be given his evidence.

Dr. Mercer was also called as an expert by the petitioner, and was permitted under the appellant’s objection and exception to-answer a hypothetical question, which was based partially upon facts which had been proved, partially upon assumed facts as to which we find no proof, and partially upon portions of the testimony of other witnesses given on the trial which the witness-had heard.

We think the question was improper, and that the court erred in overruling the appellant’s objection. “ Hypothetical questions; are allowed to be put to experts, but the hypothesis upon which they are examined, must be based upon facts admitted or established by the evidence, or which if controvertid, the jury might-legitimately find on weighing the evidence.” People v. Augsbury, 97 N. Y., 501. “ In such a case, it is not the province of the witness to reconcile and draw inferences from the evidence of other witnesses and to take in such facts as he thinks their evidence has established, or as he can recollect and carry in his mind, and thus form and express an opinion.” Reynolds v. Robinson,. 64 N. Y., 589 ; Guiterman v. Liverpool, etc., Steamship Co., 83 id., 358; Hagadorn v. Conn. Mut. Life Ins. Co., 22 Hun, 249.

Alanson Hicks petitioner who instituted this proceeding was-sworn as a witness. On his cross-examination he was asked by the appellant’s counsel if he had not offered to settle this matter. This was objected to by the petitioner as immaterial and improper, and the court sustained the objection. The appellant then-stated to the court that he desired to prove by the witness that he had offered to drop the case, if the appellant would pay him $15,000. This was excluded and the appellant excepted. We think the evidence offered should have been admitted. It would have tended to show that the petitioner’s attitude was not as friendly, disinterested and philanthropic as it was described to the jury by the court in its charge. It would have shown his motive, and would have been some evidence that he did not regard the appellant as insane and incompetent to transact her business. It would have borne directly upon the credibility of his evidence.

While the appellant’s counsel was cross-examining the petitioner’s witness Mercer, and while as appears from the appeal book, he was confining himself to a legitimate and proper cross-examination, the court stopped him and refused to permit any further cross-examination. This action on the part of the court, was excepted to by the appellant. While the cross-examination of a witness may be limited and kept within proper bounds, and the extent to which it may be pursued especially as to collateral matters, is largely within the discretion of the court, yet, the right to properly cross-examine a witness should always be accorded to a party. “ The exercise of this right is justly regarded as one of the most efficacious tests, which the law has devised for the discovery of truth. By means of it, the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination and prejudices, his character, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory, and description, are all fully investigated and ascertained, and submitted to the consideration of the jury, who have an opportunity of observing his demeanor, and of determining the j ust value of his testimony.” 2 Taylor on Ev., § 1428. In this case,, we think the court improperly deprived the appellant of the benefit of a full cross-examination.

On the trial the petitioner’s counsel was permitted to read from medical works what different authors had written in relation to the condition of a patient when the arm regained its power quicker and better than the leg, and then to ask the witness the following question, “ assuming the facts stated there, what do you think as to the proposition that that is a bad indication ? ” to which the witness answered: “It is an unfavorable condition as compared to the reverse when the limb mends first and the arm last; the condition is more favorable; more favorable as to the condition of the brain, and shows a less' degree of disorganization of the-brain.”

The petitioner’s counsel was permitted to read in the presence of the jury several extracts from the works of different medical authors, and then ask the witness similar questions.

All this evidence was objected to and the counsel for the appellant repeatedly asked the court to strike out what was read from the books, which was denied. We think this was error. It was in effect asking the witness to answer a question not based upon any hypothesis founded upon facts proved in the case, but to answer a question based upon the hypothesis that the statements read were true. The effect of these rulings was to bring before the jury the unverified statements of the authors of the books read, and would tend to improperly influence a jury in the determination of the question before them. Medical books cannot be introduced in evidence, nor can an expert witness be permitted to testify to statements made therein, and it is equally improper to permit the reading of such books to the jury by counsel. Boyle v. State, 57 Wis., 472; Stilling v. Town of Thorp, 54 id., 528 ; Harris v. Panama R. R. Co., 3 Bosw., 7; Boev. Strong, 107 N. Y., 350; 12 N. Y. State Rep., 56; Ashworth v. Kittridge, 12 Cush., 193 ; Com. v. Sturtivant, 117 Mass., 123 ; Collier v. Simpson, 5 Car. & P., 73; Fowler v. Lewis, 25 Tex. Supp., 380; State v. O'Brien, 7 R. I., 336; Davis v. State, 38 Md., 15; Com. v. Brown, 121 Mass., 69.

There are many other grounds of alleged error to which our attention has been called, embracing irregularities of procedure as well as errors in rulings, but the view taken of the questions already considered renders it unnecessary to especially examine the many other grave exceptions in the case.

Because of the errors already pointed out, we are of the opinion that the order denying the appellant’s motion for a new trial, and the judgment or order confirming the verdict, and appointing a committee of the person and property of the appellant, should be reversed.

Motion to dismiss the appeal denied, with ten dollars costs and disbursements.

Judgment or final order, and order denying new trial reversed, .and a new trial granted, with costs of this appeal to abide the Anal award of costs in this proceeding.

Harder P. J., concurs ; MERWIN, J., concurs in the result.


text:
    Clara E. Schumaker, Resp’t, v. Joshua Mather et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 8, 1891.)

