text:
    George Hayes, Resp’t v. Liubomir R. Mestaniz, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    Bills and notes—Consideration.
    A note given in renewal of the note of a third person given to plaintiff, with defendant’s indorsement thereon, for the amount of such persons-debt to plaintiff, has sufficient consideration. , , r, , n “
    Appeal from a judgment on a verdict directed for plaintiff,
    C. J. Hardy, for app’lt; A. T. Goodwin, for resp’t.
   VAN BRUNT, P. J.

The complaint in this action set out two-causes of action,—one for work, labor, and services; and the other upon a promissory note for $970.84,-the defendant being the maker and the plaintiff the payee of the note sued upon. The answer denied all the allegations of the complaint as to the first cause of action; and as to the second cause of action admitted the making of the note, and its nonpayment, and alleged that it was made-solely for the accommodation of the plaintiff, and that the defendant received no consideration for it from the plaintiff. Upon the trial the first cause of action was abandoned, and the plaintiff proved the note in suit. The defendant proved by himself that the note in question, together with another note, had been given in renewal of a previous note, which latter note had been given in renewal of a prior note; and that the original note was made by a third party to the order of the plaintiff himself, and indorsed by the defendant. It is claimed - upon the part of the defendant that he showed by his own'testimony that he had received no consideration from the plaintiff or from any one for the first, note, thus substantiating his defense of want of consideration. An examination of the testimony, however, shows that this claim is: not well founded. The prior notes were each for $1,970.84, and when the defendant took up the second of the prior notes he gave the plaintiff two notes, one for $1,000 and one for $970.84; the latter the one here sued upon. It further appeared that the plaintiff had previously sued on the $1,000 note, and obtained a judgment. The plaintiff, upon this trial, proved that the original note was one o£ the Biverside Bridge & Iron Works, who were indebted, to him in the amount of the note; and that this note was payable to the plaintiff’s order, and at the time of its delivery to him was indorsed by the defendant. Upon this note becoming due it was renewed by the defendant giving his own note therefor, and taking up the note of the Biverside Bridge & Iron Works. When that note fell due it was not paid by the defendant, but the two notes above mentioned were given. Upon this state of facts the -court directed a verdict for the plaintiff, apparently upon the ground that the judgment obtained upon the $1,000 nóte was con-, -elusive upon the question of consideration as to the note sued ■upon in this action, being given at the same time, and as part of ■the si>me transaction. It is urged upon the part of the defendant that this was error, and that the judgment in question was not conclusive against the defendant in this action, because it appeared from the record introduced that the question of consideration in regard to that note was not adjudicated upon in consequence of the fact that the defendant was unable to present his defense. Although it is somewhat difficult to see how a recovery in the previous action did not involve the question as to the consideration for which these two notes were given, which were part and parcel •of the same transaction, yet it is not necessary to consider that •question in order to sustain the judgment appealed from. The -evidence shows that the origin of the note in suit was the indorsement by the defendant of the note of the Biverside Bridge & Iron Works, who were indebted to the plaintiff, and paid such indebtedness by the giving of their note, indorsed by the defendant, as above mentioned. This note was renewed by the defendant giving his own note therefor, and that note was renewed by the giving of the two notes, one of which forms the subject matter of this action. There seems to have been a complete consideration •for the giving of the note in question. Under the circumstances, the defendant was obligated to pay the first note given, although the plaintiff was the payee, and said note apparently having been give'n for the purpose of obtaining credit; and the subsequent renewals were based the same consideration. .......

The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: VAN BRUNT, P. J.

license: Public Domain

text:
    Mary E. Straub, App’lt, v. Grand Lodge Ancient Order of United Workmen of the State of New York, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    Insurance—Proof op death.
    Though the length of time in which the statutory presumption of death may arise may he abridged by proof of facts and probabilities that life has been destroyed, yet evidence that the insured, a steward on a ship, went, on shore at a port, and since then no efforts were made ,to discover his •Whereveabouts, but nothing had been heard of him for .three and a half years, is insufficient to prove his death.

      Appeal from a judgment for defendant, dismissing the complaint after trial at circuit.
    E. W. S. Johnston, for app’lt; I. B. Barrett, for resp’t.
   VAN BRUNT, P. J.

This action was brought upon a benefit certificate issued by the defendant, a corporation organized and existing under the laws of this state as a mutual benefit or mutual relief fund society upon the co-operative plan, for the benefit of its members. The only question in the case is whether the plaintiff gave sufficient evidence to carry the case to the jury, as to whether John Straub was dead. It appears from the evidence of one Bryant, the capain of the schooner Oarrie E. Woodbury, that the plaintiff’s husband shipped on board the schooner as steward, sailing from this city in June, 1889, and that in July the schooner arrived at the port of Brunswick, Ga., at which time Straub was on board the vessel. On the 17th of July, while the schooner was at the •dock at Brunswick, he got three dollars from the captain, and, after supper, cleaned himself up and went ashore. This was the last that was seen of him by the captain. The next morning a black derby hat was found in his cabin, which the captain said looked like the one that Straub had on. This hat he sent to the wife of Straub, who identified it as the hat of her husband, but did not recollect that there was any brand upon it, although it appeared from the otliei’ evidence in the case that it was a Dunlap Derby. Some testimony was given in reference to what the mate told the captain, which testimony the court, in ruling upon the case at the •close of the evidence properly disregarded, as appears by the opinion rendered. From the time mentioned Straub has never been seen. Efforts were made to discover his whereabouts, and much irrelevant and incompetent testimony was received upon that point; but nothing was of him by his family, or by friends with whom he had been accustomed to correspond. Upon this state of the evidence, the court dismissed the complaint. In this ruling of the court, we do not think there was any error. It is undoubtedly true that, in order that the statutory presumption of death may arise, the length of time may be abridged by proof of facts and probabilities that life has been destroyed, and that it may arise whenever the facts of the case warrant it, and that, when one when last heard from was in contact with some specific peril, that circumstance may raise a presumption of death, without regard to the duration of absence. But in the case at bar none of these features is present. The alleged deceased left the vessel and went ashore, and possibly may have returned,—but as to this there is no legal evidence,—and has not since been heard from; a little over three and a half years having elapsed before the commence^ ment of this action. We have not found any authority which will sustain a presumption of death upon such slight evidence,

We think the judgment appealed from should therefore be affirmed, with costs.

All concur.


author: RUMSEY, J.

text:
    Gustave Heye, as Surviving Executor, etc., App’lt, v. Henry M. Tilford, as Surviving Executor, etc., et al., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Appeal—Findings of referee.
    Where the findings of a referee is excepted to, it is the duty of the appellate court, under the provisions of section 1022 of the Code, to review all the questions of fact.
    3. Same—Presumption.
    In such case, error on the part of the court below will not be presumed* but must be made clearly to appear.
    3. Partnership—Proof.
    When a liability between partners is sought to be established on a footing of contract of partnership between them, an agreement must be-shown, and it will not be implied from the joint ownership of property, nor will the relation arise by operation of law.
    4. Same.
    In such case, the decision of the question of partnership depends entirely upon the intention of the parties as legally ascertained.
    5. Same.
    In such case, the court "must look at the contract, as explained by the transactions and statements of the parties, and ascertain whether it was-their intention to become partners, if the intention cannot be conclusively drawn from the terms of the contract which they have made.
    6. Same—Accounting.
    Where in an action between alleged partners the plaintiff fails to establish that the partnership existed, he is not entitled to accounting.
    7. Same.
    When a claim to an accounting is based solely upon the existence of a partnership, and that fact is not made to appear, the complaint must be ' dismissed.
    Appeal from a judgment dismissing the complaint.
    E. B. Hill, for app’lt; Peter B. Olney, for resp’ts.
   RUMSEY, J.

This action was brought by the executor of Alexander M. Lawrence against John G. Giles and Francis S. Marburv, as executor of George P. Lawrence, to obtain an accounting of the affairs of the firm of Lawrence and Giles. The executor of George P. Lawrence was made a party, but, as stated in the case, simply for the reason that, without him, the suit could not be maintained, and it was made to appear that George P. Lawrence had paid over to the estate of. Alexander M. Lawrence all he owed, and for that reason no relief was asked against him. The executor of George P. Lawrence, in his answer, asked affirmative relief against Giles ; but, upon the dismissal of the complaint, no notice was taken of his prayer, and, as he has not appealed, no further attention need be given to that branch of the case.

The action was begun against Giles in his lifetime. He died after his answer had been served, and his executors were substituted as the defendants in his place. The foundation of the action, and the fact which lay at the bottom of the claim of relief on the part of the plaintiff, was that Alexander M. Lawrence had been, since 1857, a partner in the several firms which had conducted the business under the name of Lawrence, Giles & Co., and of which, it was conceded, on all hands, that the sons of Alexander M. Lawrence, from time to time and the defendant John 0. Giles, all the time, were members. The complaint alleged that Alexander M. Lawrence was a member of the firm through all the years during which it continued under various names, and, basing his cause of action upon that fact, the plaintiff demands, as relief, that the defendant Giles account for the partnership transactions so far as it was necessary to establish his liability, and pay over to the executor of Lawrence whatever sum should be found due to him from Giles. It asks no judgment against the other members of the firm. The action was referred to a referee, and, after a large amount of testimony had been taken, the referee directed that the complaint be dismissed. The decision was the usual short form of decision, and the grounds upon which the complaint was dismissed were that the plaintiff had failed to establish that Alexander M. Lawrence was a partner in the firm of Lawrence, Giles & Co., and that accounts of that firm had been balanced and settled as of the date of the death of Alexander M. Lawrence, and the balance due from Giles was fixed and determined thereby, and any claim against the executors of Giles in respect thereto had been barred by the statute of limitations.

