author: Per Curiam.

text:
    James Talcott, App’lt, v. Wabash Railroad Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Carriers—Baggage—Liability.
    The carriage of a passenger’s baggage is a mere incident to the contract to carry the .passenger, and the liability of the carrier for a loss thereof is not governed by rules applicable to carriers of goods.
    2. Same—Connecting Lines.
    When a railroad company, without making any special contract, issues coupon tickets entitling a passenger to a continuous ride over the line of the company issuing the ticket and connecting lines of other roads, checks the baggage and receives payment for overweight, the first carrier is only responsible for the carriage of the passenger and baggage upon its own line, and acts merely as agent for each of the other lines in the sale of the coupon and checking for each connecting line respectively.
    Appeal from a judgment of nonsuit and dismissal of complaint.

      Theron G. Strong, for app’lt; George F. Brownell, for resp’t.
   Per Curiam.

The judgment appealed from should be affirmed, upon opinion of referee rendered upon decision of the case.

The opinion of George 0. Holt, Esq., to whom the cause was referred to hear and determine, is as follows:

When the plaintiff rested, the plaintiff’s counsel elected to suffer a nonsuit as to the third and fourth causes of action; and, upon the defendant’s motion, I dismissed the first cause of action. This left the second cause of action, being the claim for the loss of Cullom’s personal baggage, alone remaining in the case. The substantial question raised by the defendant’s testimony is whether the defendant, the Wabash Company, is responsible for the injury to Cullom’s baggage which occurred on the Grand Trunk line. This question depends upon the question whether the Wabash Company contracted to carry Cullom from Chicago to Hew York, or simply contracted to carry him over its own line from Chicago to Detroit, .and acted as agent for the Grand Trunk Company and the West Shore Company in respect to the contract which was made to carry him over these lines to Hew York.

When the case was before the general term, each of the judges wrote an opinion. Talcott v. Wabash Railroad Co., 66 Hun, 456; 50 St. Rep 423. As I understand these opinions, one judge held that the Wabash Company contracted to carry Cullom to Hew York; another, that it only contracted to carry him over its own line; and the third, that the form of the ticket was not proved, and therefore the question did not arise. Hpon this trial the defendant has, in my opinion, proved that the ticket which Cullom bought was in the form of the ticket in evidence. The question, therefore, of the liability of the Wabash Company, under the contract proved upon this trial,' does not appear to have been decided by the general term.

The material facts upon this question are these: On April 27, 1889, Cullom purchased at the city office of the Wabash Company in Chicago, for twenty-five dollars, a round-trip coupon ticket from Chicago to New York and return.- This ticket had printed upon it that it was good for one first-class passage to New York and return, and that it was subject to the following contract : “ In consideration of the reduced rate at which this ticket is sold, the bearer or holder of the same agrees to and with the several companies over whose lines this ticket entitles him to be carried as follows, to wit: First, that in selling this ticket the Wabash, St. Louis and .Pacific Railway Company acts as agent and is not responsible beyond its own line,”-—together with other provisions. The main tickét had annexed six coupons, one providing for a trip to Detroit over the Wabash road, another from Detroit to Suspension Bridge over the Grand Trunk road, another from Suspension Bridge to New York over the West Shore road, and the remaining three coupons being the corresponding return coupons. Cullom, some hours later in the day, went to the Dear-born Street station in Chicago, presentad the ticket to the baggage master, and had him check four trunks to New York, paying sixteen dollars for extra weight. These trrinks contained, among other things, Cullom’s personal baggage. Cullom took the checks for these trunks, and went aboard the train, leaving Chicago on the Wabash road, at three o’clock; and the trunks, having the duplicate checks upon them, were put aboard the same train. Cullom occupied a sleeping car on the train, owned by the Wagner Sleeping-Car Company, which was intended to go from Chicago to New York. None of the other cars of the train went beyond Detroit, the eastern terminus of the Wabash road. At Detroit Cullom’s trunks were transferred to a baggage car owned by the Grand Trank Company; and the train, made up of Grand Trunk cars, with the exception of the sleeping car in which Cullom was, was drawn by a Grand Trank engine and manned by Grand Trunk employes. On the following morning, at a point on the Grand Trunk road, an accident occurred. The baggage car in which Cullom’s trunks were took fire, and Cullom’s baggage was. destroyed.

ijpon these facts, it seems to me clear that the Wabash Company was not responsible for the loss of Cullom’s baggage, caused by the accident and fire on the Grand Trunk line, unless the Wabash Company contracted to carry Cullom from Chicago to New York. In the case of the delivery of goods to a common carrier for shipment to a point beyond its own line, the courts of different countries have differed as to the liability of the carrier accepting the goods. The English rule has always been that the carrier who accepts the goods is responsible to the shipper for their safe delivery, and this rule seems to have been followed, in Illinois and some of the other states. Hutch. Carr. § 148 and Illinois cases cited in note. But the courts of New York and of many other states and the United States supreme court hold that in the absence of proof of a special contract, if goods are delivered to a carrier to be sent to a point beyond the terminus of the carrier’s line, the carrier performs its duty if it transports the goods to the end of its line, and delivers them in safety to the connecting carrier. Condict v. Railway Co., 54 N. Y. 500; Rawson v. Holland, 59 id. 611; Jennings v. Grand Trunk Railway Co., 127 id. 438; 40 St. Rep. 318; Myrick v. Railroad Co., 107 U. S. 102.

The plaintiff claims that this question is to be decided by the law of Illinois, because the contract was made there. If this were a case of a shipment of goods, it would appear to be the law of Illinois, both under the decisions of its courts and the statute which has been put in evidence, that the Wabash road would be responsible. But I do not think that the decisions or statutes fixing the liability of carriers for the transportation of merchandise, under a bill of lading or receipt, necessarily govern this case. The contract to carry the baggage of a traveler is a mere incident to the contract to carry the traveler. A common carrier can, in the case of a passenger, as well as in the case of goods, make a special contract to carry beyond its own line. Quinby v. Vanderbilt, 17 N. Y. 306. But the general rule is that when a railroad company, without making any special contract, issues coupon tickets entitling a passenger to a- continuous ride over the line of the company issuing the ticket and over connecting lines of other railroads, the first carrier is only responsible for the carriage of the passenger upon its own line, and acts merely as agent for each of the other lines in the sale of the coupon for each connecting line respectively. Milnor v. Railroad Co., 53 N. Y. 363; Kessler v. Railroad Co., 61 id. 538: Auerbach v. Railroad Co., 89 id. 281; Isaacson v. Railroad Co., 94 id. 283; Poole v. Railroad Co., 35 Hun, 29; Central Trust Co. of New York v. Wabash, St. L. & P. Ry. Co., 31 Fed. Rep. 247; Hutch. Carr. § 577 et seq.

In my opinion there is nothing in the circumstances of this case to take Cullom’s case out of the general rule. He was an experienced commercial traveler. He purchased the ticket some hours before he had his baggage checked and took the train. There was nothing to prevent his reading the ticket, and nothing to prevent the general rule applying that its acceptance constituted a contract. The only facts tending to show that the Wabash Company contracted to carry Cullom to Hew York were that Cullom asked for a ticket to Hew York and return, and asked to have his baggage checked to Hew York, and paid the full amount due for the railroad ticket and for the extra weight of the baggage to Hew York. I do not think that these facts are sufficient to take the case out of the general rule. The accident occurred on the Grand Trunk road. The train was a Grand Trunk train, drawn by a Grand Trunk engine, manned by Grand Trunk employes. If the Wabash Company is responsible for the injury to Cullom’s baggage, caused by the accident on the Grand Trunk road, it would have been responsible if Cullom had been injured or killed in the accident. It seems to me that no such claim could be maintained, in view of the above authorities. My conclusion is that the defendant is entitled to judgment as to the second cause of action on the merits, with costs.


source: Caselaw Access Project

author: Yan Brunt, P. J.

license: Public Domain

text:
    The People ex rel. Augustus M. Field, App'lt, v. Board of Aldermen of City of New York, Resp’t.
    (Supreme Court, General Term, First Department,

      Filed August, 1895.)

    1. Senate districts—Apportionment.
    The board of aldermen, in dividing the senate districts of New York' city into assembly districts, cannot include in an assembly district a part of Westchester county, which has. been annexed to New York city by chapter 984 of 1895.
    2. Same—Construction.
    Section 5, article 3 of Revised State Constitution, uses the word “ county” in the sense of a certain portion of territory, and not of a political organization.
    3. Same—Duty op legislature.
    The Constitution formed the senate districts under the present enumeration, and only left the legislature the duty of apportioning the assemblymen among the senate districts, and each assembly district has to be within a senate district as formed by the Constitution.
    Application for a writ of mandamus to compel the board of aldermen of the city of New York to reconvene and reapportion the assembly districts of the city and county of New York.

      Wm. B. Hornblower, for app’lt; John P. Clarice, for resp’ts; Wm. D. Guthrie, for town of Westchester.
   Yan Brunt, P. J.

The relator, who has hitherto been a' voter in the town of Westchester, applied to the court below for a peremptory writ of mandamus against the board of aldermen of the city of New York, directing them to reconvene, and to reapportion the assembly districts of the city and county of New York. The grounds of the application were that by chapter 934 of the Laws of 1895, approved June- 6, 1893, certain territory, theretofore constituting a portion of the county of Westchester, was an: nexed to and made a part of the city and county of New York, and that the board of aldermen of said city, who, in pursuance of the requirements of the Constitution of 1894, had on the 11th day of June, 1895, divided the city and county of New York into assembly districts, had omitted and refused to include such territory in any assembly district of the city and county of New York. The motion was denied, and this appeal was taken.