    1. Fraud—Exchange of lands.
    The plaintiff sued for fraud in an exchange of lands in which transacvion her husband was her agent. Among other defenses the defendant relied upon the fact that the husband had examined the farm'. Held, that the court properly submitted to the jury the question whether the defendant tried to shorten the husband’s examination of the premises, and whether there was snow upon the ground, making an examination unavailing.
    2. Same—Opportunity to inspect premises.
    Upon this point the court charged that if the exercise of common prudence and caution on the husband’s part would have enabled him to avoid being imposed upon by defendants, plaintiff could not recover. Held, sufficiently favorable to defendants.
    3. Same—Negligence not a bar to a wilful wrong.
    Where one sues another for a positive, wilful wrong or fraud, negligence by which the party injured exposed himself to the wrong or fraud, will not bar relief.

      4. Same—Representations not clearly false.
    Where it cannot be held as matter of law that the falsity of representations were apparent or known to the plaintiff, it is for the jury to determine whether the representations were made,were false, were known to be so, were made with intent to deceive, were relied on and the plaintiff deceived thereby.
    5. Same—Declarations of agent.
    On the trial the plaintiff was permitted to prove that her husband, the agent, informed her what the defendant’s representations were, and that she relied upon them. Held, that this was admissible as a part of the transaction.
    Appeal from a judgment entered in Oneida county January 30, 1890, for $5,698.82, on the verdict of a jury and from an order denying the defendants’ motion for a new trial made on the minutes of the trial judge.
    The action was commenced in January, 1887, to recover damages for fraud or deceit in the exchange of a farm owned by the defendants, situated in Oneida county, M". Y., for a farm situated in Otsego county, owned by the plaintiff.
    So far as is material to the questions involved on this appeal, the allegations of the complaint were that the defendants in October, 1884, were the owners of a farm which they desired to sell the plaintiff; that with intent to defraud and deceive her, they knowingly, falsely and fraudulently represented to her that it was one of the best stock farms in Oneida county, that the soil was very fine, and that it was a very productive farm, and that part of it could not be surpassed by any land in Oneida county, and the balance was not quite so good; that it produced three thousand bushels of oats and five hundred bushels of wheat and rye that season, and that said amounts were there in the barns, and that it then kept and would keep one hundred head of cattle and sixteen horses, and that said land was worth more than sixty-five dollars per acre; that the plaintiff relying upon and believing these representations, gave to the defendants in exchange for said farm and twenty-eight cows, a farm of 100 acres worth $16,000, encumbered to the amount of $4,000, paid the defendants $3,000 in cash, and gave them a mortgage upon the farm purchased for the sum of $6,500, which purchase price amounted to $20,670; that the representations made by the defendants were false and untrue; known by them to be so, and were made with intent to cheat and defraud the plaintiff; that the farm was sandy, unproductive and not worth to exceed twenty-five dollars per acre, including twenty-eight cows; that the quantity of grain represented to be in the barns was not the product of said farm alone; that instead of 3,000 bushels of oats in the barn, there were only 1,200 bushels, and instead of 500 bushels of wheat and rye, there were only 200 ; that said farm would keep only thirty-five head of cattle and horses, and that the plaintiff sustained damages in the sum of $16,000.
    The defendants denied the allegations of fraud contained in the complaint They alleged as a second defense and counterclaim that the plaintiff was guilty of fraud in falsely representing the quantity of land contained in the farm transferred by her to the defendants, and also falsely represented that a stream or pond of water on said farm never overflowed any portion of the farm, and further alleged that other false and fraudulent representations were made in regard to such farm
    On the trial the court submitted to the jury the questions, whether the defendants represented to the plaintiff that the farm transferred by them to her did keep and maintain from its products one hundred head of cattle and sixteen horses, and if so, whether such representations were false; known by the defendants to be false; were made with the intention of inducing the plaintiff to make the exchange of farms, and relied upon by her. These were the pnly questions submitted to the jury as to the fraud of the defendants in making such exchange.
    .The court also submitted to the jury the question, whether the plaintiff represented to the defendants that the stream or pond of water on the farm transferred by the plaintiff to the defendant, overflowed only about one-half an acre of the land on said farms whether such representation, if made, was false, known by the plaintiff to be false, was made with the intention of defrauding the defendants, and relied upon by the defendants in making such exchange.
    Exceptions were taken to the charge The portions of the charge bearing upon and including the particular statements excepted to, were as follows: “ The general term, which has once passed upon this case, has held that as to all of the allegations of the complaint here as to which proof has been made except one that they are not allegations upon which fraud can be based at all, and that one is the allegation, I do not give the precise language but simply the idea, that the Rome farm did keep and maintain from its products one hundred head of cattle and sixteen horses. Not that it would ■do that, because a statement that it'would do it would be the expression of an opinion. But the plaintiff alleges that the elder of these two defendants stated the fact to be that it did do that, and that is the allegation and the only allegation that you are to consider in this case.
    “ The question as to whether any such representation as that was made or not is a matter of serious dispute here, and I may say, first, generally that in regard to the various allegations, most of which, as I have said, have been held to be the expression of an opinion, as to its being the best farm in Oneida county, as to its capacity to do this or that, and so on; as to those things which are a matter of opinion there is a serious controversy here as to whether those statements were ever made. The plaintiff gives evidence which you have heard here as to these various things. The defendants deny them absolutely; every one of them. So that there is in the first place the question of fact to be determined as to whether this representation was made at all. That is the first question of fact for you to determine.
    “ It is not claimed, gentlemen, that precisely this language was used, and I charge you that it is not necessary, in order to maintain that this representation in substance was made, that the precise language of this representation should have been used. But they must establish on the part of the plaintiff in order to maintain the action that the idea expressed in this representation was -conveyed and intended to be conveyed by the defendant Joshua Mather, because he is the person whom it is claimed made it. It will not do for them to say that he talked in such a way that the plaintiff’s husband so understood it, because it is not a question in the first instance as to what the plaintiff’s husband understood, but as to what the defendant Mather said, and as to him you have got to find that he made the statement, that it was false, and that he knew it to be false when he made it, for, as you will see, his intention is involved. In order to find that this representation is established you must find that he intended to represent in substance that the Borne farm did keep and maintain the season through from the products of the farm 100 head of cattle and sixteen horses, and that is what the plaintiff alleges upon the evidence that has been given here, fairly considered and fairly construed, he