source: Caselaw Access Project

author: Van Wyck, J.

license: Public Domain

text:
    William Gray, App’lt, v. Calvin Tompkins, Resp’t.

      (City Court of New York, General Term,

      Filed October 22, 1891.)

    Negligence—Runaway houses.
    A plaintiff damaged by a team of horses running away on the street cannot recover unless he affirmatively shows the negligence of the defendant. There is no presumption of defendant’s negligence from the fact that the accident was occasioned by such running away.
    Appeal from a judgment of nonsuit

      William J. Lardner, for app’lt; Warner & Fruyer, for resp’t.
   Van Wyck, J.

This action is brought to recover damages for injuries sustained by defendant and his horse by reason of a runaway team of horses drawing a double truck coming into collision with plaintiff’s horse and truck. The substance of the evidence adduced on behalf of plaintiff was that he was leisurely driving up South street, when suddenly this team of infuriated horses dashed up the dock on pier 11 with a young man holding on to the butt end of the tongue of the truck, and in imminent danger of having his brains kicked out by the plunging and uncontrolable horses; that in their onward course they dashed across South street, and came into violent collision with plaintiff’s rig, thereby slightly injuring him, and so seriously injuring his horse as to justify the society for the prevention of cruelty to animals in causing him to be killed. The plaintiff then rested, and defendant moved for a nonsuit on the grounds that plaintiff had failed to prove any negligence on the part of defendant or his servant, and that plaintiff had not proven that he was free from negligence himself. The plaintiff failed to make out a prima facie case of negligence against the owner of this team of horses. Proof of the accident, by which the damage was caused, did not raise a presumption of negligence against the owner of the horses, the running away of which caused the accident. Plaintiff’s proof' disclosed merely the cause of the collision, but not the cause of the horses running away. It was incumbent on him to present the condition of affairs as they existed at or just before the time that the horses first became frightened and started on their flight. This should have been done in order to enable the jury to determine whether the owner had been negligent or not.

The position of the young man, assuming him to be the driver, hanging on to the butt end of the tongue of the truck, indicated either that he had not been in his seat when the horses started, or that if then in his seat, that he had been thrown from it to his perilous position by the violence with which the horses plunged and ran. The horses might have been carefully secured to a hitching post, and the driver near by attending to the loading or unloading of his freight, or he may have been safely in his seat making ready to start, and in either case the fright and fury of the horses might have been occasioned by some mischievous boy exploding a fire, cracker under their very noses, and under such conditions who could say that the driver had been negligent, or that his conduct had in any way contributed to the damage sustained by plaintiff by reason of the collision and accident So illustration after illustration might be given as to how the horses might be frightened into running away without imputing any negligence to the owner or his servant. The plaintiff’s proof only shows that he has been damaged by reason of an accident occasioned by defendant’s running away horses colliding with plaintiff’s rig. This is not enough; he must show affirmatively that the defendant’s negligence contributed to the accident In the case of Gottwald v. Bernheimer, 6 Daly, 212, Chief Justice Joseph F. Daly, writing at general term of the court of common pleas (our appellate authority), said: “Honegligence had been proved. The mere fact that horses attached to a wagon of defendants ran away and injured plaintiff’s horse proves no wrongful act of defendants. The horse may have run away of nis own accord, in which case the owner is not answerable. Affirmative proof must be given that defendant neglected some precaution or care, and the running away occurred from that circumstance.”

And'm Button v. Frink, 51 Conn., 342; S. C., 50 Am., 24, it was held that where a plaintiff was injured by the running away of defendant’s horse on a highway, he could not recover unless he proved affirmatively defendant’s negligence.

The nonsuit was properly granted, and the judgment is affirmed, with costs.

Ehrlich, Ch. J., concurs.


text:
    Annie Yeamans and Jennie Yeamans, Resp’ts, v. Frank A. Tannehill, App’lt.

      (City Court of New York, General Term,

      Filed October 22, 1891.)

    Contract—Actor and playwright.
    Defendant entered into a written contract with plaintiffs to write a play for them in consideration of $5,000 to he paid $250 down, certain payments as the work progressed and a certain sum per week until fully paid, and plaintiffs agreed to stage and produce it for a season of ten weeks, commencing Sept. 15. Defendant afterwards delivered a memorandum guaranteeing to have it completed by Sept. 15. It was not finished until Sept. 30, when plaintiffs refused to accept it, as it came too late. Held, that the original agreement required the completion of the play in time for plaintiffs to produce it by Sept. 15; that the memorandum, at most, extended defendant’s time to that date; that there was a breach of the contract and that plaintiffs were entitled to recover the amounts paid thereon.
    Appeal from judgment entered on the verdict of a jury in favor of plaintiffs.

      August G. Beyer, for resp’ts; Wm. B. Fllison, for app’lt.
   Van Wyck, J.

The plaintiffs, Mrs. Annie Yeamans and her daughter Jennie, actresses, entered into a written contract on May 16, 1889, with the defendant, a dramatic author, by the terms of which he was to write a three act comedy drama as required and directed by the plaintiffs, who were to pay him $5,000 therefor as follows: $250 down, $100 when the first act was completed, $100 on completion of the second act, $50 when the play was finally completed, and thereafter $50 per week until the balance was fully paid, and they further agreed to stage and produce the play with a first class company for a season of ten weeks commencing September 15, 1889, the selection of the company, however, to be subject to the approval and under the direction of the defendant. The defendant signed and delivered to plaintiffs, on June 15 following, a written memorandum by which he acknowledged receipt of $250 and guaranteed to have the play completed by September 15.

It was conceded that this $250 had already been paid him by plaintiffs on the delivery of the original contract of May 16. The plaintiffs’ evidence showed that the defendant completed the first act of the play on June 13, when he was paid $100, as agreed; that the greater part of the second act was completed and read to them on August 4, and the other $100 was then paid; that the third and last act was not completed until September 30, when he wrote a letter offering to read the play in full to them, whicli offer they refused, claiming that it came too 'late as the play should have been completely finished and read to them certainly by September 15. The plaintiffs’ action is for a return of the $450, so paid as aforesaid. The defendant’s evidence went to show a waiver and modification as to the time for the completion of the play, an abandonment of the original enterprise by plaintiffs, and a failure to stage and produce the play for a ten weeks season commencing September 15; but all of these contentions of defendant were disregarded by the jury, who rendered a verdict of $450 in favor of plaintiffs, and thus all disputed questions of fact were properly disposed of by the jury. But both counsel displayed much learning and ingenuity at the trial, and still more on the hearing of this appeal, as to whether, or not the written memorandum of June 15 was a new contract or a modification of the written agreement of May 16, and whether or not it was supported by a valuable consideration, and whether such memorandum not being under seal could be deemed a valid modification of the original agreement which was under seal. It must be remembered that all that this memorandum contained was a guaranty by defendant that he would finish the writing of the play by September 15. All of this close and fine reasoning of counsel was directed to the solution of the question whether or not the defendant was legally bound to complete the play by September 15, when as a matter of fact it was conceded that he had not completed the play until September 30, nor had plaintiffs refused to accept it until that day. What matters it whether the memorandum of June 15 was or was not under seal, or whether it was a new contract or a modification of the old, or whether it was founded on consideration or not, or whether it existed at all or not, for the defendant had agreed by the original contract of May 16 to write the play -which by the very terms of that contract the plaintiffs had agreed to stage and produce for a ten weeks season, commencing September 15, and how were they to stage and produce the play on that day unless the defendant was bound to have it completed by that time, and moreover it would have had to have been rehearsed before it could have been properly produced and it is in evidence that these rehearsals would have occupied two weeks’ time. How could the plaintiffs produce a play on September 15, which was not completely written until September 30 ? This is very aptly answered by Mrs. Yeamans, in her reply to an inquiry as to why steps had not been taken for staging the play, that “ You cannot stage a play if you haven’t it.”

The original contract required the plaintiffs to produce the play by September 15, and although it contains no express provision limiting the time within which the defendant must complete the writing of the play, still it must be construed, in law, which is common sense, as meaning that he agreed to so finish and complete it in ample time to have it properly rehearsed before its production and presentation to the public.

So much for defendant’s contention that he was not required by the terms of the original contract to complete the play by September 15, the very day upon which this same contract required the plaintiffs to so produce and present it. And as for this so much talked of memorandum, if it had any force, and why not, it enured to the benefit of the defendant and not of plaintiffs, for it extended the time within which he was required to write the play about two 'weeks, the period necessary for rehearsing the play; and if it has no force, then under the original contract he would be required to complete and deliver the play about two weeks previous to September 15, the time when plaintiffs originally agreed to produce it.

All of the substantial objections of defendant’s counsel were directed at the supposed invalidity of this memorandum and have thus been disposed. of; and the only remaining objections to be considered are, that the verdict is excessive, contrary to the evidence, contrary to law and against the weight of evidence.

After careful examination the conclusion is reached that the evidence justified the verdict. Judgment affirmed, with costs.

Ehrlich, Ch. J., and Newburger, J., concur.


author: Van Brunt, P. J.

text:
    In the Matter of the Will of Virginia S. Kaufman (formerly Dillon), Deceased.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Will—Widow—Revoked by re-marbiage.
    A will made by a widow is revoked by her re-marriage. She is an unmarried woman within the meaning of the provision of 2 Revised Statutes, 64, § 44.
    Appeal from decree of the surrogate refusing probate of will.