By section 5 of article 3 of the Constitution of 1894, it is provided :

“ Until after the next enumeration, members of the assembly shall be apportioned to the several counties as follows : * * * New York county, thirty-five members; * * * Westchester county, three members. * * * In any county entitled to more than one member the boai’d of supervisors, and in any city embracing an entire county and having no board of supervisors, the common council, of if there be none, the body exercising the powers of a common council, shall assemble on the second Tuesday of June, one thousand eight hundred and ninety-five, and at such times as the legislature making an apportionment shall prescribe, and divide such counties into assembly districts as nearly equal in number of inhabitants, excluding aliens, as may be, of convenient and contiguous territory in as compact form as practicable, each of which shall be wholly within a senate district formed under the same apportionment, equal to the number of members of assembly to which such county shall be entitled, and shall-cause to be filed in the office of the secretary of state and of the clerk of such county, a description of such districts, specifying the number of each district and of the inhabitants thereof, excluding aliens, according to the last preceding enumerations ; and such apportionment and districts shall remain unaltered until another enumeration shall be made, as herein provided; but-said division of the city of Brooklyn and the county of Kings, to be made on the second Tuesday of June, one thousand eight hundred and ninety-five, shall be made by the common council of said city and the board of supervisors of said county, assembled in joint session. In counties having more than one senate district, the same number of assembly districts shall be put in each senate district, unless the assembly districts cannot be evenly divided among the senate districts of any county, in which case one more assembly district shall be put in the senant district in such county having the largest, or one less assembly district shall be put in the senate district in such county having the smallest, number of inhabitants, excluding aliens, as the case may require. No town, and no block in a city enclosed by streets and public ways, shall be divided in the formation of assembly districts, nor shall any district contain a greater excess in population over an adjoining district in the same senate district, than the population of a town or. block therein adjoining such assembly district. Towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said district most nearly equal in number of inhabitants, excluding aliens ; but in the division of the city under the first apportionment regard shall be had to the number of inhabitants, excluding aliens, of the election districts according to the state enumeration of one thousand eight hundred and ninety-two, so far as may be, instead of blocks. Nothing in this section shall prevent the division, at any time, of counties and towns, and the erection of new towns by the legislature.”

Section 3 of article 3 of the Constitution of 1894 fixed the number of senators at fifty, and divided the state into senate districts, defining with particularity the limits of each district. Twelve senators were allotted to the county of New York, and each senate district was described by metes and bounds. The Twenty-second senate district consisted of the county of Wéstchester. The only function to be performed by the board of aldermen was to divide the city and county of New York, as apportioned by the said Constitution, into twelve senate districts, into tliirtjr-five assembly districts, in accordance with the requirements of said section 5 of article' 3, each of which cistricts should be wholly within a senate district formed under the apportionment made by the Constitution, and which was then in force. If, therefore, under such senate apportionment, the territory in dispute was a part of the city and county of New York, it should have been included within some assembly district of that county. It is plain that it was not a part of that county under Such apportionment, for at the time this apportionment was made by the constitution of 1894 such territory formed part of another county. The senate apportionment was completed when this constitution went into effect, which was, as to this subject, by its terms, January 1,1895, or It would not have been an “apportionment," within the meaning of that term as used in the constitution. The framers of the constitution claimed to recognize equality of population, with certain express exceptions, as the basis of the apportionment. This abundantly appears throughout the entire instrument. When they set apart the county of Weschester as the Twenty-Second senate district, they set apart an integral portion of this territory of the state, with well-defined limits ; containing, according to the last preceding enumeration, a population which, under their plan of apportionment, they considered to be entitled to one senator. With regard to the future, they provided by section 4 of article 8 that the legislature might, after the enumerations to be made in 1905, and every ten years thereafter, so alter the bounds of the senate districts that each district should “contain as nearly as may be an equal number of inhabitants and be in as compact a form as practicable," and that such districts “shall remain unaltered until the return of another enumeration.” *

It is contended by the counsel for appellant that while the legislature could not, after 1905, disregard the principle of equality in population, or change the boundaries of a senate district, it could do so now. No good reason is assigned for such a discrimination, and it seems to.be at variance with the regulations of the constitution governing the apportionment of assembly districts. As we have seen, each assembly district must be within a senate district formed under the same apportionment. The constitution had formed the senate districts under the present enumeration, and only left the legislature the duty of apportioning the assemblymen among the senate district as formed by the constitution.

The argument that the word “county,” as used in the constitution, refers to political organizations, and not to fixed territories, is refuted by the language of the instrument itself. In defining the boundaries of the Twenty-First senate district, metes and bounds are established, and there is added, “ all that part of the county of New York not hereinbefore described." If the words “ county of New York” meant the political division known by that name, the words “not hereinbefore described" would have no reasonable significance. It seems to be manifest that the claim of the relator is contrary not only to the spirit, but to the letter, of the constitution, and that the board of aldermen had no power to include in any assembly district within this county the annexed territory. The order should be affirmed, with costs to the respondent.

All concur.


author: Silkman, S.

text:
    In the Matter of the Estate of Patrick J. McGinness, Deceased.

      (Surrogate’s Court, Westchester County,

      Filed August, 1895.)

    I. Executors, etc.—Assiunment—County lines.
    The phrase, in section 2479 of the Code, “when the petition is presented," refers to the time when the petition came before the surrogate on the return of the citation, and not to the time when it was filed.
    3. Appeal—Decision pro forma.
    The decision by a general term of the supreme court, entered profoi'ma, merely for the purpose of hastening a decision by the court of appeals, is not binding upon the surrogate’s court.
    3. Constitutional law—Chapter 934 of 1895.
    Chapter 934 of 1895, incorporating a part of Westchester county into the city of New York, is not constitutional.
    4. Same—New counties.
    The provision in the state Constitution, giving to the legislature power to divide counties and erect new counties, does not authorize it to change the boundary lines of counties.
    Application for letters of administration.

      Seward Baker, for Amelia Sullivan, creditor; David Switz, for Margrete Jane Fifer, sister.
   Silkman, S.

On May 11, 1895, one Amelia Sullivan filed a petition showing that she was a creditor of the decedent, Patrick J. McGinness, late of the town of Westchester, in the county of Westchester, and praying for a citation directed to all persons having a prior or equal right with the petitioner to show cause why a decree should not be made granting letters of administration to her. On that petition a citation was issued, returnable on the 8th day of July, 1895. On the 10th day of June, 1895, a petition was filed by Margrete Jane Fifer, a sister of decedent, praying for letters of administration. Upon the return of the citation issued upon the creditor’s application, it was ordered that letters of administration issue to Margrete Jane Fifer upon the payment of the costs of Amelia Sullivan within ten days, and upon default letters of administration were directed to issue to said Amelia Sullivan. The costs were paid according to the terms of the order, and Margrete Jane Fifer now asks that letters of administration be issued to her.

The attention of the surrogate is now called to chapter 934 of the Laws of 1895, which became a law on June 6,1895, and which purports to set off that part of the county of Westchester to the city of New York which includes the town of Westchester, where. the decedent resided and died. It is provided by section 2479 of the Code of Civil Procedure that:

“Where a new county has been heretofore or is hereafter erected or territory has been heretofore or is hereafter transferred from one county to another, the jurisdiction of the surrogate’s court of each of the counties affected thereby to take the .proof of a will or to grant letters depends upon the locality, when the petition is presented, of the place where the property of the decedent is situated, or where the event occurred, as the case may be, which determines jurisdiction.”

The section further provides that:

“If before the erection of the new county, or the transfer of the territory, letters have been granted upon the ground that the decedent died or resided within the county, the surrogate’s court from which they were issued has exclusive jurisdiction of the estate and of all matters incidental thereto."

The section then provided for the certification of any paper filed, entered, or recorded in the surrogate’s court where the decedent died or resided in a place embraced' within another county, and for the filing, entering, and recording of such certified copies in such other county with like effect as the originals. It is clear that the event referred to in the section is the event of death, and the death here occurred in the town of Westchester, which has been set off under the annexation act. The language of the section is not well chosen, and there is some doubt as to the meaning of the words, “when the petition is presented,”—whether the word “when” therein used refers to the date when the petition is.filed, or the date when it is acted upon by the surrogate by the issuance of letters. The date of the filing would naturally, be considered the meaning were it not for the sentence following the one in which such language is used, which is, “if before the erection of the new county, or the transfer of the territory, letters have been granted,” etc. This latter language compels us to assume that what the legislature meant by the use of the word “when” was the time the petition came before the surrogate upon the return of the citation, and was acted upon by him by the issuance of letters. Adopting this construction, the entire section is intelligible. It was evidently framed to fit such a case as- the present one. The original petition in this case was filed on May 11th, before the passage of the act of the legislature referred to, and upon the return of the citation letters of administration could have been issued to any one having priority over the creditor without the necessity of filing a new petition; the petition filed by Margrete Jane Fifer, therefore, may be disregarded. The petition filed May 11th was not, however, presented to the surrogate for determination until the 8th day of July, w-hen the citation was returnable, which date was after the passage of the annexation act. I am therefore of the opinion that this court is ousted of its jurisdiction, unless it is found that the legislature clearly exceeded its constitutional power in transferring a part of the county of Westchester to the county of New York. The consideration of this constitutional question is fraught with embarrassment at the very threshold. The issue has been tried in the supreme court by Justice DykMAN, who has upheld the constitutionality of the law; and his decision has been affirmed by the general term of this department. Under ordinary circumstances it would be incumbent upon this court to follow the decision of the general term without further consideration, were it not for the fact that the affirmance of the general term was pro forma, and without argument or consideration, and for the avowed purpose of hastening a determination by the court of last resort. The issue, therefore, stands substantially as if determined by Justice Dykman alone, for whose opinion this court has great respect, but by whose judgment its conscience is not necessarily bound.

