author: Martin, J.

text:
    Charles Spencer, Administrator, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    Railroad — Negligence.
    In an action to recover damages for the death of plaintiff's intestate, a brakeman on defendant’s railroad, alleged to have been caused by defendant’s negligence in not blocking a frog, in which intestate’s foot was-caught, and he was run over by the cars, it appeared that defendant had blocked a few of its frogs, but none at the station where the accident occurred. No evidence that the practice of blocking was general with railroads was given, and it appeared that the accident happened in the daytime, and that intestate knew of the frog. Held, that a nonsuit should have been granted.
    Appeal from a judgment entered in Onondaga county November 20, 1891, on the verdict of a jury, and from an order denying the defendant’s motion for a new trial made on the minutes of the-trial judge.

      Frank H. Hiscock, for app’lt; T. K. Fuller, for resp’t.
   Martin, J.

This action was to recover damages sustained by the death of the plaintiff’s intestate, alleged to have been caused by the defendant’s negligence in not blocking a frog, in which the-intestate’s foot was caught, and he was run over and killed by the cars. He was employed by the defendant as a brakeman on its railroad, and engaged in coupling cars at its station at Clyde at the time be was killed. The accident, occasioning his death, occurred December 14, 1889. The evidence tended to show that it occurred by the intestate’s foot being caught between the rails or tracks near or in the frog which connected one of the main tracks with a side track.

The plaintiff claimed that there should have been blocks of wood placed in the opening of the frog or between the rails, and that if blocked the .accident would not have occurred. The plaintiff proved that the defendant had blocked some of its frogs in its larger freight yards, where much shifting and coupling was done, but had never blocked any at the other stations along its road, including the one where the accident occurred. The plaintiff’s intestate had been in the employ of the defendant during a portion of each year for several years prior to the accident, usually commencing his work in the fall and continuing until spring, and during a portion of the time he had lived across the road from the defendant’s yard at Dewitt. During the time of his employment he had been engaged chiefly in running upon through freight trains between Dewitt and Buffalo and Dewitt and Suspension Bridge. These trains, however, were accustomed to do more or less local business, stopping at the way stations on the road. As such brakeman he was also engaged in the yards at Dewitt and Buffalo helping make up trains, and where they did local business he took part in switching and coupling cam at way stations.

He entered upon his last employment as such brakeman about four weeks before he was killed, and commenced to run upon the local freight the day previous to his death. He took the train at Lyons and ran to Eochester. On the .next day he started on his return trip and reached Clyde, where he was killed. During these two days he had stopped at the various way stations between Lyons and Eochester going west, and between Eochester and Clyde coming east, doing switching and coupling cars at each of these stations. There were six way stations where coupling and switching were done on the trip west, and seven or eight on the trip east, including the station at Clyde. He had been at work at the station where the accident occurred, and around and near the frog where he was injured, from an hour to an hour and one-half before the accident.

There was no evidence that the frog where the accident occurred was different from those in general use, or that it and the track around it wore not in a perfect state of repair. There was a switch nearly opposite, which plainly indicated the location of the frog. Indeed, it was assumed upon the trial that the plaintiff’s intestate must have known its location.

Snow had been falling and the wind had been blowing some that day, but the snow had not fallen to a sufficient depth to cover the frog, nor was the storm severe enough to obstruct the intestate’s vision. The accident happened in broad daylight, and there was nothing to prevent him from seéing that the frog was not blocked. There was a great number of frogs upon that part of the defendant’s road over which the plaintiff’s intestate had passed, and the larger portion of them was not blocked.

Several years prior to this accident the defendant had established and promulgated a rule requiring its men who were engaged in coupling freight cars to use coupling sticks instead of coupling by hand, and a supply of them was kept on hand in» the defendant’s yard into which the decedent ran, and in the caboose of the train on which he was working when killed. There was, however, proof which tended to show that the employes of the defendant generally made couplings without the use of sticks. The decedent was attempting to couple cars with his hand without the use of a coupling stick when the accident occurred. There was no evidence that any other railroad company blocked the frogs upon its road, or that any similar accident had happened upon defendant’s road.

