author: Bookes, J.: Learned, P. J.: Westbrook, J.

text:
    HENRY A. MERRITT, Respondent, v. WILLIAM VIGELIUS, Appellant, Impleaded, etc.

      Reference — when an action by an attorney for services rendered does not involve the examination of a long account — the propriety of referring such actions considered.

    In an action by an attorney to recover for professional services rendered to a client, his claim, as stated in a bill of particulars, consisted of ten items, six of which wore for consultations, one for counsel fee and consultation, one for ' drawing the complaint, one for demanding property of a sheriff and one for attending upon the justification of bail. .

      Held, that the action did not involve the examination of a long account, and that it could not be referred without the consent of the defendant. (West-brook, J., dissenting.)

      Perry v. Rollins (56 How., 242), and Carr v. Berdell (22 Hun, 130), overruled. Tracy v. .Stearns (12 W. D., 533); lb., 61 How., 265); Felt v. Tiffany (11 Hun, 62), and Waring v. Chamberlain (14 W. D., 564), followed.
    The question of referring actions brought by attorneys, to recover the value of professional services rendered to their clients, considered.
    Appeal from an order made at a Special Term, referring this action to a referee to hear and determine.
    The action was brought by the plaintiff, an attorney, to recover the value of services rendered by him to the defendants, in respect to an action brought against a sheriff. In pursuance of a demand made by the defendants the plaintiff rendered the following bill of particulars:
    1882. '
    To consultation twice with creditors, personally, previous to January 19, 1882 .............................. $50 00
    To consultation with creditors and R. A. Parmenter, at plaintiff’s office, previous to January 19, 1882 ........ 20 00
    To consultation with creditors at R. A. Parmenter’s office, once or twice, about January 19, 1882............... 25 00
    To consultation with creditors and R. A. Parmenter, at ■ his office, January twentieth, in reference to proceedings and advising in reference to assignment of claim.. 40 00
    To consultation with R. A. Parmenter, and also with creditors, J anuary twenty-first...................... 20 00

      To consultation at office of R. A. Parmenter and preparing affidavit for replevin, January twenty-second...... $25 00
    To demanding property of sheriff and attending on replevining property action, defendants against sheriff of Rensselaer county, January twenty-third.......... 25 00
    To attending on justification of bail in action of defendants against Ingram, sheriff of Rensselaer county, January twentieth................................ 40 00
    To drawing complaint in action, defendants against Ingram, sheriff of Rensselaer county, March......... 25 00
    To counsel fees in the above matter, and consultation with R. A. Parmenter and with attorney for Ingram, sheriff, not above-mentioned, February and March....;...... 50 00
    Dated Trot, May 2, 1882.

      King c& Rhodes, for the appellant.

      J. H. Ryan, for the respondent.
   Bookes, J.:

The reference in this case may perhaps be justified by the decision in Perry v. Rollins (56 How., 242) and in Carr v. Berdell (22 Hun, 130). In Perry v. Rollins, as in the case in hand, the charges constituting the items of alleged account were for services rendered on many different days. It does not, however, appear in that case what the particular services were ; whether they were or were not rendered under one retainer and in a single action, or pursuant to many separate, employments. The same may also be said of Carr v. Berdell with the additional fact that the claim embraced items for disbursements as well as for professional services. In neither of these cases are we informed as to the particular items constituting the alleged account. So, for anything appearing to the contrary, the trial of those cases may have required an examination of a long account within the legal acceptation of that phrase.

In this case there are ten items charged, eleven in fact, as the first item embraces two consultations. But the several claims according to the complaint, were for services rendered in two matters only; and, indeed, by fair implication, in but one in which the defendant’s troubles centered. The case seems therefore much like that of Tracy v. Stearns (12 W. D., 533 ; Ib., 61..How., 265) and also that o'f Felt v. Tiffany (11 Hun, 62) where references were held improper. In Waring v. Chamberlain (14 W. D. 564) the services were rendered in two action?. There also a reference was held improper .on two grounds: (1) That the case did not require an examination of a long account as that phrase is legally understood, and (2), that the claims were not such as. by the practice of the court are ordinarily, directed to be tried by a-referee ;'in other words the decision was put on the ground that the case was one where the party.had.the right.to demand and have a trial by jury. In this ease six out of the ten items, are for consultations; ” one is for counsel fees and consultation; one for drawing complaint-; -one for demanding, property, from the sheriff ; and ohe other for attendance on justification of bail. Within the above decisions these charges were not items of account, in the legal acceptation of that phrase.

The current of decisions is in accordance with the decision in Tracy v. Stearns, Felt v. Tiffany, and Waring v. Chamberlain, above cited. Tracy v. Stearns and Waring v. Chamberlain are very recent cases, the former having been decided, May, 1881, and the latter May, 1882; and they must be deemed to overrule Perry v. Rollins, decided October, 1878, and Carr v. Berdell, decided in 1880, in so far as the latterflases are to be considered in conflict with them. (See, also, Martin v. The Windsor Hotel Co., 10 Hun, 304; Flanders v. Odell, 16 Abb. [N. S.], 247; Dickinson v. Mitchell, 19 Abb., 286; also Bathgate v. Haskin, 59 N. Y., 533.) According to the strong line of decisions, and especially according to the more recent ones, the reference in this case was improperly granted. And for myself I wish to express my approval of the remarks of Judge Davis in Martin v. W. H. Co., above cited, on .the subject of refering actions brought by attorneys to recover for professional services.

Order appealed. from, reversed, with ten dollars costs and disbursements for printing, and motion for reference at Special Term denied, with ten dollars costs.

Learned, P. J.:

I am not willing to accept the doctrine of some cases that a lawyer’s bill ought not to be referred. The statute makes no exception as to lawyers, if they have (as unfortunately they sometimes have) long accounts against tlieir clients. If it be unfair to appoint á lawyer as referee in such cases, then a referee of another business may be selected. But under Bathgate v. Haskin (ut supra) I think there was no long account in this case. Though I am not prepared to say that a single action might not be so protracted and complicated that it would present the case of a long account against the client. I concur in the result above stated.

Westbrook, J.

(dissenting):

I concur fully in the views of brother Learned, that an account for lawyers’ services is referrible, and I can not subscribe to the doctrine, that such an account should be submitted to a jury, without any regard to the fact that it is a long one consisting of many items. Neither, in my opinion, .is there any propriety'in referring a cause involving issues of that character to a person not a lawyer. So to do is to create a tribunal unfit, for want of knowledge, to decide it, instead of one .perfectly competent to deal with the .questions it would present.

Without giving any details for my conclusion, I think the order of reference should be sustained ; on within adjudged cases there is in this action a long account to be examined.

Present — Learned, P. J., Bocees and Westbrook, JJ. ■

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


source: Caselaw Access Project

author: Learned, P. J. :

license: Public Domain

text:
    MARIA SMITH, Respondent, v. ANDREW MEAGHAN and Others, Appellants.

      Fraudulent conveyance — each heir-at-law of the grantor may maintain a sepa/rate action to set it aside — right of an heir-at-law, not a pa/rty to the action, to testify as to personal t/ransactions with the deceased— Code of Civil Procedure, sec. 829
    This action was brought by a daughter of one Thomas Meaghan, as one of his heirs-at-law, to set aside a conveyance made by him to her brother Andrew, on the ground that it was procured by the fraud and undue influence of her brother Robert. The plaintiff was the only one of the five heirs-at-law who sought to set aside the conveyance.

      Held, that as the plaintiff was not jointly interested.with the other heirs-at-law, and as her interest in the land was separate and distinct from, theirs, any judgment entered in the action could affect only the undivided one-fifth interest in the premises to which the plaintiff claimed to be entitled.
    That one of the other heirs-at-law, not a party to the action, could testify as to personal transactions or communications with the deceased tending to sustain the validity of the deed.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      J. P. Stevens, for the appellants.

      M. A. Parmenter, for the respondent.
   Learned, P. J. :

This action, is brought to set aside a conveyance made by Thomas Meaghan, since deceased, to Andrew Meaghan, and certain subsequent conveyances by said grantee. The alleged ground is that the conveyance was obtained by the fraud and undue influence of Pobert Meaghan. Thomas Meaghan died intestate and left surviving, the plaintiff, Andrew Meaghan, Pobert Meaghan, John Meaghan and Bridget Bussell, Ms children and heirs-at-law. The plaintiff therefore inherited one-fifth of the real estate of the deceased. None of the other heirs seek to set aside the conveyance. Hence it follows that this action can affect only the undivided one-fifth of the premises which descended to the plaintiff, or which would have descended to her, if the conveyance to Andrew had not been executed. She is not jointly interested with the other four; and her share is as distinct from theirs as if she had inherited a separate piece of land. She does not represent, and cannot represent, the other heirs. They are not necessary to a complete determination of the controversy as to her undivided fifth. They might join with her, in respect to their several shares, if they chose to do so, because the conveyance which they would seek to set aside is one thing. But they need not join, and may, in fact, release to the alleged fraudulent grantee all their interests.

Hence it follows that the judgment in this action could affect only the one-fifth belonging to the plaintiff, Maria Smith. This appears to have been disregarded in the form of the judgment which purports to set aside the whole conveyance. Plainly such a judgment is not warranted. There is no reason to think that, Andrew Meaghan or Robert Meaghan desire to set it aside as to their respective fifths.

But the form of the judgment might possibly be of small consequence, on the principle that judgments bind only the parties, were it not that Robert and Andrew are parties defendant.

These considerations are important in discussing a question as to the exclusion of evidence. Bridget Russell was called as a witness for the defendant. She was a daughter of the deceased and hence inherited one-fifth of the property. She was not however a party to this action. The defendant offered her as a witness to certain transactions or communications with the deceased, and on the plaintiff’s objection her testimony.-was excluded under section 829, Code Civil Procedure. This was erroneous. In the first place, if'interested at all, she was called against her interest. The section as it now stands is, in this respect, different from the former section, as will be seen on comparing the two. Mrs. Russell’s interest, if she had any in this action, would be with the plaintiff, and she was called by the defendant.