The consideration of the question is also embarrassed by the fact that in 1873 the legislature passed á somewhat similar act, annexing a part of Westchester county to New York county, the constitutionality of which does not seem ever to have been challenged. It was subsequently put beyond question by the amendments to the constitution in 1874. However, bearing in mind the language of Owen, J., in State v. Pugh, 43 Ohio St. 98, 1 N. E. 439, where he says: “When the unconstitutionality of an act is very clear to this court, it is clothed with no higher function, it is invested with no more exalted duty, than to say so with promptness. To surrender our convictions to a mere sentiment, or to an apprehension that it may seem an arrogant assumption of superior wisdom to declare a legislature invalid would be a weak disregard of a plain duty, as dangerous to the state as the void enactment itselfand also the words of Justice Andrews in People ex rel. Carter v. Rice, 135 N. Y. 473 ; 47 St. Rep. 702: “The legislature and the courts are alike bound to obey the constitution, and if the legislature transgresses the fundamental law, and oversteps in Legislation the barriers of the constitution, it is part of the liberties of the people that the judicial department shall have and exercise the power of protecting the constitution itself against infringement,” —I am bound to declare my conclusion that the legislature exceeded its power in changing the boundaries of the counties of New York and Westchester, and that it is sufficiently plain to warrant my doing so.

Counties, as territorial divisions, antedated the first constitution of the state of New York, adopted in 1777, and by that document were recognized, and the legislature therein provided for was'chosen from the several counties and districts (districts made up of different counties). The people, through its patriotic representatives, the framers, surrendered to such legislature “the supreme legislative power within this state.” This supreme power was subject to sucli restrictions as may be found in direct terms or by implication. “A restriction may be in expressed'terms or by implication.” Runsey v. People, 19 N. Y. 41. Tlie fact that the counties existed prior to the constitution, and that they were therein recognized for the purpose of dividing the state into senate and assembly districts, seems conclusive that there was no inherent right in the legislature to interfere with county lines, and this proposition is well recognized. Strong, J., says in the case of Runsey v. People, referring to the constitution of 1846 : “Under this constitutional grant (for I consider it as such, and not as a mere recognition of an original inherent right) that legislature acquired the power to erect new counties.” In the case of People v. Draper, 15 N. Y. 532. Denio, O. J., says:

“ It cannot be denied that an act of the legislature which should propose to abolish counties would be hostile to the arrangements of the constitution. There are a great many provisions of that instrument to the execution of which counties are indispensable.” If the legislature had no inherent power under the general surrender of legislative authority to it,'we have a right to assume that the constitution gave it, in respect to the subject of counties, all the power that the people intended it should have. If there was no restriction intended, and the legislature- had general power, the provision for erecting new counties would be a useless waste of words. That power in the original constitution is given in the following language:

“ That it shall be in the power of the future legislatures of this -state, for the convenience and advantage of the good people thereof, to divide the same into such further and other counties and districts as to them shall appear necessary.”

Where power to do a particular thing is specially given, the delegation of such special powers will be presumed to include all the power intended, and to restrict the exercise of general powers. The framers of the constitution appreciated that a portion of the state was not embraced in any county, and that some of the original counties were enormous in extent, and, as their population increased, the convenience of the good people thereof would require them to be subdivided, and new counties erected, and so provided for it. There is not a suggestion in the language used that they had ever in mind the enlargement of any of the original counties. The whole intent, meaning, and purport of the words is the power to subdivide. “ To divide the same into such further and other counties and districts ” cannot be construed to mean the power to rearrange county lines. To “ divide ” means to make something - into smaller parts, and not to enlarge. The plain meaning of the language used must be followed. Bronson, 0. J., in the case of Oakley v. Aspinwall, 3 N. Y. 547, says:

“It is not for us, but for those who made the instrument, to supply its defects. If the legislature or the courts may take that office upon themselves, or if, under color of construction, or upon any other specious ground, they may depart from that which is plainly declared, the people may well despair of ever being able to set a boundary to the powers of the government. Written constitutions will be worse than useless.”

It will also be seen that the framers of this first constitution had in mind representation in the legislature proportionate to the population of the several legislative districts, and so fixed the number of representatives from the several counties and senate districts that the power to change such representation was not delegated to the legislature until the census should have been taken, seven years after the close of the pending war, and then the legislature was only authorized to apportion members of the assembly and senators among the counties and districts in order to make a just apportionment. Thus early did the people restrict the legislature. Had the legislature the power to alter county lines by taking from one county and adding to another, the whole scheme of just and proportionate representation, so carefully provided for in this first constitution, could have been thwarted. It would be unreasonable to suppose that the framers of the constitution would put it in the power of the legislature to destroy a plan of representation which had been carefully devised.

Having referred to the first constitution, a brief reference to the ones intermediate that and the one of 1894 may be proper. The amendments to the constitution in 1801 relate to the number of the mémbers of assembly and senate. No further power is given to the legislature in respect to the alteration of county lines. It does, however, provide that the legislature shall apportion the members of assembly among the several counties of the state, and also provides that nothing therein contained shall prevent the legislature from allowing one member of the assembly to each county theretofore erected. The constitution of 1821 recognizes the existence of counties, and provides for senate districts, to consist of whole counties, provision being made that no county shall be divided in the formation of the senate district. It is also provided that every county theretofore established should be entitled to one member of the assembly, and no new county should thereafter be erected unless its population should entitle it to a member. No other or further power is given to the legislature in respect to county lines. We next come to the constitution of 1846, in which again we find the counties recognized and the senate districts all bounded by county lines, the people having in view the division of the state into senate districts as equal as might be in population without the alteration of county lines. It provides that such districts shall remain unaltered until another enumeration. It provides that no county shall be divided in the formation of a senate district. It provides for the appointment of members of, the assembly to the several counties, and, where a county is entitled to more than one assemblyman, the board of supervisors of such county shall apportion the county into assembly districts. It also provides that no new county shall be erected unless its population should entitle it to a member of the assembly. The amendments to the constitution in 1867, so far as they affect the subject under discussiqn, were defeated by the people. The next amendment was in 1874, when the constitution was amended, providing for the number of members of the assembly and directing their apportionment among the several counties of the state by the legislature according to the number of the inhabitants, and directing .that, where a county was entitled to more than one assemblyman, the board of supervisors should apportion districts; that every county, except the county of Hamilton, should always be entitled to one member of assembly; and no new county should be erected unless its population should entitle it to a member. It is provided that the county of Hamilton should elect with the county of Fulton, and that the legislature may abolish the said county of Hamilton, and annex the territory thereof to some other county. The provisions that senate districts should be bounded by county lines is changed to lines of assembly districts. It will be noticed that for the first time the people surrendered the power to annex one county to another, and only did this in the case of the county of Hamilton.

Under the constitution of 1846 was decided the case of People v. Draper, above cited.

“The counties and cities must not only be preserved, but the legislature must do nothing respecting them which will render them less suitable for the purposes for which they are recognized and employed by the constitution. All the arrangements to which the counties and cities are subservient or instrumental unobstructed and unincumbered by legislation.”

Under the law-as laid down by Judge Denio, the county of Westchester could not be abolished, and, if the county could not be abolished, it follows that no part of it could be.

The constitution of 1894 makes no material departure from the scheme of previous ones in respect of making counties the territorial divisions of the state, b>y which senate, assemble, and judicial districts are arranged. The senate districts are divided by county lines, and members-of assembly are apportioned among the counties, due regard being had to equality according to the population of the several counties. The authority to bound senate districts by assembly districts is abolished; judical districts and departments are bounded by, or to be bounded by, county lines.

If there is any feature of the constitutional history of the state that stands out more prominent than another it is the fact that the county is the unit upon which all representation is based, legislative and judicial. The destruction of this unit is not contemplated, except by dividing it, and the erection of two or more units in the place of one. The power to alter county lines by taking from one county and adding to another would mean the power to defeat the provisions for. equality of representation. The reason for adopting the county as the unit is plain. Each has its own peculiar institutions, interests, and traditions, and the people of each have unity of interests, and have become influental by unity of action. The remarks of Mr. Root at the last constitutional Convention are appropriate. He said:

“The habits of our people, their traditions, their best and noblest sentiments, are embodied in the pride which they feel in the counties of their birth and after-life. These counties originally meant something; they still mean something. Destroy them, in order that there shall be political divisions at all, in order that the state may be districted for senators and assemblymen, will create new lines, new divisions, in which people are to create new friendships, which any future convention may destroy. You destroy an institution of immense and ¡inmemorable value, and create another, which in the future can be destroyed by some future convention. No sir. I am satisfied, and I believe all the people on the side of the house are satisfied, that the people of the state do not wish to-destroy their county lines in .the distribution of senators and assemblymen.”

Westchester county, as it existed on January 1, 1894, is a necessary part of the arrangements of that instrument, and is employed for the purpose of completing the scheme of senate, assembly, and judicial districts, and under the authority of People v. Draper the legislature cannot interfere with it.