      L. Marshall, for app’lt; M. S. Wise, for resp’t.
   Van Brunt, P. J.

On the 5tli of March, 1886, the testatrix was the widow of one David Dillon, and on that day duly executed her last will and testament. On the 25th of January, 1888, the said testatrix married one Jackson S. Kaufman, and in December, 1890, died, leaving her surviving her husband, the said Jackson S. Kaufman, and one Mildred Dillon, a daughter by her - former marriage. The will above mentioned having been offered for probate, such probate was refused by the surrogate upon the ground that the marriage of the testatrix subsequent to the execution of the will revokes the same, and from the decree thereupon entered this appeal is taken.

Section 44, 2 Revised Statutes, p. 64, is as follows: “ A will executed by an unmarried woman shall be deemed revoked by her subsequent marriage.”

It is claimed by the appellant that the testatrix being a widow at the time she executed this will was not an unmarried woman, upon the theory that the statute meant a woman who had never been married. Although the counsel both for appellant and respondent have devoted much time to the discussion of this proposition, we do not see that there is any room for argument, ,as a widow is certainly not a married woman, and if she is not, the statute applies.

None of the authorities cited have the slightest application to such a condition of affairs; and the court cannot either amend or repeal the statute because of legislation in respect to the status of married women which has come into existence since the passage of the Revised Statutes.

The decree should be affirmed, with costs.

Daniels and Ingraham, JJ., concur.


author: Patterson, J. Barrett, J.

text:
    George H. Adams et al., Ex’rs, App’lts, v. Stephen H. Olin et al., Ex’rs, Resp’ts.

      [Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    1. Evidence—Admissions in account books.
    While account books of a party are not evidence in his favor, except under the limitation of well known rules, they are evidence against him, and whether kept by himself or his clerks, the presumption arising from them, when he appears by them to be a debtoi', is that the entries are correct.
    2. Decedent’s estates—Claim of wife fob moneys in decedent’s hands
    FOB INVESTMENT—LIMITATION.
    On the reference of a claim by the wife of deceased, for moneys belonging to her separate estate left in his hands for investment, the account books of deceased showed a credit to her account of a certain sum and charges against it down to 1879, when a balance was struck, a further credit in 1886, and charges to the amount of such credit, when another balance was struck. Held, that this showed a running account, and that testator regarded this balance as due from him in 1886) and that the claim was not barred by the statute of limitations.
    3. Same—Payment.
    The burden of proof resting on the executors to make out their defense of payment is not sustained by showing checks to the order of the claimant which were charged in testator’s books to expense account.
    4. Same—Satisfaction by legacy.
    The widow’s claim for such moneys is not satisfied by a legacy given to her in lieu of dower or other interest in the estate, especially where such claim arose or was admitted after the execution of the will.
    Appeal from judgment, entered upon report- of a referee, disallowing claim against an estate.

      George H. Adams, for app’lts; George L. Rives, for resp’ts.
   Patterson, J.

This is an appeal from a judgment entered on the report of a referee, appointed under the statute on the consent of parties to determine a disputed claim against the estate of S. L. M. Barlow, deceased.

The learned referee held that the executors were justified in rejecting it and found against the claimant. The claim was presented by the executors of the will of Mr. Barlow’s widow and was based upon an apparent balance on his books showing on his ledger, upon a separate account standing in her name, as due her •on December 31, 1886, the sum of $22,771.12. This account was opened in March, 1864, with a credit of cash $19,862.50. In Mr. Barlow’s cash book of the same date the same amount is •credited to Mrs. Barlow. The origin of this account is given in the evidence. A client of Mr. Barlow, appreciating the professional services of that gentleman, in addition to paying his charges therefor, presented to Mr. and Mrs. Barlow certain securities, which being sold through a broker, part of the avails, viz.: the-amount with which the account is started, were credited by Mr. Barlow to his wife, seemingly as her proportion of the gift. Heim mediately proceeded to invest this money for his wife. He-purchased a house and from time to time changed the investment, and there were entered in both his cash book and ledger the. jn'oper charges relating to the changes of investment and also of. other items of money received and disbursed for her. Such entries were made by his bookkeepers from the time the account, was opened until December 31, 1879, when there was a balance struck in her favor on the ledger of $23,187.42.

Looking at Exhibit Ho. 1. (defendants) which is a statement, made up from the cash book, there appear to have been but two items charged directly against Mrs. Barlow in 1879, and they being posted in the ledger and deducted make the above mentioned balance at the date last named. From that date no entry is made-in this special account of Mrs. Barlow’s, either in the books of original entry or the ledger, until April 26, 1886, an interval of over six years, when she is credited with an amount received from Hamilton, executor, etc., of $2,476.07 and two small items of cash. On the debit side, in that year, she is charged with various sums exhausting the $2,476.07 and leaving a balance struck December 31, 1886, of $22,771.12.

Ho other item appears in the ledger account after that date until October 22, 1888, when Mrs. Barlow is credited with $100 and two days afterwards charged with its disbursement. During the currency of this account Mr. Barlow drew a great many checks to the order of his wife which are not entered in it, but which are charged- in his books to JSxpen.se account. They are more-than sufficient, if applicable to Mrs. Barlow’s special account, to extinguish it. In his will Mr. Barlow made a bequest to his wife of certain personal property of great value and the income for life of one-half of his residuary estate, and declared that the provisions of his will in that regard were to be in lieu “of all dower or other her interest in my property and estate.” This will was executed in 1872, but republished by codicils, without change-in the provision for his wife, the last being dated July, 1880. Two other accounts on Mr. Barlow’s books were made the subject of examination on the trial, one with the country house at Glen Cove, called “Elsinore,” and the other “library account,” but we fall to see any connection between those accounts and the special account of Mrs. Barlow or how they can affect the result.

Three defenses were urged before the referee: First, the statute of limitations; second, payment; and third, the satisfaction of the debt by the provisions in Mr. Barlow’s will in his wife’s favor. The referee found that the statute barred the claim and that the debt was paid.' He did not pass upon the effect of the provisions of the will. We think the decision of the learned referee was erroneous.

It cannot well be contended that the entries in Mr. Barlow’s books do not furnish prima facie the basis of an action against his estate. They are the books of account of a man who, according to the stipulation of the parties made part of the record, “ had large and varied business interests. He held fiduciary relations-to many different people and received at various times very large sums of money. During the greater part, if not the whole of his professional life, he kept complete books of account, consisting of cash books, journal and ledger. These books were very carefully kept in respect to the amounts of receipts and payments, but in. many instances are deficient in the matter of explanations of the. character of amounts received. In most cases the entries of receipts contain only the name of the person from whom received and hence require reference to his correspondence and other sources to determine any question as to the basis of such receipts.''

As showing the extent of the bookkeeping of his private business, it appears that at the time of his death (1889) there were 175-accounts open on his own personal books. He examined such books from time to time, but not very frequently. His bookkeeper generally made entries in the accounts from the stubs of the check book, on which were indicated the nature of the payment, from, which was inferred the account to which it should be charged, but in cases of doubt it was the habit of the bookkeeper to apply to Mr. Barlow for instructions. This was done at times with reference to the expense account, and there is nothing to show that Mr. Barlow was not cognizant of all that was entered and when it was entered in the special account, or that he was ignorant-of the balance struck from year to year, or the fact that it was continued as a current account notwithstanding the gap of six years, or that when the entries in and after 1886 were made he-did not intend them to be in continuation of that account. The account has all the force of an admission of an indebtedness to his wife arising out of his charge and administration of the monies, with the balances of which she was credited, at the respective dates of such balances. While account books of a party are not evidence in his favor, except under the limitation of well known rules, they are evidence against him, and whether kept by himself or his clerks, the presumption arising from' them when he appears by them to be a debtor, is that the entries are' correct, for he would not record or allow to be recorded so distinct a statement unless it were correct. If there is an error he must show it. It is about as deliberate an admission as can be made. Its very purpose is to make a record to be preserved. We regard, therefore, this ledger balance resulting from entries corresponding with and taken from the cash book entries, according to the bookkeeper’s (Heppenstall) testimony, as sufficient to support the-action unless either of the specific affirmative defenses is to prevail.

The plea of the Statute of Limitations is based on the fact that more than six years elapsed between the striking of the-balance of December 31, 1879, and the entry to Mrs. Barlow’s ■credit of the payment made by Hamilton, executor, April 26, 1886. The Referee held that the six years bar applied, the entries subsequent to April, 1886, having been merely of the receipt and disbursement of a particular amount under exceptional circumstances. He also held that the account in its nature was such as exists between debtor and creditor merely. The entries explain themselves to this extent at least; they show it was a running account of moneys belonging to Mrs. Barlow. Mr’. Barlow was plainly treating and caring for the moneys the subject of this account as held and paid out by him separately from everything else. There is no evidence of a loan or that he paid interest. He regarded that account on December 31, 1886, as being one on which he was indebted to his wife in the balance then appearing, and in that balance there was included the .amount brought down from 1879, and there is also a credit of that balance as of the date of January 1, 1882. Let us assume that the six years bar is that applicable to accounts of this character; ■even then the entries of 1886 and the striking of the ledger balance of December 31 of that year clearly show the continuation of the account m such a way as to prove that Mr. Barlow considsidered himself as still holding the amount of that balance as a debt due his wife. The entries in 1886 are manifestly payments on account of the antecedent admitted balance of 1879 increased by the Hamilton check credited on the same account. They are in extension of an open account. Partial payments to keep alive a liability must be “the conscious and voluntary act of the debtor ■explainable only as a recognition and confession of the existing liability,” Blair v. Lynch, 105 N. Y, 636; 8 N. Y. State Rep., 49, but what better recognition or confession could be asked than that found in the debtor’s own books in entries which he has directed to be made in the particular account as he did those on the debit side in 1886.