At the close of the plaintiff’s evidence the defendant moved for a nonsuit upon the grounds that no negligence of the defendant had been established ; that it was not shown that the decedent was not free from contributory negligence, and that his injuries arose from risks which were incident to his employment and assumed by him. This motion was denied. It was again renewed at the close of the evidence, and again denied. To both these rulings the defendant excepted. The case was submitted to the jury, which found for the plaintiff.

The only ground upon which the plaintiff bases his right to recover is the omission of the defendant to block the frog at the place where the accident occurred. As no special reason was shown why the frog at that place should have been blocked that did not equally apply to every other on defendant’s road, the question presented is whether it owed to its servants the duty of blocking them at all the stations or side tracks.

A master, in the performance of his duty to his servants, is not bound to furnish the best known appliances and machinery, or the safest place in which to do their work, but such only as are reasonably safe. The test is not whether the master has omitted to do something which he might have done, but whether the machinery, appliances and place where the work was to be done were reasonably sale and proper for the use to which they were applied. Burke v. Witherbee, 98 N. Y., 562; Marsh v. Chickering, 101 id., 396; Bajus v. S., B. & N. Y. R. R. Co., 103 id., 312, 3 St. Rep., 96; Stringham v. Hilton, 111 N. Y., 188; 19 St. Rep., 621; Kern v. De C. & D. S. R. Co., 125 N. Y., 50; 34 St. Rep., 363.

A servant who enters into an employment which is hazardous assumes the usual risks of the service, and those which are apparent to ordinary observation. If he accepts service with knowledge of the character and position of the machinery, appliances and place where he is to do his work, he takes the risk of such perils as are incident to their use in their then condition and ai'e apparent, and cannot call upon the master to make alterations to secure greater safety. Gibson v. Erie R. Co., 63 N. Y., 449; De Forest v. Jewett, 88 id., 264; Powers v. N. Y., L. E. & W. R. R. Co., 98 id., 274; Sweeney v. Berlin & Jones Envelope Co., 101 id., 520; Anthony v. Leeret, 8 St. Rep., 542; Hickey v. Taaffe, 105 N. Y., 26; 6 St. Rep., 426; Williams v. D., L. & W. R. R. Co., 116 N. Y., 628; 27 St. Rep., 760; Davidson v. Cornell, 132 N. Y., 228; 43 St. Rep., 887.

When an appliance or machine not obviously dangerous has been ip daily use for a long time, and has uniformly proved adequate, safe and convenient, its use may be continued without the imputation of negligence or carelessness. Stringham v. Hilton, 111 N. Y., 188; 19 St. Rep., 621.

A master’s liability to his servant for injuries received in the course of his employment is based upon the personal negligence of the employer, and the evidence must establish personal negligence on his part, or what is equivalent thereto, to justify a verdict, and he is entitled to the benefit of the presumption that he has performed his duty until the contrary appears. Cahill v. Hilton, 106 N. Y., 512; 11 St. Rep., 26.

In Appel v. B., N. Y. & P. R. R. Co. (111 N.Y., 550; 20 St. Rep., 90), the plaintiff’s intestate was a switchman in defendant’s yard, and while engaged in his employment caught his foot in a frog, and was run over and killed. It was claimed that blocks of wood might have been placed in the openings of the frog, and thus have prevented the accident. It appeared that decedent had been in defendant's employ for some years, and for quite a length of time in and about the yard where the accident happened, and was acquainted with the frog and knew it was not blocked. In that case it was held that in accepting and continuing in the employment the decedent assumed the hazard of all known and obvious dangers, and was chargeable with notice of the difficulty in removing the foot when caught in a frog, and of the danger to be apprehended therefrom, and, therefore, the cause of action was not made out, and a refusal to nonsuit was error.