But, again, she was neither a party nor interested in the event of the action. The recovery of this plaintiff could not give Mrs. Russell her one-fifth of the property. As has been above pointed out, the recovery in this action could only'be for the one-fifth which descended to this plaintiff. If Mrs. Russell should desire to recover her fifth, she would be obliged to bring an action of her own. It is not enough to say that the moral effect of the plaintiff’s success might aid Mrs. Russell if she should ever bring a similar action. The statute means pecuniarily interested, and this Mrs. Russell was not. This view is clear on principle and is established in Hobart v. Hobart (62 N. Y., 80).

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

Present — Learned, P. J., Boardman and Bocees, JJ.

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


author: Learned, P. J.:

text:
    In the Matter of the NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY, v. WINSLOW M. BELL, Appellant, Impleaded with CHARLES SMITH and Others, Respondents.

      Railroad company — acquisition of land by it — rule for estimating the damages for taking a portion of a leasehold estate — the possibility of the lessee’s being able to. acquire additional land cannot be considered.

    A railroad company sought to acquire title to a portion of certain' premises which had been leased to one Bell for a term of five years from May 1, 1880. He used them for manufacturing fleece and plush linings. The portion needed by the company was used as 'a drying ground for the manufactured articíes. Bell and his son claimed that it was peculiarly well adapted for that purpose : that with it such leasehold estate was worth $200 a year more than the rent reserved ($300), and that without it the premises would he worth $200 a year less than the rent. No evidence directly contradicting this estimate of value was given. There was evidence to show that there was only one other place which could be used for that purpose. It was proved, against Bell’s objection, that’ the lessor had offered him another drying place at the same rent, at any place on the hillside'where the factory stood. The commissioners allowed to Bell the sum of $100, being at the rate of about thirty-five dollars a year.

      Held, that it was error to allow the lessor’s offer of another drying ground to be ' proved, first, because the testimony was in no way binding upon him, and he might subsequently refuse to make the lease; and second, because it was in effect paying the compensation for the land taken partly in other real estate, Avhile the larv requires it to be paid in money.
    That the report of the commissioners should he set aside.
    Although in estimating the value of the property, less the piece taken by the company, the surrounding premises and the possibility of procuring additional land if needed, might be considered among other circumstances, yet such a possibility is contingent and too uncertain to enter into the element of the compensation to be made by the commissioners.
    Appeal by Winslow M. Bell from tbe appraisal and report of commissioners appointed to appraise tbe damages to be awarded for tbe taking of certain land for railroad purposes, and from an order made at Special Term confirming tbe same.
    Tbe New York, West Shore and Buffalo Railway Company took proceedings to acquire title to lands in tbe county of Ulster, of which Clark Smith and others were the owners, and of a part of which tbe appellant, Winslow M. Bell, was tenant for a term of years, for tbe purposes of constructing its road. Commissioners were appointed and hearings were had before them. On the hearing before the commissioners there was no contest between the owners of the land and the railway company, they having agreed upon the price to be paid for the right of way. The only question litigated was how much of 'the $2,000 agreed to be paid' for such right of way should be allowed to the tenant, the appellant.

      Schoonmaker & linson, for the appellant.

      J. L. Westbrooh, for the respondents.
   Learned, P. J.:

The three pieces of land were used for one business, and were hired under one lease. It was proper, then, to consider the injury to tne property as a whole, caused by taking one or a part of one of the pieces. That is a rule which has been repeatedly acknowledged. (See, in this connection, Henderson v. N. Y. C. and H. R. R. R. Co., 78 N. Y., 423.)

The inquiry to ascertain the damages should be, what is the property (in the present case the leasehold interest) worth now, and what will it be worth after the railroad shall have taken the part in-question ? The difference is the damages. (Troy and Boston R. R. Co. v. Lee, 13 Barb., 169; Matter of P. P. and C. I. R. R., 20 N. Y. S. C. [13 Hun], 345.)

Bell had a lease of the premises for five years from May 1,1880; perhaps with a privilege of renewal for five more. The rental was $300. The piece needed by the railroad was used as a drying ground for the manufactured articles. And it was claimed to be peculiarly adapted for that purpose. There was evidence that there was only one other place which could be used for that purpose.

The testimony of Bell and of his father was that that leasehold estate was worth $500 per annum, i. e., $200 more than the rent; that with the piece taken away it would be worth only $100 per annum, i. e., $200 less than the rent. This estimate was based in part on improvements made by the tenant, and in part on the alleged peculiar advantages of the situation. The manufacture is that of fleece and plush linings, used principally for lining gloves ' and mittens, and sold to glove manufacturers, largely in Fulton county. It was proved, under objection by Mr. Bell, that the lessor had offered him another drying place at the same rent, at any place on the hillside where the factory stands. Mr. Bell claims that no place is so accessible as the present.

The commissioners allowed to Mr. Bell the sum of $100, and to the owners in fee $1,900. The allowance to him, assuming that he had no right of renewal, must have been about thirty-five dollars per year.

There seems to have been no evidence which directly contradicted the estimate of value given by Mr. Bell and his father. The company appear to have relied, in order to reduce the damages, upon the proof, disputed by Mr. Bell, that he could obtain from his lessors another place for a drying ground.

On this point we may say in the first place., that the testimony of the lessors that. they were willing to lease Mr. Bell another piece ought to have no weight. This testimony was in no way binding upon them, and, after this ground had been taken, they could refuse to lease any other, or could insist on an exorbitant rent.

And this evidence is unfair in its effect. To illustrate, let us suppose that a man had a farm on which was a spring needed for the use of the farm; a railroad take proceedings to procure land which includes the spring. On the hearing they offer to show that a neighboring farmer is willing to allow the defendant the use of another spring. This would be improper. First, because the mere expression of willingness is not binding; second, because the effect is to pay the compensation for the land to be taken partly in other real estate.

A railroad company cannot take a man’s land compulsorily and give him only another piece of land in exchange. In the present case the railroad could not take Mr. Bell’s land without payment, on giving him another piece which the commissioners should consider equally valuable. Nor can they take his land and give him another piece, paying the difference. If not, then by what justice can the commissioners be influenced by the willingness of the lessors to lease another piece, to Mr. Bell 1 He is entitled to have his damages compensated in money, not in land.

Yery possibly one who was estimating the value of the property, less the piece taken by the railroad, might consider, among other circumstances, the surrounding premises and the possibility of procuring additional land if needed. But such possibility is contingent and is too uncertain to enter into the element of compensation to be made by the commissioners.. >

As illustrating these views we may refer to Burt v. Wigglesworth (117 Mass., 302); Dorlan v. East Brandywine and Waynesburg Railroad Company (46 Penn. St., 520).

On an examination of the whole case we are of opinion that there was such error; that the order and report should be set aside as to Mr. Bell and a new appraisement made as to him by new commissioners to be appointed by the Special Term, costs of the former proceeding and of the appeal to abide the event.

Present — Learned, P. J., and Bookes, J.

Order reversed and commissioners discharged; new commissioners to be appointed by Special Term; costs to abide event.


text:
    ANNIE A. GRATTAN, Administratrix, etc., of HUGH P. GRATTAN, Deceased, Respondent, v. THE METROPOLITAN LIFE INSURANCE COMPANY OF NEW YORK, Appellant.

      IMdence — a physician cannot testify as to knowledge acquired, while attending'.the deceased, from the general sight of the patient before examining him — “ Good health” — meaning of the term, as used in an application for a life insurance policy.

   Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from, an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

The action was brought upon a policy of insurance issued by the defendant, June-24, 1876, for $3,000 upon the life of Hugh P. Grattan. Hugh P. Grattan died February 18,1879. The plaintiff was appointed administratrix of his estate, and brought this action in September of the same year.

The defense was breaches of warranty in the application for the policy, in statements as to the health of his brother Terence; in a profession of ignorance of the cause of death of a sister; in an untrue description of his occupation, and in falsely stating the cause of death of his mother. The case had been previously tried, and upon such trial a verdict had been ordered for the defendant, which was reversed and a new trial granted. (24 Hun,' 43.)

The court at General Term, after considering other objections raised by the appellant, said: Second. It is urged that the court improperly excluded the following question from- being put to Dr. Mereness: ‘ What opinion did you form, based on the general sight of the man before you made an examination, or before you had any conversation with him ? ’

“ Dr. Mereness was a physician to whom Terence (the brother) went to be examined. The individual views of the writer of this opinion are in favor of the admission of this evidence, and were given upon the first trial The General Term reversed the judgment for the admission of the evidence of Dr. Mereness, among other reasons. The trial judge followed the General Term, and has carried out the spirit of the reasoning there given. If the result of Dr. Mereness’ whole examination could not be given because forbidden by statute, no part thereof was proper. If it was improper for Dr. Mereness to state the conclusion he reached after a thorough examination of the person, it would be equally improper for him to state his opinion formed from t.he general appearance at the same time, and before it became more thorough. It is all a part of one examination, and if part is to be excluded the whole must be. The physician judges not only by a thorough inspection of the chest, but also from the patient’s general appearance, and the opinion formed upon the latter as to the health of such patient, who comes to him, is just as objectionable as the former.

'* * * *

“Neither was there any misdirection as to what was ‘good health.’ The judge said ‘he was bound to know the truth of his statements, there is no question about that; * * * of course, if the brother was in fact sick at the time — was in fact out of health at the time, and was suffering in the manner you claim, the simple fact that this party may not have known it would not excuse him from the effect of that statement. What I .meant to say to the jury was, that if from all the appearances of the brother he was in good health, in fact in good health, so that everybody would so pronounce him, and there was nothing to indicate to any person that he was not in good health, then the fact that he might have had some latent, some hidden disease, which had not exhibited itself, and which might subsequently develop itself, would not necessarily render that-an untruthful answer to that question, viz., the statement "that his health was generally good.’

“We see no error in this charge. A latent and undeveloped germ of disease probably exists in every mortal body, and if a person answers that his present health is good, the answer is not untrue because in his system there is a seed of disease already sown, and subsequently to germinate. This is all the judge charged, and it was not erroneous. (Conver v. Phœnix Mutual Life Insurance Company, 6 Chicago Legal News, 144; Hutchison v. Nat. Loan Asso. Soc., 17 Scotch Jurist, 253; Bliss on Life Insurance, 148; Peacock v. N. Y. Life Ins. Co., 20 N. Y., 293, see page 296; Cushman v. U. S. Life Ins. Co., 70 id., 72, see pages 76, 77; Horne v. Amicable Life Ins. Co., 64 Barb., 82.) ”

Thomas G. Pitch and Haley Fiske, for the appellant.