The burthen of proof was cast on the defendants to make out the defense of payment. It was not established. There is not sufficient evidence that the checks drawn to the order of Mrs. Barlow and entered in the stubs of the check book and carried to •expense account were either intended by Mr. Barlow to apply to ■or were received by his wife on the special account. The referee has presumed they were and has in effect transferred them from ■one account to another. The presumption is just the other way. The course of business relating to these checks was that they were all drawn by direction of Mr. Barlow and were entered m expense account by bookkeepers from a certain diary or the check book stubs. There is nothing to show that these checks ought to have been debited to the private account of Mrs. Barlow except in 1886, and they were then so entered. We know from the testimon;’- of Mrs. Moore that about 1886 there was an understanding between her brother (Mr. Barlow) and his wife that certain bills of the latter should be paid from her own monies. Mr. Barlow’s books were balanced from time to time, kept by his clerks open to his inspection and presumably correct. Every check charged on these books to another account and now claimed to be in reduction of the special account must be proven to be applicable to that account. Mr. Barlow gave the instructions as to charging the items in 1886, and this would show that he then knew the exact situation of the account, and the bookkeeper says he would have charged them to expense account still, had it not been for the specific instructions.

Under the facts as they appear before us in the record and assuming that this claim is a debt merely, we do not regard the testamentary provisions for Mrs. Barlow a satisfaction of the claim. The testator does declare that such provisions “ are intended to be in lieu and in bar of all dower or other her interest in my property and estate,” but whether a legacy shall satisfy a debt is always a matter of intention. Boughton v. Flint, 74 N. Y., 476.

It is said in Williams v. Crary, Ex'r, 4 Wend., 443, “the rule in this respect seems to be that a legacy shall not be deemed a satisfaction of a pre-existing debt unless it appears unquestionably the intention of the testator that it shall so operate,” and it is further said in the same case, “it will be seen by looking into the books that the courts have never been quite satisfied with the doctrine and they have been ready to seize upon slight circumstances for the purpose of repelling the presumption, if indeed there be any, that the legacy was intended as a satisfaction of the debt.”

In the same case in another court, 5 Oowen, 368, it is remarked: “ Where there are any circumstances in the case to repel the presumption that such was the intention of the testator, the courts have eagerly seized upon them to prevent the application of the rule.” See also Eaton v. Benton, 2 Hill, 576. In this case, what is relied on to support the defendant’s contention, it is true, is not a mere presumption, but the language of the tenth clause of the will; but the foregoing citations show with how little favor such a rule is regarded and that we must look for the intention of the testator. The clause of the will referred to is, as has been well remarked, merely the ordinary clause to bar dower, but there are circumstances extrinsic of the will which would indicate the testator did not intend the claim or debt to be satisfied by the legacy. Certainly a debt arising after the date of the will would not be merged in the legacy. 4 Wend., 443 ; Redfield on Surrogates, 578. Mr. Barlow’s will was made in 1872 and the last codicil republishing it in 1880; but we find on his books an ■express recognition of the balance carried down to December, 1886, and this is sufficient, we 'think, to show there was no intention to have the debt discharged by the gifts in the will.

The judgment must be reversed and a new trial ordered before another referee, with costs to abide the event.

Barrett, J.

I concur.There is, however, an additional consideration which strengthens the conclusion arrived at by Mr. Justice Patterson. The amount in Mr. Barlow’s hands was not in the nature of an ordinary debt. It represented property belonging to Mrs. Barlow, originating partly in a gift to her from one of Mr. Barlow’s clients and partly from her father. The property (or its proceeds) was held by Mr. Barlow throughout as his wife’s trustee or agent, and he managed it for her from the time of its receipt until his death. It never became part of his estate nor could he have deemed it such. It was always her separate estate,, though in his hands for investment and re-investment. Mr. Barlow could not well have looked upon this separate estate of his wife, thus entrusted to him for management, ¿is part of his own estate, nor could he have taken it into consideration when lie provided for Mrs. Barlow in his will and spoke of such provision as made in lieu of her interest in his property and estate. That clearly left her own property in his hands unaffected.


author: Dwight, P. J.

text:
    Edward Rock, App’lt, v. The Retsoff Mining Co., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Negligence—Gontbibtttoby—Railboads.
    Plaintiff, a.brakeman employed by defendant, was injured by being-knocked from the top of a box car by an overhead trestle. He had been engaged in his work for five months and had frequent occasion to pass under the trestle and knew that with ordinary cars there was little room to pass when standing upright. On the occasion of the accident he was standing on a new car which was higher than those ordinarily in use and with his back to the trestle as the train approached it. Held, that he was guilty of a degree of negligence which justified a dismissal of the complaint.
    Appeal by the plaintiff from a judgment dismissing the complaint entered on a non-suit granted at the Livingston circuit, and from an order of the same court denying the plaintiff’s motion for a new trial on the minutes.

      S. Hubbard, for app’lt; J. R. Strang, for resp’t.
   Dwight, P. J.

The plaintiff was a brakeman employed by the defendant on its railroad, two miles in length, running from its salt mine in the town of York in Livingston county to a station on the Western H. Y. & Pennsylvania Railroad at Piffard. The defendant had but one locomotive engine and one crew, or set of hands, which ran back and forth several times each day from the mine to the railroad station, taking empty cars, furnished by the railroad company, one way, and the same cars loaded with salt the other way. The crew consisted of an engineer and fireman, a conductor and two brakemen, of whom the plaintiff was one from December 16, 1887, to May 9, 1888, when the accident occurred which is the subject of this action. This consisted of his being knocked from the top of a box car by coming in contact with an overhead trestle connected with the defendant’s works.

The trestle had been maintained in the same form during the whole period of the plaintiff’s employment. It ran from the third story of the principal building to the ground on the west, and supported a track on which small cars were run up and drawn by cable. Under it a track was laid on which freight cars were drawn back and forth for the purpose of storage and for switching. The bottom of the trestle was fifteen feet ten inches above the west rail •of this track, and seventeen feet and nine inches above the east rail; from which it follows that it was sixteen feet nine and one half inches above the same level at the middle of the track. The ■ordinary box cars which were furnished to the defendant by the railroad company down, to about the 20th of February, were about eleven feet two inches from the top of the rail to the top of the running board in the middle of the roof. This gave a space between the running board of the common cars and the bottom of the trestle of only five feet seven and a half inches, which was less than the height of the plaintiff, viz: five feet, eight inches. From the running board the roof of the car sloped either way, so that on the east side of the car, or that next the building, there was ample room for a man even taller than the plaintiff to stand erect and pass under the trestle. The plaintiff testifies that he had been in the habit of passing under that trestle from six to twelve times a day on box cars ; that he was always on top of the cars and generally standing erect; that he had been under the trestle standing erect half a dozen times a day and never to his knowledge was required to stoop to get through. It would seem, therefore, that it must have been his habit, even on the ordinary box car, to stand off from the running board and on the side of the roof next the building. But on the occasion of the accident the car was more than a foot higher than the ordinary box cars mentioned above, being twelve feet four inches from the top of the rail to the top of the running board, leaving a space of only four feet five and a half inches between the running board and the trestle; and the plaintiff stood upright on the running board with his back to the trestle as his car approached it. We think the statement demonstrates a degree of negligence on his ¡iart which .plainly justified the dismissal of the complaint, whatever negligence was chargeable upon the defendant.

The plaintiff was perfectly familiar with the situation. lie knew from the daily experience of five months that there was nothing to spare between the running board, even of the common cars, and the trestle. He-lcnew that the large cars had been in use to some extent for three months, and that they were much higher than the common cars. If he had ever passed under the trestle upon one of them he must have learned that he could not stand upright even on the side next the building, and he was one of only two brakemen who operated those cars during the three months they had been in use. On this occasion he approached the car on the foot board of the engine for the purpose of coupling the two together, and having done so be mounted the car by the ladder on the end next the engine and passed along the running board to the other end to loosen the brake. In doing all this there was everything to remind him that the car was one of the large ones. Those cars were all new and newly painted ; their greater height was plainly perceptible even to a casual observer; the plaintiff himself says that when he loosened the brake he found it stiff because it was a new car; and yet as soon as he had loosened the brake he stepped up onto the running board and stood erect with his back to the trestle, and he must have been struck by it well down about his shoulders. It is difficult to believe that he could have been so inattentive to his own safety even if he had supposed that he was on one of the old cars. But such is his own testimony and under all the circumstances of this case it1 left the conclusion of contributory negligence unavoidable.

The complaint was properly dismissed and the judgment must be affirmed.

Judgment and order appealed from affirmed.

Macomber and Lewis, JJ., concur. ■


text:
    Ludwig Herbst, App’lt, v. The Vacuum Oil Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    New trial—Excessive verdict.
    Unless it clearly appears from the record that the trial justice has mistaken his duty and improperly invaded the province of the jury in setting aside a verdict as excessive and granting a new trial, the appellate court should not interfere, hut should allow his order to stand and the case he sent to a new jury for trial.
    Appeal by the plaintiff from an order granting the motion of the defendant, made on the minutes of the court, to set aside the verdict in favor of the plaintiff, and for a new trial, in an action tried at the Monroe Circuit in June, 1890.