It may be said that the power to divide counties and erect new counties exhibited an intention to permit the destruction of county lines, county interests, and county sentiments. Mot so; such power was given only to permit a county to be divided into two or more where the original county had grown too large for the convenience of the people. If we give to the words of the constitution their strict meaning, and do not give to the word “divide” the meaning of “annex” or “enlarge,” we have a consistent document, without any possible danger of the design and purpose of equal representation being frustrated. Dividing a county and the erection of a new county thereby cannot violate the provisions as to senate districts or judicial districts being bounded by county lines, for both counties would still remain in the same senate and judicial district. And as to assembly districts, it is provided that no county can be erected unless it shall have sufficient population to entitle it to a member; and for the purpose of enabling a county to be divided and a new county set off without violating the provisions of section 5 of article 3, which provides for the apportionment of members of the assembly, and which provides that no town shall be divided in the formation of an assembly district, this provision is inserted: “Mothing in this section shall prevent the division at any time of counties and towns and the erection of new towns bv the legislature." _ This clause is plainly for the purpose of enabling the legislature, where an apportionment has been made by the supervisors, and their power expended not to be exercised again until another enumeration and apportionment, and where a new county is to be erected, to rearrange assembly districts and town lines which may become necessary in adjusting the boundary between the new and old counties. The clause cited is not found in the section relating to senators, nor in the article relating to the judiciary. It must, therefore, relate to assembly districts, and, to be consistent with other portions of the instrument, can only have the meaning indicated. Whether I am right or not in the conclusion that there is a clear limitation in the constitution of the power of the legislature to alter county lines, except to divide a county and erect a new county therefrom, there is a clear violation of the spirit and language of the document. By article 6, section 1, the present judicial districts of the state are continued, and cannot be altered until 1905, when the next enumeration takes place. The present justices are continued in office for their respective terms, together with the judges transferred by the fifth section of the same article, and of twelve additional justices, who shall reside in and be chosen by the electors of the several existing judicial districts,—three in the First, three in the Second, and one in each of the others,—and and of their successors, such successors to be elected by the electors in their respective judicial districts. The people of the state have not surrendered to the legislature the power to regulate its judiciary, or the jurisdiction thereof, except as expressly provided. The number of justices in the several districts has been fixed with due regard" to the population and territory. If the legislature has the power to take territory from one district and add to another, the scheme of the Constitutian is destroyed. If it is possible to annex part of the county of Westchester to the city of New York, it must be equally possible to annex the whole. In fact the second judicial department might be annexed out of existence, leaving an army of supreme court justices, county judges, and surrogates with no jurisdiction except to receive their salaries, which are guaranteed bv the Constitution itself. Again, the judicial districts are continued until changed as authorized, which cannot be before the next enumeration in 1905. The new justices are to be elected by the several districts as they existed at the time of the adoption of the Constitution by the electors of the several districts. The framers of the Constitution intended that the people .should have a voice in selecting those who would be called upon to judicially pass upon their rights. The annexation act would destroy this constitutional right. Actions arising between residents of the town ,of Westchester in the supreme court are triable in the county of New York before justices in whose selection neither of the litigants could have any voicé. The judicial districts cannot be altered by the legislature. See People v. Board of Aldermen, 35 N. Y. Supp. 817.

If the annexation act is valid, we have this anomalous condition : The people of the annexed territory, for the purpose of voting for supreme court justices, would be in the second judicial district, while all their actions would be triable in the first judicial district, under the provisions of the Code. This condition of affairs is as illegal as it is unreasonable. The case of Lanning v. Carpenter, 20 N. Y, 247, seems to be sufficient authority for the conclusions that I have reached. In that case, Denio, J. said:

“ If we bear in mind that it is established by the Constitution that no county shall be divided in the formation of a senate district, and that the judicial districts are always to be bounded by county lines,—that is, to consist of'whole counties, and never of fractional parts of counties,—we shall have a view of all the constitutional provisions bearing upon the case.”

In that case the court held that the act creating the county of Schuyler by setting off parts of the counties of Steuben, Chemung and Tompkins was unconstitutional, for the reason that part of the new county fell within one senate and judicial district, while the other part fell within another. There are other considerations which affect the validity of the act of 1895, but enough has been said to justify me in retaining jurisdiction of all matters as if chapter 934 of the Laws of 1895 had not been enacted.

Tletters granted.


author: McCarthy, J.

text:
    Bernard McLain, Resp’t, v. British and Foreign Marine Insurance Company, Limited, App’lt.

      (New York City Court, General Term,

      Filed October 29, 1895.)

    Pleading—Complaint—Marine Insurance.
    An allegation of the complaint, in an action on a policy of marine insurance, that plaintiff has duly performed all the conditions of said policy of insurance on his part, sufficiently alleges that the insured vessel is in a seaworthy condition, within the requirements of the policy.

      Appeal from a judgment entered on a verdict in favor of the plaintiff for the full amount of the policy.
    The complaint is as follows:
    The plaintiff complains of the above-named defendant, by Hyland & Zabriskie, his attorneys, and respectfully shows to this honorable court1 as follows: First, that at the times hereinafter mentioned the plaintiff was, and is now, an actual inhabitant and resident of the state of New York; second, that at the times hereinafter mentioned, as plaintiff is informed and believes, the defendant was, and is now, a foreign corporation, duly ” created, organized, and existing under and by virtue of the laws of Great Britain, and had then, and has now, an office for the regular transaction of business in the city of New York; third, that at the times hereinafter mentioned the plaintiff was the sole owner of the canal boat Agnes K., her tackle, apparel, and furniture, to an amount exceeding the whole amount insured, as hereinafter stated;fourth, that on or about the 1st day of October, 1892, at the city of New York, N. Y., in consideration of the premium of $50, which the plaintiff then and there paid to the defendant, the said defendant, by its agent, duly authorized thereto, made its certain policy of insurance in writing, numbered 0478, upon the canal boat Agnes K., her tackle, apparel, and other furniture, then lying in "the port of New York, against the perils of the sea, and other perils in said policy of insurance mentioned, whereby it insured the plaintiff, Bernard McLain, for account of himself, to the amount of $1,000, from noon on the 6th day of October, 1892, to noon on the 6th day of October, 1893; fifth, that on or about the 16th day of September, 1893, the said canal boat in prosecution of a voyage from Guttenberg, N. J., bound for Seventy-ninth street, East river, New York city, having on board a cargo of 220 10-100 tons of coal, which she had taken on at Guttenberg aforesaid, and while in tow of the steam tug Nettie L. Tice, sprung a leak, by the perils of the sea, about 8:30 p. m. on the day aforesaid, while off the West Shore ferry, and sunk with the cargo of coal in her, and became thereby and now is, a total loss, and that the said canal boat, her tackle, apparel and furniture, were reasonably worth more than the sum of $1,000 at the time of taking out of said policy of insurance, and also at the time of'her loss by the perils of the sea as aforesaid; sixth, that plaintiff has duly fulfilled all the conditions of said policy of insurance on his part, and more than sixty days before the commencement of this action gave to the defendant due notice and proof of such loss or damage, and of the amount thereof, and proof of the interest of the insured, and duly demanded from the defendant payment of the said sum of $1,000, less the sum of $125, being the amount of the particular average provided for in and by the said policy of insurance; seventh, that no part of the same has been paid, and there is now due and owing from the defendant to plaintiff the sum of $875, with interest thereon from “January 1, 1894. Wherefore, plaintiff demands judgment against said defendant for the sum of $875, with interest thereon from the 1st day of January, 1894, besides the costs and disbursements of this action.

      Stewart & Maclclin, for app’lt; Hyland &■ Zabrislcie, for resp’t. •
   McCarthy, J.

We have given this case very careful study, and think that the various objections claimed by the appellant have been met, and the ease was correctly submitted to the jury. The complaint was proper in form, and sufficiently complied with claim of appellant. See Code Civ. Proc'. § 533. The authority cited byappellant as controlling this case, to wit, Van Wicdle v. Insurance Co., 97 N. Y. 350, 353, is distinguished in the case of Singleton v. Insurance Co., 132 id. 298, 303, 304; 44 St. Rep. 414, and in our judgment meets this case.

We find no errors, and the judgment must be affirmed, with costs.


text:
    William Moir, Resp’t, v. Phoebe Pearsall, App’lt.

      (New York City Court, General Term,

      Filed October 29, 1895.)

    1. Judge—Disqualification.
    Where the decision is rendered by another judge, the judge who signed the order pro forma, is not disqualified from taking part in .the appeal therefrom.
    2. Pleading—Bill of pabticulabs.
    A bill of particulars will not be granted upon the affidavit of the moving party’s attorney.
    Appeal from an order, granting a motion for a bill of particu. lors.

      George G. Goffin, for app’lt; Esselslyn, Ketcham & Stafford, for resp’t.
   McCarthy, J.

Although the order from which this appeal is taken was signed by me, it is,- however, an appeal from a decision rendered by Justice Fitzsimons. The signing of the order by me was merely pro forma and'unnecessary, and therefore does not disqualif}'- me from hearing and determining this appeal. This order must be reversed, on the opinion of Hewbukger, J., in Groff v. Hogan, 13 Misc. Rep. 322; 68 St. Rep. 365.

Order is therefore reversed, with costs and disbursements, and motion is denied, with leave to renew on proper papers.


text:
    Hermann Cohen, Resp’t, v. German Kahn, App’lt.

      (New York City Court, General Term,

      Filed October 29, 1895.)

    1. Witness—Obedibility.
    It is competent to show that a witness was in reality the attorney for the party for whom he testifies, and, therefore, interested in the result of the action.
    2. Evidence—Judicial notice.
    The jury can take notice of the particular day of the week, on which any date m -ntioned in the' testimony falls, without proof of the day.

      3. Same—O alendas.
    The jury may use a calendar, which is conceded to be true and correct, ■ without proof of that fact being first given.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Emanuel Arnstein, .for app’lt; Charles A. L. Goldey, for resp’t.
   McCarthy, J.