James Lcmsing, for the respondent.

Opinion by Westbrook, J.

Present — Learned, P. J.¿ Bockes, and Westbrook, JJ.

Judgment and order affirmed, with costs.


text:
    JOHN SWEET, Administrator, and HANNAH W. EDDY, Administratrix of THEODORE A. EDDY, Deceased, Respondents, v. JAMES E. LOW, Appellant.

      Evidence — Code of Civil Procedure, sec. 829 — a party only precluded, from testifying as to personal transaction with the deceased, when the representatives of the lattee' have given no evidence on that subject— he may give evidence• tending to contradict the evidence of the personal representatives, though it may relate to a personal transaction with the deceased.

   Appeal by the defendant from a judgment in favor of the plaintiffs, entered upon a verdict rendered in their favor at the Otsego Circuit, on the 17th day of May, 1882.

The action was brought upon a note for $150, alleged to have been given by the appellant James E. Low to Theodore A. Eddy, since deceased, bearing date October 24, 1864, and payable one day after date with interest.

The plaintiff, John Sweet, was sworn in his own behalf and that of his coplaintiff) upon the trial, and testified that after the death of the intestate Theodore A. Eddy, he had found among his assets a note purporting to haye been made by the defendant for the amount and of the date above stated. That he had possession of that note several years, and had read it over a great many times, and that the same was lost with other .papers in a bill book in. March, 1871. That he knew the handwriting of the defendant, and in his opinion the signature to the note was in the handwriting of the defendant.

The other plaintiff, Hannah W. Eddy, also testified to the finding of the note among the papers of the deceased after his death, and that she was acquainted with the handwriting of the defendant, and that the signature of .the maker of such note . was the handwriting of such defendant.

The defendant was then called and examined in his own behalf; and he was asked the question whether or not he ever gave to JDr. Eddy, the deceased intestate, a note of the description testified to by the plaintiffs. This was objected to on the part of the plaintiffs upon the ground that it was incompetent under section 829 of the Code, and upon such objection the offer of testimony was overruled and the defendant excepted.

The court at General Term said: “We think that the learned judge at the trial erred, Tor two reasons:

First. By section 829 of the Code of Civil Procedure, the defendant was only precluded from giving evidence concerning a transaction had with the deceased, provided the plaintiffs had not given .evidence ‘ concerning the same transaction or communication.’
“ To make the evidence of the defendant proper under section 829, it was not necessary that the plaintiffs should have detailed a transaction or communication between the deceased and the defendant, which occurred in their presence, and of w'hich occurrence their evidence was claimed to be a true history. If they gave any evidence which concerned the transaction between the deceased and the defendant, they then gave such evidence as would allow the defendant to give in his own behalf testimony ‘ concerning the same transaction or communication.’ A witness who gives testimony either of a subsequent conversation or transaction which tends to show what a prior transaction or communication was, really gives evidence ‘concerning’ such prior transaction. The plaintiffs in this case when they testified that they had found among the papers of the deceased a promissory note made by the defendant and payable to the deceased, gave evidence ‘ concerning ’ a transaction between the defendant and such, deceased (Markell v. Benson, 55 How., 360, see page 363); and, therefore, the defendant was at liberty to prove that he had given no note to the deceased, as the plaintiffs had by their evidence attempted to show.

James A. Lynes, for the appellant.

Charles A. Sweet, for the. respondents.

Second. If, however, it can be held that the plaintiffs gave no evidence concerning a transaction between the defendant and the deceased, because they did not undertake to give their version of a transaction between such persons, which they had personally witnessed, then the offer of the defendant to prove that he had never given such a note as the plaintiffs pretended to have found, was proper to contradict the evidence given by the plaintiffs. By their testimony in their own behalf, the plaintiffs had endeavored to satisfy the jury that they had found among the papers of the deceased a note made by the defendant and delivered to their intestate. If it was proper for the plaintiffs to give such testimony, and of its propriety there is no doubt, then it was equally competent for the defendant to contr adict such evidence by showing that he had never given such a note as the plaintiffs claim ed to have found, and to have been possessed of; and such evidence, which would have been clearly in contradiction of thac given by the plaintiffs, should not have been excluded upon the ground that it also tended to disprove a personal transaction which the plaintiffs claimed must have occurred between the deceased and the defendant.”

Opinion by Westbrook, J.

Present — Learned, P. J., Booices and Westbrook, JJ.

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


author: Westbrook, J.

text:
    ERASTUS CORNING, Respondent, v. JAMES T. WALKER, Appellant.

      Code of Civil Procedure, sec. .829 — a party cannot examine Ms adversary as to transactions with a deceased person and thereby let in his own testimony.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The court, at General Term said: “ The defendant also claims that the referee erred in excluding the defendant from proving an agreement with the late Mr. Corning, deceased, as to his services, upon the ground that section 829 of the Code forbade it.
    “As a part of the plaintiff’s claim was by assignment from the late Mr. Corning, the evidence was properly excluded. Neither was the evidence proper, because the plaintiff had testified, 1 I Enow there could have been no arrangement between defendant and late Erastus Corning as to payment for defendant’s services, from what Mr. Corning told me; and I have entire charge of his business.’ This evidence, assuming it relates to the same subject as that to which defendant sought to testify, was not given by plaintiff ‘ in his own behalf,’ as it should have been if it was proper for the defendant to contradict it. It was obtained by the defendant upon the cross-examination. A party cannot, 'by examining his adversary as to a transaction with a deceased, claim that such evidence is given by his adversary ‘ in his own behalf,’ and that therefore he may contradict him. That is not the meaning of the Code. It was testimony offered by the defendant himself, and ¡therefore he could not, by his personal testimony, contradict it.”

      Wood (St Russell, for the appellant.

      Amasa J. Parker, for the respondent.
   Opinion by

Westbrook, J.

Present — Learned, P. J., Bookes and Westbrook, JJ.

Judgment affirmed, with costs.


text:
    LABAN G. HOPKINS, Respondent, v. STEPHEN T. HOPKINS and Others, Appellants.

      Answer — amotion to make it moi'e definite and certain — must be decided upon an examination of the answer — a reference to ascertain facts cannot beorde/red — General Buie, No. 22.
    Appeal from an order made at a Special Term, ordering a reference to take proof of certain matters hereinafter referred to.
    This action was commenced in April, 1882, for the partition or sale of certain lands in Greene county.
    May eighth, the defendants Stephen T. and Mary "W. Hopkins, by separate answers, set up the commencement of a prior action by the defendant Stephen T. for the partition of the same property. Afterward the plaintiff moved at Special Term, as upon a default of all the defendants to answer, for judgment and the usual reference as to title.
    This motion for judgment was denied, the judge holding the matters set up in the answers were a bar to the action.
    Afterwards, on the twenty-second of June, upon the same papers used on his former motion for judgment — that is, the summons and" complaint and proofs of service and affidavit of regularity, and defendants’ answers and proofs of service, and no other papers, except the order on the former motion — the plaintiff moved that the answers of said defendants Stephen T. and Mary W. be made more definite and certain.
    Hpon these facts and the notice of motion that the defendants b'e required to make their answers “ more definite and certain by stating how, when and where the actions therein referred to were commenced,” the ord.er appealed from was made, as follows: •
    “ That it be referred to A. M. Murphy, Esq., to take proofs and ascertain when, how and upon whom and by whom the summons and complaint in the alleged action "commenced by Stephen T. Hopkins were served; and that said referee report such proof to the court,” etc. “ That said motion stand over until the coming in of said report; and that on the coming in thereof said motion may be brought on.” • ■

      The court at General Term said: “A motion, to make the answer more definite and certain needs only an examination of the answer. No reference is needed or proper for the purpose of taking proof of facts. Suppose the referee in this case should report that the summons and complaint in the action, alleged to have been commenced by Stephen T. Hopkins, had never been served, such a report would not enable the court to decide whether or not the defendants’ answers should be made more definite and certain. It might- shed some light on the truth or falsity of the answers; but none on their definiteness or indefiniteness.
    “ The answers distinctly aver a pending action commenced by the defendant before the commencement of the present action. If the learned justice thought that good pleading Required a statement in the Answers of the time when such prior action was commenced, he could have so ordered without any reference.
    We may notice also Rule 22 limiting the time for making such a motion as this.
    “We think that the order of reference should be reversed, with ten dollars costs and printing disbursements, and the-motion denied, with ten dollars costs.

      William H. Gibson, for the appellant, Stephen T. Hopkins.

      Grisioold <& Cromwell, for the appellant, Mary W. Hopkins.

      J. I. Werner, for the respondent.
   Opinion by the Court.

Present — Learned, P. J., Boardman and Bookes, JJ.

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


author: Opinion Per Guriam.