      Geo. Truesdale, for app’lt; M. H. Briggs, for resp’t.
   Dwight, P. J.

The verdict was set aside on the ground that the damages awarded thereby were excessive.

The action was for injuries to the person of the plaintiff resulting from the explosion of naptha in the sewers of Rochester, in December, 1887, out of which occurrence grew the actions of Birch, Bridgman and others, against the same defendant, in all of which cases the liability of the defendant was adjudged by this court and by the court of appeals.

The motion to set aside the verdict on the ground that it awarded damages in excess of the amount fairly established by the evidence was one which the trial judge was expressly authorized in his discretion to entertain, Code of Civ. Pro., § 999, and an order made either granting or denying such a motion is, óf course, appealable to this court. But we are not advised of any case, and have looked in vain for one, in which the order of the trial court granting the motion, on the ground mentioned, has been reversed on appeal. The absence of such cases is significant of two facts: first, that the order is one not very frequently granted, and second, that the trial court is recognized as the tribunal most competent to review, in this respect, the verdict of a jury rendered to it. The latter proposition would seem to be especially true in cases of the particular character of the one before us. Here the question involved was of the character, extent and probable permanency of the injuries sustained by the plaintiff, and of those matters the trial court had, to a large extent,, ocular demonstration. Before it the plaintiff appeared in person, both as party and witness, during a protracted trial. One of the injuries of which he chiefly complained was that to his nervous system, producing, as it is said, shortness of breath, defects of sight and hearing, rheumatism, feebleness, a tottering gait, “a state bordering on paralysis.” These were symptoms or conditions more or less open to the observation of the judge to whose scrutiny the plaintiff was subjected throughout the trial. Moreover, where the testimony of other witnesses is conflicting, the trial court has the undoubted advantage of seeing all the witnesses on the stand, and noting the comparative frankness and intelligence with which their testimony is given. When, therefore, the trial judge finds himself constrained to set aside the verdict of a jury in such a case, it is not improper for the appellate court to defer largely to his judgment; and we think it not unreasonable to state the rule that, unless it clearly appears from the record that the trial judge has mistaken his duty and improperly invaded the province of the jury, his order should stand and the case be sent to another jury for trial. For undoubtedly a jury is to be the final arbiter of the question at issue, and the only effect of sustaining the action of the trial court is that it shall be submitted to a second jury either to confirm or modify the finding of the first.

In this case we are free to say that if the question had been submitted to us as an original one we should probably not have felt called upon, by what appears on the face of the record in this case, to interfere with the verdict already rendered. But recognizing the superior opportunity for judgment of the trial court in a case in which the evidence is, to say the least, strongly conflicting, we deem it our duty to affirm the order made below.

Order granting a new trial affirmed, with costs of this appeal to abide the event.

Macomber and Lewis, JJ., concur.


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    Robert H. Shannon et al., App’lts., v. John W. Pickell et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23,1891.)

    Partition—Costs—Code Civ. Pro., § 1579.
    In an action of partition the respondents were defeated on all the issues, but the referee held that they were entitled under § 1579 of the Code to taxable costs to be adjusted by the clerk. In his report he says that he is of opinion that such taxable costs cannot embrace costs of either trial or appeal. The judgment recovered on the first trial had been reversed, with costs to abide the event. The clerk taxed costs for respondents, including costs and disbursements of two trials and of the appeal. Held, error.
    Appeal by the plaintiffs from an order of Special Term denying plaintiffs’ motion for a retaxation of the costs allowed to certain of the defendants, viz., the six heirs of John Pickell; also from an order confirming the report of a referee appointed to settle the form of final judgment, and to report the costs to be allowed.

      E. F. Bullard and Geo. Wadsworth, for app’lts; J. A. Van Derlip, for resp’ts.
   Dwight, P. J.

The interlocutory judgment in an action for partition directed a sale of the premises and that the rents and profits for which the six defendants in question were held to account should be offset against their respective shares of the proceeds of the sale. On the accounting the amount of such rents and profits was found to exceed the amount of such shares. The ■question of the liability of those defendants for such rents and profits, with interest thereon, was one of the issues joined and tried in the action, and all the issues were decided adversely to them.

After the determination of the issues a reference was made to Oscar Craig, Esq., “ to settle the form of the final judgment, and .also to report what, if any, costs and additional allowances should be granted to the attorneys for any of the parties.” The referee Teported that the plaintiffs having succeeded on the trial of the issues were entitled to costs of course under § 3238 of the Code, .and that none of the defendants were entitled to costs under that section. But he reported, in effect, that under § 1579 of the Code it was competent for the court to allow some taxable costs and additional allowances to parties who, though defeated on the issues, had contributed, by their appearance and their watchfulness, to the correct result of the proceedings. Accordingly he allowed to the six defendants “taxable costs to be adjusted by the •clerk,” and an additional allowance of $200. To this report the plaintiffs filed exceptions; first, in. that it did not determine that -the costs recoverable by the defendants should not include the •costs of the. trial of the issues joined in the action; second, in that it did not specify the costs to which the defendants were entitled. The report of the referee was confirmed by the court at special term

Under the order thus made the defendants procured their costs to be taxed by the clerk at the sum of $758.84, which included the costs and disbursements of two trials and of one appeal to the general term. To these items the plaintiffs objected as not being properly allowable under the report of the referee, Mr. Craig, and, those objections being overruled, they moved for a re-taxation of the defendants’ costs; and from the order of special term denying that motion the first of these appeals was taken. Later, and for greater caution, the plaintiffs also appealed from the order which overruled their exceptions to the report of Mr. Craig on the question of costs, and confirmed that report.

We think the latter appeal was unnecessary for the reason that, upon examination of that report, it seems not to bear the construction given to it by counsel for the defendants, and by the clerk upon the taxation of the defendants’ costs, but rather to support the contention of the plaintiffs in respect to the costs properly allowable to the defendants.

•In his report when he states that-he allows taxable costs to the defendants to be adjusted by the clerk the referee says: “But I am of opinion that such taxable costs cannot embrace costs of either trial or appeal, for the reason that, as already stated, no defendant was a party to the issues tried or argued on appeal, except the said six defendants, the heirs of John Pickell, deceased, against whom the judgment on such issue is rendered. I am of ■opinion that § 1579 should not be construed with § 3228 so as to extend to any of the defendants in this suit the costs expressly given to the plaintiffs only.”

It is to be observed also that the order of the general term on the first appeal from the interlocutory judgment, which reversed that j udgment for a supposed error in the admission of evidence on the first trial, granted a new trial with costs to abide the event; and the event of the new trial and of the second appeal was the final judgment in favor of the plaintiffs on all the issues in the action.

We think the effect of the report of the referee on the question ■of the defendants’ costs was clearly misapprehended by the clerk, and that the taxation of those costs should have been limited to ■those not objected to by the plaintiffs, which included the costs before notice of trial, the amount paid by them to the referee, Mr. Oraig, and the additional allowance of §200, aggregating the .sum of $289.60.

The order first appealed from, denying plaintiffs’ motion for retaxation, should be reversed and the judgment modified as above indicated, with costs of this appeal to the plaintiffs against the defendants, and the appeal from the order confirming the report of the referee should be dismissed without costs of such appeal to either party.

Appeal from the order confirming the report of referee dismissed, without costs to either party. Judgment modified by striking out from the costs taxed in favor of the six defendants, heirs ■of John Pickell, all except the sum of $289.60, and as so modified affirmed, with ten dollars costs and the disbursements of the .•appeal to be paid by the said six defendants.

Macomber and Lewis, JJ, concur.


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    Mary Koch, an Infant, App’lt, v. Jacob Le Frois, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    ■ Guardian—Fraud.
    An action may be maintained by an infant against her guardian to recover damages tor fraud and conspiracy by which he sold her real estate for less than it was worth and after its consummation shared with his co-conspirator the profits of the fraudulent enterprise, without resort to his bond as special guardian, although he has not accounted. The requirement that an accounting must be had before action applies only to actions on the bond of the guardian.
    Appeal by the plaintiff from a judgment entered on an order of the court, at the Monroe circuit, dismissing the complaint on the pleadings.
    G. D. Gillette, for app’lt; H. R. Hallock, for resp’t.
   Dwight, P. J.

The motion of the defendant, at the circuit, was in the nature of an oral demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. For the purposes of the motion, therefore, all the allegations of the complaint stand admitted. Those allegations, as summarized in the points of the respondent on this appeal, are as follows :

The complaint alleges that the plaintiff is an infant, and that in October, 1890, one Julius Schmidt was by order of this court, appointed her guardian ad litem; that Michael Koch, plaintiff's-father, died intestate in November, 1884, seized of the premises-described in the complaint, which consist of about nineteen and one-half acres of land on Hudson and Norton streets in the town of Irondequoit, Monroe county, leaving him surviving his widow,, and Frank Koch, Mary Koch (plaintiff), and Michael Koch, his-children and heirs at law; that in November, 1884, the defendant was appointed general guardian of plaintiff by the surrogate of Monroe county, and duly qualified and entered upon the discharge1 of his duties as such guardian.