The right to an accounting in this case on the part of the plaintiff was claimed solely beeause of the existence of the partnership and so, to establish his cause of action, it was necessary that he should prove,, in the first instance, that Alexander M. Lawrence was a partner in the firm of Lawrence, Giles & Co.; and, if he did not succeed upon that point, he failed in the essential fact which gave him a right to the accounting, and the referee was right in dismissing his complaint. The referee found that there was no partnership, and the only question presented by this appeal is whether that finding was correct upon all the evidence in the case. The finding of the referee was excepted to, and so, under the provisions of section 1022 of the Code of Civil Psocedure, it is our duty to review all the questions of fact. To a very considerable extent, therefore, the question is at large when it is presented to this court. But, while that is so, it must not be forgotten that, whenever a case is presented for review to an appellate court, error on the part of the court below will not be presumed/ but must be made clearly to appear. It is incumbent upon the appellants so to present the facts upon which the case depends as to show affirmatively that error has been committed. ¡¡Slothing can be presumed in his favor, but, if presumptions are indulged in at all, such only can be adopted as will sustain the judgme'nt. Carman v. Pultz, 21 N. Y. 547. While the rule, as laid down in that case, was stated as one which should govern the action of the court of appeals, it is yet a well-settled principle, which applies to review by an appellate court in all cases in which an appeal is taken from a judgment. It is a sound and wholesome rule, and care should always be taken that it is not to be overthrown or even trenched upon.

The question presented here is whether the plaintiff has shown that these persons had formed a partnership inter sese. In considering that question, it must be recollected that the same rules, do not apply which are invoked where a thi-rd person claims that those engaged in a joint adventure are liable as partners. Individuals may be charged as partners, as to third persons, by voluntarily and knowingly sharing in the profits of the business, or holding themselves out as partners, and thus inducing a credit on the faith of the supposed partnership. Such a liability may be created as to third persons by an equitable estoppel. But, when it is sought to be established on a footing of contract of partnership between the parties, an agreement must be shown, and it will not be implied from the joint ownership of property, nor will the relation arise by operation of law. Bank v. Walker, 66 N.Y. 424, 428; Leggett v. Hyde, 58 N. Y. 272, 278; Hazard v. Hazard, 1 Story, 371, 373, Fed. Cas. No. 6,279. This distinction is well settled, and must be carefully borne in mind whenever the question arises as to the existence of a partnership. Whenever, in an action between two persons alleged to be partners, a partnership is sought to be proved, the decision of the question depends entirely upon the intention of the parties as legally ascertained. That does not mean a mere arbitrary intention. If the terms of the contract between the parties are fixed and certain, the question of partnership is usually a question of law, to be decided upon the construction of the contract; and in such a case the declarations of the parties outside the contract as to the nature of the agreement which it was their intention to form would be of little weight. But unless in some manner, it is found to- be the intention of the parties that they should become partners, then the partnership cannot be said to exist. Salter v. Ham, 31 N. Y. 321; 17 Am. & Eng. Enc. Law, 832. If the terms of the contract are in dispute, they must be ascertained; and then the question whether or not they are partners, as between themselves, is ordinarily to be-determined by the contract as that shall be found to be. But if,by the terms of the contract, or by other competent evidence, it is made to appear that the parties had no intention of becoming partners between themselves, they will be held not to have assumed that relation. In the case of Assurance Co. v. Drennen, 116 U. U. 461, the court says:

“Persons cannot be made to assume the relation of partners, as between themselves, when their purpose is that no partnership shall exist. There is no reason why they may not enter into an agreement whereby one of them shall participate in the profits arising from the management of particular property without his becoming a partner with the others.”

This utterance of the court was approved by the same court in the later case of Paul v. Cullum, 132 U. S. 539. The same rule has been laid down in this state. Salter v. Ham, supra. In the-English court of appeal it was held that, while the agreement for-participation in profit and loss was prima facie evidence of a partnership between the contracting parties, as between themselves, yet the question of a partnership must in all cases depend upon the intention of the parties as it appears in the contract. Walker v. Hirsch, 27 Ch. Div. 460. It appears, from these cases, that the rule is thoroughly well settled; and when the question is presented whether two people have entered into a partnership between themselves, the court must look at the contract, as explained by their own transactions and statements, and ascertain whether it. was their intention to become partners, if the intention cannot be conclusively drawn from the terms of the contract which they have made.

In this case the original parties to the transaction are all dead. The contract, whatever it was, was never reduced to writing, and there is no direct evidence, so far as appears, as to the precise terms-upon which they were in business together. We can only look at their acts and declarations, and from them come to a conclusion whether or not the plaintiff has established, by a fair preponderance of evidence, that Alexander M. Lawrence was a partner in these several firms. It appears, from the evidence, that, about the 1st of October, 1857, a partnership was formed in Hew York, the firm name of which was Lawrence, Giles & Oo. Everybody concedes that John S. Lawrence, George P. Lawrence, and John 0. Giles were members of that firm. Alexander M. Lawrence was the father of the two Lawrences who were in the firm. He had been a shipping merchant and importer in" Hew York, and owned considerable shipping, and the firm of Lawrence, Giles & Co., after its organization, acted as ship’s husband for the vessels in which Alexander M. Lawrence was interested. Alexander M. Lawrence contributed the capital of the firm. Accounts were opened on the books of the firm, in the names of each of its members, and Alexander M. Lawrence, also. At the end of each year the profits or losses for the year were estimated, and a certain fixed proportion of them was credited or charged to each of the accounts. The ratio of the division of profits and losses wasu fixed by Alexander M. Lawrence, and was changed from time to time at his suggestion. In 1871, John S. Lawrence died, and his interest in the firm was ascertained and paid. The survivors went on with the business at the same place, and under the same name, until the year 1878, when Henry S. Lawrence, another son of Aléxander M. Lawrence, entered the firm. He continued a member until the end of the year 1880. After his withdrawal, his interest was ascertained and paid over, and the other persona carried on the business until the death of Alexander M. Lawrence, in June, 1882. During all this period each of the parties, including Alexander M. Lawrence, was charged or credited with the interest on the balance of his account. This is substantially all the evidence in ,the case tending to establish that Alexander M. Lawrence was a partner in the firm. v

On the other hand, we have the fact, that after his death, in June, 1882, George P. Lawrence and John 0. Giles carried on the business under the same name until the death of George P. Lawrence in 1891. During all the years from 1857 until his death, Alexander M. Lawrence took no part in the transaction of the business of the firm. He continued his own importing and shipping business, for which a distinct set of books was kept. In 1867 he took a deed of the premises Mo. 11 William street, where the •business of the firm was carried on at that time, and executed a declaration of trust wherein he recited that he held the premises in trust for the benefit of the firm of Lawrence, Giles & Go., and that he had no beneficiary interest therein, and he entered into a •covenant with George P. Lawrence, John S. Lawrence, and John G. Giles, recited as composing the firm of Lawrence, Giles & Go., that he and his heirs would hold the premises in conformity with the provisions of the declaration of the trust. In the year 1875, after very heavy losses had occurred in the firm, Alexander Lawrence asked the bookkeeper one day what the amount of losses had been, and, having been informed, told the bookkeeper that he would have to give the boys some more money to go on with the business. In March, 1881, Alexander M. Lawrence, testifying before a referee in an action in which, so far as appears, he had no reason to say anything but the truth on this point, swore that the firm of Lawrence, Giles & Co. was, in 1867, composed of •John S. Lawrence, George P. Lawrence, and John 0. Giles, and that he (Alexander M. Lawrence) had never had any interest in that firm, and was in no way connected with it. His will, which was dated, on the 27th of April, 1881, contained a provision reciting that he had a considerable sum of money loaned to the firm of Lawrence, Giles & Go., the sudden withdrawal of which might subject them to inconvenience, and directing that such moneys should be left with the firm as long as his son George P. Lawrence should desire. This was substantially all the testimony which is competent to be considered between these parties as bearing upon the question whether or not Alexander M. Lawrence was a partner. There was some testimony given of declarations by George P. Lawrence, but that cannot be considered between these parties.

Upon a careful consideration of this testimony, it seems to us that the referee was correct in the conclusion which he reached, that Alexander M. Lawrence was not a partner in this firm. While the evidence, from the sharing in the profits and losses and the general connection had by A. M. Lawrence, was weighty, as tending to show that he was a partner, and would probably charge him with the liabilities arising from that relation in an action brought by a third person upon a contract with the firm, yet it cannot be disputed that he never regarded himself as a partner, and, whenever he was asked about it, so far as appears, denied that the relation existed. All the facts are entirely consistent with some other relation, and upon the whole case we agree with the referee that the plaintiff failed to establish the burden of proving that the partnership existed. That being so, the plaintiff was not entitled to an accounting. Salter v. Ham, 31 N. Y. 321; Arnold v. Angell, 65 id. 508; Hazard v. Hazard, 1 Story, 373; Fed. Cas. No. 6,279.