text:
    MARY BYRNE, an Infant, by Guardian, etc., Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Negligence — duty of a railroad company to give notice on a/pproaching a street or highway — when am, alley is to be deemed a highway.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried. ,
    The action was brought to recover damages for injuries sustained by the plaintiff by being struck by one of the defendant’s trains, while she was crossing the railroad track in the city of Troy. The case has already been before the General Term, the opinion then delivered being reported in 14 Hun, at page 322.
    The court at General Term said: “ Since the decision of this case in 83 New York, 620, it must be held that, on the evidence in the case, the jury might find that, by a preponderance of proof, the plaintiff had showed herself free from contributory negligence. (.Hart v. Hudson River Bridge Co., 84 N. Y., 56.)
    “ The only question is whether the court erred in charging that the company were bound to give warning by ringing the bell or blowing the whistle, as the train approached this alley, and in refusing to charge that what was called the alley was not a public street within the meaning of the statute.
    “ This provision of the statute is evidently intended for the protection of those who cross the track. It would have seemed, therefore, that the legislature, in speaking of a public traveled road or street, must have intended a place which was in fact publicly traveled as a road or street, without much reference to the question whether it was legally a highway. But a different rule seems to be laid down in Cordell v. New York Central and Hudson Rimer RaAlroad (64 N. Y., 535).
    “ Looking then at the facts in this case bearing on the question, whether this alley was a highway, we may say, in brief, that in 1847 a large piece of land in the southerly part of Troy was bought by an association. It was laid out into lots, streets and alleys. The streets and alleys running north and south were continuations in name and direction of existing streets in Troy. The streets running east and west were named after the presidents. The lots were numbered and the map was filed. The property was partitioned about that time among the owners. The land was then below the proper level. The streets and alleys were gradually filled up, and lots have been sold by the owners. It can hardly be doubted that there was a-dedication by the owners of these streets and alleys.
    “ The Poestenldll crosses this piece of land, from east to west, and there was no bridge across it at the end of'the alley where this accident happened. Between Madison street and the Poestenldll, therefore, there was little traveling, as there was no egress at the north end.
    “ Some of the streets on this piece of ground have been worked by the city; so that as to them there is abundant proof of acceptance of the dedication. The defendant insists that in the absence of proof of some act showing an acceptance by the city of this alley, at the place where the accident happened, the plaintiff has not proved the place to be a public traveled street. {Niagara Falls Suspension Bridge Go. v. Bachmcm, 66 N. Y., 261.) In that case, however, there was on the map filed by the owners an express reservation of a discretionary power to direct how much of the streets should be devoted to public use. In the present case there is nothing of that kind. There appears to have been an unqualified dedication of all the streets and alleys.
    “ This alley, at the point in question, was filled to the proper level; and there were buildings on it from Madison street northward towards the place of the accident. Teams connected with the iron-works’ store used the alley to deliver and receive goods at the store which stood upon the alley.
    “ There was evidence that in some of the streets within this original piece city sewers had been built and city lamps set up. Some of these improvements had been near to this alley, but none in that part of the alley north of Madison street.
    “ Upon the whole evidence we think the court was correct in holding that this was a place where the defendants were required to give the statutory warning. This does not seem to us to be like the case last mentioned, where the village had opened and worked a distinct part of a street, leaving another part £ sparsely covered with forest trees,’ etc. Here the north and south streets and alleys were the evident continuations of those in the rest of the city. As they were from time to time brought into a condition for use, the streets were, as we have seen, worked like other streets. Ve do not know that any sewers or lights were needed in this alley. Their absence, then, is not to be considered a rejection of the alley.”

      EseJc Gowen, for the appellant.

      R. A. Parmenter, for the respondent.
   Opinion Per Guriam.

Present — Learned, P. J., Bookes and "Westbrook, JJ.

Judgment and order affirmed, with costs.


text:
    The People of the State of New York ex rel. The Board of Supervisors v. John S. Fowler and others, State Assessors.
   Amended return ordered as stated in opinion; order to be settled by Learned, P. J. Opinion by Learned, P. J.


text:
    The People of the State of New York, Respondent, v. John Petrea, Appellant.

   Judgment and conviction affirmed. Opinion by Bookes, J., and Learned, P. J., and by Westbrook, J., dissenting.


text:
    Mariam Campbell, Respondent, v. Dennis H. Hubbard and Pearl Lewis, as Administrators, etc., Appellants.
   Judgment reversed; new trial granted; referee discharged, costs to abide event. Opinion by Learned, P. J.


text:
    The Town of Thompson, Respondent, v. William Norris, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements on opinion of Special Term. Learned, P. J., not acting.


text:
    John Ackley, as Executor, etc., Appellant, v. Franklin J. Parmenter, Respondent.
   "Reargument ordered. Bookes, J., not acting.


text:
    Harriet M. West and Frank D. West, as Administrators, etc., Respondents, v. John H. Kiersted and Alexander Kiersted, Appellants.

   Judgment affirmed, with costs. Opinion by Learned, P. J.


text:
    Herman Veeder, Respondent, v. William Mudgett, Appellant.
   Judgment affirmed, with costs, on opinion of referee.


text:
    David Craig, Appellant, v. The Town of Andes, Respondent.
   Judgment reversed; new trial granted; referee discharged, costs to abide event. .Opinion by Westbrook, J.; Bockes, J., not acting.


text:
    Nelson D. Morehouse, Appellant, v. Joel B. Morehouse, Respondent, Impleaded, etc.

   Judgment reversed; new trial granted, costs to abide event. Opinion by Learned, P. J.; Bockes, J., not acting.


text:
    Peter Callaghan v. The Rome and Watertown Railroad Company.
   Judgment and order affirmed, with costs.


text:
    The People of the State of New York ex rel. The O. and L. R. R. Co. v. George R. Pond, Appellant.
   Order affirmed, with costs. Opinion by Bockes, J.


text:
    The People of the State of New York, Respondent, v. Dayton Tanner and others, Appellants.

   Judgment and conviction reversed; new trial granted at Broome County Sessions. Opinion by Bockes, J.


text:
    Jeremiah Barry, Administrator, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed, with costs.


text:
    Jane Van Horne, Appellant, v. Jacob France, Respondent. Jane Van Horne, Respondent, v. William Campbell and others, Appellants.

   In first case, judgment and order affirmed as to Mrs. Bell’s half, and Yan Home substituted as to his half, on payment of ten dollars January term fees, and ten dollars September Term fees, and expense of serving papers, in five days. Ia second case judgment reversed and action abated as to Mrs. Bell’s half. Yan Horne substituted as to his share upon same terms as above. Opinion by Learned, P. J.


text:
    The People of the State of New York, Respondent, v. Merchants’ Bank, Appellant.

   Order reversed, with ten dollars costs and printing disbursements; order to be settled before Bockes, J. Opinion by Bockes, J.


text:
    Eliza C. Lockwood, Appellant v. Washington H. Davis, Respondent.

   Judgment and order affirmed, with costs. Opinion by Bockes, J.


text:
    Simeon Smith, as Executor, etc., Respondent, v. Elizabeth Breakey, Appellant.

   Judgment affirmed, with costs. Opinion by Westbrook, J.


text:
    William B. Cochran, Surviving Partner, etc., Respondent v. Horace Utter, Appellant.

   New trial denied; judgment ordered by plaintiff on verdict. Westbrook, J., not acting.


text:
    Michael Dickson, Respondent, v. Charles F. Smith, Appellant.

   Judgment and order affirmed, with costs. Opinion by Bockes, J.


text:
    Archibald D. O’Neil, Receiver, etc., Respondent, v. John Waller, Appellant.

   Judgment affirmed, with costs. Opinion - by Learned, P. J., and by Westbrook, J., dissenting.


text:
    James N. Job, Appellant, v. Thomas Davidson, Respondent.

   Judgment and order reversed; new trial granted, costs to abide event. Opinion by Bookes, J.


text:
    John R. Putnam, Respondent, v. Sylvanus D. Guion and Charles H. Cooper, Appellants.

   Judgment affirmed, with costs. Mem. by Learned, P. J.


text:
    John McMahon, Appellant, v. The Port Henry Iron Ore Company of Lake Champlain, Respondent.

   Reargument ordered. Bookes, J:, not acting.


text:
    William W. Wood, Respondent, v. Charles L. Knapp, Appellant.

   Judgment affirmed, with costs. Opinion by Bookes, J.


text:
    John Reed, Appellant and Respondent, v. George McConnell and Walter L. Gardner, Appellants and Respondents.
   Reargument ordered. Bookes, J., not acting.


text:
    William N. Brockway, Respondent, v. Jefferson Godell, Appellant.

   Judgment and order affirmed, with costs. Opinion by Bocees, J.


text:
    Bernard Tausick, Respondent, v. Isaac Smith and Alexander Frank, Appellants.

   Judgment affirmed, with costs. Opinion by Learned, P. J.


text:
    Dennis G. Littlefield v. Albany County Bank.
   Judgment affirmed, with costs. Opinion by Bookes, J., and by Learned, P. J., dissenting.


text:
    Solon Conklin, Respondent, v. William O. Douglas, Appellant.
   Judgment affirmed, with costs. Opinion by Learned, P. J.


text:
    William Shutter, Appellant v. Walter E. Ward, Respondent.
   Judgment of County Court affirmed, with costs. Opinion by Westbrook, J. ' ,


text:
    Robert Satterly, Appellant, v. Robert Winne and others, Respondents.

   New trial granted, costs to abide event. Opinion by Bookes, J.; Westbrook, J., not acting.


text:
    In the Matter of the Attorney-General, Appellant, v. The Continental Life Insurance Company, Respondent. (Claim of Morgan A. Dayton, Jr., Deceased, for Referee's Fees.)

   Order reversed in all respects, with ten dollars costs and printing disbursements. Motion to confirm denied, with ten dollars costs. Opinion by Learned, P. J.; Westbrook, J., not acting.


text:
    In the Matter of the Attorney-General, Appellant, v. The Continental Life Insurance Company. (Matter of Wingate & Cullen.)
   Order reversed, with ten dollars costs and printing disbursements. Reference discharged. Motion for confirmation denied, with ten dollars costs. Order to be settled by Bookes, J. Opinion by Bookes, J.; Westbrook, J., not acting.


text:
    In the Matter of the Attorney-General v. The Continental Life Insurance Company. (Matter of Elizabeth E. Hoyt.)
   Order affirmed, with ten dollars costs and printing disbursements. ‘ Opinion by Bockes, J.; Westbrook, J., not acting.


text:
    In the Matter of the Superintendent of the Insurance Department v. The North America Life Insurance Company.
   Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs. Opinion by Learned, P. J.; Westbrook, J., not acting.


text:
    The People of the State of New York v. The Globe Mutual Insurance Company. (Matter of McDermott.)
   Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs against McDermott. Opinion by Bockes, J.; Westbrook, J., not acting.


text:
    The Attorney-General v. The North America Life Insurance Company.
   Matter of payment of dividend to attorney. Reargument ordered. Bockes, J., not acting.


text:
    George A. Ferguson v. Maria M. Fitch.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by Bockes, J.


text:
    Peter J. Flinn and others v. The City of Albany.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by Bockes, J.; Learned, P. J., dissenting.


text:
    Charles A. Langdon, Respondent, v. Rosealgine A. Guy, Appellant.

   Order affirmed, with ten dollars costs and printing disbursements, on opinion of Special Term.


text:
    Mary Boas, Respondent, v. Thomas Boas and others, Appellants.
   Judgment affirmed, with costs. Opinion by Westbrook, J.


text:
    Harvey S. Bonney and others, Commissioners, etc., Respondents, v. S. Howard Wrisley, Appellant.

   Judgment of County Court affirmed, with costs. Opinion by Learned, P. J.


text:
    Alfred B. Woodworth and others, Appellants, v. Charles B. Douglass and William M. Douglass, Respondents.