That in November, 1889, the defendant petitioned the Monroe County court for leave to sell the interest of plaintiff and others-in the real estate hereinbefore mentioned, and to have himself appointed special guardian with respect to said proceedings; that, on the 16th of November, 1889, the defendant was appointed such-special guardian by order of the said Monroe county court, and qualified and entered, upon the discharge of his duties as such ; that he violated his duty as such special guardian by failing to sell plaintiff’s interest in the _real estate upon the best terms obtainable, and -wilfully and fraudulently connived and conspired with-one Frank Koch, a surety on his bond as general guardian, to prevent a fair sale of the premises to the highest bidder; that he wilfully and knowingly defrauded the plaintiff and her co-tenants by selling the premises to Frank Koch for a less price than responsible and bona fide purchasers had given him notice that.they were willing and ready to pay therefor ; that-he falsely reported to the court on November 18, 1889, that his agreement made pursuant to an order of said court to sell the premises to Frank Koch, for $5,325, said Koch to take the premises subject to two mortgages amounting to $5,700, making altogether $11,025, was for the best terms for which he cóuld sell the property, and that at the time of the making of such report he well knew that he could sell said premises to responsible purchasers for over $16,000; that the defendant, pursuant to the-agreement of sale, did sell and convey to Frank Koch the interest of the plaintiff and others in the real property for $5,325, subject to' $5,700 in mortgages thereon, and that soon after purchasing said property Frank Koch sold the same for about $17,000, and thereupon the defendant fraudulently and corruptly shared with said Frank Koch the profits of the purchase and sale, amounting^ to-$5,975, and that by such fraudulent conduct in said proceeding" the defendant violated his duty as such special guardian, and wih fully defrauded plaintiff to her damage in the sum of $1,600, for which amount the plaintiff demands judgment.

This complaint seems to have been dismissed under the supposed doctrine of Stilwell v. Mills, 19 Johns., 304; Salisbury v. Van Hoesen, 3 Hill, 77; Hood v. Hood, 85 N. Y., 561; Perkins v. Stimmel, 114 id., 359; 23 N. Y. State Rep., 657, and other ■cases, all of which are cited and relied upon by counsel for the respondent here. We do not consider these cases as authority for the disposition made of this case. All of them are cases of actions on the bond of the trustee, guardian or personal representative; and against the sureties on such bond. That is the action which, in all of the cases cited, it is held cannot be maintained until af;er an accounting, in equity, by the trustee. The case of Stilwell v. Mills, supra, is the leading case, followed throughout the whole list, and the gist of that decision, which is substantially re-echoed in all the cases, is contained in the following language •of the court: “It would be peculiarly unfit to submit the accounts (of the guardian) to the decision of a jury or of referees. * * * 'The true effect of the condition of the bond is to render an account to the court of chancery, and as this has not been required, the condition of the bond is not violated.” The case in 3d Hill, .supra, was an action of debt on the bond, and the court, following the case in Johnson, cites the statute of 1815, providing that the bond, if forfeited, can be prosecuted only “by the direction of the •chancellor,” which direction will be given only after proceedings for an accounting before him. The case in the 85th H. Y. holds that the default of the executor must be established by proper proceedings against him before the sureties can be prosecuted upon their bond, and so throughout the list of cases cited.

But neither of those cases partakes of the character of the case •at bar. Here is not an action against either principal or sureties on their bond, nor is there any question of an accounting involved in this case. Here is an action for damage by the fraud and conspiracy of the defendant, who, as it is alleged, taking advantage of his position as special guardian of this infant, has conspired with another to defraud her of one-half the value of her inheritance, by a sale of the land for one-half its value as known to him; and who after the consummation of the fraud has shared with his ■co-conspirator in the profits of the fraudulent enterprise.

Surely the infant may have her remedy by action for such a wrong without resort to the bond of the special guardian, and it is only to an action on the bond that the doctrine of the cases •cited applies.

The provisions of the Code of Civil Procedure (sections 2351 ■and 2353) are equivalent to those of the act of 1815 referred to in the case in 3d Hill, supra, and both are statutory declarations ■of the principle of the common law stated in the case in 19th ■Johnson, viz., that the bond is not forfeited until a failure to account, or to pay over after an accounting by the trustee. We do not regard that principle as involved in this case, and know of no reason why the infant may not maintain her action against the guardian personally for such positive and specific fraud as is charged in the complaint in this action. ■

We think that the motion for a non-suit was improperly gi’anted, and that the judgment entered thereon must be reversed.

Judgment reversed and a new trial granted, with costs to the-appellant to abide the euent.

Macomber and Lewis, JJ., concur.


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    William M. Brown, Appl’t, v. Frank A. Burgett, Resp’t.

      (Supreme Court, General Term,, Fifth Department,

      Filed October 23, 1891.)

    Evidence—Transaction with deceased person—Code Civ. Pro., § 829-
    In an action to foreclose an alleged equitable lien for unpaid purchase-money of land, sold to plaintiff’s father, since deceased, the contract for which was assigned to defendant, the defense was payment, and defendant-testified to admissions made by plaintiff that he had received payment by allowance of the amount on the sale of a contract by defendant’s father to plaintiff. Held, that this did not permit testimony to be given by plaintiff to the effect that he did not have the transaction with defendant’s father in reference to the consideration for the transfer of the contract, which he was said to have admitted.
    Appeal from a j udgment entered on the report of a referee.

      Wm. H. Henderson, for app’lt; A. C. Wade, for resp’t.
   Dwight, P. J.

The action was in equity to foreclose the-plaintiff’s alleged lien for the unpaid purchase money of a certain four acres of land, under a contract of purchase and sale made by the plaintiff with Richard Burgett, since deceased, the father of the defendant, who had transferred his interest in such contract to-the defendant, the latter being in possession of the land under such agreement; and the relief demanded was that the defendant, be barred and foreclosed of all right, title and equity of redemption in such land, and that the plaintiff recover possession thereof. The answer of the defendant averred full payment and satisfaction of the purchase price fixed by the agreement, viz.: the sum of $250, by Richard Burgett, the father, in his life time, and demanded, by way of counterclaim, judgment for the specific performance of such contract of sale by a proper deed to be executed by the plaintiff to the defendant.

The making of the verbal contract by the plaintiff and Richard Burgett, the amount of the purchase price fixed thereby at $250, and the transfer of- all his interest therein by Richard Burgett to the defendant were established by the pleadings; the only issue of fact joined by the pleadings, and litigated on the trial, was that of payment of the purchase price. The referee found on that issue in favor of the defendant upon evidence which fully sustains the finding, and awarded to the defendant the affirmative relief demanded in the answer, and judgment accordingly was entered,, from which this appeal is taken.

There is no contention here but that the judgment was warranted by the referee’s finding on the issue of payment, but the correctness of that finding is challenged on the ground oí^ exceptions by the plaintiff to rulings of the referee in the admission and rejection of evidence bearing upon that question.

The defendant’s theory in respect to the payment of the §250 was to the effect that his father had bought a piece of timber land of one Wright on. con tract, and sold the contract to the plaintiff for $500, of which $250 was or was to be paid in cash and the remaining $250 was applied in payment of the contract price of the four acres in question. In support of this theory the defendant testified to a conversation with the plaintiff shortly after he, the defendant, had bought his father’s interest in the property, in which the plaintiff admitted that he had sold the land to the defendant’s father, and had had his pay for it, and that he understood that his father had sold the contract to the defendant, and promised that he would get around in a few days and give the latter a deed for it. He further testified: “ He told me, this same day, that my father had bought a piece of land over in Bed House of Frederick Wright, all of which I knew, and had turned his contract over to him, Brown. Father had bought this land on a contract; it was timber land, and he gave my father $250 and the price of the land in question, which was called $250, for the timber land contract, which they called $500. I knew of my father’s purchase of the timber land and that the plaintiff after-wards took it and went into possession of it.” On his cross-examination the defendant gave the following version of the same conversation: “ In the first conversation the plaintiff said father had a contract for it (the Wright lot) of Wright, but had never paid anything on it and that he had bought the contract of father for $500 and was to give father the land in question at $250 and pay $250 besides,” and the plaintiff when he undertakes to contradict this evidence testifies: “ I never told the defendant nor any one that I had taken the Wright contract from Bichard Burgett at $500, and was to give him this four acre piece at $250, and give him $250 more in payment for it.” Also on the cross-examination of the defendant he testifies: “I knew nothing about father having secured the plaintiff only by what the plaintiff told me in that conversation and a previous one.”

It then plainly appears that the whole of the testimony of the defendant, first above quoted, down to the words: “ I knew of my father’s purchase of the timber land,” etc., was a recital of what the plaintiff told him in the conversation testified to by him. But when the plaintiff had the case, in rebuttal, he offered his own testimony to the effect that he never did, in fact, have the transaction with the deceased Bichard Burgett in reference to the consideration for the transfer of the Wright contract, which he was said to have admitted.

_ The testimony so offered was objected to by the defendant as forbidden by section 829 of the Code, and was excluded by the referee. The plaintiff’s exception to that ruling is insisted upon, on the argument here, on the assumption that the defendant had testified concerning the same transaction and so had opened the door to the testimony of the plaintiff in respect thereto. The argument is already answered by showing that the defendant had not testified to the transaction itself, but only to the plaintiff’s admission as to what the transaction was. The fact, testified to by the defendant, that the plaintiff took a transfer of the Wright contract from his father was not in dispute; the plaintiff himself testified to it and produced the contract on the trial; the fact in dispute was whether the consideration of the transfer included payment for the four acres in question.