It is claimed, however, by the plaintiff, that, although no partnership relation was shown to exist, Alexander M. Lawrence was still entitled to an accounting, as one who was engaged with the firm of Lawrence, Giles & Co. in a joint adventure. It is to be noticed that the plaintiff does not ask relief against the firm of Lawu'ence, Giles & Go., but only against one of the members of that firm. He says that, having been a partner in that firm, he has, as to the result of the transactions thereof, become a creditor of Giles, and he demands an accounting, and the payment of that debt. Unless the relation of partner was established, he shows no right to an accounting from Giles, or to the "payment of any sum by Giles to him. That fact, then, as we have said, lies at the basis of this cause of action, and the cases above cited establish that, when a claim to an accounting is based solely upon the existence of a partnership, and that fact is not made to appear, the complaint must be dismissed. The case of Arnold v. Angelí is decisive on that point. In that case, the action was brought for an accounting upon an allegation that the plaintiff and the defendant were copartners, and the relief demanded was that the co-partnership be dissolved, and that there be an accounting and a •division of the proceeds. The judge, at the trial, found that there was no partnership, but that, in spite of that fact, because there was a joint adventure, the plaintiff was entitled to an account of the business. The interlocutory judment entered upon this finding was affirmed at the general term. Arnold v. Angell, 38 N. Y. Supr. Ct. 27. Upon appeal to the court of appeals from the order entered upon this decision of the general term, the judgment was reversed; the court ■saying that, when the issuance of partnership was decided against the plaintiff, the action was at an end and the defendant was entitled to judgment. 62 N. Y. 508. The case of Marston v. Gould, 69 N. Y. 220, is entirely different. In that case there was no allegation that the parties had entered into a partnership between themselves. The only claim was that they were engaged in a joint adventure, which had come to an end, and for that reason the plaintiff was entitled to an accounting, and to the payment of his share of the profits of the adventure. The case cannot be in any way construed to sustain the claim of the plaintiff here. -

For these reasons, and without considering the other question passed upon by the referee, we are of the opinion that this case was properly decided, and that the judgment should be affirmed, with costs. All concur.


author: McCARTHY, J.

text:
    J. E. Mosheim & Company, Resp’t, v. Harris Schwartz, App’lt.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    1. Appeal—Judgment.
    In the case of an appeal from the judgment only, the general term of the Hew York city court has no power to review a case on the facts where the trial was by jury.

      2. Same,
    Where there is no appeal from an order denying a new trial, only exceptions appearing on the record before rendition of the verdict can be considered.
    Appeal from a judgment in favor pf plaintiffs.
    Albert D. Haff, fer app’lt; Franklin Bien,.for resp’ts.
   McCARTHY, J.

The notice of appeal in this case is from the-judgment only, and in such case the general term has no power to-review a case on the facts where the trial was by jury. There being no appeal from the order denying a new trial, which is unfortunate, only exceptions appearing on the record before rendition of the verdict can be considered. Boos v. Insurance Co., 64 N. Y. 236, 242; Del Genovese v. Mayor, etc., 14 St. Rep. 197. There are no material exceptions in the case, and the judgment must therefore be affirmed, with costs. •

All concur.


author: CALDER, S.

text:
    In the Matter of a Proceeding to Revoke a Decree Admitting to Probate the Last Will of Martha B. Halbert, Deceased.

      (Surrogate's Court, Oneida County,

      Filed, December, 1895.)

    1. Wills—Capacity.
    Less mental capacity is required to execute a will .than any other legal instrument.
    2. Sam®.
    If a person can comprehend the act he performs, knows the persons-who are the subject of his bounty, understands the nature and extent of his property, is able to retain these matters in his mind during the execution, and the testamentary act is free from delusions, he ,is competent to make a legal will.
    3. Same—Intoxicants.
    In order to establish the incapacity of the testator to make a will on account of the use of intoxicating liquor, the contestants must' prove, not only that the alleged testator had been intoxicated, or was usually intoxicated, but that he was so in fact at the very time the will was executed, or that his mind was so clouded by drink that he was incompetent to give expression to his real testamentary intentions.
    4. Same—Undue influence.
    Undue influence is not sufficiently shown by evidence that the will was made in favor of one in the testator’s employ, on promptings of friendship and gratitude.
    5. Same—Delusions.
    Testamentary capacity is not affected by the. fact that the testator believed in spiritualism where there was no delusion, which was the result, of such belief, which entered into the execution or preparation of the instrument.
    Proceeding by contestants to revoke the decree admitting to probate the last will and testament of Martha B. Halbert, deceased.

      L. E. Goodier, for contestants ; H S. Patten (William Kernan, of counsel), for proponent.
   CALDER, S.

This proceeding is to revoke the decree entered in the surrogate’s office of Oneida county on the 3d day of December, 1894, admitting to" probate, after a prolonged contest, the last will and testament of Martha B. Halbert, deceased. Surrogate Bright, before whom the tevidence was taken, died before rendering his decision, and by stipulation of all parties, the case was submitted to Surrogate Bentle}7, who upheld the validity of said instrument. On the 10th day of December, 1894, a petition was filed by the contestants asking that said decree of probate be revoked, alleging, as a basis for such relief, that said instrument was not the last will and testament of Martha B. Halbert; that said Martha B. Halbert was not, at the time of making, subscribing, or declaring said instrument, of sound mind and memory ; that said witness did not sign said will at the request of decedent; that the execution of said instrument was obtained by fraud and undue influence; and that it was not sufficiently proved before the surrogate’s court when admitted to probate. The taking of evidence in respect to the matters set forth in said petition was begun before the present surrogate on the 14th day of February, 1895. Many hearings were had, and considerable time was necessarily consumed by respective counsel in the preparation and trial of said case. The record is voluminous, comprising nearly 1,800 pages of printed matter. Decedent’s first husband was JohnF. Batchelor, who died in 1878, and in 1880 she married Horace Halbett, who died in 1887. Testatrix was born October 9, 1821, and died June 22, 1892. The will was dated and executed May 10, 1889. At the time of the execution of the instrument in question she was, therefore, in her sixty-eighth year. For convenience, the petitioners in this proceeding, who were the contestants in the former one, may be designated as contestants and the answering party as proponent.

Beyond contradiction, the decedent had been for many years a slave to the use of intoxicants. She was’always irritable and eccentric. In her younger days she was particular in her personal appearance, and proper in conversation. As the years advanced there was a noticeable change, until, in the latter part of her life, she manifested little interest in the care of her home, and was often vulgar in talk and immodest in her acts. Many witnesses were called by contestants, who described acts and repeated conversations tending to establish irrationality on her part, but, almost invariably there was associated with this evidence a statement that she was either drunk or had been drinking. Standing apart from the temporary effect of intoxicants, her acts and conversations would indicate mental aberration, or perhaps, symptoms of a diseased mind.

Ho precise rule can be laid down by which testamentary capacity can be measured. In the execution of deeds, mortgages, contracts, and instrument of like character, there are at least two parties whose minds and energies are antagonistic. A will, when voluntarily executed, is the act of one person, uninfluenced and uncombated by any other agency, and therefore the decisions are that less mental capacity is required to execute a will than any other legal instrument. Eccentricities, religious beliefs, peculiari- • ties, and even impairment of the mind, do not render one incompetent to execute a will. The expression “sound mind” does not mean, in the execution of a will, that one must possess a perfect intelligence. It is the degree of intelligence that determines and controls. It is easy to distinguish between a sound mind and the condition of a maniac, but there is some difficutly in determining testamentary capacity where there is the presence of a manifest change in one’s mind, 'amounting to aberration or impairment, attributable, perhaps, to thoughts on certain subjects or fancies, or occasioned by grief, illness, and causes of a similar nature. A monomaniac may have capacity to make a will, the theory being that, as to one subject, he is insane; as to all-others, sane. In re Forman’s Will, 54 Barb. 274. That an aged person is forgetful and at all times, labors under slight delusions does not, per se, establish testamentary incapacity. Society v. Loveridge, 70 N. Y. 389. There is no presumption of incapacity by reason of the advanced age of testator. Horn v. Pullman, 72 N. Y. 269.

It must be conceded that the constant use of intoxicating drink will impair the mind, and may ultimately render one incapacable to execute an instrument testamentary in character. But the most pronounced drunkards have times when they are sober, and have"perfectly lucid intervals, and every act performed at such times is legal and binding. Their deranged condition of mind is transitory, and is not unlike that arising from certain kinds of illness. Drunkenness may cloud the intellect for the time, but reason returns -when the exciting cause has disappeared. Peck v. Cary; 27 N. Y. 9, a case often cited, was where the will of a confirmed drunkard was established, though executed after a protracted debauch, and he had drunk several times during the day of its execution. In Van Wyck v. Brasher, 81 N. Y. 260, it was held that an habitual drunkard was not incompetent to execute a deed. To render him incompetent, there must be proof that, at the time of the execution, he was in a state of actual intoxication. In re Johnson’s Will, 7 Misc. Rep. 220; 57 St. Rep. 846, it appeared that testator had been addicted to the use of intoxicating liquors for many years, had suffered delirium tremens, was an inmate of an inebriate asylum, and shortly before the execution of his will, had fallen into an epileptic fit; yet it was held he had testamentary capacity, and his will was admitted to probate. In Re Reed’s Will, 20 N. Y. Supp. 91, the testator had been adjudged by a jury an habitual drunkard. "He had been committed to a state asylum for the insane, where he remained about eleven months, then released on probation, but was recommitted, then released, and his "drinking habit continued. It was held that these facts failed to establishmental incompetency, and the will was admitted to probate.