did intend to say, and that that meaning he did convey to the plaintiff’s husband. * * * Upon all the evidence in the case, gentlemen, the evidence given by these parties, the consideration of the men themselves, and the weight and the credit to be given their evidence, you are to pass upon this question whether the elder Mather made the representation which I am submitting to you; a representation, the idea of which, without giving the precise language is that that Borne farm did actually maintain and keep through the year from its products 100 head of cattle and sixteen horses. If you find that that representation was not intentionally made by Joshua Mather, it is the end of the plaintiff’s claim in this case, and she cannot maintain the action on her part at all. If, on the other hand, you find he did intentionally make the representation in words or substance, intentionally convey that idea to the plaintiff’s husband, then you will have found •this one element of the cause of action in favor of the plaintiff, •and then you will pass on to consider the others. As I said before, you are not to take this case, the whole - of it, together; you are not to inquire as to the whole of these representations which have been testified to here, whether any of them were true or untrue, but you are to determine as to this one alone. So far as the whole of the transactions may aid you in determining this question, you may consider them, but you may not attempt to find that there was a false representation as to anything else in the case except this. If you find that this.representation was not made, that ends the case. If you find it was made, then you pass on to consider the other questions. * * * There is another branch of this case, gentlemen ; a question which was made a ground for the motion for nonsuit by the counsel for the defendants. The real effect that the plaintiff claims was given to this representation was, not solely and alone that the cattle and the horses were kept there, but they say and they claim that the effect of that upon the mind of the plaintiff was to show the quality of the soil; the pro'duc-tive qualities of the farm, and, therefore, they say that they were deceived by this statement as to the productive qualities and the real value of the farm. There is also another principle of law applicable to that subject where the question of what the farm was is involved. In 68 N. Y., 432, it is said that: Where the exercise of common prudence and caution on the part of this defendant would have enabled him to avoid being imposed upon by the parties, then there can be no recovery. When the real quality of the thing spoken of is an object obvious to ordinary intelligence, -and the parties making and receiving the representations have equal knowlege or equal means of acquiring information, and the truth ■or falsity of them may be ascertained by the party interested in knowing, by the exercise of ordinary inquiry and diligence, and nothing is done for the purpose of throwing him off his guard, and directing him away from making the inquiry and the examination which every intelligent person ought to make, then there was no false or fraudulent statement within the legal definition of that term upon which an action can be maintained. The representations must be such as relate to a matter as to. which the complaining party did not have at hand the means of knowledge. When the means of knowledge are at p hand, and equally available to both parties, and the subject of the. purchase is equally open to their inspection, if the purchaser docs not avail himself of those means and opportunities, he will not be heard to say that he was drawn into the contract by the-vendor’s misrepresentation.’
    “ ¡Now it is claimed by the defendants that the effect to be given, to this law in this case is that this man had every opportunity to look at this farm himself and see what the quality of it was. They say that he said that he had been forty-four years a. farmer and he knew about such things, and they say that he had abundant opportunity to find out all about this farm and that he. did it, and they say, therefore, that it comes within this provision of the law, and that he shall not now be heard to allege that he was drawn into this trade by the misrepresentation of the other side. Then, connected with this same subject, is this language which I find in the opinion of the general term in this case quoted from 65 Barb., 556: ‘ While it is true that a purchaser may by relying upon the representations of the vendor be misled and omit, to make the careful examination of the property that a prudent-man would and should make, yet a jury should require the clearest proof that the purchaser was induced by the representations to omit to examine the property, It will not do to permit a vendee having the property before him, and defects in it plainly discoverable, to shut his eyes and ears and omit to use his senses- and pretend that he relied upon the representations and was-thereby misled.’
    “ I leave to you, gentlemen, the question of fact in this case, in-view oE this law, as to whether the plaintiff’s husband, because he represented her, was in such a position under this provision of the law that he, having a full opportunity to examine, will not be heard to allege that he was drawn into this trade by the misrepresentation. And this leads you to examine and determine the question as to whether after all the examination that he did make of the farm what opportunities he had. As to the last time that he was up there, on the 24th and 25th, it is not claimed that anything was said to him or done with reference to him to prevent his making so much examination as he saw fit of the place. That is, that nothing was said to draw him away from the examination of it by anybody connected with the defendant On the first occasion it is claimed that ¡Lovelace took him there, and that after a very hurried examination of the buildings he induced him to-go away without making a further examination and hear Ben. Butler speak. That is controverted as I have suggested before;. it being claimed on the part of the defendants, upon the evidence of Lovelace and others, that upon that occasion instead of simply going through the buildings that they went over the farm to the extent that you will recollect. I will not attempt to indicate to what extent, but you will recollect the evidence. Now, what is the truth about that? Did he arrive at the farm that day in the morning, having left Utica at five o’clock, and go through the buildings and then go about the place, or did they, on the other hand, leave Utica about dinner time, go up there and go to the farm, pass through the buildings and then, without taking any look at the land, go down and hear Ben Butler. Which way was it? Then, on the last occasion when he got up there, what examination did he make of the place ? He does not claim but that he had the right and the opportunity and the privilege of staying there and looking at it to any reasonable extent. But he says it was not in condition to look at because it was covered with snow. Witnesses on both sides give evidence upon the subject as to whether there was really any snow which would interfere with a full examination of the place. You will, of course, recollect their testimony and not take my statement of it. Some of them say, as I remember, that ■there was no snow at all; others that there was some snow, and yet we find most of them saying that the snow'had left the ground substantially by ten or eleven o’clock. Schumaker gives as a reason why he did not stay there and examine the farm after the snow went off, that he was not feeling well. Upon these suggestions that 1 have made to you, gentlemen, about the law and applying them to the evidence and investigating the case carefully, you will say whether or not, even if this representation was false and was made with the intent to deceive, this representation was ■relied upon and was the representation and the thing which in■duced and brought about this purchase. If you find that it was not, the plaintiff’s cause of action fails. If you find that it was, having found these two elements of the cause of action in favor of "the plaintiff, then you will come to the question of damages.”
    The jury found in favor of the plaintiff and awarded her damages in the sum of $5,525.