   Order affirmed, with ten dollars costs and printing disbursements. Opinion by Westbrook, J.


text:
    The People of the State of New York ex rel. Carrie L. Van Deusen v. The Village of Chatham, Respondent.

   Order affirmed, with fifty dollars costs and printing disbursements in favor of respondent against the relator. Opinion by Learned, P.J.


text:
    William H. Dodd, Respondent, v. Joseph Dodd, as Executor, etc., Appellant.

   Part of order appealed from reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.


text:
    Alexander Baker, Appellant, v. Stephen J. Lewis, Respondent.
   Judgment affirmed, with costs. Opinion by Learned, P. J.


text:
    Bryan J. Lawrence, Respondent, v. James Hall and others, Appellants.
   Judgment affirmed, with costs. Opinion by Bockes, J.


text:
    Peter L. Osterhout, Appellant, v. The Town of Shawangunk, Respondent.
   Judgment affirmed, with costs. Opinion by Bocees, J., and Mem. by Learned, P. J.; "Westbrook, J., not acting.


text:
    Theodore V. Masten, Respondent, v. John Olcott and Adelaide Olcott, Appellants.

   -Motion for new trial denied and judgment for plaintiff on verdict, with costs. Opinion by Learned, P. J.


text:
    Martha Hopper, Appellant, v. David Larkin, Respondent.
   J udgment affirmed, with costs. Opinion by Bookes, J.


text:
    Christina Barden, Appellant, v. Henry E. Millius and Charles H. Wheadon, Respondents.

   Judgment affirmed, with costs. Opinion by Learned, P. J., and Westbrook, J.


text:
    Julien M. Bentley, Respondent, v. P. D. Merriam and others, Appellants.
   Judgment affirmed, with costs. Opinion by Learned, P. J.


text:
    Clark L. Anderson, Appellant, v. Chauncey Palmer and others, Respondents.
   Judgment affirmed, with costs. Opinion by -Bookes, J.


text:
    In the Matter of Estate of Peter G. Fox.
   Motion denied. Application by Henry C. Adams for an order to show cause why, etc. Application denied.


text:
    The Board of Supervisors of Saratoga County v. Mary J. Parker and others.
   Order requiring retaxation affirmed, with ten dollars costs and printing disbursements to each attorney appearing. Bookes, J., not- acting.


text:
    In the Matter of the Attorney-General v. The Atlantic Mutual Life Insurance Company.
   Order denying motion to require receiver to advertise for claims for six months affirmed, with ten dollars costs and printing disbursements.


text:
    The People of the State of New York ex rel. Michael Bowler, Respondent, v. The City of Cohoes, Appellant. Same ex rel. McGuirk, Respondent, v. The Same, Appellant. Same ex rel. O’Dea, Respondent, v. The Same, Appellant. Same ex rel. Thomas Davis, Respondent, v. The Same, Appellant.

   — Order reversed in each case, with costs of appeal, under section 3240 of Code, and motion denied, with ten dollars costs. Mem. by Boardman, J.


text:
    John F. Landers, Sole Surviving Partner, etc., Respondent, v. Larry Lewis, Appellant.
   Judgment affirmed, with costs.


text:
    Robert T. Smart, Respondent, v. Andrew J. Smart, Appellant.

   Judgment affirmed, with costs.


text:
    John H. Harbeck, as Commissioner, Respondent, v. Bernard R. Rockefeller, Appellant.

   Judgment affirmed, with costs.


text:
    J. D. Rogers, Plaintiff, v. Melville C. Percey, Defendant.

   Appeal dismissed unless plaintiff file undertaking within fifteen days, and pay twenty dollars costs.


text:
    Adam B. Smith, as Administrator, etc., Appellant v. Emily H. Hathorn and others.
   Order affirmed, with ten dollars costs and printing disbursements. Bookes, J., not acting.


text:
    In the Matter of the New York, West Shore and Buffalo Railway Company, to Acquire Title to Certain Real Estate of Philip W. Parke and Harriet W. Parke.
   Order affirmed, with costs. Opinion by Boardman, J.; Learned, P. J., not acting.


text:
    Timothy Simpson, Respondent, v. Nathan Brownson, Appellant.

   Order reversed, with ten dollars costs, under section 3240. Motion denied, with ten dollars costs.


text:
    William Lee v. The Troy Citizens’ Gas-Light Company.
   Judgment and order affirmed, with costs. Opinion by Boardman, J., and by Bookes, J., dissenting.


text:
    In the Matter of the Accounting of Elizabeth Benedict, Executrix, etc.

   Decree of surrogate reversed, with costs against executrix personally, and matter remitted to surrogate for accounting in accordance with opinion. Opinion by Learned, P. J.


text:
    Grant B. Schley, Respondent, v. Robert L. Fryer, Appellant.
   Judgment affirmed, witli costs. Mem. by Boardman, J.


text:
    Aaron B. Olmstead, Appellant, v. Sanford Bowen, Respondent.
   Judgment affirmed, with costs.


text:
    Giles Martin, Appellant, v. Milford C. Bean, Respondent.
   Judgment affirmed, with costs.


text:
    John H. Hintermister, Appellant, v. William F. Lane, Respondent

   Motion denied.


text:
    Walter Hoos, Appellant, v. James Person and others, Respondents.

   The part of the order appealed from reversed, with ten dollars costs and printing disbursements. Opinion by Learned, P. J.


text:
    The Village of Lansingburgh, Appellant, v. The Cohoes and Lansingburgh Bridge Company, Respondent.

   Order affirmed, with ten dollars costs and printing disbursements. Opinion by Boardman, J.


text:
    In the Matter of the Election of Daniel C. Corbin and others, as Directors, etc., Respondents, v. Joseph Rodbourn and others, Appellants.

   Order affirmed on opinion of court below, with costs, under section 3240, Code of Civil Procedure.


text:
    Joseph Rodbourn, Appellant, v. The Utica, Ithaca and Elmira Railway Company, Respondent.

   Appeal from- order directing receiver to be discharged, etc. Order affirmed on opinion of court below and as result of decision on previous appeal,, with ten dollars costs and printing disbursements.


text:
    The Kerosene Lamp Heater Company, Plaintiff, v. John F. Rathbone and others, Defendants.

   Judgment for defendants, with costs. Opinion by Learned, P. J.


text:
    Mary Wakeman, Appellant, v. William Pettit, Respondent.
   Judgment of County Court reversed and that of justice affirmed, with costs. Mem. by Learned, P. J.


text:
    Albert Defreest and others, Respondents, v. The City of Troy, Appellant.

   Judgment affirmed, with costs, on opinion of court below. Boardman, J., not acting.


text:
    John Johnston and Thomas F. Reilly, Appellants, v. Walter S. Allen, Respondent.

   Judgment affirmed, with costs.


text:
    The People of the State of New York ex rel. The Equitable Fire and Marine Insurance Company of Providence, Rhode Island, v. Charles G. Fairman, as Superintendent of the Insurance Department, State of New York.

   Order affirmed, with costs.


text:
    Tristram C. Bert and others, Executors, etc., Respondents, v. Abram Kittle and others, Appellants.

   Judgment affirmed, with costs. '


text:
    The People of the State of New York ex rel. The Boston and Albany Railroad Company, Respondent, v. John J. Wilbor, Supervisor, etc., and others, Appellants.

   Order affirmed, with costs. Learned, P. J., not acting.


text:
    The Wheeler and Wilson Manufacturing Company, Appellants, v. James Hammond, Respondent.

   Judgment and order affirmed, with costs.


text:
    Alphonso Stone, Appellant, v. James C. Jones, Respondent.
   Judgment affirmed, with costs.


text:
    In the Matter of the Application of Jeremiah Toomey for Certiorari to Review Assessment, and Twelve Other Similar Cases.
   Motion for certiorari granted.


text:
    The People of the State of New York ex rel. William J. Woods v. Isaac W. Crissey, as Comptroller, etc.

   Order denying motion for mandamus affirmed.


text:
    Peter M. Overbagh and others, Respondents, v. Harvey D. Van Pelt, Appellant.

   Judgment and order affirmed, with costs. Opinion by Learned, P. J.


author: Barnard, P. J.:

text:
    MICHAEL BENNETT and EDWARD COLGAN, as Executors, etc., Respondents, v. JOHN M. PECK, Appellant.

      Tax saks — the comptrolkr may sell lands in Kings county assessed to residents — Ghap. 154 of 1841 was not repealed by chap. 427 of 1855 — a mortgagee is not entitled to notice, unless he files a desaiption of the mortgage with the comptrolkr — 1855, chap. 427, sec. 82 — 1862, chap. 285 —1870, chap. 280.
    Prior to the passage of chapter 154 of 1841, lands in Kings county assessed as resident lands could not be sold for the non-payment of taxes; while lands assessed to non-residents were returned to the comptroller and sold by him as provided in section 52 of 1 Revised Statutes, 407.
    The act of 1841, after imposing certain interest and per centages upon lands of "residents and non-residents” when the tax was unpaid, directed that whenever “any tax ” should remain unpaid after' the dual return of. the collectors of the several towns in, the county of'Kings and of the'several wards of the city of Brooklyn, interest should be charged thereon at the rate of seven per cent per annum, and also upon the amount of the per centages imposed by the act.
    It then provided that it should “ be lawful to enforce the payment of any such tax with the increase of such per centage or per centages, together with such interest thereon as aforesaid, on the sale of lands for the non-payment of taxes in the manner now provided by law.”

      Held, that the act was intended to and did authorize the sale by the comptroller of lands assessed to residents as well as of those assessed to non-residents. (Gilbert, J., dissenting.)
    The act of 1841 being a special act was not repealed by the passage of the general act for the collection of taxes. • (Chap. 427 of 1855.)

      Since tlie passage of chapter 380 of 1870, repealing chapter 385 of 1863, which repealed section 83 of chapter 437 of-1855, a purchaser of lands at a State tax sale is only required to notify such mortgagees of the lands as have filed with the comptroller a description of the mortgage, within two years from the time of the sale.
    'Appeal'from a judgment in-favor of the plaintiffs/entered upon the trial of this actioAby the court without á jury.'
    The action was'brought to recover the possession of certain premises in the town of New Lots, which the defendant claimed to own by virtue of a deed from the comptroller of the State, executed in pursuance of a sale thereof for the non-payment of the taxes assessed upon the lands for the year 1869. The plaintiff acquired his alleged title to the premises under the foreclosure of a mortgage thereon. The mortgage was executed October 21, 1870, and the premises were sold under a decree of foreclosure, December 19, 1877. The land was assessed for the tax in 1869.