The rule drawn from many decisions of our courts is that, if one can comprehend the act he performs, knows the persons who are the subjects o£ his bounty, understands the nature and extent of his property, is able to retain these matters in his’mind during the execution, and the testamentary act is free from delusions, he is competent to make a legal will.

More than thirty witnesses testified to numerous things said and done by decedent when sober’, and gave detailed statements of many business transactions in which she was engaged, and in which she took an active and rational part. The witnesses for contestants, most of whom were frank in statements and honest in convictions, have failed to establish that the testatrix, when free froni the immediate influence of strong drink, was insane, or there was such an impairment of the mind as would render her incompetent to execute the will in question. Their principal witness, Mrs. Humphrey, testified that, a number of times, she was with decedent when they talked about the current news of the day, social matters, newspaper topics, and discussed different subjects; that she rode with her summer and winter, and when at the house of decedent, she showed her relics, consisting of jewelry, china, and pictures that she had brought from England. These visits continued to shortly before her death. The decedent was evidently sober during these times.

On March 6, 1889, about two months before the execution of this will, an action was tried in the supreme court before a referee decedent being the plaintiff, wherein she sought to recover damages for an alleged trespass, and asked for an injunction restraining defendant from using a certain driveway. The referee was called by proponent, and testified to what took place before him, and detailed evidence which was given by decedent. She was examined by respective counsel, and no suggestion was offered by one, at that time, as far as the evidence discloses, that she was mentally unable to engage in litigation..

It is incumbent upon the contestants to prove, not only that decedent had been intoxicated, or was usually intoxicated, but that she was so in fact at the very time the will was executed, or that her mind was so clouded by drink that she was incompetent to give expression to her real testamentary intentions. Peck v. Cary, 27 N. Y. 9; Van Wyck v. Brasher, 81 N.Y. 260; In re Johnson’s Will, 7 Misc. Rep. 220; 57 St. Rep. 846; In re Reed’s Will, 20 N. Y. Supp. 91; Andress v. Weller, 3 N. J. Eq. 608; Lee’s Case, 46 N. J. Eq. 193.

Upon this proposition we have the testimony of five persons who saw the decedent the day the will was executed, and of Dr. Eord, who saw her more than twenty-four hours after its execution. He had not seen her since the preceding March. His evidence upon the question of her actual intoxication between the hours of nine and ten on the evening of May 10th cannot have much weight in determining this question. Mrs. Humphrey, for contestants, testified that she took the one o’clock car for Whitesboro, stopped in West Utica for about an hour, arriving at Mrs. Halbert’s shortly after Dr. Ford had left, and, according to her testimony, decedent must have been in a drunken stupor, although able to converse with the witness. In the former trial, from her evidence, she was at Mrs. Halbert’s either at the time or before Dr. Ford was there; that she had told this occurrence numberless times, and yet, upon this trial, her testimony was materially changed in reference to the time of her arrival at decedent’s house. It must be held, from her entire evidence, that, if she was there, it was at the time testified to by her in the former trial. Her recollection as to material things must have been better at that time than it was after an elapse of nearly three years. Her interest in behalf of contestants was undisguised. Dr. Ford, as far as the evidence discloses, was the last person who saw the decedent until the evening of that day. He testifies that he knew the decedent for many years, noticed her increasing drunkenness, and the deterioration which goes with constant drink. He saw her in her own house in a state of intoxication, and met her on the streets when she was in the same condition, and the deterioration of her mind manifested itself in her appearance, manner of dress, and talk, and especially in her housekeeping. He was at the house of decedent between half-past two and three o’clock in the afternoon of May 10th. She was garrulous, but did not manifest in any other way that she had been drinking, and was able to walk up and down stairs. In his judgment, she was incompetent to make a will that day, although, if sober, she might have been competent; but, as a matter of fact, he did not remember much about how he found her, which statement he also made in the former trial. From his entire evidence, there is nothing on which to base the proposition that she was insane, or, when sober, that her mind was so impaired that she was not master of her faculties as far as a testamentary act was concerned. In answer to the question put by the court, “Did you find anything the matter with her except alcohlism on the first day ?” he answered, “That is about all. I think there was a slight cold.” His observation was made many hours before her will was executed. It is not an unusual occurrence that one addicted to the use of strong drink may be somewhat under its influence, and in seven hours after be able to transact ordinary business. This evidence, in its entirety, fails to establish that decedent was drunk on the evening of May 10th, especially when contradicted by direct and positive testimony.

Eebutting the idea of her being intoxicated is testimony of three witnesses for proponent, who were present when the will was executed. In the morning of May 10th Mr. Patten, the attorney who drew the will, was at the house of decedent, and there made a memorandum from which, during the day, he drew this will; and, according to his testimony, she was perfectly sober that morning, and during the evening, between nine and ten o’clock, when the will was executed, there was no indication of her being drunk; and, while there, she did not drink. Messrs. Jones and Miller, the subscribing witnesses, were there for about an hour, and detailed conversations' had with decedent, described quite minutely what took place preceding and at the execution of the will, all the statutory requirements being complied with, and gave convincing testimony that she was sober, did not drink when they were present, and that the act performed by her was free and voluntary. As far as the evidence discloses they have no pecuniary interest in sustaining this will, and their evidence must be given great weight in determining this controversy. If decedent was drunk when this will was executed, then three reputable witnesses, in order to render valid this instrument, which is apparently signed by a steady hand, have committed willful perjury. This evidence does not warrant such a conclusion. It must be held that, at the time of this execution, she was not under the influence of intoxicating liquor and was able .to dispose of her property by a testamentary instrument.

Another ground urged by contestants is that this will should be set aside by reason of undue influence exerted upon decedent by Thomas Kirk, who was her coachman, and who is made her residuary legatee. It appears he had been in her employ for a few years, and was, no doubt, anxious and interested as to the manner in which decedent would dispose of her estate. She apparently preferred his company to that of any other person. They had been seen together when drunk, and on different occasions he was abusive and disrespectful. He advised, on several occasions, as to collecting money; paying bills, and making certain purchases. She declared that she would do well by him, and that the Batchelors and some of her kindred wo.uld not receive any of her money. Influence, in order to vitiate a testamentary act, must be undue. It is not undue.if it is a reasonable argument, suggestion, advice, persuasion, or urging one’s personal claims upon the bounty of another. Undue influence has been described as that ‘•which overpowers the will without convincing the judgment.” It must be an influence which is exerted by fraud and coercion, and not that which arises through affection, gratitude, or feelings of like character. Many wills have been sustained where one’s own family have been disinherited. From the evidence there is nothing to show that Kirk talked with Patten as to the preparation of this will, and he was not present at its execution. If Mrs. Halbert did not wish to have him enjoy her property, she could easily have executed another will. Applying the principles of our well-settled decisions, the evidence fails to establish that this instrument was Obtained by fraud, or that undue influence was exerted over the mind of the testatrix. In re Snelling, 136 N. Y. 515; 49 St. Rep. 695; Brick v. Brick, 66 N. Y. 144; Cudney v. Cudney, 68 N. Y. 148; Marx v. McGlynn, 88 N. Y. 357.

Some evidence was given in reference to the religious belief of decedent. For many years she had been a Spiritualist, and had done many things consistent with the teachings of Spiritualism. She visited the cemetery, and communed with the spirits of her deceased husbands; set apart a bedroom for them, in order that they might have a place to rest when they visited her; placed at the table a sufficient number of plates for them; and did numerous other things, attributable from this evidence, to her belief. We are not to treat Spiritualism theologically, but legally, in its •application to the testamentary capacity of the testatrix. It matters not as to what our individual opinion may be as to facts, formalities, or claims of Spiritualism. That has nothing to do with this case. There is no evidence that decedent did things other than those which are understood to be the result of the teachings of Spiritualism. There was no delusion, which was the result of her belief, which entered into the execution or preparation of this-instrument. It is well settled that believers in this faith, when testamentary capacity is in question, must be considered in the same light as those who take part in any other religious ceremony. In re Keller's Will, 3 N. Y. Supp. 629; In re Vanderbilt’s Will, 3 Redf. Sur. 384; In re Will of Vedder, 14 St. Rep. 470.

The foregoing conclusions lead to the copviction that the decree heretofore entered admitting said last will and testament to-probate was proper, and should therefore be confirmed.

Decreed, accordingly.


author: VREELAND, J.

text:
    In the Matter of Martin Chapman, a Pauper.

      (County Court, Cattaraugus County,

      Filed June, 1895.)

    Patjfebs—Settlement—Removal.
    Where a resident of this state removes with his family to, and gains a. settlement in, another state, he thereby loses all claim to a settlement in-, any town in this state.
    Proceeding by the overseer of the poor of- the town of Ellicottville, Cattaraugus county, to charge the town of Otto, in the same-county, with the support of Martin Chapman, a pauper, then in Ellicottville, on the alleged ground that his settlement was in Otto. From an award by the county superintendant in favor of Ellicotville for costs, the town of Otto appeals.
    E.-D. Northrup, for the town of Ellicottville; D. E. Powell, for the town of Otto.
   VREELAND, J.