      Scripture & Backus, for resp’t; John W. Boyle, for app’lts.
   Martin, J.

The appellants contend that the evidence in this case was insufficient to justify the court in submitting to the jury the question of the defendants’ fraud, or to uphold the verdict in this case. The question of the defendants’ fraud, as submitted to the jury, was made dependent upon whether they fraudulently represented to the plaintiff that the Oneida county farm had kept during the season one hundred head of cattle and sixteen horses.

Thus at the outset we are led to examine the evidence to discover whether it was sufficient to justify the jury in finding that this representation was made by the defendants, or either of them.

On the trial the plaintiff’s husband was called as a witness, and testified that the defendant, Joshua Mather, “Asked him if Lovelace had showed him the stock and crops; that he said, ' he had, find that he (Lovelace) says that the crops you estimate to be three thousand bushels of oats and five or six hundred bushels of rye;’ to which Mather replied, ' More than that; we had a large-crop, a fine crop; it is one of the most and best productive farms in Oneida county.’ He said he could keep one hundred head of cattle there and sixteen horses, and the farm would support them.” The witness, who was the agent of his wife, also testified that he believed the representation that Mather made to him, “ That he kept from the products of that farm then upon it, one hundred head of cattle and sixteen horses.” The defendants denied that they made these representations.

The question whether the defendants represented that the farm kept one hundred head of cattle and sixteen horses was submitted to the jury in a charge, which was eminently fair to the defendants, and the jury found that the representation was made by them. If the plaintiff’s husband was to be believed, the evidence was sufficient to justify that finding. If the language testified to by him was used by the defendant, Joshua Mather, it was obviously his purpose and intent to convey to the mind of the plaintiff’s husband the idea that the farm did keep and maintain the season through from the products thereof that number of cattle and horses. The question of the credibility of this witness was for the jury. By its verdict it has found him worthy of belief. It is true, the evidence was conflicting, but still the question was. for the jury. “ It is the clear province of the jury to deal with facts, especially in cases of conflict of testimony, and the province-of the jury only. To justify an appellate tribunal in setting aside-a verdict on the ground that it is against the weight of evidence, it must be entirely against the weight of evidence. A new trial will not be granted where the testimony is contradictory and the-character and credit of the witnesses questioned, on the ground that the verdict is against the weight of evidence. The verdict of a jury, in cases of conflict of testimony, can only be set aside when-the case itself presents the evidence that the jury must have been-influenced by passion, prejudice or mistake.” Morss v. Sherrill, 63 Barb., 21; Hayes v. Thompson, 2 Hun, 518 ; Chaffee v. Morss, id., 602; Roosa v. Smith, 17 id., 139; Betsinger v. Chapman, 24 id.. 15, 17 ; Baird v. Mayor, etc., 96 N. Y., 567; Holmes v. Young, 6 N. Y. Sup., 924; 25 N. Y. State Rep., 677.

That this was a question of fact for the jury was held by this court on a former appeal in this case. We think the finding was sustained by the evidence, and should not be disturbed.

Therefore, in the further consideration of this case, it must be-assumed that this representation was made. The jury also found, that it was false, and known by the defendants to have been false-when made, and was made with an intent to cheat and defraud the plaintiff. Assuming, as we must, that the representations were made, the findings, that it was false, known to be so and made with an intent to defraud the plaintiff, are fully sustained by the evidence.

It is,, however, contended by the appellants, that the plaintiff did not rely upon such representation, and, hence, was not entitled to recover in this action. The appellants’ claim is that the plaintiff’s husband and agent had a full opportunity to, and did, examine this farm, and thus became possessed of a full knowledge of its quality and condition, and of its capacity to keep stock; that it was upon his knowledge, obtained by this examination, that the plaintiff relied in making the exchange, and not upon the representation of the defendants. The extent of the examination made, and the opportunity the plaintiff’s husband had to determine the quality and character of this farm and its capacity to keep stock, was the subject of dispute on the trial.

If the evidence of the plaintiff’s husband was relied upon, and there was some evidence corroborating it, the jury was justified in finding that he did not have a fair or sufficient opportunity to examine the farm, and that the plaintiff relied upon the representations of the defendants in making the trade. The court submitted to the jury the question whether the plaintiff’s husband and agent had such an opportunity to examine this farm, that neither he nor his wife could be heard to claim that they were drawn into this trade by the defendants’ misrepresentation. The court in effect charged that if the exercise of common prudence and caution on the part of the plaintiff’s husband would have enabled him to avoid being imposed upon by the defendants, then there could be no recovery in the case. Under this charge, which was certainly as favorable to the defendants as they were entitled to, the jury found with the plaintiff.