This is an appeal from a judgment in favor of the plaintiff for the amount claimed in the complaint, with costs, rendered upon the verdict of a jury. This action is brought to recover for commissions for procuring a purchaser of real estate. The answer is a general denial. Upon the trial it was testified by the plaintiff that on the 10th day of May, 1894, he was authorized by the defendant to sell the property Ño. 957 Second avenue, at the sum of $13,300; that he offered it to Mr, Metzger, who was ready to purchase at that price; that he saw the défendant the next morning, and an appointment was made to meet the intending purchaser at Mr. Arnstein’s office at 2 o’clock p. m. That he went to Mr. Arnstein’s office, and from there telephoned to the defendant, who informed him that he could not come down that day, and would like to have the making of the contract adjourned until the following Monday, to which the plaintiff agreed, and so informed Mr. Metzger, who said, “All right;” that on Monday morning he went to the defendant’s house, and, while informed that defendant’s s'on had refused to sell, the defendant still declared himself ready to carry out his contract. Mr. B. Metzger was called on the part of the plaintiff, and testified that the property was offered to him for sale; that he agreed to purchase at $13,300, and that a meeting was arranged at Mr. Arnstein’s office for Friday afternoon; that thereafter the plaintiff informed him that the meeting was off until the following Monday. A letter was then produced, bearing date May 13, 1894, in which Mr. Metzger informed the defendant that the plaintiff had placed in his hands a claim for commissions, and intended to bring legal proceedings. On the cross-examinations of Mr. Metzger, defendant’s counsel attempted .to show that Mr. Metzger was in reality the attorney in the case, and had an interest in the result thereof, but this proof was excluded. The jury having found for the plaintiff on the facts, this judgment must be affirmed, unless we find errors at law.

At folio 58, the following occurred:

“ I didn’t commence any suit against Mr. Kahn, the defendant. I do not know how long after the writing of this lettpr the suit was commenced. Q. Are you in any way interested in this suit? (Objected to. Sustained. Exception by the defendant’s attorney.)”

At folio 60:

“ Q. Upon the arrival of that day-to which the matter was adjournéd, as Mr. Cohn told you, Mr. Kahn didn’t close the matter with you. (Objected to. Overruled. Exception by defendant’s attorney.)”

Also, at folio 87, the court was asked to charge as follows :

“ If the plaintiff has failed to establish all of these facts, or either of them, by a preponderance of evidence, or if you believe the evidence of the defendant, that he never employed the plaintiff, and never agreed to sell this property, the defendant will be entitled to a verdict.”

-Defendant’s counsel: “ I ask your honor to charge that the jury can take notice of the particular day of the week on which any date mentioned in the testimony fell, without proof being given of the day. (Declined/ Exception by defendant’s counsel.)”

We think the trial justice erred in each of these rulings.

Again, at folio 84, the following took place :

“ At the summing up by defendant’s counsel, he had in his hand an alleged calendar, and commenced to state to the jury what it was, and that they could use it, when the plaintiff’s attorney objected, on the grounds that no proof had been given as to the said alleged calendar, and that it was not before the jury for any purposes, and could not be used by counsel for the purpose and in the manner proposed by him. (The court so ruled, and defendant’s counsel excepted.)”

We agree that, if it was conceded that the alleged calendar herein was a true and correct one, then the jury had a right to use the calendar without proof being first given of the same. The Courts will take judicial notice of facts which are part of the general knowledge of the country, and which are generally known and have been duly authenticated, and especially so of facts of official, scientific, or historical character, and generally of those things which happen according to the ordinary course of nature, the course of time, the coincidence of days of the week with the days of the month; and, to ascertain such well-known facts, recourse is had to such documents and records as are conceded to be worthy of confidence. See Hunter v. Railroad Co., 116 N. Y. 615 621, 622; 27 St. Rep. 729; Swinnerton v. Insurance Co., 37 N. Y. 189, 190.

For the foregoing reasons, the judgment must be reversed,' and a new trial granted, with costs to the appellant to abide the event.

All concur.


author: Mo Adam, J.

text:
    Philip Bello, as Administrator, etc., App’lt, v. Metropolitan Street Railroad Company, Resp’t.

      (New York Superior Court, Trial Term,

      Filed October, 1895.)

    1. Negligence—Contbibutoky.
    An action to recover for alleged negligence causing death, freedom of contributory negligence must be provecí ; and, where the circumstances point as much to Hie negligence of the deceased as to its absence, or point in another direction, a refusal to nonsuit is error.
    3. Same—Nonsuit.
    A nonsuit is proper if the evidence only suggests a possibility of negligence, or is as consistent with the absence of all negligence as with its existence.

      Motion for a new trial of the minutes.

      Hoffman & Hoffman (H. M. Groldfogle, of counsel), for the motion ; H. A. Robinson and Henry Thompson, opposed.
   Mo Adam, J.

The action is by the plaintiff, as administrator of his son, a bright boy, nine years of age, to recover $5,000 damages for the alleged negligence of the defendant, by means of which- the decedent was so seriously injured that he died. It appears that on November 27th, 1894, between five and six in the afternoon, the boy came from behind some wagons, and attempted to run across Sullivan street, and in some manner fell. One of the defendant’s cars came along the street towards the north, and when near Spring street some of the appliances of the car struck the intestate, causing death. The carts evidently hindered the driver from seeing the lad until the car had almost reached him, when he was discovered lying upon the track. One of the plaintiff’s witnesses swears that the driver was conversing with a passenger on the platform; and did not see the boy until the car was on him ; that it was a little dark at the time; and that the car was stopped in time to prevent the Wheels passing over the body. The defendant’s counsel, upon these facts, moved to dismiss the complaint on the ground that no cause of action had been made out against the defendant. The motion was granted upon the ground that the driver did not see the boy, and was not bound to anticipate that he was lying on the track. See Jetter v. Railroad Co., 2 Abb. Dec. 458, *41 N. Y. 154. It has been held that where the plaintiff’s negligence is not contemporaneous with but precedes that of the defendant, and the defendant might, by the exercise of care on his part, have avoided the consequences of the plaintiff’s neglect, a recovery may be had ; for a remote fault in one party does not, of course, dispense with care in" the other, if thereby a calamitous injury can be avoided, or an unavoidable calamity essentially mitigated. But in order to make this rule, which is prevalent in many "states, applicable, it must be made to appear that the defendant or its servant was aware of the danger to which the plaintiff was exposed. Zimmerman v. Railroad Co., 71 Mo. 476; Isabel v. Railroad Co., 60 id. 475; Chrystal v. Railroad Co., 105 N. Y., at page 170; 6 St. Rep. 833. There are a number of reported cases holding that it is negligence per se for a foot passenger to attempt to cross a public thoroughfare ahead of vehicles of any kind upon “ nice calculations” of the chances of injury, for the reason that the pedestrian has no priority over the drivers of vehicles, and, having assumed the danger, he cannot complain of the consequences. “ Volenti non fit injuria." Broom, Leg. Max. (7 th ed.) 268; Belton v. Baxter, 54 N. Y. 245; Elze v. Baumann, 1 Misc. Rep. at page 78; 49 St. Rep. 629; Clancy v. Railroad Co., 68 St. Rep. 789. Of this class of cases is that of Fenton v. Railroad Co., 126 N. Y. 625; 36 St. Rep. 385. There it appeared that an intelligent healthy lad, ten years of age, attempted to run ahead of a car, the horses of which were on a trot. The boy stumbled and fell, and the car passed over him, causing death. The court held that the car had a preference in the street, that the accident did not happen at a street crossing, and hence the driver had no reason to anticipate the presence of the boy in front of his car, and that the boy, seeing the peril, was bound tó use reasonable caution to keep out of the way of the impending danger, which must have been apparent to him when he unwisely assumed the risk of attempting to escape from it. The judgment entered on a verdict in favor of the plaintiff in the court below was reversed. Á non-suit is proper if the evidence only suggests a possibility of negligence, or is as 'consistent with the absence of all negligence as with its existence. Shear. & R Neg. (4th ed.) § 56. As was said in Payne v. Railroad Co., 40 N. Y. Supr. Ct., at page 13

“ There must be something more than a probability of defendants' negligence. . There must be some element of moral certainty and exclusion of reasonable doubt. Justice requires that it should be proved that defendants committed the.wrong before they can be adjudged liable.”

In an action to recover damages for alleged negligence causing death, freedom of contributory negligence must be proved; and. where the circumstances point as much to the negligence of the deceased as to its absence, or point in neither direction, a refusal to nonsuit is error. Wiwirowski v. Railway Co., 124 N. Y. 420; 36 St. Rep. 405. The circumstances here rather point to the theory that the deceased, by his own imprudence, brought the injuries upon himself; and their consequences should not, therefore, be visited upon the defendant. There is no negligence where there is no breach of duty, and the breach, to be actionable, must be the proximate cause of the injury. If it is to be assumed from the facts that the defendant was guilty of negligence, it would be an equally fair inference that the deceased was likewise at fault, and that his contributory negligence, or the combined negligence of both, led to the accident. See Reynolds v. Railroad Co., 58 N. Y. 248; Day v. Railroad Co., 75 id. 610; Ogier v. Railway, 68 St. Rep. 803. While it is always preferable to send this class of cases to a jury for their opinion, it is evident that if the jury found for the plaintiff their verdict would have to be set" aside, and this is now made the test whether a nonsuit should be granted. Hemmens v. Nelson, 138 N. Y. 517; 53 St. Rep. 94; Linkauf v. Lombard, 137 N. Y. 417; 51 St. Rep. 63.

The application of the principles stated sustains the dismissal of the complaint, and the motion for a new trial must denied.


text:
    Elie Weill et al., Pl’ffs, v. Henrietta Hecht, Def’t.

      (New York Superior Court, Trial Term,

      Filed October, 1895.)