This man, Martin Chapman, was in the town of Ellicottville, Chataraugus county, in the month of December, 1892, and either upon his own request or at the solicitation of the overseer of the poor of that town recived aid from such overseer as a pauper’. On December 23d of the same year the overseer of Ellicottville served a notice in writing in the usual form upon the overseer of the poor of the town of Otto that Chapman was settled-in Otto, and was being maintained by Ellicottville. On December 28th following, and within ten days, the overseer of Otto gave notice to the overseer of Ellicottville that he would contest before the county superintendent, on a day named, such alleged settlement of said pauper. The proceeding was tried and decided by the superintendent, who found that Chapman had not had a settlement in Ellicottville, but did not decide that he either- did or did not have a settlement in Otto, and awarded $10 costs to Ellicottville as the “prevailing party”; whereupon Otto appealed for a new trial, and upon such trial the parties stipulated that the evidence taken before the superintendent should be used- and treated as the evidence on the trial before this court. Under these circumstances a review of the case by this court partakes rather of a review of questions of law than a new trial of facts. No claim was made before the superintendent that Chapman ever gained a settlement in Ellicottville, and no contention to that effect is indulged in here. This leaves as the only question to be disposed of the proposition whether or not the pauper had at the time of the trial a settlement in Otto, and from the evidence I am disposed to find that such was not the case, but that by gaining a settlement in the state of Pennsylvania he lost all claim to a settlement in any of the towns of this county, and could only regain such settlement in the usual way, by continuing to be a resident in some one town for one year. The evidence shows, and neither party disputes it, that Chapman lived in Bradford, Pa., for one year, about 1885, and again for two years, about 1887-88, and again for nearly a year, about 1890; that his family lived with him during the first year when he was in Pennsylvania, and that he voted there when a resident in that state. His settlement in Otto, if one was ever ac= quired, was gained prior to 1884, and prior to his first residence in Pennsylvania, The contention of Ellicottville is that the settlement of the pauper was in Otto, but Otto claims that since any residence or settlement was gained that he might have had in that town Chapman had acquired a new settlement in Pennsylvania, and had for that reason lost such settlement in Otto, and that he must again acquire a settlement in Otto before he would be chargeable to that town. It is not easy to determine the fact whether or not Chapman ever had a settlement in Otto, but that question becomes immaterial if the proposition that when he gained a settlement in Pennsylvania he lost any settlement which he had in this state, arid could not regain it in the usual way, be established to be sound law. No evidence was offered showing under what circumstances a person may gain a settlement in the state of Pennsylvania, and, in the absence of such proof, the laws-of that state in that respect must be presumed to be the same as the laws of our own. Monroe v. Douglass, 5 N. Y, 447; Savage v. O’Neil, 44 N. Y. 298; Hunt v. Johnson, Id. 27. A residence of one year with his family and again of two years, and his exercise, during such time, of his right to vote in some town of this-state, would gain for him a settlement here; and these facts, in the absence of evidence, must be held to have gained for him a settlement in Pennsylvania.

The question then arises, does a person who once gained a settlement in one of the towns of this state retain it for all the purposes for which a settlement may be made effective, so that he-may become chargeable to such town, although he may have subsequently gained a settlement in another county of the state or in another state? As the situation is presented here, Chapman had the-right to apply to the poor authorities where he was in Pennsylvania for relief, and they were required to comply. But if he also had a settlement at the same time in Otto, he could, at his option, return to Otto, and the poor authorities there must also relieve his necessities. If this be the law, then a person having a settlement in the town of Salamanca might remove to Kansas, and reside there for fifty years, and gain a settlement there, then return to the former place, and, for all the purposes of the poor laws, still be held to have retained the former settlement. He might even bring with him a wife and flock of children, who were never residents of Salamanca, but who might, nevertheless, be held to take the former settlement of the husband and father. These are extreme cases, yet possible to arise under the theory that has long prevailed among the poor authorities in the state that a settlement once gained in any town in the state should continue until a settlement should be gained in some other town in the state, irrespective of the interval. This,, rule would amount, in effect, to holding a town responsible for the| support, in case of need, of all the persons ever gaining a settled ment elsewhere within the state. The law does not appear to up-ñ hold such a theory, but, on the contrary, such authorities as can be produced tend to establish a different doctrine. The present able superintendent of the poor.of Oattaragus county, in a well considered paper read before the convention of superintendents of the poor of the counties of the state held at Utica in August, 1892, .said upon this subject:

“A proper rule would be to disregard the former settlement, if one ever existed, and to treat the persons applying for relief as if they had never been in the county before, especially where they gained a new settlement in another county.”

I do not find that the courts of the state have ever decided the question involved here. In Stillwell v. Kennedy, 24 St. Rep. 140, which involved the settlement of Charles Ayers in the city of Elmira, N. Y, where the pauper had been for many years a resident of Kansas, with his parents, the court says: “It is very clear that by the removal of the mother and the son to Kansas they lost" their residence in this state, and became residents and citizens of Kansas.” Again the opinion states: “ When the mother became a, resident of the city of Elmira, and the boy followed her to that place, a residence and settlement were inflated.” While these dicta, under the circumstances, are not of much weight as authority, still they indicate to some extent the course of reasoning the court would adopt if the question were before it. The proposition appears to have been decided in Town of Middleton v. Town of Lyme, 5 Conn. 95, where the opinion says, upon quite a similar state of facts: “A person having a settlement in this state loses it by gaining a settlement in another state, and can retain a settlement here in no other manner than any other inhabitant of another state.” While this case was decided long ago, I do not find that the principle involved has been distinguished by latter cases. Of substantially the same import is North Yarmouth v. West Gardiner, decided by the supreme court of Maine in 1870, and reported in 4 Am. Rep. 379. The decision in 34 Conn. 273 (Town of Morris v. Town of Plymouth), was decided under a statute enacted after the decision in Town of Middleton v. Town of Lyme. In view of the facts and these authorities, I think it must be held that Chapman had not, at the time of service of the notice by the overseer of Ellicottville upon the overseer of Otto, a settlement in the town of Otto, or in any other town in the county. I find as conclusion of law that the proceeding to charge the town of Otto with the support of said Martin Chapman be dismissed, with costs; such costs, under the stipulation of appellant’s attorney, not to exceed the sum of $20.

Proceedings dismissed, with costs.


author: KECK, J.

text:
    Miles D. Miller, Resp’t v. William Board et al., App’lts.

      (County Court, Fulton County,

      Filed December, 1895.)

    Office and officer—Personal liability.
    Village trustees, who contract on behalf of the village with one who knows their official position and that such contract is without validity unless confirmed by the board of trustees, are not, in the absence of proof of intent on their part to render themselves so liable, personally liable on such contract, - - ■ ..... ■ •
    Appeal from justice court.
    Action by Miles D. Miller against William Board and Lewis X. Maylender for damages for the nonperformance of an alleged contract between plaintiff and defendants, whereby, as claimed by plaintiff, he was employed by defendants to act as chief of police of the village of Johnstown, but was not permitted to enter on the discharge of the functions of such office. From a judgment in favor of plaintiff, defendants appeal.
    Frank L. Anderson, for app’lts; Clark L. Jordon, for resp’t,"
   KECK, J.

The right of recovery in this action against the two appellant defendants depends upon the facts as to whether or not the alleged contract or agreement of employment between the plaintiff and defendants was a valid one, and, if made as claimed by plaintiff, enforceable against the appellants individually. There is no question but that, at the time of the making of the alleged contract for the employment of the plaintiff, the defendants were trustees of the village of Johnstown, and whatever was said by and between the parties on the subject of the plaintiff’s employment related solely to his being so employed as chief of the police force of said village, and that the plaintiff so understood it, because, when he was sworn upon the trial of the action, he said:

“ It was in the evening of December 24, 1894, I met the defendants there, and defendant Maylender spoke first, and said that his business with me was that he desired to have me to act as chief of police of the village of Johnstown as soon as their present chief finished up his work. 'x' * * He asked me if I would take the place. I.said, ‘Yes.’ I asked him what the wages would be, and he said they had been $50 per month; but I said I would not work for $50, and then he said they would pay me $55. I was to go to work on the following Monday night. Mr. Little spoke to the other two, and said, ‘ When shall we have Mr. Miller report for duty? ’ And they both said, ‘On Monday night’ ”

On cross-examination he further said:

“ Q. Did you understand that the defendants were trustees of the village of Johnstown at the time you had this conversation ? A, Yes. I so understood it.. It was by reason of their being trustees that I had the conversation with them. Q. Did you understand that, before you could become a policeman of the village of Johnstown, you would have to be appointed by the board of trustees in Johnstown? A. I did. I knew that these men did not constitute the whole board of trustees.”

This, with other testimony given on the trial of the case, establishes, without dispute or doubt, the fact that the defendants were trustees of the village, acting in matters relating solely to such village, and that the plaintiff knew it at the time of the alleged agreement or contract; and he also knew that, before he could become chief of police, liis appointment had tobe confirmed by the board of trustees of the village. The case is barren of proof of any special obligation or intent on the part of the defendants and appellants to become personally liable to the plaintiff upon such alleged contract, and it is therefore difficult to see how they can be made liable for damages resulting from or growing out of the same. If the alleged contract failed to bind or obligate the defendant personally, then this action ought not to b-maintained against the appellants, for the rule of law is well sete tied that an agent who discloses his principle will not be personally liable upon a contract made by him in behalf of such principal, and within the scope of his authority, to the person with whom such contract is- made; and the rule is much more strongly applied in favor of the nonliability of a person who is a public officer, and acts, and is understood to be acting, as such in the making of an agreement or contract relative to the public business devolving upon him by reason of such public office. Here, as stated above, the plaintiff knew that defendants were public officers and were negotiating with him about matters relating to the public business, the performance of which was cast upon them by the laws of the state.