The plaintiff also proved that she refused to make the trade upon any examination that had been made, and informed the defendants that, if there was a trade to be effected, she traded wholly upon their representations; that she would not take her husband’s judgment nor the judgment of any other man upon the farm from an examination made at that time of the year; and that it was upon those conditions that the trade was to be made, if they traded. That the defendant replied: “That she could not make a mistake on that farm, it was one of the best and most productive farms in the country,’’ to which her husband replied: “ I know nothing about this farm, only what you say; I made no inquiries of no man only you; Mrs. Schumaker asked me whether you were responsible parties; I told her I considered you were.” In reply to which the defendant said: “We are good for what we say, or agree to do.”

The plaintiff also testified that she relied upon their representation as to the number of head of cattle and horses he kept, and about the quantity of grain they raised, and about its being the best farm in Oneida county, and that she would not have made the exchange if she had not relied upon them.

This evidence not only tended to show that the plaintiff relied upon the defendants’ representations and not upon the examination made by her husband, but also that the defendants intended that she should rely upon them.

We think .the evidence was sufficient to justify the jury in finding that the representations made were relied upon by the plaintiff.

The appellants also claim that the court erred in submitting to the jury the question: “Whether the plaintiff’s husband, because he represented her, was in such a position, under this provision of the law, that he, having a full opportunity to examine, will not be heard to allege that he was drawn in to this trade by misrepresentation." To properly understand this portion of the charge and its purpose and effect, the whole of that portion of the charge, which related to this subject, should be considered ; as an appellate court will not seize hold of isolated portions of a charge for the purpose of discovering error. If the charge as a whole conveys to the jury the correct rule of law upon a given question, the j udgment will not be reversed. If the language used is capable of different constructions, that one will be adopted which will lead to an affirmance of the judgment, unless it fairly appears the jury was, or at least might have been misled. Caldwell v. N. J. Steamboat Co., 47 N. Y., 282; Losee v. Buchanan, 51 id., 492.

Upon this question the appellants in their brief state: “ On the undisputed testimony of all the witnesses, including Schumaker, he had a full opportunity to examine the Rome farm, and to obtain just as much knowledge about it, its soil, productiveness and what it had, did, or would keep, as the plaintiff had or knew. On the evidence, there was no issue raised as to this. The court should have so held upon the trial, instead of submitting this question to a jury to speculate upon. The evidence was all one way on this subject, and under the cases cited, Long v. Warren, 68 N. Y., 426, 432; Vandewalker v. Osmer, 65 Barb., 556, this question should have been so decided by the court."

One error in this claim is the assertion that the undisputed evidence disclosed that the plaintiff’s husband had a full opportunity to' examine the farm and obtain the same knowledge of it as the defendants possessed. Such is not the case. If the testimony of the plaintiff’s husband was believed, he did not have a fair opportunity to examine the farm, owing to the short time he was upon it, the season of the year when made, the snow upon the ground, and his sickness on the second occasion, by reason of which he was unable to remain upon the farm a sufficient length of time to make a complete examination of it Under the evidence the question whether he had such an opportunity to examine it, as would prevent the plaintiff from claiming that she was induced to make the trade by the defendants’ misrepresentation, was a question of fact and properly submitted to the jury. The representation made by the defendants, which was relied upon as the ground of recovery in this action, related to the amount of produce raised, and while it had a direct bearing on the quality of the farm, it could not well have been accurately verified by an examination of the land. Moreover, the proof discloses that the plaintiff expressly refused to make the exchange, upon the examination of her husband or upon any examination that could be made at that time of the year, and informed the defendants that she would trade only in reliance upon their representations.

The cases cited do not justify us in holding that the court erred in not holding as a matter of law that the plaintiff could not recover, because of the opportunity her husband had to examine this farm. In Albany City Savings Institution v. Burdick, 87 N. Y., 49, it was said: “ The authority of that case (Long v. Warren, supra) should not be extended to cases not clearly within the principles there laid down. It is certainly not just that one who has perpetrated a fraud should be permitted to say to the party defrauded when he demands relief that he ought not to have believed or trusted him. Where one sues another for negligenee, his own negligence contributing to the injury will constitute a defense to the action; but where one sues another for a positive, willful wrong or fraud, negligence by which the party injured exposed himself to the wrong or fraud will not bar relief. If the rule were otherwise, the unwary and confiding, who need the protection of the law the most, would be left a prey to the fraudulent and artful practices of evil-doers.”

When we examine the whole of the charge upon this subject, we find in it no error that would justify us in disturbing the judgment.

Again it is contended that the court erred in submitting to the jury the question: “ Whether the elder Mather made a representation, the idea of which, without giving the precise language, was that the Borne farm did actually maintain and keep through, the year, from its products 100 head of cattle and sixteen horses.”"

The grounds of the alleged error in this portion of the charge, as stated in the appellant’s brief, are:

1. “ Because if this is a false representation, and made with intent to defraud, it is not actionable, because a knowledge of the truth or falsity of the statement could have been easily ascertained by the plaintiff's agent, this action cannot be maintained upon it”
2. “ The language used in the charge is not the language of the witness Schumaker, nor the plaintiff, and is, therefore suggestive to the jury that they might speculate on the interpretation to be given to the language used by Joshua Mather, and,”
3. “ Because the expressions, charged to have been made use of by the elder Mather, on this subject, are clearly open to a perfectly innocent and honest interpretation.”

As to the first ground, we have already held that the evidence was not such as would have justified the court in holding, as a matter of law, that the plaintiff’s failure to acquire a knowledge of the falsity of such representation, was "a bar to her recovery.

Nor do we think that the second ground of objection can be sustained. The evidence of the plaintiff tended to show that this representation was made and was sufficient to justify the jury in so finding.

If we assume that the representations proved were made, then we are clearly of the opinion that the evidence was sufficient to justify the jury in finding that they were not innocently made, but were made with the design to defraud the plaintiff.