    GcuIeanty—Continuing.
    The provision in a contract that “this guaranty shall not extend<to the purchase of goods in excess of a specified amount named,” limits the guarantor’s liability only and. creates a continuing suretyship to the specified amount.

      Action on a guaranty.

      Chandler & Kremer, for pl’ffs; Hoadly, Lauterbach & Johnson, for def’ts.
   Mo Adam, J.

The action is on an instrument in these words:

“ New. York, Jan. 29th, 1894.

i:In consideration of Elie Weill & Co., of Paris, France, extending further credit accommodations to the S. J. Held Company, of New York; I hereby guaranty to the said Elie Weill & Co. the prompt payment at maturity, by the said S. J. Held Company, of all moneys to become due to said Elie Weill & Co. for goods which they may buy and ship for the said S. J. Held & Co., to the amount of twenty-five thousand francs, or the equivalent in United States gold coin. And it is understood that the purchases and shipments above mentioned, and hereby guaranteed, shall be only such as the said S. J. Held Co. may have ordered or will order from New York, from and after January 1st, 1894. And it is further understood that this guaranty shall not extend to the purchase of goods in excess of twenty-five thousand francs in the aggregate. Henrietta Heoht. [Seal.]”

The guaranty is not confined to one instance, and therefore applies to debts successively renewed. By such an instrument as this a continuing suretyship is created to the specified amount. Merle v. Wells, 2 Camp. 713; Gates v. McKee, 13 N. Y. 232: Rindge v. Judson, 24 id. 64; Bank v. Phelps, 16 Hun, 158; Pratt v. Matthews, 24 id. 386; Sickle v. Marsh, 44 How. Prac. 91; Lanier v. Wyman, 5 Rob. (N. Y.) 147; Tootle v. Elgutter (Neb.) 15 N. W. Rep. 104; Beakes v. Da Cunha, 126 N. Y. 293; 37 St. Rep. 14; McShane Co. v. Padian, 142 N. Y. 207; 58 St. Rep. 651. The writing is known as a continuing guaranty. Id. The defendant claims that in the latter part of the document a limitation was expressly made the condition of the obligation, as in Bank v. Evans, 4 Barb. 487, and that it was avoided because credit was given to the principal for an amount exceeding 25,000 francs. While it was competent for the defendant to have imposed such a condition, an intention to do so cannot be imputed to the instrument sued upon. The S. J. Held Company owed the plaintiffs considerably more than 25,000 francs at the time the guaranty was given, and the company continued to owe a sum exceeding that amount during the continuance of the account. The guaranty was not intended to reduce the indebtedness, or to limit it, ás in Bank v. Evans, supra, but to enable the S. J. Held Company to extend and enlarge the account. Indeed the guaranty commences by avowing as its purpose “ the extension of further credit accommodations ” to the company. The guaranty must be construed in its entirety in furtherance of the presumed intention of the parties, and in harmony with the rule of construction that, where the language of a promisor may be understood in more senses than one, it is to be interpreted in the sense in which he had reason to suppose it was understood by the promisee. White v. Hoyt, 73 N. Y. 505. That rule has been frequently applied with all its force to contracts of suretyship. Pratt v. Matthews, supra. In Lawrence v. McCalmont, 2 How. 426, Judge Story said:

“ If the language used be ambiguous and admits of two fair interpretations, and the guarantee has advanced his money upon the faith of the interpretation most favorable to his rights, that interpretation shall prevail in his favor; for it does not lie in the mouth of the guarantor to say that he may, without peril, scatter ambiguous words by which the other party is misled to his injury.”

See, also, Gates v. McKee, 13 N. Y., at pages 235, 236.

While the authorities agree that contracts of suretyship must be read strictissimi juris, the rule has this extent only,—that'when the true meaning of the obligation is ascertained the guarantor has the right to insist that his liability shall not be extended beyond its precise terms. The provision in the guaranty (construed with what precedes it) being in the nature of a proviso limiting the liability of the promisor, and not a limitation, made the condition of the obligation, as in Bank v. Evans, supra. The clause as to 25,000 francs has reference to the guarantor’s liability, not to the amount of dealing between the purchasers and the one who gives credit. Gates v. McKee, and other cases, vide supra. Any other interpretation would defeat the very object of the guaranty under consideration. In construing guaranties, which are generally drawn by unprofessional hands, it is impossible to find two instruments worded exactly alike,— a circumstance making the application of authorities difficult, and causing Judge Earl to remark, in Schwartz v. Hyman, 107 N.Y., at page 565, “Very little, if any, aid for the construction of this guaranty can be derived from the reported cases.” This controversy, like that, must therefore be determined on its' own peculiarities, in view of the relation of the parties, their presumed intention, and upon general legal principles. This brings the contention down to the question of application of payments. The guarantor. knew there was a precedent debt owing by the S. J. Held Company, and that the debtors would have to discharge the prior obligation, and cannot now claim that payments credited thereon should have gone on the account guaranteed, there being no direction to make such an application of them. Bank v. Webb, 94 N. Y. 467.

It follows that the plaintiffs are entitled to judgment for $4,854.37, with $383.49 interest, aggregating $5,237.86.


author: Me Adam, J.

text:
    Margaret Elizabeth Rouge, Pl’ff, v. Gabriel Mark Rouge, Def’t.

      (New York Superior Court, Special Term,

      Filed November, 1895.)

    1. Attachment—Unliquidated damases.
    Under subdivision 3, section 635 of the Code, as amended by chapter 578 of 1895, tile amount for which the attachment will issue, wh^e the damages are unliquidated, is in the discretion of the court.

      2. Statute—Retroactive.
    Where the act affects the remedy, it may have a retrospective effect, and he applied to cases pending, or rights of acts existing, at the time the remedy is invoked.
    Action by plaintiff to recover damages for the alienation of her husband’s affections. Motion to vacate attachment against property.

      David Murray, for motion; Edward Gebhard, opposed.
   Me Adam, J.

The plaintiff brings the action against defendant for alienating the affections of her husband. The gravaman of the complaint is that, while plaintiff was living in the city of Geneva, Switzerland, with her husband, the defendant made unto the husband false and malicious statements of and concerning plaintiff, that she was not a good, true, faithful, and worthy wife, and that the defendant caused an action to be begun by the plaintiff’s husband against her in a court of competent jurisdiction in Switzerland aforesaid, for the purpose of procuring a judgment therein annulling and ending her marriage with said husband, which suit is now pending; and by reason of the acts of the defendant the plaintiff claims she has been deprived of the support, society, and affection of her husband, to her damage $25,000. ■

At the time of the commencement of the action the plaintiff procured an attachment under subdivision 3 of section 635 of the Code, as amended in 1895, which provides that an attachment against property may be granted in an action for “an injury to person or property, in consequence of negligence, fraud or other wrongful act.” The latter portion of this provision is compre, hensive enough to embrace the present case. Wilson v. McGregor (Sup.) 12 N. Y. Supp. 39. Prior to this amendment, resort to the process of attachment was allowed only to “ creditors,” or for injuries to property where the amount demanded was capable of accurate computation ; the existence and restriction of the remedy being, of course, dependent upon the terms of the governing statute. While it is easy to understand why a creditor proceeding against a nonresident should be allowed to impound property found within the jurisdiction of the court, to answer as security for any claim existing, or for the amount in dollars and cents of any specific injury done to property, it is not apparent, on first view, why the legislature should have included actions for injuries to the person, where the damages are unliquidated, and where the plaintiff in his declaration and affidavit generally places them at an unusually high figure. Neither the complaint nor affidavit in such an action can furnish any certain guide from which the judge granting the attachment may determine what the actual damages are. The legislature certainly did not intend that the attachment should run for any amount a plaintiff, might see fit to insert in the ad damnum of his complaint. The plaintiff has in this instance fixed the damages at §25,000. She might have put them at $250,000, but it does not follow that property of the defendant is to be impounded to answer the demand thus made. The practice in this respect must therefore be assimilated to that followed in granting orders to arrest. Where such orders are made in actions for injuries to the person, the bail is fixed in such sum' as the judge may judicially determine, in view of'the nature and extent of the injuries complained of and the probable ultimate recovery. Doubtless the legislation was intended to reach a class of cases where injuries to the person were inflicted upon residents of this state, who in consequence- of the nonresidence of the wrongdoer were practically remediless. No order of publication would lie, because no property has been at- ’ tached. To supply this omission in the law the new remedy was furnished, and it was designed more to coerce the appearance of the tort feasor than to impound his property. With this end in view the act may be wise legislation ; but to go further, and grant attachments against the property 'of nonresidents in ordinary tort actions, for any sum the plaintiff sees fit to demand, would lead to great abuse. It is evident, therefore, that the legislature intended that a judge, in issuing the attachment, should exercise judicial discretion as to the damages likely to be recovered, in order to fix the amount for which the attachment should go, upon the principles which guide him in granting an order of arrest.

The plaintiff may thus recover the sum impounded if the damage is equal to that amount, and the defendant, by his nonappearance, prevents a judgment in personam, that might be enforceable by an action thereon in any other jurisdiction. Where the action is between foreigners for torts committed in a foreign country, the courts of this state may take jurisdiction, or in their discretion decline it. In De Witt v. Buchanan, 54 Barb. 31; Burdick v. Freeman, 46 Hun, 138; 10 St. Rep. 756; affirmed 120 N.Y. 421; 31 St. Rep. 427. Whether the court in its discretion should hawe declined jurisdiction here is a question that need not be considered now, as that matter was determined in the plaintiff’s favor upon the issuing of the attachment. Code Oiv. Proc. § 416.

' Upon the facts stated in the complaint and affidavit it is not at all likely that the plaintiff would recover more than $5,000 damages, and there is no reason why the attachment should be held for a greater amount; and in analogy to the practice of reducing bail on arrest, the attachment herein will be reduced to that sum.