      Charles J&. Otis., for the appellant.

      John McKenna, for the respondents.
   Barnard, P. J.:

By the Devised Statutes before 1861, lands in Kings county assessed _ as resident lands could not be sold for non-payment of taxes. The general law under which the collection of Kings county taxes were regulated, provided that the tax on resident lands should be added to the tax against the same lands the following year. (1 B. S., 403, § 27.)

The list of the taxes against non-residents’ land was returned to the State comptroller. (Sec. 26.) The comptroller sold these nonresidents’ land after the taxes charged upon them should remain unpaid two years from the first of May after the assessment. (1 E. S., 407, § 52.)

In 1841 the legislature passed an act in relation to the collecting of taxes in Kings county. (Chap. 154, Laws of 1841.) By this act there was imposed certain interest and per centages upon lands when the tax was unpaid “of resident and non-residents,” and section 6 of the act is in these words:

“ Whenever any tax shall remain unpaid on the final return of the collectors of the several towns in the county of Kings and of the several wards of the city of Brooklyn to the treasurer of the said county, interest shall become chargeable thereon at the rate of seven per cent per annum on the amount of such tax, and also on the amount of the per centage which may have accrued thereon in the manner hereinbefore provided; and it shall be lawful to enforce the payment of any such tax with the increase'of such per centage or per eentages, together with such interest thereon as aforesaid on the sale of lands for the non-payment of taxes in the manner now provided by law.”

In 1869 a tax was assessed against lands in New Lots, Kings county, to one Mallory, a resident.

This tax was returned as unpaid to the comptroller, and the land was regularly sold by him, and the defendant represents that title. The plaintiff is the owner unless cut off by that sale. This presents the question whether any power was given to the comptroller to. sell residents’ land under this special act of 1841. In the first place, it is proper .to mention that in 1855 the-legislature passed a general law in reference to the collection of taxes. (Chap. 421, Laws of 1855.) By section 5 of this act the tax on resident lands which remained unpaid were to be in the following year assessed as non-resident land and sold by the comptroller as such.

We agree with the Special Term that the act of 1841, being a special act, was not repealed by the general act passed in 1855. We arrive at a different conclusion in reference to the construction put upon section 6 of the act of 1841. The law was designed to effect some practical result. Before that time residents’ land could not be sold. Section 5 of the act of 1841, refers in terms to the duties of collectors, and charges per eentages and interest on resident and non-resident lands. The section in question (sec. 6), makes it lawful to enforce the payment of “ any ” unpaid taxes on the sale of lands for non-payment of taxes “in the manner now provided by law.” If section 6 referred to non-residents’ land only, it was not necessary to provide for a sale of such lands — that power existed already. If the section did not include resident lands, no additional power was given to boards of supervisors to charge the increased per centage in the next year tax levy. It does not seem reasonable that this act of 1841 should be passed merely to provide for the collection of the fees which ought to have been .paid the collector by a delinquent taxpayer. The words of the act include all taxes. Whenever any tax still remains unpaid; it may be enforced on a sale of lands in the manner now provided by law. The fair- meaning seems to be that where only non-residents’ lands may now be sold by law, “ any tax ” in Kings county may be enforced on the sale of the lands in. the manner now provided by law, that is, after 'two years and by the comptroller, and on the statute notice. Non-residents’ taxes imposed elsewhere than in Kings county, can be enforced now by sale, but in Kings county all taxes may be enforced in the same way.

The plaintiff’s claim as mortgagee has no basis. By the a6t of 1855, section 77, the right of mortgagees was preserved until the purchaser at the comptroller sale gave a notice of the sale to the mortgagee requiring him to pay the purchase-price paid within six months after notice.

By section 82 of the act of 1855, the notice was to be given to such mortagees as should file with the comptroller a description of the mortgage within two years after the sale.- In 1862 (chapter 285, Laws of 1862) the legislature repealed the eighty-second section, so that notice must be in all .cases given to the mortgagee without limitation of time or person. By chapter 280 of Laws of 1870, the legislature repealed the statute repealing the eighty-second section of the act of 1855, and thereby reinstated the law of 1855, which limits the notice to be given to those only who shall file with the comptroller notices, particularly describing the mortgage within two years after the sale. «

The plaintiff did not file such a notice with the comptroller within two years after the sale, and this section, requiring the notices within two years after the sale to be filed with the comptroller, has been in force since 1870, and covered of course the sale in question, which which was made in 1877.

The judgment should, therefore, be reversed, and new trial granted, costs to abide event.

Dykman, J. concurred; Gilbert, J., dissented.

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


text:
    EDWARD FEELY, Plaintiff, v. THOMAS F. BUCKLEY, Appellant, Impleaded with JAMES S. FEELY and Others, Respondents.

      Conveyance of real estate to husband and wife — they take as tenants in common since the enactment of chapter 90 of 1860.
    Where real estate has been conveyed to a husband and wife, since the passing of the married women’s act (chap. 90 of 1860), they take an estate as tenants in common, and not an estate in entirety.
    Appeal from an order made at a Special Term confirming the report of a referee, upon an application for surplus moneys arising on a sale upon the foreclosure of a mortgage.
    The premises were conveyed to Thomas F. Buckley and Mary Ann Buckley, his wife, by a deed dated November 25, 1879. The referee held that they took an estate as tenants in common and awarded one-half of _ the surplus to the husband and the other half to the heirs-at-law of the wife.

      McGuire db JZuhn, for Thomas F. Buckley, appellant..

      John N. Shorter, for Feely and others, respondents. '
   Barnard, P. J.:

Before the statute of 1860, (chap. 90), in reference to the rights and liabilities of husband and wife, a deed to a husband and wife conveyed an estate in entirety. (Wright v. Saddler, 20,N. Y., 320). The Bevised Statutes (1 B. S., 727, part 2, chap. 1, title 2, art. 2, § 44) which enacts that every estate granted to two or more persons in their own right, shall be a tenancy in common unless expressly declared to be a joint tenancy, did not cover the case of a conveyance to husband and wife before the acts .to protect married women were passed. These acts give the right to married women to hold property conveyed to them as their sole and separate property.

' The decisions under the Bevised Statutes alone had no further force after the passage of the acts to protect married women were passed.

Before 1860, married women were under disability. After that they could take as if unmarried. The Bevised Statutes now apply

to married women, because as to the grant to herself and husband, she is to be deemed as if unmarried. (Meeker v. Wright, 76 N. Y., 262,)

The order should therefore be affirmed, with costs.

Dvtcmaw. J., concurred; Gilbebt, J., dissenting.

Order affirmed, with costs and disbursements.


author: BaRNAkd, P. J.:

text:
    JOHN B. KERR, as Receiver of THE HUDSON RIVER BRICKMAKERS’ ASSOCIATION, v. CHARLES KREUDER.

      Execution — application for leave to issue it, after the death of the judgment debtor— Oode of Gioil Procedure, secs. 1380, 1381.
    Where, after the expiration of one year from the time of the death of a judgment debtor-, leave to issue an execution upon the judgment is applied for, the permission of the Surrogate’s Court need 'not precede the application to the Supreme Court.
    Jio notice need be given of the proposed presentation of the petition to the Surrogate’s Court for leave to issue the execution. Upon the presentation of the petition, however, the surrogate must issue citations to all persons interested, unless they appear voluntarily, iu which case they will be bound by the decree, though no citations be issued.
    Appeal from an order made at a Special Term, denying a motion made by the assignees of the judgment recovered in this action for leave to issue an execution thereon.

      William McOauley, Jr., for John ~W. Gillies and Brewster J. Allison, appellants.

      Seth B. Cole, for the respondent.
   BaRNAkd, P. J.:

On the 9th day of February, 1878, the plaintiff as receiver of the Hudson River Brick Making Association, recovered a judgment in' this court for $1,729.58, against one Charles Kreuder. Kreuder died on the fifteenth of the same month. The judgment is wholly unpaid, and there is no personal property out of which the payment of tbe judgment can be made. The plaintiff assigned the judgment to John W. Gillies and B. J. Allison, who are the present owners of the judgment which is wholly unpaid. These assignees ask leave to issue an execution upon the judgment. The case is provided for by section 1380 of the Code. After one year an execution may be issued upon the judgment “ with like effect as if the judgment-debtor was still living; ” leave is required to be obtained from the Surrogate’s Court, and from the court out of which the execution is to be issued. Leave has been obtained from the Surrogate’s Court. No notice of the presentation of the petition for leave was required in that court. The parties, however, who were interested appeared upon the presentation of the petition and made their objection. Otherwise, they must have been cited under section 1381 of the Code. Having appeared without citation they are bound by the decree. If the surrogate’s leave has not been obtained, it is no defense to this application. Such leave may be granted at any time. There is no requirement that the leave of the surrogate must precede the application to this court. It seems that the deceased defendant left real estate. The decedent’s widow claims the land to be her own, but that fact cannot be tried upon affidavits. The petitioners have the right to test, her title, and to that end they should have their execution.

The order denying leave should be reversed, with costs and disbursements, and leave granted.

Gilbeet and Dyeman, JJ., concurred.

Order denying leave to issue execution reversed, with costs and disbursements, and leave granted.


text:
    MARY BOYLE, as Administratrix, etc., of WILLIAM M. KILDUFF, Deceased, Respondent, v. BESSIE B. St. JOHN, as Executrix, etc., Appellant, Impleaded with LEVI C. BISHOP and Others.

      Administrators' bond — right of one administrator, after the removal of his eoadminist/rator, to sue the sureties upon the bond on which he is an obligor— Gode of Oivil Procedure, secs. 2608, 2609 and 2692.
    The plaintiff and one Erlacher having been appointed administrators of the estate of one Kilduff, joined with Catharine Kilduff and S. B. St. John, as sureties, in executing- a joint and several bond, conditioned for the faithful execution of the trusts reposed in them by law. Erlacher having misappropriated the funds of the estate was removed by the surrogate and adjudged to pay the amount of $8,732.24. .