In the case of Nichols v. Moody, 22 Barb. 611, it is held that:

“ A public agent, acting in the line of his duty, is not personally liable upon contracts made by him on behalf of the government, unless it appears that the credit was given to, or the labor performed for, the agent himself, and on his agreement and promise to pay, or the fact of his being a public agent vas unknown, and not disclosed at the time of making the contract. It is not to be presumed either that a public agent intends to bind himself personally in acting as a functionary of the government, or that a party contracting with him in his public character means to rely upon his individual responsibility.

In the case of Hall v. Lauderdale, 46 N. Y. 70, the rule was laid down by the court of appeals that :

“An agent acting within the scope of his authority, and disclosing his agency, will not be personally bound, unless upon clear -and explicit evidence of such an intention. The rule is still stronger in the case of a public agent.”

In the light, therefore, of the undisputed at case, the rule of law governing it, it must be held that the judgment rendered against the two appellants was and is wrong, and must be reversed, with costs, and an order is directed to be entered accordingly,

L Judgment reversed, with costs.


author: GOFF,

text:
    People, Pl’ff, v. Carlo Casegeanda, Def't.

      (Court of General Sessions, New York County,

      Filed December, 1895.)

      1. Evidence—Judicial notice.
    Judicial notice will not be taken of city ordinances,
    2. Same
    Such ordinance must be proven in the manner prescribed by law, and the burden of its proof rests with the people, the same as the proof of any other fact necessary to sustain the prosecution,
    Appeal from a judgment convicting the defendant of the violation of city ordinances.
    Herman Stiefel, for app’lt f John R. Fellows, Disk Atty., for the People.
   GOFF,

(Recorder).—Carlo Casegeanda, the defendant was, by the city magistrate, adjudged guilty of a violation of section 33 of the corporation ordinances of 1880, in that he obstructed the sidewalk with a boot-blacking stand; and from such judgment and conviction he appeals. Several grounds of error are assigned by the appellant, but only one of them is necessary to a consideration of the case as presented by the return. The complainant, as captain of the police, was thus examined ;

“ Q. Are you familiar with section 33 of the city ordinance ? A. I have a copy here of the amended ordinance of 1884. (Copy of ordinance offered in evidence. Objected to on the ground that the ordinance now offered in evidence is not properly certified, as required by section 941 of the Code of Civil Procedure. Objection overruled. Exception.) ”

If there was something denominated an ordinance offered in evidence, the return does not show what the ordinance was; and, if' the defendant was convicted of a misdemeanor for violating an ordinance, and there was no evidence of the declarations or the mandátes or the prohibitions of that ordinance, of what -could he be convicted of violating ? An ordinance is not a statute, of which judicial notice must be taken. ° It must be proved in the manner prescribed by law, and the burden of its proof rests with the prosecution, the same as the proof of any other fact necessary to sustain the prosecution. Two facts are necessary to be proven |n such a prosecution : First, the fact of the existence of the ordinance claimed to have been violated; and; second, the fact constituting the violation. Section 941 of the Code of Civil Procedure prescribes that an ordinance- may be read in evidence from a copy thereof, certified by the clerk of the common council, or from a. volume printed by the authority of the common council. The power of the common council to enact ordinances is limited by the authority derived from the legislature and in a prosecution for the violation of a city ordinance every fact necessary must be affirmatively proven and established by the record. There is no legal evidence upon which this conviction can be sustained. '

.Judgment reversed.


author: PATTERSON, J.

text:
    James Black, Resp’t, v. Third Avenue Railroad Company, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    Negligence—Cable cabs—Presumption.
    Negligence on the part of those in charge of a cable car cannot bo inferred merely from the fact of plaintiffs falling when the car started, when there is nothing unusual and excessive in applying the motive power.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    H. L. Scheuerman, for app'lt; A. G. Vanderpoel, for resp’t.
   PATTERSON, J.

This is an appeal from a judgment entered upon thg verdict of a jury in favor of the plaintiff in an action tried in the superior court of the city of New York, and from an order denying the plaintiff’s motion for a new trial. The action was for damages for personal injuries claimed to have been sustained by the plaintiff while a passenger on one of the defendant’s cars. It was shown in evidence that on the 14th of February, 1894, at about four o’clock in the afternoon, the plaintiff did enter one of the defendant’s cars at Third avenue and Forty-Second street, in the city of New York, and that, when about taking a seat, the car started, and the plaintiff was thrown to the floor. He alleges that the servant in charge of the appliance by which the car was started so negligently and unskillfully used the same-(referring to the.grip, by which a moving cable is caught and attached to the car, and which furnishes the motive power thereof), as to cause a sudden and unnecessary and violent jerk in its starting, in consequence of which the plaintiff was thrown, and suffered the injuries he complains of. A perusal of the testimony as it appears in the printed case shows an utter want of proof to establish the allegations of the “complaint respecting the cause of the-accident There is not one word of testimony to show any unskillfulness or negligence of the company’s servant in charge of the appliance by which the movement of the car was controlled. All that is said is that the car started with a violent jerk. No-testimony whatever was given respecting the manner of starting & cable car, nor what is the character of the motion ordinarily produced by the attachment of the grip to the cable, nor anything respecting the character of the motion first imparted by the running cable to the car at the instant the motion of the car begins. It was sought inferentially to .establish that, by reason of the plaintiff’s falling when the car started, it necessarily must have been because of something unusual and excessive in applying the motive power, and hence negligence. There is nothing whatever to show what was the fault of any of the defendant’s servants in operating the oar. It cannot be said that there was any neglect on the part of the conductor in giving the signal to start. The plaintiff entered with a party consisting of himself, his wife, a Mrs. Whitaker, a Mr. Kirk, and several children. They all appear to have been seated, except the plaintiff, when the car started. In what attitude the plaintiff was standing, how his body was-balanced, or whether he was not in .such a position that any motion of tlie car on starting would have caused him to lose his balance, does not appear. The whole of the plaintiff’s case seems to depend upon a more characterization of the motion, by himself and his wife and another witness, as a violent jerk, which, as before said, is in no wise distinguished from the ordinary initial force of movement of a cable car when started. The case, therefore, is destitute of proof on the subject of negligence on the part of any of the defendant’s servants in starting the car, and especially of any proof of the particular act of negligence ascribed in the complaint as the cause of the accident. There are many other errors appearing upon the record before us, but, in view of the total failure of proof on the subject of negligence of the defendant’s servants; it is unnecessary to consider them.

The judgment and order appealed from must be reversed, and a new trial granted, with costs to the appellant to abide the event.

All concur.


author: PER CURIAM.

text:
    Mary Howard, Resp’t, v. The Prudential Insurance Company, App’lt.

      (Supreme Court, Appellate Division, Third Department,

      Filed Feb. 3, 1896.)

    Service—Foreign corporations.
    The provision of chapter 8 S3 of 1884, which appears in substance in section 30, chapter 690 of 1892, provides a method in which a foreign corporation may be served, hut does not exclude any other method of legal service, and a party may make legal service, under subdivision 3, section 432 of the Code, on the managing agent of such corporation, unless a person has been designated by the corporation in compliance with the requirements of subdivision & of said section.
    Appeal from an order denying a motion to set aside the service of the summons.
    Henry J. McCormick, for app’lt; W. S. Coffin (Henry A. Peck-ham, of counsel), for resp’fc.
   PER CURIAM.

The defendant is a foreign corporation, and the service complained of was made upon one Post, in pursuance of the provisions of subdivision 3 of section 432 of the Code of Civil Procedure. It is not claimed that Post was not a proper person'to be served within that subdivision, or that any designation was filed in the office of the secretary of state of a person upon whom service could be made under subdivision 2 of the section referred to. It was, however, shown that the defendant, in compliance with the provisions of chapter 346 of the Laws of 1884, had filed in the office of the superintendent of insurance of this state a written appointment of the superintendent as its attorney upon whom process in any action or proceeding against the corporation might be served. By reason of this fact the appellant claims that subdivision 3 of section 432 of the Code does not apply, or authorize service on a managing agent as made in the present case. The provisions of the Code are general. Mo exception is made as to insurance companies. The provision of the act of 1884 appears in substance in section 30 of 'the insurance law (chapter 690, Laws 1892), which is the present law on the subject. It provides .a method in which such corporation 4‘may be served,” but does not exclude any other legal method of service. The appellant claims that the case of Lafflin v. Travelers’ Insurance Co., 121 N. Y. 713; 31 St. Rep. 900, is in point in favor of its contention, We think not. The question there was whether an appointment which the defendant had filed under the act of 1884 was sufficiently certified so as to take the place of an appointment previously filed under chapter 555 of the Laws of 1875. Mo question as to the effect of the provision of the Code was considered. See, also, Ives v. Met. Insurance Co., 78 Hun, 32; 60 St. Rep. 495, and Mullins v. Met. L. Insurance Co., 78 Hun, 297; 60 St. Rep. 240. We are of the opinion that the plaintiff was entitled to the benefit of the provisions of the Code, and that the order should be affirmed.

Order affirmed, with $10 costs and disbursements. ¡

HERRICK, J., not acting.,


author: INGRAHAM, J.

text:
    Isidor Cohnfield, App’lt, v. Henry J. Walsh, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Pleading—Complaint—Conversion.
    A complaint, which alleges that the defendant prevented the plaintiff from taking possession of his property and that the defendant took possession thereof, but fails to allege neither a demand, the value of the property, ,the conversion of it by defendant to his own use, nor the injury of plaintiff by defendant’s retaining possession, does not state a cause o"f action for conversion.
    2. Conversion—Judgment.
    In order to support a judgment for conversion of property, the value of the property and. the judgment therefor must be proved.
    Appeal from a judgment in favor of defendant.'