The representations proved related to the character and quality of the farm. Their manifest tendency was to throw the plaintiff off her guard, and lead her to forego an examination, which she might otherwise have made, or to consummate the -trade without further examination, when, but for them, she would not have done so. Under the evidence in this case, it cannot be held, as a matter of law, that the falsity of these representations was apparent or known to the plaintiff, and hence it became a question for the jury to determine whether the representations were made, were false, known by the defendants to be false, were made with an intent to deceive the plaintiff, were relied upon by her and she deceived thereby. Mayer v. Dean, 115 N. Y, 556; 26 N. Y. State Rep., 375.

When this portion of the charge is read with the context, it becomes quite manifest that this exception was not well taken.

On the trial the plaintiff was permitted to prove that her husband and agent informed her as to the representations made by the defendants, and stated to her what they were. This evidence was objected to as not competent against the defendants and immaterial. The objection was" overruled, and the defendants excepted. The defendants, however, insisted that if the plaintiff was permitted to testify to any of the statements made by the defendants to Schumaker, that were reported to her, they must prove all the reports that were made. The court so held. The witness was then permitted to testify that her husband told her of the representations which she proved that the defendants made and to give the representations that were communicated to her, which were substantially like those testified to by her husband. The plaintiff was entitled to prove that the representations made by the defendants to her husband and agent were communicated to her, and that she relied upon them in making this trade. It -was a part of the transaction and clearly admissible. We do not think the appellant’s exception to this evidence well taken.

' On the cross-examination of the plaintiff’s husband, the defendants proved by him that he wrote three letters, which were highly commendatory of the Rome farm, and which were inconsistent with the testimony given by him as to the quality of that farm. This witness also testified that his wife did not know of his writing the first two letters, but that she knew about his writing the third letter, when he wrote it. While the plaintiff was on the stand as a witness she was asked the following question:

“ Did you authorize your husband to write and send those letters ? ” This was objected to as leading and incompetent; the objection was overruled and the defendants excepted. That question was not answered. The plaintiff was then asked:
“Did you know about their being sent before they were sent, the first two? ” This question was not objected to. The witness answered: “No, sir.”

She then testified: “I think I knew something about the third and told him it must be the last.” She also testified that she did not know of it before it was sent; that she did not know of either of them before they were sent. It is claimed by the appellant that it was error to admit this evidence. An examination of the appeal book fails to disclose any exception to the evidence given. As there was no exception to the evidence admitted, no question of error is presented for our determination.

The appellant also contends that the judgment should be reversed and a new trial ordered on the grounds that the verdict was unsustained by and against the weight of evidence. We do not think this contention can be sustained. The evidence, although conflicting, presented a question of fact for the jury. We think its verdict should not be disturbed on that ground.

Ho question being raised by the appellants as to the disposition made of the issue as to fhe plaintiff’s fraud set up in the defendants’ answer, it is unnecessary to examine any of the questions bearing upon it

The appellant’s claim that the damages were excessive cantot be upheld. The evidence was sufficient to justify the jury in finding that the plaintiff had sustained damages to the amount awarded.

Having examined all the questions raised by the appellants in their brief, and having found no error which would justify a reversal, it follows that the judgment should be affirmed, with costs.

Judgment and order affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.


text:
    The Mutual Life Insurance Company of New York, Resp’t, v. Ann Suiter et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 8, 1891.