The attachment not being a writ of right Sartwell v. Field, 68 N. Y. 341; Allen v. Meyer, 73 id. 1, the court might, and perhaps, would, after a general appearance in the action, vacate it, in the exercise of a wise discretion, particularly if it appeared that it was used oppressively. But that subject need not be seriously considered here for it is not now before the court, as the defendant has. simply interposed a special apppearance for the purpose of this motion only.

The defendant claims that, as the cause of action accrued prior to the passage of the act the case does not fall within its provisions, and to hold that it did would be to give the statute a retroactive effect, contrary to the canons of statutory construction. But to these rules there are exceptions, notably among which is that, where the act affects the remedy, it may have a retrospective effect; that is, may be applied to cases pending, or rights of action existing, at the time the remedy is invoked. 1 Kent, Comm. 455; People v. Spicer, 99 N. Y., at page 233; Neass v. Mercer, 15 Barb. 348; Southwich v. Southwick, 49 N. Y., at page 517; People v. Board of Sup’rs of Ulster Co., 65 id. 300; Lazarus v. Railway Co., 145 id. 581; 65 St. Rep. 523. The principle was followed in Dickerson v. Cook, 16 Barb. 509, where it was held that section 292 of the Code of 1849, authorizing the examination of a judgment debtor, upon the return of an execution issued against him unsatisfied, applies to cases where the execution was issued before the Code took effect, as well as to executions issued subsequent to that time.

It follows that the motion to vacate the attachment must be denied, but the amount for which the property is seized or impounded will be reduced to $5,000.


author: Ward, J. ■ Bradley, J.

text:
    In the Matter of the Application for the Probate of the Will of James R. Whitney, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. 'Wills—Validity—Attached papers.
    Where the interlineation or attached papers, by the terms of the instrument itself is to come in and be made a part of the will before the formal ending thereof, it is an exact compliance with the statute. "
    2. Same—Interlineations.
    Interlineations to a will need not be noted at the foot of the instrument. It is only necessary that they should have been made before the execution and the publication of the will.
    Appeal from a decree, refusing to admit the will to probate.

      George H. Warner and Henry J. Sullivan, for app’lts: Charles S. Baker, for resp’ts.
   Ward, J.

The will was rejected by the surrogate because the third and fourth clauses thereof were not written in the body of the will, but upon a separate piece of paper, fastened to the face of the will. They were intended by the testator as a part of his last will and testament, and were attached to the face of the will, at a point near the end of the second clause, with metal staples, on one side of the paper, so that, by raising up the unfastened end of the paper attached, the place where it should come in on the principal paper was apparent. The will was written on a blank form. • The blank left for the disposition of property had been written full when the end of the second clause was reached, and at such end are the words, “ See annexed sheet.” Then comes the annexed sheet, and the whole read as follows (after the preliminary statement and a provision for the payment of debts):

“ First. I give and devise and bequeath to my brother Ira I. Whitney the undivided one-half of the farm lying in the town of Penna, Monroe county, and state of. Mew York, with the provision that vpithin one year after my decease he pay to his son James R. Whitney five hundred dollars, which shall be a lien on said premises until paid; and I give, devise, and bequeath to my brother Henry Whitney the use of the otheruudivided one-half of said farm for and during his lifetime, with provision that he pay his son Douglas S. 'Whitney five hundred dollars within one year after my death, which shall be a lien thereon until paid; said farm is described in a certain deed of conveyance recorded in Monroe county clerk’s office, New York, in liber 481 of deeds, at page.459—together with immediate possession and all arrearages of rent therefor. After the death of my said, brother Henry, I give the said premises to his lawful heirs.

“ Second. I give to Eliza Wilson, wife of John B. Wilson, the sum of five hundred dollars, to be paid within one year after my death.

“ See annexed sheet.

“ Third. I give, devise, and bequeath to my wife, Annie C. Whitney, five hundred dollars in trust to be paid by her to Florence L. Root, a daughter of Charles A. Root, a nephew of my wife, at such time as my wife thinks proper, but not until she shall be twenty-one years old, but before she is twenty-five years old.

“ Fourth. I give, devise, and bequeath to my wife, Annie C. Whitney, all the balance of my estate, both real and personal, of every kind.”

Then followed a clause appointing executors, the testimonium clause, the signature of the testator, the attestation clause, and the signature of two witnesses. With the third and fourth clauses inserted in their proper place, the will is rational, consistent, and complete; disposing of all the- property of the deceased, and providing for the natural objects of his bounty. Eliminating these clauses, and the purposes of the will are not accomplished; no provision is made for the wife of the testator, and the bulk of the testator’s property is not disposed of, and as to that he would have died intestate. The words at the end of the second clause, ■ “ See annexed sheet,” and the commencement of the annexed sheet being “Third,” taken in connection with the place where the “ annexed sheet ” was in fact fastened to the original paper, enable us to locate without doubt the exact place where the decedent 'intended the third and fourth clauses to be inserted. Another consideration aids this location, and that is that the residuary clause, which usually follows the specific bequests and devises, is at the bottom of the attached sheet. It is, therefore apparent that the third and fourth clauses were inserted in the will before “the end of the will,” so that here is an exact compliance with the statute, unless it be assumed that interlineations in or additions to the face of the instrument cannot be made at all. This will hardly be claimed, as an interlineation may be made in a will as in any other-instrument, provided that the place where it should appear is designated by the instrument itself with sufficient certainty.

Williams on Executors, at page 97, says:

“ If a testator in a will or codicil or other testamentary paper, duly executed, refers to an existing, unexecuted wdl or other paper, the instrument so referred to becomes a part of the will.”

And Jarman on Wills (page 78) says:

“A codicil duly attested communicates the efficacy of its attestation to an unattested will dr previous codicil, so as to render effectual any devise of a freehold which may be contained in such prior unattested instrument.”

• And in Brown v. Clark, 77 N.Y., at page 377, Judge Andrews, speaking for the court of appeals, says:

“ It is established by a long line of authorities that any written testamentary document in existence at the execution of a will may, by reference, be incorporated into and become a part of the will, provided the reference in the will is distinct and clearly identified, or renders capable of identification, by the aid of extrinsic proof, the document to which reference is made; ” citing a number of cases, and also the extract from Williams and Jar-man above given.

Nor is it necessary that the interlineations should be noted at the foot of the will or instrument. In re Voorhees, 6 Dem. Sur. 162. It is only necessary that the interlineations should have been made before the execution and publication of the will. Crossman v. Crossman, 95 N. Y. 145, 153; Tonnele v. Hall, 4 N. Y. 140, and cases there cited. In the last case a map in the register’s office descriptive of the property devised was referred to in the body of the will, and a copy was annexed to the will. The court say,' at page 143:

,c The map on file in the register’s office,' or a reduced copy of it annexed, may be treated as a part of the instrument. (Citing cases.) Its contents must be incorporated and distributed in it to the extent of the several references made to it -at the place where made, and thus the contents of the paper to which the instrument refers will be deemed constructively inserted before the point is reached where the subscription,- by the. decedent and signing by the witnesses are made.”

It was established before the surrogate, and he found in effect, that clauses three and four were attached to the face of the will at the point above indicated before its execution by the testator or witnesses, and that they were intended by the testator to be a part of his will, and that the will was executed in all respects as required by the statute. There was no fraud in the transaction, apparent or pretended. The contestants rely upon In re Hewitt, 91 N. Y. 261; In re O'Neil, id. 516, and In re Conway, 124 id. 455 ; 36 St. Rep. 486. In the Hewitt Case the testator and subscribing witnesses signed at the bottom of the first page of the will. On the back of the will were important clauses not attested, except that at the top of these clauses on the second page the subscribing witnesses signed their names again, and the testator signed at the bottom of the second side. In the O'Neil Case the will consisted of four pages. The formal commencement was on the first page, and the formal termination printed at the foot of the third page, where the names of the testator and witnesses were written. On the fourth page were material provisions of the will, and not connected by reference or symbol or asterisks to the other portion of the instrument. In the Conway Case a printed blank form was used, and the spaces on the first side of the paper were all written full with complete devises, and at the end of which was interlined, in parentheses, the words “ Carried to the back ofthe will.” Upon the top of the back of the sheet, or before the material entries, was written the word “ Continued.” Following it were various bequests, and then the words “Signature on the face of the will." In each of these cases the will was rejected by the court because the testator and witnesses did not execute the will at the end thereof. The last case {In re Conway) was decided by the second division of the court of appeals, where- four judges reversed the general term of the fifth department, three judges, Bradley, Haight and Brown, dissenting. This case should certainly not be extended further than the facts set forth therein absolutely require. These cases hold that the intent of the legislature that the execution of the will should be at the end cannot be subverted, no matter what was the intention of the testator, and although, from the circumstances proved, there was no opportunity for fraud and none existed; and their'decision is put upon the ground that, as a physical fact, a part of the will was not embraced in that portion of it that precedes the signature at the end of the will. Those cases are plainly distinguishable from the one at bar. 'In this case the interlineation or attached paper, by the terms of the instrument itself, is to come in and be made a part of the will before the formal ending thereof. In the other cases, and especially in the last, the testator’, in words, violates the statute, and places important provisions of the will beyond the end thereof or the signature of the witnesses and testator, and upon the back of the instrument. As a physical fact, therefore, whatever may have been the intention of the testator, all of the provisions of the will were not incorporated within the paper before the end thereof.

The decree of the surrogate’s court should be reversed, and the matter remitted to the surrogate of Monroe county, with directions to proceed with the probate of the will, and that the appellant recover the costs and disbursements of this appeal, to be paid out of the property of the deceased.