      Waldo W. Willard, for app’lt; Benjamin Tuska, for resp’t,
   INGRAHAM, J.

It is a little difficult from the complaint to ascertain just what cause of action this plaintiff has against the «defendant. The complaint alleges that a certain iron or metallic cage or structure, located at 83 and 85 Greene street, in New York City, was in the possession of the plaintiff, and used by him in the business of manufacturing feathers; and that plaintiff's representatives, under the direction of the plaintiff, went to the said premises for the purpose of removing the same, but were hindered and prevented from removing the said cage or structure by the defendant and its representatives or employes: but that the defendant removed the said cage or structure, or procured the same to be removed, with the consent or authority of the plaintiff. There is no allegation that the plaintiff demanded the possession of the cage from the defendant, or that the defendant converted the same to his own use; nor is there any allegation that the plaintiff sustained any damage in consequence of the defendant’s refusing to allow him to remove the cage, or that the cage was of any value. The complaint is clearly insufficient to justify the granting of any judgment against the defendant. The action •seems to have been tried upon the theory that it was an action for the conversion of the cage. No objection was taken to the form •of the complaint. Upon the evidence it appeared that the plaintiff was tenant of the premises, and that his lease seems to have expired on the 31st of January, or the 1st of February, 1893; that -he did not remove this structure before the termination of his lease; that the defendant, who was a repairer of roofs, was employed by the owner of the premises to put on a new roof; that he found this structure upon the roof, and took it down for the purpose of performing his contract; that after he had taken it -down, and while the structure was in the street, some men •employed by the plaintiff told the defendant that the structure belonged to the plaintiff, and not to the defendant, and that defendant said, “Leave that there; I don’t■ care;’’ and that the defendant told this witness that he could not take it away. There was no evidence as to the value of these articles in the street, and nothing to show to the defendant the authority of the workmen who made this demand from the plaintiff. The only evidence at all as to the Value was that of a mechanic, who never saw the structure, and who said he would regard $600 as a fair estimate for the value of the work if performed by him; that the value of labor in using and handling that sized of piping would, be 75 percent, and 25 per cent, for material. This evidence referred to new material, and not to the value of material after it had been used and was taken down. The plaintiff, by leaving this structure on the premises after the expiration of his lease, could not complain that the owner of the premises, or defendant as his employe, removed it; and while it is possible he might be entitled to the materials after they were removed, if he had made a proper demand, there is nothing to show that such a demand, was made, or that the materials were of any value. No cause of action was either alleged against the defendant or proved upon the trial. For that reason wé think the complaint was properly dismissed.

, The judgment should therefore be affirmed, with costs.

All concur. ..


author: BARRETT, J.

text:
    Thomas Cahill, Resp’t, v. Katherine Heuser et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)
    1. Building contract—Performance.
    Where, under a contract for building the foundations of three houses-, plaintiff agreed that the bottom stone should be laid according to the usual building regulations and that the cesspools should be cemented throughout and the bottom stone was not of the size called for, nor in accordance with the usual building regulations, and the plaintiff used dry mason work in the cesspools, instead of cement, and defendant had to spend thirty dollars in cementing the bottom of the cesspools, and then the building department refused to pass them, unless they were rebuilt, which would cost nipety dollars, there is not a substantial compliance with the contract.
    3. Same—Waiver.
    Where, before plaintiff had done the work, the defendant gave him $300 on the representation that one of plaintiff’s men was in pressing need of money, and afterwards made a second payment on plaintiff’s representa, tions that the work was all done and on his giving a bond that the walls would last, but defendant did not accept the work or promise to pay therefor with knowledge of the facts, there is no waiver of the failure of plaintiff to perform the contract.
    3. Same—Burden of proof.
    In such case, the burden of proof is upon the plaintiff of showing performance or an actual waiver with full knowledge of the facts.
    Appeal from a judgment entered on a decision of the court in favor of plaintiff.
    IIjury A. Forster, for app’It; John E. Eustis,'for resp’t.
   BARRETT, J.

This is an action to foreclose a mechanic’s lien. The plaintiff, Oahill, made an agreement with the defendant Mulligan to build the foundations of three houses on lots belonging to the defendant Heuser. The contract price was $480. Cahillagreed that the bottom stone should be laid according to the usual building regulations. He also agreed that the cesspools should be six feet square and eight feet deep, and that they should be cemented throughout, and covered with a brick arch. The evidence is all one way that the contract was not performed with regard to these two essential matters. The plaintiff admitted that the bottom stone which he laid was not in accordance with the usual building regulations. It was not of the size called for, nor was it laid as provided by law. He also conceded that the cesspools were not constructed as required by the contract. He sought to evade the consequences of these defaults by attempting to show Mulligan’s acquiescence. The evidence, however, was insufficient to escablish acquiescence. As to the bottom stone, he made no pretense of compliance with the precise terms of his contract All he claimed was that the stone was such as he usually furnished, which amounted to saying that he was in the habit of disregarding the building regulations established by law. As to the cesspools, while admitting that he had used dry mason work" instead of cement, he at first insisted that this was because of a .parol modification of the contract, agreed to by Mulligan. Upon further examination, however, he condeded that he was to do all that was called for in the contract. It is clear, upon all the testimony, that the contract was not varied in this particular, and ‘ that the contract price covered the walling in of the cesspools, and “ the cementing of the same fully throughout,” He admitted that he had not built the cesspools according to the provisions of his contract. This was a failure to perform in a substantial matter It resulted in a notification 'to Mulligan from the building department that the cesspools were not water-tight, as required by law. The consequence was that Mulligan had to spend $3.0 in cementing the bottoms of the cesspools. Even then the building department refused to pass them unless they were rebuilt, which will cause additional expense of some $90. Cahill positively refused to do anything about the cesspools, and declared that he would not do another bit of work until he got his money.

It is impossible, upon the facts, to sustain the decision that there was a substantial compliance with the contract. It was, on the contrary, flagrantly violated. Nor can we uphold the judgment upon the claim of waiver. The testimony upon that head was introduced without objection. Consequently, the point that it was not pleaded will hardly avail. Conceding, however, that this testimony was properly considered, it entirely failed to establish a waiver. The claim of waiver rests mainly upon two payments which Mulligan made upon account. The first payment was a favor." The “pointing” was not then done, and, clearly, Cahill was not entitled to the contract price as upon complete performance. Mulligan gave him $200 upon the representation that one of his (Cahill’s) men was in pressing need of money; Cahill stating that this workman had not a thing to eat in the house. At to the second payment, the testimony is overwhelming that it was made upon Cahill’s representations that the work was all done, - and upon his giving a bond that the walls would last. Mulligan never accepted the work, or promised to pay therefor, with knowledge of the facts. The burden was upon Cahill of showing performance of an actual waiver with full knowledge of the facts. Bank v. Mitchell, 73 N. Y. 414; and he failed to establish either.

It follows that the judgment should be reversed, and a new trial ordered, with costs to the appellants to abide the event.

All concur.


text:
    Martin A. H. Thelberg, Resp’t, v. National Starch Manufacturing Company, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Contract—Proof.
    Where, in an action for breach of contract of employment, it appears that defendant assumed the liabilities and absorbed the assets of a corporation which was under contract to employ plaintiff for five years, with the option to declare the contract void if it discontinued business, and that this right to declare void was never exercised by it, but that defendant expressly agreed to be bound by the contract, the defendant is liable.
    2. Pleadings—-Statute of frauds.
    The statute, of frauds cannot be taken advantage of as a defense to an action upon a contract, which is required by that statute to be in writing, unless notice is given of the intention to the opposing party by the pleadings.
    Appeal from a judgment on a- verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    William J. Kelly, for app’lt; Theron L. Carman, for resp’t.
   INGRAHAM, J.

Before discussing the main question argued on this appeal, namely, that o£ the application of the statute of frauds, it will be well to notice the claim by the defendant that the plaintiff failed to prove any contract on the part of the defendant to employ him for a ■ term of years ending April 1, 1894. Though it appears from a provision of the contract that should the said company, at any time, for any reason, discontinue its business, said company may at its option declare the agreement void, it is clear, as a matter of fact, that the Glen Cove Manufacturing Company did not exercise that option to declare the agreement void.

The complaint alleges that the Glen Cove Manufacturing Company was absorbed with the defendant. We suppose that means that the two companies were in some way consolidated, and the business transacted by the Glen Cove Manufacturing Company continued by the defendant. But it appears that, after such consolidation the plaintiff continued to perform the same work for the defendant that he had performed for the Glen Cove Manufacturing Company. He testified that he was told by the superintendent of the defendant that the contract held good with the new company the same as with the old company.. It was this statement that the jury believed, and under this statement it was competent for the jury to find that, when the' defendant “ absorbed ” the Glen Cove Manufacturing Company, it absorbed its^ assets, and at the same time bound itself to carry out its contract to discharge its liabilities. Under this contract with the Glen Cove Manufacturing Company, there was" an obligation on behalf of the company to employ the plaintiff for a term of five years, unless that company discontinued its business, when the company could, at its option, declare the agreement void. The Glen Cove Company’s business and assets were transferred to -this defendant. The Glen Company did not declare the option void, and the defendant expressly agreed with the plaintiff that the contract held good with the new company, which was simply assuming with the assets of the old company one of its liabilities. The contract gave the Glen Cove Company the option to declare the agreement void, and, unless that option was exercised by the Glen Cove Company, the agreement remained in full force and effect; and it is not claimed that the Glen Cove Company ever exercised that option. It is only necessary to prove in this action, to entitle the plaintiff to recover, that the defendant had assumed in some way the existing liability of the Glen Cove Company to carry out this contract with the plaintiff; and, if the evidence of the plaintiff is to be believed, such an agreement was made. Assuming, however, that the agreement of the defendant to adopt the contract between the plaintiff and the Glen Cove Company was one that was required by the statute of frauds to be in writing,—although we do not decide that question,—we do not think that, under the authorities in this state, the question was presented properly to the court below.