      Held, that although the plaintiff was a party to the bond she might, as the remaining representative of the estate, bring an action upon it and recover from the sureties the full amount which Erlacher had been directed to pay.
    That any individual liability of the plaintiff upon the bond must be enforced by the sureties in an action for contribution.
    Appeal from an order overruling the demurrer of the defendant Bessie B. St. John, executrix, to the complaint in this action, and from the judgment entered thereon.
    William M. Kilduff died intestate, May 30, 1879. The plaintiff Boyle and one Erlacher were appointed by the surrogate of Kings county administrator and administratrix of his estate on July 10, 1879, and qualified as such.
    The plaintiff and Erlacher gave the usual administrator’s bond, Samuel R. St. John and Catharine Kilduff joining as sureties.
    On March 18, 1880, Erlacher was removed as administrator and his letters revolted, leaving the plaintiff the sole administrator.
    A decree was made on January 19,1881, charging Erlacher with a balance of $8,732.24, which he was directed to pay over to plaintiff.
    The defendant, executrix of the will of St. John, demurred to the' complaint on the grounds that plaintiff had not legal capacity to sue; that there was a defect of parties owing to the non-joinder of Mary Boyle as defendant, and that the complaint did not state facts sufficient to constitute a cause of action.

      Adrian 11. Joline, for the appellant.

      W. D. Veeder, for the respondent.
   Barnard, P. J.:

The plaintiff is not a necessary party defendant. She was appointed, with one Erlacher, administrator of William M. Kilduff. The two administrators executed a bond with Catharine Kilduff and Samuel R. St. J ohn as sureties for the faithful execution of the trust reposed in them by law. Erlacher made a misappropriation of the funds of the estate. He was removed as administrator, and upon accounting was adjudged to pay the amount of the default, being $8,732.24. The bond was a joint and several bond, and if it had been held by one who had not signed it, suit could have been brought -against either or all of the sureties. The principal question, therefore, is whether the plaintiff has, under the circumstances, legal capacity to sue. There seems to be no other remedy under the Code. By section 2605 of the Code of Civil Procedure, the surrogate may remove an executor or administrator, and settle his account.

By section 2692, no successor of Erlacher could be appointed, except when such an appointment is “ necessary.” The remaining administrator was to complete the administration.

By section 2608, where an administrator is removed, the full extent of the injury to the estate may 'be recovered by the successor upon the official bond of the administrator so removed. •

By section 2609, when there is no successor appointed, any person injured may sue the official bond and recover the whole extent of any injury ” and pay it to the surrogate.

By these sections the plaintiff is really the 'estate. Mrs. Boyle is but a name used by the law to recover the money misappropri-' ated by Erlacher. She is the person in whose favor the decree is made, and must be the plaintiff to recover the amount. (Code of Civ. Pro., § 2607.)

If Mrs. Boyle is liable herself as an individual upon the bond, the sureties have an action for contribution against her. Her liability cannot be asserted in this action, because the estate is entitled to the whole default from either one of the signers of the bond. She is the proper legal plaintiff, and the defendants are each liable to the whole amount as against the estate. There does not seem to be any dispute as to the facts.

The claim is made out by judicial decree and is final as against the obligors to the bond. (Scofield v. Churchill, 72 N. Y., 565.) The judgment should, therefore, be affirmed,' with costs.,

Gilbert and Dykman, JJ"., concurred.

Judgment and order overruling demurrer by Bessie B. St. John affirmed, with costs.


text:
    JAMES D. FISH, as Receiver, etc., Appellant, v. JOSEPH HAYWARD, Respondent, and Others,

      Assumption of a mortgage by a grantee — the mortgagor is released by an unauthorized extension of the time of payment — the time of payment may be extended by pa/rol.

    Oldfield purcliased from one Hayward certain real estate, subject to a mortgage given by Hayward to the Globe Life Insurance Company, which Oldfield assumed and agreed to pay. Thereafter Oldfield entered into a verbal agreement with a clerk of the said company, who acted in its behalf, by which Oldfield took a ten-year tontine policy upon his life, and in consideration thereof the company extended the time for the payment of the mortgage for that period. After six premiums had been paid upon the policy it was allowed to lapse.

      Held, that the verbal agreement for the extension of the time of payment of the mortgage was founded upon a valuable consideration; that, as it -was completed when the policy, was issued and the first premium paid, it did not come within the statute of frauds.
    That as it was made without the knowledge or consent of Hayward, he was released by it from all liability for any deficiency that might arise upon the sale.
    Appeal from so much of a judgment, entered upon the trial of this action by the court without a jury, as directed that the complaint herein be dismissed as to the defendant Hayward.
    The action was brought in March, 1879, by the Globe Mutual Life Insurance Company, to foreclose a mortgage on certain lands in Queens county, executed by the respondent and his wife to that company, June 14, 1871, and payable July 1,1872 — the complaint asking for a judgment for deficiency against the respondent.

      The defense interposed was, that after the mortgage became due the company agreed with Henry Oldfield, who had acquired the title to the property, and had assumed the payment of the mortgage, that in consideration of his taking out a policy on his life in the company, the time of payment of the mortgage should be extended for ten years, and that the respondent never having assented to such extension, he is thereby released from, all liability on the bond and mortgage.
    The issue thus raised was tried before Mr. Justice Pratt, who sustained the defense and ordered judgment accordingly.

      George W. Wingate, for the appellant.

      M. A. Kursheedt, for the respondent.
   Barnard, P. J.:

I entertain no doubt as to accuracy of the finding of the parol agreement to extend the time of payment of the mortgage in question, made between the Globe Life Insurance Company and Oldfield. The company held a mortgage which was due, given' by Hayward. Before Oldfield bought of Hayward, the officers of the company promised to let the mortgage stand, if interest and taxes were paid. After Oldfield purchased the land, the company wrote him that he was expected to pay off the mortgage. He wrote to the officer of the company and was referred to one Wright, a real estate clerk. Oldfield testifies that Wright, on behalf of the company, told him that, if he would take out a ten-year policy (ton-tine) on his (Oldfield’s) life, the time of the payment of the mortgage should be extended for that ten years, and that, if he did not, the mortgage must be paid up at once. Oldfield agreed to this and did take out the policy for ten years and paid one year’s premium in advance, $350. He subsequently made five yearly payments of a like sum and paid interest on the mortgage and taxes on the land. There is no real dispute as to the facts made by the clerk Wright in his testimony. He says he was the clerk; that the course of business of the company was to give a notice to the debtor to pay his mortgage and to demand that the debtor should take out a policy on his life, and that, in case the policy was taken out, then “ the notice was to be withdrawn;” that these notices reached all who were not policyholders in the Globe company.

The' scheme must have been to provide credit, so long as the policy was to run. Any other inference could not be supported. I conclude, therefore, that the verbal agreement was made. It is not within the statute of frauds. That statute does not cover the case of a completed contract. (Dodge v. Crandall, 30 N. Y., 294.)

This contract was complete as soon as the policy was taken out for ten years and one premium paid. The policy provided for its own enforcement after that, without any aid from the parol contract under which it was taken out. It was a good consideration. It is true that Oldfield was insured for the premium, but the company received a policy from which it is fair to infer that a profit was to be expected. It did in fact receive about $2,000 before the policy was suffered to lapse. Oldfield-made a profitable contract with the company, and thus furnished a consideration for the promise to extend a benefit to the promisor which is always sufficient to uphold a promise.

The extension to Oldfield discharged Hayward, the surety. (Calvo v. Davies, 73 N. Y., 211.)

The judgment should therefore be affirmed, with costs.

Gilbert and Dykman, JJ., concurred.

Fart of the judgment dismissing complaint as to defendant Hayward, affirmed, with costs.


text:
    JOHN SCHWAB, Respondent, v. FREDERICK E. CLEVELAND, as Trustee, etc., Appellant, Impleaded with one KATHARINE M. VALERIS.

      Nuisance — the owner of a house is liable for the injury occasioned by a leaky conductor, without notice — one who owns as trustee is thus liable — what liability exists as between him and his cestui que trust— damages — diminution of rent to be considered, in determining.

    When the owner of premises collects the water which naturally falls upon the same into one place, and conducts it from thence by a pipe to his drain, he undertakes, at all hazards, that his pipe shall be and continue sufficient to protect the adjoining premises from all harm.
    It is no defense to an action brought against him to recover damages occasioned by the pipe’s being out of repair, to show that the pipe was erected by his grantor, or that he did not know or have notice of the leak.
    Where the building is owned by a trustee, he is liable as such for all the damages occasioned.
    Query as to whether, as between him and the beneficiary, he can collect such damages from the trust estate.
    In estimating the amount of the damages occasioned to the adjoining building, any diminution of rent, resulting from the injury, may be considered.
    ’ Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the ■ action was tried.
    The action was brought to recover damages 'or injuries done to the plaintiff’s premises, by the escape of water from a leader upon the house or the premises owned by the defendant Cleveland, as trustee.

      J Hampden Dougherty and Frederick F. Cleveland, for the appellant.

      Dorland <& Hess, for the respondent.
   Barnard, P. J.:

. There is considerable conflict of authority as to the necessity of notice and request to remove a nuisance, where the same was created by a previous grantor of the owner sued. The weight of the cases seems to be in favor of notice, but against a request to remove.

(Conhocton Stone R. v. Buffalo, N. Y. and Erie R. R., 51 N. Y., 573.)

This case is not one, however, in which that principle can be invoked. The evidence shows that the defendant’s grantor carried the water from her roof through a pipe into the drain along or very near plaintiff’s premises. It was imperfectly built for it began to leak into plaintiff’s premises soon thereafter. The premises were conveyed to defendant as trustee in 1878, and he has since owned them. During all that time he has failed to protect the plaintiff from this leak. When the owner of premises collects the water which naturally falls upon the same into one place, and conducts it from there by a pipe to his drain, he undertakes, at all hazards, that his pipe shall be both sufficient and shall continue so as to the adjoining owner. It is, therefore, no answer to the plaintiff’s claim, for the defendant to say that he did not know of the leak. He was bound* to do his duty by his own premises. It is the owner who is liable and never the tenant in possession unless the tenant has agreed to keep in repair. (Bellows v. Sackett, 15 Barb., 96.)