    1. Evidence—Comparison op handwriting.
    If it be assumed that the character, number and sufficiency of indentification of specimens of handwriting offered for the purpose of comparison, under chap. 36, Laws of 1880, as amended by chap. 555, Laws of 1888, are in the discretion of the trial court, still this discretion must be exercised so as to carry into effect the spirit and purpose of the law.
    2. Same—What documents may be admitted.
    Upon an issue as to the genuineness of the signatures to a deed, in which the appellants, as part of the consideration of certain premises, assumed and agreed to pay a mortgage thereon, the appellants testified that they never signed nor accepted Said deed. The court restricted the proof, by comparison of documents, of the handwriting of one of the appellants to her signatures to the answers in this action. It excluded her signature in a book written about two years before, and also a song which she had copied and signed twelve years before. Held, that these should have been admitted.
    Appeal from a judgment entered in Onondaga county, April 12, 1890, on the decision of a special term. The action was to foreclose a mortgage executed by Mathias Suiter and wife and George Suiter on a farm of about eighty-five acres of land situated in the town of Manlius, Onondaga county, H. Y. The premises in question formerly belonged to Mathias Suiter, Sr., who before the year 1876 died intestate and the owner of said premises. He left him surviving his widow, Ann Suiter, two sons, Mathias Suiter and George Suiter, and three daughters, Ann Suiter, Mary A. Suiter and Barbara Schepp.
    Shortly after the death of Mathias Suiter, Sr., and on the 12th day of April, 1876, his widow, Ann Suiter, and his daughters, Mary A. Suiter, Ann Suiter and Barbara Schepp, for a valuable consideration, conveyed and quit-claimed the farm and premises described in the complaint, being the premises of which said Mathias Suiter, Sr., died seized, to Mathias Suiter and George Suiter. This deed contained the following provision: “This conveyance is made subject to the support in every respect, maintenance, care, medical attendance and clothing of Ann Suiter, the widow of Mathias Suiter, deceased, and Ann Suiter, the daughter, suitable and proper to their station in life, to be furnished by the parties of the second part, their heirs, executors, administrators or assigns, to them during their natural lives and the life of the junior of them, which support in every respect, maintenance, care, and medical attendance and clothing of the said Ann Suiter, the mother, and Ann Suiter, the daughter, is hereby made a charge and lien upon the premises above described during their natural lives and the life of the survivor of them, and this conveyance is also hereby made subject to the payment by the parties of the second part, their heirs, executors, administrators or assigns, upon the decease of Ann Suiter, the mother, of the sum of $500, without interest, to Mrs. Barbara Schepp, or her legal heirs, and of the sum of $500 to Mary Suiter, or her legal heirs, which payments are hereby made a charge and lien upon the premises above described as a part of the purchase price thereof, which covenants, agreements, charges and conditions the parties of the second part hereby assume, covenant and promise to fulfill and perform.”
    The defendants, Mathias Suiter and George Suiter, with their mother and sisters, except Barbara Schepp, who has since died, have occupied the farm in question since such deed was given and-up to the present time.
    On the 27th day of June, 1887, Mathias Suiter and George Suiter, gave.their bond and executed the mortgage to the plaintiff described in the complaint The mortgage was given to secure the sum of $8,500. It appears to have been executed without the consent or knowledge of the appellants and none of them joined in it When this mortgage was given, the plaintiff was furnished an abstract of title which showed the title to be in the defendants, George and Mathias Suiter, and did not disclose the clause in the deed reserving an estate or interest therein to the appellants. After this was discovered by the plaintiff, a deed was made by Mathias Suiter and his wife, which purported to convey their interest in the premises to the appellants, and purports to have been signed by them, which deed contained the following covenant: “ And the parties of the second part hereby assume and agree to pay said mortgage as a part of the consideration of this conveyance.”
    The appellants alleged and gave evidence upon the trial which tended to show that their signatures to such deed were forgeries and that the deed was never accepted by them. On the trial they testified that the deed was neither signed nor acknowledged by them, and three experts in handwriting were called, who compared the signatures to such deed with one of their genuine signatures, and testified that in their opinion they were not made by the same persons. In opposition, the plaintiff called one expert witness, who testified that in his opinion, based upon a comparison of the signatures upon this deed with the one admitted signature of these parties, that they were signed by the same person.
    The appellants also introduced the evidence of three expert ' witnesses, who compared the notary’s purported signature to the acknowledgment, with his genuine signature, and testified that in their opinion the signature to the acknowledgment was not in the same handwriting as the genuine signature. The appellants also testified that they never acknowledged such deed. The plaintiff called three expert witnesses who testified that in their opinion the notary’s signature to the deed was in the same handwriting as his genuine signature, and proved by another witness that Ann Suiter, widow, said that she signed a paper before the notary.
    The court found with the plaintiff that such deed was delivered to the defendants, Ann Suiter and her daughters, Mary Suiter and Ann Suiter; that the same was executed under their hands and seals and acknowledged by them, and that such conveyance was accepted with the intention of merging the liens of the appellants, upon the premises described in the complaint, with the title therein of Mathias Suiter and wife, conveyed to them as aforesaid, and of making the same subject to the plaintiff’s mortgage.
    The court held, as conclusions of law :
    “ 1. That when said conveyance was made by Mathias Suiter and wife to said Ann Suiter, widow, Ann Suiter and Mary Suiter, daughters of Mathias Suiter, Sr., deceased, of the premises described in the complaint all the said liens and interest of the said grantees upon and in the premises described in the complaint became merged with the title so conveyed to them and subject to the lien of the mortgage set forth in the complaint.
    “ 2. That the plaintiff is entitled to the usual decree of foreclosure and sale of all the right, title and interest of the defendants in this action in and to the premises described in the complaint in this action.
    “3. That the right, title and interest of the defendants, Mathias Suiter, Crescentia Suiter and George Suiter, be first sold to satisfy the sums adjudged to be paid to the plaintiff and his attorneys by the decree to be entered herein, and the costs and expenses of such sale, and if the sums so received prové insufficient to pay and satisfy the same, then that the right, title and interest of the defendants, Ann Suiter, widow, and Ann Suiter and Mary Suiter, children of said Mathias Suiter, deceased, in and to the premises described in the complaint, be sold for that purpose.
    “4. That in case the sums realized from the sale of the interests of all the defendants in said premises shall prove insufficient to pay and satisfy the sums adjudged to be paid by the decree herein, and costs and expenses of sale, then that said plaintiff have judgment for such deficiency against the defendants, Mathias Suiter, George Suiter, Ann Suiter, widow, and Ann Suiter and Mary Suiter, children of Mathias Suiter, deceased.”

      The appellants excepted to these conclusions of law by the court.
    They also requested the court to find:
    “ Seventh. That said defendants, Ann Suiter, widow, and Ann Suiter and Mary A. Suiter, daughters on or about the 1st day of November, 1888, or on any other. day never accepted from the defendants Mathias Suiter and Grescentia a deed, dated on or about that day, or any other day, by the terms of which the said defendants, Ann Suiter, widow, and Ann Suiter and Mary A. Suiter, her daughters covenanted and agreed to assume said mortgage of $3,500, or any other mortgage as a part of the consideraation of the said conveyance or at the time of said alleged conveyance knew that such a conveyance had been made, or knew that a mortgage of $3,500 or for any other amount had been executed by said Mathias Suiter and Grescentia Suiter and George Suiter to the plaintiff upon the premises in question.
    “ Eighth. If the said Mathias Suiter and Grescentia Suiter on or about the said 1st day of November, 1888, executed to the said defendants, Ann Suiter, widow, Ann Suiter and Mary A. Suiter, daughters, said defendants, Ann Suiter, widow, Ann' Suiter and Mary A. Suiter, daughters, never knew of the existence of said deed until long after the same had been executed and put on record, and never knew that said deed contained the condition to assume and pay said $3,500 mortgage or any other mortgage.
    “ Ninth. That the first knowledge the defendants, Ann Suiter, widow, and Ann Suiter and Mary A. Suiter, daughters, had of the execution and delivery of said $3,500 mortgage, and the execution and recording of said deed alleged to have been executed by said Mathias Suiter and Grescentia Suiter to them of the premises in question, was obtained on or about January, 1889, after the execution and delivery of said mortgage and the executing and recording of said deed, and they have never assumed or agreed to pay the said $3,500 mortgage.”
    The court refused to find as requested, to which refusal, the defendants duly excepted.
    The court, at appellants’ request, also found as follows:
    “ Fourth. That the defendants, Ann Suiter, widow, and Ann Suiter and Mary A. Suiter, daughters, have made no conveyance or transfer of their interests in said premises as reserved to them by said deed, dated April 12, 1876, by deed, mortgage or otherwise.