Another exception strongly urged by the appellant here points to alleged error in the exclusion of the plaintiff’s testimony concerning a conversation which he says he had with the deceased Richard Burgett in the fall of 1876. The admissibility of this testimony is also urged on the ground that it had been rendered competent by the fact that the defendant had already given his version of the same conversation. The difficulty with the offer is that there was nothing to show that it was the same conversation to which the testimony of the defendant relates. On the contrary, the conversation referred to in the offer was one which the plaintiff says was had with Richard Burgett, alone, a short time before any deed of the four acres had been made, and in which the plaintiff promised soon to make a deed to Richard. Whereas the conversation testified to by the defendant was one had with him and his father and was after the time when, as the plaintiff said, he had made out the deed to Richard by mistake, and would have it rectified. Moreover, the plaintiff was permitted to testify that he never had the conversation with Richard in presence of the defendant substantially as testified to by the latter.

There is no other exception to rulings on the trial which seems to require discussion. The evidence upon the only fact in issue between the parties, viz.: that of payment of the purchase price of the land in question, though it consists chiefly of admissions of the plaintiff, was ample to sustain the finding of the referee in that respect; and no further question is made on this appeal.

The judgment appealed from should be affirmed.

Judgment affirmed, with costs.

Macomber and Lewis, JJ., concur.


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    Carrie Whalen, Resp’t., v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Mfth Department,

      Filed October 23, 1891.)

    Neblí gen ce—Contributory.
    Plaintiff was injured while attempting to cross defendant’s tracks. It appeared that she waited for a freight train to pass, when upon stepping upon the nearest track she was struck hy a train coming in the opposite direction. There was nothing to obstruct her view of the approaching engine except the smoke of the freight engine. Held, that she was guilty of contributory negligence, and that defendant was entitled to a non-suit on that ground.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury at the Monroe circuit, and from an order denying the defendant’s motion for a new trial on the minutes.

      A. H. Harris, for app’lt; G. D. Forsyth, for resp’t.
   Dwight, P. J.

The plaintiff was attempting to cross the defendant’s tracks on foot, at the grade crossing of Saxton street, in Rochester, when she was struck by an engine drawing a train to the east and received the injury which is the subject of this action. There are the usual four tracks at the crossing, the south track or Ro. 1, for east bound passenger trains, and a third from the south or Ro. 3, for west bound freight trains. The plaintiff approached from the south, on the east sidewalk of Saxton street, with her head enveloped in a pretty heavy shawl ” which covered her ears. She had been calling among her neighbors during the previous hour and had drank beer with one and cider with another. It was about seven o’clock in the evening of the 17th of January. It had been freezing all day and a very light snow had fallen at intervals. The sky was clouded and there was no moon. When the plaintiff came to the tracks she found a freight train on the crossing, passing to the west on track Ro. 3. It was a long train and she waited, standing close to track Ro. 1 until the freight train had crossed, when she stepped upon track Ro. 1, and the moment she did so was struck by the engine of the passenger train passing to the east.

There was nothing whatever in the way of buildings or other stationary objects to obstruct her view .of the approaching engine, whose head light was burning; and she could see and did see the freight train on the third track from her, and watched the caboose of that train until it had passed entirely across the street. She testifies that the smoke from the freight engine obscured her view of the approaching engine with its head light, although it did not prevent her seeing the caboose of the other train. Indeed she testifies distinctly that she saw the caboose of the freight train until her view of it was cut off by the other train; that is, the train approaching on the track next to her, and by the engine of which she was struck. This testimony seems difficult to understand, since if she saw the approaching train interpose itself between her and the departing caboose, it would seem that she must have seen the former in time to have avoided the collision. But however this may be, it is conceded that if the view of the approaching engine was intercepted or obscured by any means it was by the smoke of which the plaintiff speaks; and a body of smoke must have been very dense to shut out the view of the reflecting head light of an engine. If this is the truth of the case, then it is brought within the doctrine of Heaney v. Long Island R. R. Co., 112 N. Y., 122 ; 20 N. Y. State Rep., 296, where it was held that it was negligence, as matter of law, on the part of the deceased to enter upon the track, for the purpose of crossing, at a point where there was a body of smoke so dense as to obstruct his vision. The court say “ we think it was unquestionably his duty to await the disappearance of the smoke, and thus to be reasonably sure that he had a clear crossing; ” and further in language which, mutalis mutandis, may well be adopted in this case, the court says, “we think it perfectly clear that, if the plaintiff’s evidence is to be believed, the deceased voluntarily went upon the tracks, always a situation involving peril and calling for the vigilant exercise of one’s senses, when the clouds of smoke made or tended to make objects indistinguishable. Where a person voluntarily places himself in a position of peril, under circumstances which render him less able to protect himself by the use of his senses, he cannot fairly be deemed competent to complain of a consequent injury as due wholly to the acts of the other party.” This reasoning and conclusion seems to us to be fatal to the plaintiff’s case in this action, as disclosed by the record before us. Either the engine by which she was struck was in plain sight when she stepped upon the track, or it was obscured by a cloud of smoke, and it was negligence on her part to attempt the crossing until the smoke should be so far dissipated as to enable her to see whether an engine was close upon her.

In accordance with the doctrine and upon the authority of the case of Heaney, we think the defendant was entitled to a non-suit on the ground of contributory negligence of the plaintiff.

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

Macomber and Lewis, JJ., concur.


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    Reuben Comstock, App’lt, v. John H. Hopkins, Impl’d, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Crvn, damage act—Bak.
    Where a cause of action exists against several persons under the civil damage act for one'snd the same injury, a satisfaction as to one of them is a satisfaction as to all.
    2. Same.
    This action was brought to recover damages for the death of plaintiff’s son, caused, as alleged, by intoxication produced in part by liquor sold to him by defendant. It appeared that in another action brought by him for the same cause against another liquor seller he had made a settlement. Held, that this constituted a satisfaction of the claim in question, and that a nonsuit was properly granted.
    Appeal by the plaintiff from a judgment entered on an order for a nonsuit granted by the court at the Wayne circuit

      C. H Ray, for app’lt; J. H Gamp, for resp’t.
   Dwight, P. J.

The action was under the civil damage law to recover for loss and damage resulting to the plaintiff from the death of his son, caused, as alleged, by the intoxication of the latter, produced in part by liquor sold to him by the defendant. The one question of interest in the case is whether the several persons against whom a cause of action exists, under this act, for one and the same injury, are within the principle of the common law rule which prescribes that satisfaction as to one joint wrongdoer is satisfaction as to all. The rule is abundantly established as to joint wrongdoers, and rests upon the principle that as there can be no apportionment of responsibility between them, each must be held responsible for all, and, hence, satisfaction by one is satisfaction for all. Bronson v. Throop and Fitzhugh, 1 Hill, 186; Woods v. Pangburn, 75 N. Y., 498.

The question above propounded, whether this rule applies to the case of persons equally, and no doubt jointly, liable under the civil damage law, is, so far as we know, a new question in this state. In Massachusetts and Iowa, under similar statutes, it has been held that the common law rule does so apply. Aldrich v. Parnell, 147 Mass., 409; Kearney v. Fitzgerald, 43 Iowa, 580. The reasoning of these cases commends itself to our judgment, although we are of the opinion that the conclusion reached does not depend upon the principle that the persons so jointly liable for the injury complained of are joint wrong-doers. It is difficult to see how a man who does only that which he is expressly licensed to do under one statute oil the state can be treated, for that act, os a wrong-doer by or under another statute of the state. Certainly what he has done is not in violation of any law of the state, civil or criminal, and we have had occasion to hold that the liability which he has thereby incurred is not in the nature of a penalty. Hall v. Germain, 37 N. Y. State Rep., 320, 321. The two statutes referred to are in pari materia, the object of both is to restrain the traffic in intoxicating liquor, and they may be read together. When so read it will be seen that the civil damage law imposes a condition upon which a license to sell liquor is granted under the excise law, viz., the condition of liability in damages for injuries to others resulting from such sale. It is true that the unlicensed dealer is a wrong-doer both civilly and criminally; liable both to penalty and to fine and imprisonment; but the civil damage law applies with equal force to the licensed as to the unlicensed dealer, and therefore it cannot well be stfid that the liability imposed by it is the liability of wrong-doers.

But it is not necessary that the persons liable to such an action as this should be wrong-doers in order to give application to the rule that satisfaction by one is satisfaction as to all On the contrary we think the rule has application to both classes of cases upon a principle which is common to both, viz., that there can be no apportionment of damages between the persons liable. So it is with joint wrong-doers from the nature of the case, and so it is with persons liable under the statute in question from the very terms of the statute, which impose an undivided liability upon any person or persons whose sale or giving away of liquor has caused the intoxication, in whole or in part, from which the injury complained of has resulted.

FTo doubt in this case, as in that of joint wrong-doers, the person injured would have had his action against all the persons liable, either jointly or separately; but no cause of action against any would have survived satisfaction by either of the claim against him.

An examination of the evidence satisfies us that there was no question for the jury as to the fact of a settlement by the plaintiff with the defendant in another action, previously brought by him, under the same statute, for the same cause of action, viz., the loss sustained by him in the death of his son. For the reasons stated we are of the opinion that the non-suit was properly granted and that the judgment must be affirmed.

Judgment appealed from affirmed.

Macomber and Lewis, JJ., concur.