Again in Ireland v. Gardner (26 St. Rep., 895), the plaintiff while uncoupling cars on defendant’s road caught his foot in a frog, and was thrown down and run over, causing amputation of a leg and arm. In an action to recover for such injuries, it was held that the submission of the case to the jury to find a verdict for plaintiff on the sole ground that the guard rail was not blocked was error.

In Haas v. B., N. Y. & P. R. R. Co. (40 Hun, 145), the plaintiff was employed by the defendant in its yard. While thus employed his heel slipped in between the guard-rail and the main track opposite a frog, and before he could extricate himself the car passed over him, cutting off his legs. The plaintiff knew at the time of entering the defendant’s service that blocks were not used in its yard. The defendant requested the court to charge that plaintiff having entered defendant’s service with its guardrails unblocked, and they being in plain sight, the plaintiff having continued in the service with the guard-rails in that condition, he assumed the apparent risks incident to their existence in the performance of his duty, and could not recover, and that the accident which caused the plaintiff’s injury was, under the circumstances of the case, a risk which he assumed and for which the defendant was not liable. This request was refused, and the general term held that the court erred in refusing so to charge.

Applying the principles of these authorities to the facts in this case, we do not see how the judgment can be upheld. That the tracks, cars and other machinery in use upon the defendant’s road at the time and place of the accident were not proper, or in a proper state of repair, is neither claimed nor proved. As we have already seen, there was no evidence that blocks were in general usé by the defendant, or that they were in general or even limited use upon other railroads, or that any accident had ever occurred which was occasioned by the omission to block the frogs on the defendant's road, or that any such accident had ever occurred from that cause on any other road, or that it was necessary or proper to block the frogs on a railroad.

While a court might, perhaps, take judicial notice that frogs on a railroad constitute an element of some danger to persons walking .over them, it cannot, we think, assume that.the mere operation of a railroad without blocking all the frogs on its line constitutes negligence. Therefore, in the absence of proof that such blocking was necessarjr, or at least proper, or in general use upon other roads, neither a court nor a jury would be justified in finding that such an omission constituted negligence which would entitle an employee to .recover for injuries sustained by having caught his foot in a frog. There is nothing in the evidence, or in the construction of a frog, which would justify a jury in finding that it was an unsafe or dangerous appliance when properly located and properly used, or that it was not reasonably safe for the purpose for which it was designed.

Moreover, the plaintiff’s intestate had been in the defendant’s employ for such a length of time, and been engaged in the performance of such duties, as render it manifest that he must have known that a large portion of the frogs on defendant’s road was not blocked. We think the evidence was not sufficient to justify the jury in finding that the decedent was ignorant of that fact.

We also find that the decedent had been employed around and near the frog where this accident occurred fol- an hour or an hour and one-half before his injury. The frog was in plain sight, and whether it was blocked or not could have been readily determined by the exercise of the slightest vigilance on his part. It was not only broad daylight, but there was nothing to prevent the intestate from seeing its condition at a glance. Under these circumstances, he must have known and fully understood that this frog was not blocked, unless he neglected to exercise the slightest diligence or make the slightest effort to ascertain its situation.

We think the evidence shows clearly th&t the decedent had knowledge of the character and situation of this frog, or at least" that its situation and character were apparent to ordinary observation, and consequently he took the risk of the perils which were incident to its use.

These considerations lead to the conclusion that the court erred in denying the defendant’s motion for a nori-suit, and for this error the judgment should be reversed.

This conclusion renders it unnecessary to consider the question whether the decedent was guilty of contributory negligence in not using a coupling stick at the time of his injury.