The charge of the judge was therefore more favorable to defendant than he was entitled to, in reference to notice. The damages were fully proven to the extent of the verdict. The estimate testified to by the witness did not include the damage beyond the mere repair. The diminution of rent was a legitimate damage. (Jutte v. Hughes, 67 N. Y., 267.) It was a fair, inference that part of the damages may have come.from the urjnal.erected by the defendant. This connected with a pipe some six inches from the plaintiff’s wall. There is no force in the objection, that the defendant cannot be made liable as trustee. He owns as trustee and owes the duty as owner, to keep his pipes and drains from injuring his neighbor by reason of faulty construction or from being suffered to get in bad repair.

Whether as between himself and the beneficiary he can collect the damage from the trust estate is a question not now before us.

Hpon the whole case the judgment should be affirmed, with costs.'

Dykman, J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment and order denying new trial affirmed, with costs.


author: Gilbert, J.:

text:
    JAMES E. KELSEY, Respondent, v. THE MICHIGAN CENTRAL RAILROAD COMPANY, Appellant.

      Railway ticket — construction of it — a passenger cannot stop over, unless authorized by it so to do.

    The plaintiff, upon applying to an agent of the defendant to purchase a ticket from New York to Galveston, was shown two tickets. The words “ Special first-class continuous passage ” was printed upon one of the tickets, and upon the coupon attached to it were printed the words, “ Good only for a continuous passage.” These'words were not printed upon the other ticket. The first ticket cost fifty-four dollars, and the second, sixty-eight dollars and twenty-five cents. The plaintiff purchased the second ticket.

      Held, that it could not be inferred from the difference between the two tickets that the second gave an unrestricted right to stop over at intermediate stations That in so far as the right to break the continuity of the passage was concerned, the legal effect of the two tickets was the same.
    That each entitled the purchaser to' a continuous passage over each of the roads mentioned in the several coupons, and that neither of them conferred upon him the right to leave one train on any of the roads and afterwards continue his journey in another train on the same road.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict had' been rendered in favor of the plaintiff, and appeal from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    In February, 1880, the plaintiff being about to take a journey to Galveston, Texas, went'to an office of the New York Central and Hudson River Railroad Company, the agent of the defendant, in Brooklyn, to purchase a ticket. He was shown two kinds of tickets, distinguished as the limited and unlimited ticket, each of which had coupons attached to it. The form of the unlimited ticket was substantially as follows, viz.:
    N. Y. CENTRAL & HUDSON RIYER R. R.
    New York to St. Louis, Mo.

      Good for One First- Olass Passage.

    Only upon presentation of this ticket, with coupons attached, and good only for thirty days from date. Not good unless stamped by Ticket Agent.
    .. Yia N. Y. C. & H. R., G. W., M. C., C. & A. R. R.
    Conductors are required to detach from this ticket and take up the coupons over their respective lines. The conductor upon the road at the end of the route will take up the ticket, as well as the coupon over his road. If the coupons belonging to this ticket are detached they will not be received for passage.

      The form of the limited ticket was substantially as follows :

    The words, “ Good only for a continuous passage ” were not printed upon the coupons of the unlimited ticket.
    Upon the plaintiff inquiring for tickets, he was offered these two, the limited for fifty-four dollars and the unlimited for sixty-eight dollars and twenty-five cents. He purchased the unlimited ticket, paying the regular price or fare, sixty-eight dollars and twenty-five cents, because he wanted to stop over on his journey.
    He took the train, the same day on which he bought the ticket, and prosecuted his journey uneventfully untibhe came to the defendant’s road at Detroit. "When the defendant’s conductor came around for tickets, the plaintiff informed him that he wished to avail himself of the privileges of his ticket and stop over at Three Rivers, Michigan, a regular intermediate station on the line of the defendant’s road, between Detroit and Chicago. The conductor took his ticket and subsequently gave him a stop over check, in which it is •stated that it was good only for ten days from the date canceled on the margin.
    The conductor did not call his attention to this check or to any condition in it, and Mr. Kelsey did not look at it or examine it, or know what was on it. He stopped at Three Rivers fourteen days.

      Upon resuming his journey at the end of the fourteen days, he offered his check to the conductor. It was refused, the reason given being that it had expired, and Mr. Kelsey was ejected by the defendant from the car by force. This was still within the thirty days to which his ticket limited him. The plaintiff claimed that the terms and symbols contained in and used upon the stop-over ‘check were ambiguous and hard to-understand, even upon a careful examination; that the conductor was positively instructed to give no other form or kind of stop-over check, and would have given no other under any circumstances.

      Frank 'Loomis, for the appellant.
    IF. S. Logan, for the respondent.
   Gilbert, J.:

In the absence of a special contract, the ticket purchased by a passenger is the only evidence of the agreement on the part of the railroad company for his transportation over their railroad. An effort was made upon the trial on the part of the plaintiff, to prove a special contract (1) by evidence of a conversation between him and the person of whom he purchased his ticket.. This evidence having been received, was afterwards and before the submission of the case to the jury, stricken out, on the motion of the defendant’s counsel, and without exception by the counsel for the plaintiff. It ■need not, therefore, be further noticed. (2) The plaintiff was permitted to prove, that, on the occasion when he purchased his ticket, the ticket-seller showed him another ticket the price of which was less on which was printed the words, “special first-class continuous passage” and the coupons attached to which each contained the statement “ good only for a continuous passage.” The words quoted were omitted in the ticket and coupons which the plaintiff bought, nor did the ticket, or the coupons attached thereto, contain any limitation whatever, except that the ticket contained the words “ good only for thirty days from date.” The argument drawn from the difference between the two tickets is, that- as the first provided expressly for a continuous passage from New York to St. Louis, and the other did not; the latter gave an unrestricted right to “ stop over ” at intermediate stations.

It is hardly necessary to spend time in showing that one contract cannot be used, alone, as the means of interpreting another. The legal effect of both kinds of tickets, so far as the right to break the continuity of the passage is involved, is the same. That principle has been conclusively established in this State by repeated adjudications. Both entitle the passenger to a continuous passage over each of the roads mentioned in the several coupons. Neither con-. fers the right to leave the train on either road, and afterwards to continue the journey in another train. In a case decided in May last, the principles stated were distinctly decided by the Court of Appeals The plaintiff in that case had purchased a' ticket from St. Louis to New York, similar to those before mentioned which limited the time within which it might be used, and contained'these words: Special limited ticket. Good for one continuous first-class passage to point named in coupon attached.” The court said: “ The contract at’ St. Louis, evidenced by the ticket and coupons there sold, was not a contract by any one company, or by all'tlie companies named in the coupons jointly, for a continuous passage from St. Louis to New York. A separate contract was made for a continuous passage over each of the roads mentioned in the several coupons. Each company, through the agent selling the ticket, made a contract for a passage over its road. * * * The plaintiff was bound to a continuous passage over the defendant’s road, that is, the plaintiff could not enter one train of the defendant’s cars and then leave it and subsequently take another.” (Auerback v. N. Y. C. and H. R. R. R. Co., 89 N.Y., 281; see, also, Kessler v. Same, 61 N.Y., 538.), These decisions accord with numerous adjudications on the same subject. All show that the omission of a stipulation for a continuous passage affords no - implication of a right to break the journey on either of the roads before reaching the terminus thereof, without the assent of the carrier on the particular road. (Barker v. Coffin, 61 Barb., 556 ; Hamilton v. N. Y. C. R. R. Co., 51 N. Y., 100; Gale v. Del. L. and W. R. Co., 7 Hun, 670; Terry v. The Flushing, N. S. and C. R. Co., 13 id., 359 ; Dietrich v. Pennsylvania R. R. Co., 71 Pa. St., 432; Vankirk v. Pennsylvania R. R. Co., 76 id., 66.)

After the expiration of the time limited by the stop-over cheek, therefore, the defendant had a perfect right to eject the plaintiff from the train upon his refusal to pay the fare. His ticket, independently of such check, had ceased to afford him the right to ride in the defendant’s cars. But it was good for a continuous journey from Chicago to St. Louis, during the thirty days from the day it was issued.

The judge at the circuit' disposed of the case upon erroneous principles, and exceptions were duly taken to his rulings.

The judgment and order denying a new trial must be reversed, and a new trial' granted, with costs to abide the event.

Barnard, P. J., and Dykman, J., concurred.

Exceptions sustained and judgment and order denying new trial reversed, and new trial granted, costs to abide event.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. NATHANIEL CUTLER, Jr., Appellant.

      Disorderly p&rsons and, gamesters — who a/re — Codie of Criminal Procedure, see. 899.
    The defendant kept a public saloon, to which persóns resorted for the purpose of playing pool and bagatelle. In some cases the losers were, by the terms of the game, to pay for the use of the apparatus, and in others for the drinks:

      Meld,, that the house was a public nuisance at common law, and that persons who resorted to it were gamesters within the meaning of subdivisions 4 and 7 of section 899 of the Oode of Civil Procedure.-
    Appeal from a judgment of the Court of Sessions of Westchester county, affirming a judgment of a Court of Special Sessions adjudging the defendant to be a disorderly person and requiring him to enter into a bond, with sureties, for $250.

      A. J. Adams, for the appellant.

      Nelson H. Baiter, district-attorney, for the people.
   Gilbert, J.:

With respect to the technical objections to the judgment appealed from, it will be sufficient to refer to section 764 of the Code of Criminal Procedure. Upon the merits we think the evidence is sufficient to sustain the conviction. The statute (Code Grim. Proc., § 899, subd. 4 and T) defines disorderly persons; and among the persons so defined, are keepers of houses for the resort of gamesters, and persons who keep in a public place an apparatus or device for the purpose of gaming. The evidence shows that the defendant kept a public saloon, to which persons resorted for the purpose of playing a game called pool, and another game called bagatelle.

These games were sometimes played upon the terms that the loser of the game should pay for the use of the gaming apparatus; but at other times the players played for drinks. The house of the defendant, as appears, was kept principally for those purposes. Such a house is a public nuisance at common law (Tanner v. The Trustees of Albion, 5 Hill, 121), and persons who resort there are gamesters within the definition of the Code of Criminal Procedure.

In Hitchins v. The People (39 N. Y., 456), the Court-of Appeals held that playing games for beer or cigars, was gambling within the meaning of chapter 504 of the Laws of 1851, which prohibited the keeping of a room, etc., to be used for gambling.

That case is in accordance with general principles for the promotion of the public welfare, and is decisive of this case.

The conviction must be affirmed.

Present — Barnard, P. J., Gilbert and Dykman JJ.

Conviction and judgment.affirmed.