The complaint expressly alleges the two contracts made by the Glen Cove Company, copies of which are annexed thereto. It then alleges that the plaintiff was notified by the defendant of the consolidation of the two companies, “ and that thereafter his employment would be by said defendant at the yearly salary of $2,-500, and upon the same terms and conditions set forth in said contracts A and B, which salary the defendant agreed to pay, and employment it ratified.” The answer denies this allegation. The statute of frauds, however, is not pleaded; nor is it alleged in the answer that, if this agreement was made by the defendant, it was invalid or illegal for any reason. The pleadings present the one issue as to whether or not the defendant did assume the obligation of the Glen Cove Company to employ this plaintiff, as provided in the agreement between that company and this plaintiff. That was the only question raised by the pleadings, and that was the question to be tried.

When the plaintiff was examined as a witness, and asked to detail the conversation between himself and the superintendent of the defendant, that was objected to by the defendant No ground was stated in the objection, and the point was not then taken that this testimony was invalid, under the statute of frauds, to prove a contract which was not to be performed within one year. The attention of the court was not directed to any objection to the evidence on the ground that it contravened the statute ; and, as the statute had not been pleaded, it is clear that such an objection is unavailing on appeal." Plaintiff testified that the superintendent said “that my .contract held good with the new company, the same as with the old company.” To that there was no objection, the only objection having been the former one taken by the defendant, with no ground specified and no attention called to this statute as the ground of the objection, or that the testimony itself was incompetent to prove the agreement alleged in the complaint.

It is now settled in this sta.te that the statute of frauds cannot be taken advantage of as a defense to an action upon a contract which is required by that statute to be in writing, unless notice is given of the intention to the opposing party by the pleadings.

In Crane v. Powell, 139 N. Y. 338; 54 St. Rep. 659, O’BRIEN, J., in delivering the opinion of the court, says :

“Where a contract is set out in the complaint as the cause of action, and the defendant attempts to assail it on some special or statutory ground, the general spirit of the system is not complied with, unless notice is given of this intention to the opposing party by the pleadings.”

Here there was an existing contract between the plaintiff and the Grlen Cove Company. There was an express agreement between the plaintiff and the superintendent of the defendant that this contract should continue.and be assumed by the defendant. That contract was sued upon. Evidence of it was admitted without raising the specific objection of the statute of frauds. The statute cff frauds was not pleaded in the action. It followed that, the defendant having waived the statute, the case was properly submitted to the jury, and that, upon their verdict, the plaintiff was entitled to judgment. There does not seem to be any error made as to the admission or rejection of testimony, and we think the judgment was right, and should be affirmed, with costs..

All concur. .


text:
    Myer Foster, Resp’t, v. Leon Tanenbaum, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Witness—Cboss-examination.
    The extent of a cross-examination, and the method by which it should be conducted, are largely in the discretion of the trial court, and a court, on appeal, has no right to review that discretion, unless it has been abused. ° .
    8. Same.
    It is not an abuse of discretion to restrict the cross-examination of a witness, where all the questions excluded have been answered several times.
    3. Same—Re-dieect examination.
    _ Where a witness on cross-examination, testifies that a person called on him on defendant’s behalf, and that he told such person that he was not in the market for a certain kind of property, and such statement has been drawn out for the purpose of affecting the witness’ credibility, it is incompetent for plaintiff, on re-direct examination, to ask the witness whether or not he was actually in the market, and to - explain why he had made such statement.
    4. Teial—Objection waived.
    Where, after a question by defendant which was not objected to has been answered, plaintiff moves to strike it out and, upon defendant objecting to an offer of the court to allow the plaintiff an exception to the question, the court strikes out the answer and tells defendant that he can ask the question again and the court will admit it, to which action of the court, defendant excepts and refuses to repeat the question, the defendant • thereby waives any objection to striking out the testimony. .

      Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    B. F. Einstein, for app’lt; Philip S. Dean, for resp’fc
   INGRAHAM, J.

The question in this case-was one of fact, submitted to the jury upon a charge of the court to which the defendant raises no objection upon this appeal, and upon which the jury rendered a verdict for the plaintiff. The only grounds upon which we are asked to reverse this judgment are exceptions by the defendant to rulings upon questions of evidence. Most of these objections related to the limiting by the court of the cross-■examination by defendant’s counsel of certain witnesses sworn in behalf of the plaintiff. We have examined these exceptions, and do not think that any of them require us to reverse the judgment.

The principal objections and exceptions of the defendant are presented upon the cross-examination of Jacob Yogel, a witness" called by the plaintiff. He testified, on the trial, to an interview between the plaintiff and the defendant and'himself, when the plaintiff introduced the witness to the defendant, stating to him “Here are my parties. I am in this. How I have done my share. How I leave you.” Whereupon plaintiff left, and the witness and his brother remained, and had a conversation with the defendant which resulted in the transaction being carried out from which defendant realized the commission, half of which defendant seeks to recover. On cross-examination, the witness was asked about the interview that he subsequently had with the defendant, and testified to his recollection as to those interviews. He swore that he could not say what the conversation was, exactly, but could give the substance of it, which he proceeded to do. This was an interview that took place after the transaction had been consummated, and it was stated by the defendant’s counsel that he intended to see if he could not bring out some conversation between the defendant and the witness to show that the witness had a hostile feeling towards the defendant. There was considerable conversation between the court and the defendant’s counsel, in which the court expressly stated to defendant’s counsel: “You may prove they had a difficulty; but antecedent-to that, no.” The counsel for the defendant then asked several questions having relation to this interview about which the witness had testified upon the cross-examination, the questions being solely for the purpose of Impeaching the witness, and showing that he had a bias or prejudice against the defendant.

It is well settled that the extent of a cross-examination, and the method by which it should be conducted, are largely in the discretion of the trial court, and a court, on appeal, has no right to review that discretion, unless it has been abused. In this case the •witness, was asked the details of this conversation, and had given them, so far as he remembered, at the request of the defendant’s counsel; and we think it was within the discretion of the trial court to restrict the defendant’s counsel, in his examination of the witness, as to what took place at those interviews. As before stated, the witness had stated his recollection of what took place-at the interviews in question; and, after these questions were excluded, he was again allowed to answer the question as to whether he had a conversation with defendant in which the defendant charged the witness with having made misrepresentations, at the time he entered into the lease, concerning the amount that be was worth, to which the witness stated he did not remember ever having had a conversation with him in regard to making a misstatement, or anything of the sort. And the witness also said that he did not remember that the defendant said to him that lie-bad made a misstatement concerning what he was worth. All of these questions that had been excluded appear to have been answered several times, and a consideration of the whole testimony, with the questions excluded, satisfies us that there was no abuse of the discretion vested in the court regulating the cross-examination of the witness

There was also an" objection to a question askdd Mr. LouisYogel, another witness called on behalf of the plaintiff: “Were-you then in the market ? ”■ This question was asked, on redirect examination, by plaintiff’s counsel; and on cross-examination the witness had testified that a Mr. Strauss called on him on behalf of the defendant, and that he (the witness) had told Strauss that be was not in the market. It was entirely incompetent for the plaintiff, on redirect examination, to ask whether or not he was actually in the market for a place on Broadway between Thirty-Third and Thirty-Fourths streets at that time, and to explain why he had made the the statement to Strauss, the statement liavingbeen draw out on cross-examination by defendant’s counsel for the purpose of affecting the credibility of the witness.

We do not think that the exception by the defendant to the striking out of certain questions and answers by the court is available. After the question was answered, the counsel for the plaintiff moved to strike it out, he not having objected to the question. The court offered to allow the plaintiff an exception to the question, and to allow the answer to stand, and to that counsel for the-defendant objected, whereupon the court struck the answer out, notifying the defendant’s counsel that he could ask the question again, and the court would admit it, it having been stricken out merely for the'purpose of allowing the plaintiff to make a timely objection to the question. To that the counsel for the defendant excepted, and refused to repeat the question. This was a mere matter of procedure upon the trial, and was within the power of the court; and the defendant, having refused to ask the question again, waived any objection to striking the testimony out as it. stood. The court expressly stated to the counsel for the defendant that he could ask the question again, and that the court would allow it; and the defendant, having refused to avail himself of this-permission, cannot now urge his objection or exception to the striking out of the testimony. The testimony was not very material, and we cannot-see that it would have had any effect upon the verdict if it had been allowed to stand.

. We have examined the other objections to the testimony, and think that none of them are material, or call for any extended examination. No error has been called to our attention, by the defendant, of sufficient importance to justify us in reversing the judgment. We think, therefore, the judgment should be affirmed,, with costs.

All concur.