Judgment and order reversed on the law and facts, and a new trial granted, with costs to abide the event. • ,

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


source: Caselaw Access Project

license: Public Domain

text:
    Frederick C. Friess, by John Friess, his Guardian ad litem, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    1. Railroad-Negligence — Open frog.
    In an action against a railroad company for damages, alleged to have been caused by its negligence, plaintiff’s evidence was to the effect that while passing along the sidewalk over defendant’s track, he caught his foot in a frog, which was unblocked, and was unable to remove it, and while m this situation the tender of defendant’s train struck and injured him. Plaintiff was twelve years old and unfamiliar with the surroundings or with the purposes and construction of a frog. The evidence disclosed ¡that blocks and other means were extensively used to prevent such accidents, which were easily prevented by their use. Held, that the question of defendant’s negligence was one of fact for the jury, as was the question whether plaintiff was guilty of contributory negligence.
    3. Same — Evidence.
    In such case evidence to show that no bell was rung or whistle blown on the train, and that defendant had no flagman at the street when the accident occurred, was properly admitted.
    3. Witness — Privilege.
    Whether an answer may tend to criminate a witness, is a point which the court may determine, under all the circumstances of the case, when the protection is plain, without requiring the witness to explain how the ■effect is to be produced.
    Appeal from a judgment, entered in Onondaga county, Rovember 20, 1891, on the verdict of a jury, and from an order denying the defendant’s motion for a new trial, made on the minutes of the trial judge.

      F. H. Hiscock, for app’lt; P. B. McLennan, for resp’t.
   Martin, J.

The accident which was the subject of investigation on the trial of this action occurred .on the 24th day of May, 1889. It happened at a point where the tracks of the defendant’s railroad cross Williams street, which is one of the public streets of the «city of Syracuse, and extensively used for the passage of teams and foot passengers. At this place the tracks of the defendant extend in an easterly and westerly direction, crossing Williams street at nearly right angles. There was a plank sidewalk on the west side of the street, which crossed the railroad track. In this sidewalk, and within the bounds of the street, the defendant had placed a frog to connect the main track with a side track, which deflected from the main track at that point. The frog was an open one, and so constructed that the foot of a person -passing over the sidewalk was liable to be caught therein. It was used and operated by the defendant without being blocked, or the opening in any manner filled, or any other means being adopted to render it safe for persons crossing its tracks on the sidewalk. The plaintiff, at the time of the accident, was twelve years of age. He resided with his parents on Williams street, a little north of the crossing. He had resided there only about ten days. Before that he lived in Schoharie county. The evidence tended to show that the plaintiff was not familiar with this crossing, nor with the operation of the defendant’s trains at this point, and that he was unacquainted with the purposes and construction of a-frog, and was not aware of any danger to be apprehended from passing over it. At the time of the accident the defendant was backing a tender and engine easterly, moving a train of about twenty-one cars from the Soda Ash Works, which was located about a mile westerly from Williams street.

_ The evidence introduced by the plaintiff was also to the effect-that while passing along the sidewalk on Williams street over defendant’s track he caught his foot in this frog and was unable to remove it; that while in this situation the tender of the defendant’s train struck him, knocked him down between the rails and under the train, and that he was dragged along the tracks from this point easterly a distance of about 1,000 feet, where the last car of the train passed over his leg, so crushing it that it became necessary' to amputate it above the knee, and that he also-sustained other injuries. In going this distance the train passed two other streets where the crossings were planked so that the planking was even with the surface of the rails.

This action was for negligence. The negligence charged was-the maintenance in the sidewalk of this frog and the rails and appliances connected therewith in a manner which rendered themi dangerous to persons passing. How this accident happened wa» the' question chiefly litigated on the trial. The plaintiff claimed! that it occurred as .already stated. This frog was not blocked, or so constructed as to provide against accidents of this kind, although the evidence disclosed not only that blocks were extensively used for that purpose, but that there were other means by which such an accident could have been easily prevented if adopted by the defendant.

On the other hand, the defendant contended and introduced! evidence which tended to show that the plaintiff was engaged in stealing a ride at the time of the accident, and that his injury resulted from his falling from the train and being run over by the cars.