Lewis and Adams, JJ., concur.

■ Bradley, J.

(dissenting). The alleged testator was of sound mind and memory at the time he made the instrument purporting to be his will, and in its execution the statutory formalities were observed in so far that he signed it and declared the instrument to be bis last will and testament in the presence of witnesses, who at his request subscribed their names as such. The only question about its validity as a will arose from the fact that a 'portion of the provision was on a slip oE paper attached to that upon which was the attestation clause subscribed by the testator. The draftsman used a printed blank, and filled the open space with provisions numbered 1 and 2; then added, “See annexed slip; ” and a paper upon which were written by him clauses numbered 3 and 4 was there attached to the instrument by means of two metal staples. The only reference to it was that before mentioned, and on the slip was nothing denoting its relation or reference to that to which it was so attached other than in the disposing clauses numbered 3 and 4 It appears by the evidence of the draftsman that the slip so annexed, as well as the other portions of the instrument, was read by the testator, and constituted a portion of the instrument declared by him as his last will and testament; and upon the evidence the conclusion is fairly required that the latter treated and intended it as a part of his will. The statute provides that every last will and testament shall be subscribed by the testator at the end of the will.” 2 Rev. St. p. 63, § 40. The observance of this requirement is essential to the validity of a will Sisters of Charity v. Kelly, 67 N. Y. 409 ; In re Hewitt, 91 id. 261; In re O'Neil, id. 516; In re Conway, 124 id. 455; 36 St. Rep. 486. It was intended by the person who drew the will and by the testator that the provisions upon the slip so attached should be treated as inserted in the place indicated by the reference to the “ annexed slip," and in' that sense the will was subscribed by the testator at the end of it. But,- as was held in the cases above cited, the end of the will contemplated by the statute is that which actually and physically follows all the provisions of the instrument, and in that respect the intent of the legislature, and not that of the testator, controls. In the O'Neil Case it was evident that the added provision which followed the signature of the.testator to the instrument was intended as the continuation of a provision in the body of it above the signature, but, for want of room in the printed blank there, it was continued upon the following page to completion. And in the Conway Case the provisions of the will were in like manner and for the same reason carried on to the page following that on which was the testimonium clause, subscribed _by the testator, and at the place of departure were the words Carried to back of will,” and upon the back was the word “Continued,” followed by the provisions there written. In both cases it was held that the "instruments were not subscribed at the end, as required by the statute. In those cases, as in this one, it may be said that the makers of the instruments regarded those annexed provisions as inserted in the places so' indicated, and thus treated their signatures as at the end of the wills. The place at which the slip was attached to the instrument in the present case does not seem in the legal aspect to be different in effect than if it had been affixed below that of the signature or on the following page. It is referred to as annexed. The statutory requirement is inflexible, and the reason for the construction thus given to it as applicable to the execution of wills is to prevent abuse or fraud in testamentary instruments, and -alteration of them after their execution. As was said in the O'Neil Case by Chief Judge Huger:

“While the primary rule governing the interpretation of wills when admitted to probate recognizes and endeavors to carry out the intention-of the testator,"that rule cannot be invoked in the construction of the statute regulating their execution.”

Whether the alleged will in the case at bar was subscribed by the testator at the end of it is a question of statutory construction. The application of the doctrine of the Conway case requires the conclusion that it was not so subscribed ; and, therefore, the instrument was not duly executed as a will. The contention that it may be admitted to probate as to the provisions other than those contained in the annexed slip cannot be supported. Treating the instrument as not duly executed as a will, it cannot be given probate as such. Sisters of Charity v. Kelly, 67 N. Y. 400. A like question was considered in the O'Neil Case, 91 N. Y. 524. The decree of the surrogate court should be affirmed, with costs to the respondents, payable out of the estate of the decedent.


text:
    The People ex rel. Bleecker St. & Fulton Ferry Railroad Company, Resp’t, v. Edward P. Barker et al., as Commissioners, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Costs—Appeal—Assessments.
    The costs in proceedings by certiorari to review assessments under chapter 269 of 1880 are governed by that act, and not by the provisions of the Code; under section 7 of said act, the costs on appeal, when allowed against assessors or other officers, when proceedings are reversed, must be taxed as costs on appeals from orders under section 3229 of thb Code.
    Appeal from an order, directing the bill of costs to be re-taxed.

      James M. Ward, for app’lts ; George L. Hoffman, for resp’t.
   Per Curiam.

People v. Pratt, 66 Hun, 578; 50 St. Rep. 355, affirmed without opinion in 138 N. Y. 655; 53 St. Rep. 931, is in point and controlling upon the question presented on this appeal. In that case it appeared that the court of appeals made a final order in favor of the relator, with costs in general term and court of appeals. The clerk taxed t'he costs as on appeals from orders granted on motion. The special term ordered a retaxation, and directed that costs in the court of appeals should be taxed as in an action. In reversing the special term and sustaining the taxation made by the clerk the court held that the costs in proceedings by certiorari to review assessments under chapter 269 of the Laws of 1880 are governed by that act, and not by the provisions of the Code ; that under section,7 of that act the costs on appeal, when allowed against assessors or other officers, when proceedings are reversed, must be taxed as costs on appeals from orders under section 3229 of the Code of Civil Procedure. In view of that decision, it must be held that White v. Anthony, 23 N. Y. 164, and Brown v. Leigh, 50 id. 427, do not apply.

The order appealed from should be reversed, with $10 costs and disbursements, and the taxation of the clerk confirmed.


text:
    Harvey H. Savage, by Guardian, etc., Resp’t, v. William D. Faulhaber, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Appeal—Sufficiency of evidence.
    Where the testimony shows that every fact, which it was necessary for the plaintiff to prove to justify a favorable inference of the jury, was established, the judgment appealed from will be affirmed.
    Appeal from a judgment, rendered on a verdict in favor of plaintiff.

      Louis Wendel, Jr, for app’lt; James H. Laird, for resp’t.
   Per Curiam.

At the close of plaintiff’s case, defendant moved to dismiss upon two grounds, which in different forms presented the question as to whether the plaintiff had established his cause of action. The motion having been denied, defendant excepted, and, as no testimony was offered in his behalf, and the case went to the jury on the testimony for the plaintiff, and upon their rendering a verdict, no motion.having been made for a new trial, the single question before us on this appeal is as to whether the plaintiff had made out a prima facie case. An examination of such testimony will show that every fact which it was necessary for the plaintiff to prove to justify a favorable inference of the jury was-established, and as it is not the province of this court to disturb a verdict which is fully supported, it follows that judgment appealed from should be affirmed, with costs.


author: O’Brien, J.

text:
    Susan Hamilton, as Administratrix, etc., App’lt v. Catharine Brennan, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Usury—Bonus.
    Where a loan represented by a note is made in pursuance of a usurious- and unlawful agreement, such agreement cannot be validated, if once proven, by the fact that a third person for whose benefit the note was made, instead of the maker, undertook to comply with its terms and made the illegal payments, as called for by such agreement.
    Appeal from a j udgment, dismissing the complaint, entered on the decision of the judge after a trial without a jury.

      Lelos McCurdy, for appl’t; Bernard J. Tinney, for resp’ts.
   O’Brien, J.

The action was brought to recover upon a promissory note for $1,000, made by the defendant. The making of the note, and the fact that it has not been paid, are admitted, but the defense of usury is pleaded. . The only question presented to the court below was as to whether or not the loan represented by the note was made in pursuance of a usurious agreement. The court found as facts that the note was the result of an agreement entered into, wherein the plaintiff’s intestate agreed to loan to the defendant the sum of $1,000, for which the latter was to pay $50 bonus, together with interest at 6 per cent, per annum'; that there was loaned to the defendant the sum of $700 at the time the note for $1,000 was-made, and that thereafter there was paid the $50 bonus and the sum of $60 interest. Upon these findings the court concluded that the defense of usury was made out, and that the complaint should be dismissed.

It will thus be seen that the question was purely one of fact. • The only witness upon the question of the agreement between the parties at the time the loan was made and the note given was the husband of the defendant,-who in answer to the question as to whether there was any talk or conversation between the defendants and the intestate “as to any money, or amount of money, which was to be paid"to him for the use of that money,” answered: “Yes, sir; six per cent, interest and $50 bonus.”

And in response to further questions he testified that the $50 was subsequently paid by him, and that, just prior to the making of the note, the only money received was.$700. There was no contradiction of this testimony, and although, on cross-examinatian, it appeared that the money in fact was borrowed for the benefit of the defendant’s husband’s who out of his own moneys paid the bonus, the court was justified in .finding that, at the time or just prior to the making of the note, the-consideration therefor was the agreement already detailed.

With such testimony uncontradicted in the case, it cannot be said that the findings made by the learned trial judge upon the questions of fact were unwarranted. But, to avoid the conclusion reliance is placed upon the circumstance appearing that the bonus was subsequently paid, not by the wife, but by the husband, out of his own moneys. This we do not, however, record as destroying the legal conclusion which was drawn from the facts found, because, though the burden which was placed upon the defendant of paying a $1,000 note in consideration of a loan of $700, and, in addition thereto, of paying six per cent, interest on the amount of the note, together with the bonus of $50, was assumed in part by the husband, this does not destroy the vice inherent in the agreement itself. ■ x

Where, therefore, as here, .upon uncontradicted evidence, the court has found that the loan represented by the note was in pursuance of a usurious and unlawful agreement," such agreement could not be validated, if once proven, by the fact that the husband, instead of the wife, undertook to comply with its terms, and made illegal payments, as called for by such agreement.

We think the judgment should be affirmed, with costs.

All concur.