      “ Fifth. That at time of the execution and delivery of said bond and mortgage by the defendants, George Suiter and Mathias Suiter and Grescentia Suiter to the Mutual Life Insurance Company, the said defendants, Ann Suiter, widow, and Ann Suiter and Mary A. Suiter, daughters, were the owners of and entitled to the interest and rights in said property reserved to them by said deed of April 12th, 1876.
    . “ Sixth. That the said defendants, Ann Suiter, widow, and Ann Suiter and Mary A. Suiter, daughters, are still the owners of the rights and interests in said property reserved to them by said deed, dated on or about April 12, 1876.”

      Ceylon H. Lewis, for app’lts; William G. Tracy, for resp’t.
   Martin, J.

It seems to be assumed by all the parties that the Tights of the appellants in the premises in question were paramount to any which the plaintiff had or could acquire under er or by virtue of its mortgage, unless the appellants have in some way foreclosed themselves from asserting the rights reserved and acquired by them under the provsions of their deed to George and Mathias Suiter.

It is contended by the respondent, and was in effect held by the trial court, that the appellants, by acquiring a one-half interest in the premises by deed from Mathias Suiter and wife, which contained a clause by which they agreed to assume and pay such mortgage as a part of the consideration for such transfer, effected a release of their liens on the premises or a merger of them in the title to the one-half interest thus acquired.

We do not think that under the evidence in this case that conclusion was justified. The finding of the court that the conveyance to the appellants was accepted by them with the intention of merging their interest in or liens upon the premises with the title conveyed to them, is not sustained by the evidence.

The principal issue of fact in this case was whether the deed from Mathias Suiter and wife to the appellants was signed and acknowledged by them, and whether they accepted it or had any knowledge of its provisions. While the trial court found against the appellants upon this issue, the evidence strongly tended to show that such was- not the case. The evidence to sustain the finding of the court was very slight, while a preponderance of the evidence contained in the appeal book leads to the opposite conclusion.

It may be, however, that it was barely sufficient to sustain this finding, and that the judgment ought not to be reversed on the ground that it is against the weight of evidence, as the trial court had the benefit of seeing the witnesses and hearing their testimony, and could perhaps better determine the credit to be given their evidence. But when we consider the importance of the issue as to the genuineness of the appellants’ signatures to this deed, and the slight evidence upon whieh the deed was held to have been signed and accepted by them, it becomes us to carefully examine the rulings, rejecting further evidence bearing upon the question of the genuineness of their signatures, as any error in the rejection of such evidence can by no means be regarded as harmless.

The only signature of Mary A. Suiter, and the only specimen of her handwriting the appellants were permitted to introduce in evidence, were the signatures to the answers in this action. They offered in evidence her signature where she had about two years before written her name and place of residence in a book belonging to her or to her family, and also a song which she had written or copied about twelve years before, and to which she had signed her name. The body of the latter, as well as the signature, was written by her. These specimens of her handwriting were offered in evidence for the purpose of comparison. That they were written by her and contained her genuine signature was not disputed or denied. When offered in evidence they were objected to on the sole grounds that they were incompetent, immaterial and improper. The objections were sustained, and the defendant excepted. The court did not reject this evidence because the genuineness of the handwriting of the papers offered was not proved to its satisfaction, nor upon the ground that the one specimen admitted was sufficient, but upon the ground that it did not think the evidence either admissible or safe.

The purpose of the statute of 1880, as amended by the Laws of' 1888 (Laws 1880, chap. 36, and Laws 1888, chap. 555), was to change the rule of evidence as it previously existed, and to permit a comparison of the disputed writing with the genuine handwriting of the person claimed to have made or executed the instrument or writing in question. Whether this statute was wise or unwise was not for the court to determine. This law was passed by the legislature, and should be fairly administered by the courts. Parties to an action are entitled to avail themselves of the benefit, of its provisions, and to a fair opportunity to present for comparison the genuine handwriting of the person claimed to have-made or executed the disputed writing. Such was the purpose- and intent of the statute.

If we assume that the character, number and sufficiency of' identification of the specimens offered for the purpose of comparison is in the discretion of the court, still the discretion to be exercised is a reasonable one and should be so exercised as to carry into effect the spirit and purpose of the law. It was improper to reject this evidence as unsafe or inadmissible, and the rulings of the court in excluding it are subject to review by this court. We think the specimens of the writing and signature of Mary A. Suiter, which were offered, should have been received in evidence for the purpose for which they were offered, as the opportunity for comparison would have been greatly improved and the evidence of the expert witnesses called would have been entitled to-much greater weight than when, as in this case, the comparison was confined to a single signature made after the instrument or writing in question.

Our attention is called to other exceptions in the case, but it is unnecessary to especially consider them, as we think the judgment should be reversed for the reasons already stated.

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

Hardin, P. J., and Merwin, J., concur.