The jury found for the plaintiff. The evidence was conflicting. If the jury believed the evidence given in support of the plaintiff’s theory, it was sufficient to justify it in finding that the accident occurred in the manner claimed by the plaintiff. It may, perhaps, be said that if it occurred in that manner it was unusual, still we think we would not be justified in holding that it was-either impossible or so improbable as to justify us in determining, as a matter of law, that it could not have occurred in the manner claimed.

The question whether it occurred as claimed by the plaintiff; or whether as claimed by the defendant, was for the jury, and its finding should not, we think, be disturbed by us, especially in view of the fact that two juries have already arrived at the same conclusion. A careful study of the evidence contained in the appeal book has led us to the conclusion that the question of the defendant’s negligence was a question of- fact for the jury.

This case is clearly distinguishable from the case of Spencer v. New York Central & Hudson River Railroad Company, decided by this court at this term, as in that case there was no evidence to-show that blocks were in general use or proper for the purpose of preventing injury to persons passing over the frogs in a railroad track, or that there were any other means that were in general use, or proper, which could have been adopted to prevent such an accident. Moreover, in that case the question arose between the-defendant and one of its employes, who, upon entering the defendant’s employment, assumed the usual risks of the service and those which were apparent to ordinary observation. In that case the frog was in the defendant’s yard, while in the case at bar it was in a public street.

This leads us to the consideration of the question whether the plaintiff was guilty of contributory negligence. A passenger upon a street has a right to use its sidewalk, although knowing it i§ in an unsafe condition, and if injured it is a question for the jury whether he was guilty of any carelessness which contributed to-the injury. Bullock v. Mayor, etc., 99 N. Y., 654; Pomfrey v. Village of Saratoga Springs, 104 id., 459; 5 St. Rep., 802. Contributory negligence is a question of fact, and should be left to the-jury, unless it so clearly appears from the circumstances or uncontradicted evidence as to leave no inference of fact'in doubt. It is only in very exceptional cases that it can be adjudged as a necessary legal conclusion from the facts found. Thurber v. H. B., M. & F. R. R. Co., 60 N. Y., 326; Massoth v. D. & H. C. Co., 64 id., 529. Under the evidence in this case, we think the question whether the plaintiff was guilty of any negligence which contributed to his injury was a question of fact, and properly submitted to the jury.

Nor are we disposed to interfere with the order made by the-trial court denying the defendant’s motion for a new trial. The-trial court heard the evidence, saw the witnesses upon the stand, observed their demeanor and manner of giving their testimony,, and was satisfied with the verdict. As the evidence was conflicting, and entirely sufficient to justify the verdict, we are not inclined to disturb this order.

Neither do we think that it can be said that the verdict was-against the weight of evidence. We think it was not. We are of the opinion that the question of the defendant’s negligence, and the plaintiff’s freedom from contributory negligence, were-questions for the jury, were properly submitted to it, and the evidence justified the verdict and judgment entered thereon. It follows, therefore, that unless some of the exceptions taken by the-defendant require a reversal of the judgment, it should be affirmed.. This leads us to an examination of the various exceptions taken-by the defendant to the admission and rejection of evidence, and to the charge.

The defendant claims that the court erred in admitting evidence-that no bell was rung or whistle blown- as the train, which ran over the defendant, approached the crossing where he was injured. We think this evidence was admissible. Notwithstanding the repeal of the statute requiring the sounding of the whistle ■or the ringing of the bell when the train is approaching a crossing, we think it is yet the duty of railroad corporations to run their trains with care and caution, and when they approach a •crossing to give some warning by whistle, bell or otherwise, and that, therefore, evidence is admissible to show that no such signals were given. Vandewater v. N. Y. & N. E. R. R. Co., 32 N. E. Rep., 636, 637; 49 St. Rep., 55.