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    Charles Burnhard et al., App’lts, v. Ralsa C. Rice, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Costs—Improper service.
    Where service of a summons is set aside on the ground that defendant, a non-resident, was attending as a witness when it was served, it is only the costs of the motion which can he properly awarded against the plaintiff.
    Appeal by the plaintiff from that part of an order of special term, setting aside the service of a summons herein, which gave to the defendant the costs of the action besides ten dollars costs of the motion.

      J. A. Burnhard, for app’lts; M. A. Geron, for resp’t.
   Dwight, P. J.

That portion of the order appealed from was clearly unauthorized. The summons was set aside for want of jurisdiction, it being made clearly to appear that the defendant, who was a resident of Ohio, had come within this state solely for the purpose of attending as a witness upon the trial of an action in the supreme court, and was so attending at the time the service in question was made upon him. He made no appearance in the action except for the purpose of the motion to set aside the summons, and in the notice of such motion he asked only for the costs of the motion.

Of course no costs of the action accrued to the defendant. Indeed, upon the very theory of his motion he was never defendant in the action; no action herein was ever commenced against him; the court never acquired jurisdiction of him for the purposes of the action. His appearance was for the purpose of the motion only and it is only costs of the motion which could properly be awarded -against the plaintiff. Ex parte Benson, 6 Cow., 592; People ex rel. Mallard v. The Judges of Madison Co., 7 id., 423.

The portion of the order appealed from should be reversed, with ten dollars costs and the disbursements of this appeal.

Macomber and Lewis, JJ., concur.


text:
    In the Matter of the Petition of Jane Le Breton Brugh, an Alleged Lunatic.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Lunacy—Rupbsedeas of commission—Test of recovery.
    The test of a man’s right to be restored to the possession and control of his property after he has been adjudged a lunatic is not his competency to manage his particular estate, he it great or small, hut his restonftion to mental health and his consequent fitness for the management of the' common and ordinary affairs of life.
    2. Same.
    The term lunacy does not embrace mere weakness of mind nor lack of business capacity, still less want of business experience.
    Appeal by Mary Le Breton Mitchell, the committee of the petitioner, from an order of the Erie special term confirming the report of a referee appointed to take the proofs herein and report the same with his opinion thereon; which order, among other things, superseded the commission heretofore issued of the person and estate of the petitioner.

      Geo. F. Danforth and Wm. G. Cooke, for the committee, app’lt; Nelson Morey, for the petitioner, resp’t.
   Dwight, P. J.

A very careful reading of the voluminous proofs taken and returned by the referee in this proceeding has satisfied us that his conclusion of fact, to the effect that the petitioner has recovered from the insanity with which she was afflicted at the time of the issuance of the commission, is abundantly established, and that, in the language of his opinion, “her incompetency by reason of lunacy has ceased, and that she is now competent by reason of her restoration to a healthy mental conditions to manage herself and her affairs.” We do not deem it necessary to restate the grounds of this conclusion. They are clearly and fully stated in the opinion of the referee, and to that opinion we refer with entire approval for a history of the case and for a review and classification of the evidence upon which his conclusions are founded. We are especially satisfied with his final application to the whole case of the four tests of recovery from a state of insanity which are prescribed by one of the highest of medical authorities on this subject, namely, Dr. John Charles Bucknill of London, lately the lord, chancellor’s visitor of lunatics. The tests as quoted by the referee are as follows:

1. A natural and healthy state of the emotions.

2. Absence of insane ideas and delusions.

3. The possession of sufficient powers of attentive memory and judgment to enable the individual to take his part as a member of society.

4. Practical and reasonable conduct.

These tests, it seems to us, must commend themselves to every thoughtful mind, whether scientific or unscientific, as admirably comprehensive, discriminating and conclusive; and to each and all of them the case of Mrs. Brugh, as disclosed to us by the evidence as a whole and in its parts, responds with complete success.

It will be observed that these tests of restoration from a diseased to a healthy mental condition do not include the manifestation of strength of mind, of high reasoning powers, of unerring judgment; nor do they set up any standard of business capacity or of ability in the conduct of affairs. These last mentioned qualifications necessarily include the elements of education and experience, which manifestly have no place among the symptoms of mental health or disease. ,

If the qualities of mind above enumerated were among the necessary indicia of soundness of mind, it must be conceded that the case of the petitioner would not endure the test. Mrs -Brugh is undoubtedly, except in her faculty of memory, which in respect to things both recent and remote is phenomenal, a woman of somewhat feeble mind. She has probably been so from childhood, but she was very far removed from a condition of idiocy, she was never an imbecile, and her insanity was of a special type and its attacks the result of special physical conditions, namely of pregnancy and childbirth, which in her case ceased to occur more than thirty years ago. But, as the evidence tends to show, she is not and probably was never a woman of strong mind, and she has had no business education and but little experience of business. When a school girl of eighteen she was permitted to become the wife of a youth of twenty-one, who was just completing his medical studies, and who developed into an incapable, improvident, unsettled man, who wasted her little fortune and acquired none of his own. They lived here and there, and from hand to mouth, for a period of thirteen or fourteen years, when at about the time of the birth of her third child she was visited by a second attack of insanity, arid being thrown upon the care of her relatives, was committed by them to the Insane Asylum at Blackwell’s Island as a pauper lunatic. There she remained for another period of thirteen 3'ears. In the meantime, and about three years before she was discharged from the asylum, she became, by the reason of the falling in of a precedent • estate, entitled to an undivided share of a valuable real property-in the city of Rew York. It was then that her relatives, who seem at all times to have manifested more interest in her property than in her personal rights, or even in her comfort and happiness, instituted proceedings against her as a lunatic, and. procured an adjudication of her insanity, and the issuance of the commission granting custody of her person and estate which it is the. object of this proceeding wholly to supersede. It was, in a manner, superseded in 1882, in respect only to the custody of her person, when in a proceeding like the present, instituted by herself, her contention was compromised by the counsel who then represented her, and a stipulation was entered into with the committee, which recited “ that the petitioner is sufficiently recovered to be competent to exercise her choice as to her place of residence and with whom she shall reside, and is not now in need of any personal supervision as to her conduct, but is not of sufficient competency-to manage her estate or decide as to the expenditure of her income;” and the stipulation, which became the basis of an order to the same effect, provided that the petitioner should thereafter be allowed to select her place of residence and the person with whom she should reside ; that the committee should pay a reasonable sum for her support and maintenance, and that she should “ be allowed the sum of one dollar per week for her personal expenses.” Since that time she has lived with friends, not of her family, with whom she had found for herself a home before the privilege was accorded tq her by the court, by whom she has been treated with kindness and respect'; where she has mingled freely with her neighbors in social and religious gatherings, and where she has constantly maintained the character of a lady of gentle manners, of warm affections, of quiet and sensible deportment, and of correct views of life.

The life thus briefly depicted gave small opportunity for acquiring experience in business or cultivating ability in the man.agement of affairs. Indeed, were Mrs. Brugh shown to have possessed the full average measure of native strength and acuteness of mind, she could not be expected to leap at once from the con•dition of dependence and restraint in which her whole life had been passed into a condition of competency to manage without .assistance or advice an estate of the estimated value of forty or fifty thousand dollars, requiring the choice of investments and a .knowledge of the value of securities.

When, therefore, counsel for the committee, on cross-examinatian of the experts who had testified that Mrs. Brugh was restored "to soundness of mind, propounded to them questions based in part upon the foregoing history, as follows: “ Do you think it would be safe for that woman now to take charge of forty or fifty thousand dollars worth of property, without any assistance or ■control, or direction? ” and “Is she of the same business capacity .and responsibility, intellectually, as an ordinary woman who has had business experience and has never been confined in a lunatic asylum ? ” and “ Do you think she has manifested business •capacity enough since she has lived in Hamburg (her present residence) to make it safe to turn right over to her forty or fifty thousand dollars worth of property to do what she likes with? ” "they were asking questions which answered themselves, but were not very pertinent to the inquiry in hand. These questions pro■pose a test of the right of one to the possession and control of his ■own property which has no warrant, either at common law or in "the statute relating to the care and custody of the property of Idiots, lunatics and habitual drunkards. The statute, which is declaratory of the rule of the common law, in terms confines the jurisdiction of the court in this respect to the case of a person incompetent to manage his affairs by reason of lunacy, idiocy or habitual drunkenness, Code Civ. Pro., § 2320, and it defines the term lunacy, to embrace every description of unsoundness of mind -except idiocy, id., § 3343, sub. 15 ; but it does not embrace mere weakness of mind, nor lack of business capacity, still less want of business experience. Hnsoundness of mind is etymologically ¡synonymous with insanity, and insanity is “ a chronic disease of the brain, inducing chronic disordered mental symptoms.” Encyp. Brit., Tit. Insanity.