On the trial the plaintiff was permitted to show that there was no flagman at the street when this accident occurred. The evidence was objected to, when the court said: “ Of course, it cannot be claimed under the law of this state that the company was un•der any legal obligation to have a flagman at this point. I think I will take the evidence." To this ruling the defendant excepted. We do not think the exception well taken. In Houghkirk v. D. & H. C. Co. (92 N. Y., 219), the court submitted it to the jury to determine whether, under, the circumstances of that case, due care required the presence of a flagman, and whether, for the omission •of that precaution, the defendant was chargeable with negligence. This was held error. But in discussing the question in that case it was said: “A railroad company is not bound and owés no duty so to station a 'flagman, and negligence cannot be predicated of the •omission. The fact may be proven as one of the circumstances .■under which the train was moved, and by which the degree of •care requisite in its handling and running may be affected; so that the question never is, whether there should have been a flagman, or one ought to have been stationed at the crossing, but whether, in view of his presence or absence, the train was moved with prudence or negligence.” The doctrine of that case, we "think, sustains the ruling under consideration.

The plaintiff, under the defendant’s objection and exception, ■was permitted to prove the distance that one standing at the frog ■could see’a train if there were cars standing on the siding, and also the distance if there were no cars there. We find in this ruling no such error as would justify an interference with the judgment.

Dr. Flint, who attended the plaintiff-after his injury, was called as a witness, and after testifying to the appearance, nature and ■character of plaintiff’s injury, was asked: “ Besides the accident, was there any other cause that would account for this condition -of the head?” This was objected to as improper and incompetent; overruled, and the defendant excepted. The witness answered: “No.” As the witness was a physician, had attended the plaintiff, knew all his symptoms, and his condition, we think he was qualified to answer the question, and that the evidence was properly admitted.

On the cross-examination of the witness, Emma Yertigan, the ■defendant’s counsel interrogated her as to her having sworn out .a warrant charging a man with having committed a rape on her, as to having seen the district attorney and sheriff, and as to having seen a couple of other men. She was then further examined ias follows:

“ Q. A couple of other men who said that they had been familiar with you at that time? Objected to as incompetent, immaterial and improper. Objection sustained.
“ Q. At that time there, in the presence of District Attorney Hancock and Mr, O’JSTeil here, did you admit that it was not true that Mr. De Eusha had committed a rape upon you, and that you had sworn falsely when you charged him with it? Objected to as incompetent, immaterial and improper. The court: You may answer it if you like. You are not obliged to answer it unless you see fit. Do you decline to answer ? A. Ho, sir.
“Q. Do you want to answer? A. Ho, sir.
“ By Mr. Hiscock: Q. You decline to answer that question, do you? You refuse to answer that question, do you ? A. Yes, sir.
“ Q. Subsequently, this proceeding against this man was dropped? Objected to as incompetent. Sustained. Mr. Hiscock: Your honor holds that she can refuse to answer whether she has admitted committing perjury or not? The court: Yes. Exception for defendant.
“ By Mr. Hiscock: Q. Do you refuse to answer that question, whether you admitted then committing perjury, upon the ground that it would disgrace you to answer the question ? Objected to as incompetent. The court: I don’t think that is proper. Exception for defendant. By Mr. Hiscock: Q. Do you refuse to answer that question upon the ground that it would be confessing the commission by you of a crime ? Same objection. Sustained. Exception for defendant. The court: I am wrong, perhaps, in these rulings, and I will recall both of these last rulings. The plaintiff is not in a position to object to her being asked these questions. I overrule the objections to both questions, and instruct the witness she may answer them or not, as she sees fit. Exception for defendant. (Question read.) ‘ Do you refuse to answer that question, whether you. admitted then committing perjury, upon the ground that it would disgrace you to answer the question?’ The court: You may answer that or not, as you see fit. Do you want to answer that question ? A. Ho, .sir. (Question read.) ‘Do you refuse to answer that question upon the ground that it would be confessing the commission by you of a crime ? ’ By the court: Do you want to answer that ■question? A. Ho, sir. Mr. Hiscock: I take an exception to ■each of those rulings. By Mr. Hiscock: Q. How I ask you to state here any reason why you decline to answer that question, whether you admitted at that time committing perjury. The ■court: Q. What do you answer to the question ? Do you understand the question ? A. Yes, sir.
“ Q. Do you want to answer that ? A. Ho, sir.
Q. You don’t want to answer that; you don’t want to state .any reason? A. Ho, sir. Mr. Hiscock: I ask the court separately to instruct her to answer each of those questions. The court: I decline to instruct her that she must answer them; I decline to compel her to answer them. Mr. Hiscock: To that refusal I except.”