So, too, the statute provides for the discharge of the committee -of the property of a lunatic whenever the person subjected to the commission becomes “ competent to manage * * * his

affairs.” Id., § 2343. But this language does not intend competency to manage a great estate if the person happens to possess one. This would make the right of such person to be restored to the control of his property to depend upon the amount of his property, requiring as a condition of such re•storation a degree of competency, in each case, proportioned to the extent and value of the estate, and in the case of •some colossal fortunes, raising the requirement to a standard of business capacity and genius for affairs to which few men and fewer women have ever attained. There is no authority for ¡such a construction of the statute and a statement of the proposition in its logical result reduces it to an absurdity. The test of a man’s right to be restored to the possession and control of his property is not his competency to manage his particular estate, be it great or small, but his restoration to mental health, and his consequent fitness for the management of the common and ordinary affairs of life. “ Competence to common purposes ” was the terse and comprehensive phrase employed by Lord Eldon to describe the degree of competency sufficient to warrant-superseding a commission. Ex parte Holyland, 11 Ves., 10. And in that case the Lord Chancellor said it was not necessary that the mind should be restored even to its original state, and he-cited competency to. make a will of personal estate as an illustration of that “ competency to common purposes ” which was sufficient. In the case of In re Oranmer, 12 Ves., 445, the Lord Chancellor (Erskine) refused to confirm an inquisition because the finding was not “of unsound mind,” or “non compos mentis,” or in other equivalent words, but only that the party was so far debilitated in his mind as not to be equal to the general management of his affairs. In that case Lord Erskine adopted the phrase of Lord Eldon as descriptive of the competency which was sufficient to save a man’s estate from-a commission; and he made his-application of it very plain by supposing the case of a farmer whose mind was so far debilitated that he could not manage his-farm, and yet was “ competent to common purposes; ” in which, case a commission would not issue. The case, in our own state,, of In re Barker, 2 Johns. Ch., 232, may be regarded as extending the jurisdiction of the court, under the common law rule, beyond the classes of technical idiots and lunatics to cases of imbecility arising from old age, properly denominated senile dementia, or of loss of memory and understanding by sickness, grief or other accident; but it proposes no classification which would include the case of the petitioner here, who has concededly recovered from a visitation of insanity, and been restored to soundness of mind, though not now, and probably never, possessed of that strength of mind and capacity for business which would fit her for the unaided management of a considerable estate.

But why should the hypothesis be indulged that Mrs. Brugb will be compelled, or will attempt to manage her estate without, advice or assistance? Very few women, even of the highest intelligence, are accustomed to do so. Mrs. Brugh herself is properly conscious of her need of such assistance, and she is as much entitled to it, so far as we know, as any other woman. When the. occasion arises she will be at liberty to choose her own advisers and assistants, and if by reason of weakness and inexperience she. should fall into the hands of evil and designing men, equity will interfere by a process other than a commission of lunacy to relieve against fraud and undue influence. Her views and wishes in this respect are disclosed by her statements to the witness, Dr. Clark, when he examined her with a view to testifying as an expert in this proceeding.

The referee very properly calls special attention .to the testimony of that witness. It is very intelligent and pertinent testimany. It embodies the answers of Mrs. Brugh to many questions put by him with a view, among other things, to elicit her ideas of the responsibility attached to the possession of property, and the manner in which she would care for and employ her •own, if the responsibility were laid upon her; all of which .answers were pertinent, intelligent and reasonable. Without taking the time to quote from the testimony of Dr. Clark we must be content to say that it is very convincing of the restoration of Mrs. Brugh to soundness of mind, and to a degree •of competency fully up to the standard set by the authorities to which reference has been made; and we find no testimony in the •case which substantially detracts from the effect thus produced.

We think the conclusions of the referee in this case are well •supported and agree with him that a case is made for superseding the commission herein in respect to the property as well as to the person of the petitionei;

The order of the special term should be in all respects affirmed.

Order appealed from affirmed, with costs of this appeal to the respondent to be paid by the appellants personally.

Macomber and Lewis, JJ., concur.


text:
    Rebecca E. Whiteman, Pl’ff, v. John Hyland, Imp’ld, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    .1. Title—Parol partition—Redemption.
    Three brothers, who were devisees of land, entered into an agreement by paroi for a partition. This was followed by conveyances in severalty to two of the brothers, but the premises in question were not conveyed to the other brother, R., who failed to perform certain stipulations as to equality of partition. There was never any change of possession nor acts of (xclusive ownership by him. The two brothers conveyed to plaintiff’s predecessor in title an undivided two-thirds of the premises in question, and the sheriff sold R.’s interest in the premises, from which sale defendant redeemed. Held, that R. had at most an equitable interest in the undivided two-thirds, to which a judgment against him would not attach and which did not pass by the sale and was not acquired by defendant; that he took title to only an undivided one-third.
    '2. Ejectment—Tenants in common.
    Where one co-tenant is in actual possession of the premises and has in various ways persisted in asserting title to the whole premises and the right to possession exclusive of the other, this will entitle the other tenant to maintain ejectment for her undivided share.
    Motion by defendant for a new trial on a case and exceptions •ordered to be heard in the first instance at general term, after verdict for the plaintiff directed by the court at the Livingston circuit

      E. A. Nash, for the motion ; C. J. Bissell, opposed.
   Dwight, P. J.

The action was ejectment for the undivided "two-thirds of an acre of land, known as the Ossiah street lot in the village of Dansville in Livingston county.

The plaintiff claims title as devisee under the will of Reuben "Whiteman who, in January, 1885, took a deed of the undivided "two-thirds from H. Tracey Dorr and Reuben H. W. Dorr, who, in turn, were devisees in common with Robert Gr. Dorr of the lot-in question, together with other lands, under the will of their father, Robert L. Dorr, the common source of title, who died in. 1880.

The defendant claims title to the whole lot, by redemption in; October, 1885, as a judgment creditor of Robert Gr. Dorr, after a, sheriff’s sale of the latter’s interest in the premises on a prior judgment, in July, 1884.

It is apparent that the validity of the alleged title of the plaintiff on the one hand, and the extent of the defendant’s title, on the other hand, depends upon the.extent of the title or interest of Robert G. Dorr in the premises, which passed by the sheriff’s-sale of such interest on the first judgment above mentioned. The contention of the plaintiff is that such interest was title to an undivided one-third only in Robert as tenant in common with his brothers ; that of the defendant that it was title to the whole lot. based upon an oral agreement of the three brothers for a partition; of all the lands devised to them by their father.

It is conceded that the defendant by his redemption took all1 the legal title which Robert had in the premises in July, 1884, and it follows that if such title extended to the whole premises, Reuben Whiteman, the plaintiff’s devisor, took nothing by his-deed from the other two brothers in 1885, and that the plaintiff has no title to support her action.

The facts upon which the determination of the question thus-propounded depends cannot be regarded as now in dispute. Many of the leading facts are admitted by the pleadings or established by uncontroverted exidence, while all the facts which were-in dispute on the trial must be regarded as found by the trial court in accordance with the view of the evidence most favorable to the plaintiff, for the reason that both parties submitted the decision of the facts to the court, the-defendant by his motion for a nonsuit at the close of the evidence, and the plaintiff by her request for the direction of a verdict, which was granted, and that neither party asked that any question be submitted to the-jury

This was in effect an agreement to submit all the questions of" fact to the court; and in such case, if there is any evidence to support the decision, it will be sustained. Dillon v. Cockcroft, 90 N. Y., 649; Ormes v. Dauchy, 82 id., 443; Bank of Attica v. Pottier & Stymus Mfg. Co., 17 N. Y. State Rep., 327, 382.

The principle upon which the defendant relies, viz.: that of a-, paroi partition of lands, requires that the oral agreement between the parties should be “ followed by possession in accordance therewith and the exercise of acts of exclusive ownership.” Wood v.. Fleet, 36 N. Y., 499, and the cases cited. In this case the fact; of an oral agreement between the three sons of Robert L. Dorr, for the partition between themselves of all the lands devised to them in common, is established by uncontroverted evidence ; also-that conveyances in severalty were duly executed to Reuben and Tracy of the lands respectively assigned to them by the agreement ; also that no conveyance of the premises in question was;. executed to Robert. The evidence also tends to show that he never became entitled to such conveyance, by reason of his failure to perform, on his part, the stipulations of the agreement which were required for equality of partition. The evidence also tends to show that there was never any actual change of possession of the premises in question, nor acts of exclusive ownership thereof by Robert, which, in the absence of a conveyance, were necessary to carry into execution the paroi agreement

These facts being, as we must assume they were, found by the trial court adversely to the defendant, there was, at the best, only an equitable interest in Robert in the undivided two-thirds of the premises, to which the lien of the judgment under which his interest was sold could not attach, and which therefore did not pass-by the sale under that judgment, and was not acquired by the redemption of the defendant. It was therefore permitted to the trial court to hold, and it must be presumed to have held, in support of the direction of a verdict, that by his redemption the defendant took title only to the undivided one-third of the premises; that the legal title to the undivided two-thirds remained in Reuben and Tracy Dorr, and passed to the plaintiff’s testator by the deed of the two last named brothers, subject, it may be, to the equitable interest, if any, of Robert, which interest, however, did not pass to the defendant and can not be interposed by him as an equitable defense to the plaintiff’s action based upon the legal title.

The right of the plaintiff as a tenant in common to maintain ejectment against her co-tenant is, under the facts shown in .this. case, not subject to question. The defendant was in the actual possession of the whole premises, and he had, in various ways, and especially by his answer to this action, persisted in asserting his. title to the whole premises and his right of possession exclusive; of the plaintiff. This undoubtedly entitled the plaintiff to maintain ejectment for her undivided share. Valentine v. Northrop, 12, Wend, 494; Trustees of the Church and Society of North Greig v. Johnson, 66 Barb., 119.

Hone of the exceptions taken during the trial are argued by counsel for the defendant.

We think that the direction of a verdict was justified upon the principles above stated, and that the motion for a new trial must be denied.

Motion for a new trial denied and judgment ordered for the plaintiff on the verdict

Macomber and. Lewis, JJ., concur.