It is an old and well established principle óf the law of evidence that where it reasonably appears that the answer to a question will have a tendency to expose a witness to a criminal charge, he is not bound to answer. This is so even where the fact in regard to which he is interrogated forms but a link in the chain of testimony which would convict him, and he is protected without, being required to explain how he might be criminated by the answer. Tn respect to this claim of privilege, there are two extremes which ought equally to be avoided; first, that of requiring, from a witness who has honestly claimed the privilege, any explanation whatever of his reason for refusing to answer, .if the? court can see how such answer may fairly and reasonably tend to criminate him ; and second, that of permitting a witness to interpose the shield of apprehended peril as a protection against every question which he is disinclined to answer, although there be nothing in the circumstances of- the case which in the least, suggests the danger. Youngs v. Youngs, 5 Redf., 506; People v. Mather, 4 Wend., 232.

Whether an answer may tend to criminate a witness is a point, which the court may determine, under all the circumstances of the case, when the protection is plain, without requiring the witness to explain how the effect is to be produced. In cases of this, kind the court must see from the circumstances and nature of the evidence which the witness is called upon to give that reasonable grounds exist for apprehending danger to the witness from being compelled to answer. Taylor on Ev., § 1457.

It is said, however, in New v. Fisher, (11 Daly, 313): “Where the answer to a question may tend to criminate or degrade a witness, it is undoubtedly the privilege and duty of the court to instruct the witness as to his legal rights, and the witness then has the right to claim his privilege; but the party seeking the-evidence has the right to make the witness claim his privilege, and to the statement by the witness that he refuses to-answer because the answer may criminate or degrade him." We seriously doubt the correctness of this rule. We are of the opinion that when the court can perceive that a. question put to a witness would have a tendency to criminate him, it is its duty to inform the witness of his privilege and to sustain him in declining to answer. It may be that where a question propounded does not disclose any ground for apprehension, that the party may be entitled to have the ground of the privilege stated by the witness, at least sufficiently to enable the court to see how the answer might fairly and reasonably tend to criminate him. Surely no such necessity existed in this case, as-the question put to the witness was whether she had admitted committing perjury. That this would tend to convict her of that crime was readily seen and clearly understood by the trial court, and must also have been equally understood by the defendant.

Moreover, if the rule is as claimed by the defendant, and as held in the New case (supra) still we are unable to discover in the rulings of the trial court anything that would justify a reversal of the judgment. From the claim of such privilege and its allowance no inference whatever could be legitimately drawn affecting either party. Phelin v. Kenderdine, 20 Penn. St., 354. Ror •could the fact of such refusal have been commented on by counsel, -or taken into consideration by the jury in determining the weight to be given to the witness testimony. Rose v. Blakemore, Ry. & M., 382; Rex v. Watson, 2 Starkie, 138; Lloyd v. Passingham, 16 Ves., Jun., 59; Carne v. Litchfield, 2 Mich., 340; Foster v. People, 18 id., 273; People v. Maunausau, 60 id., 15. If the court had -compelled the witness to specify the ground upon which she claimed her privilege, it would not have legitimately aided the defendant. Therefore, if the rulings were .erroneous, the error was harmless and not prejudicial to any of the defendant’s legal rights.

On the trial the defendant, on the re-examination of one of the witnesses, asked the following questions : “ In answer to counsel jou said you didn’t remember of seeing any boys on that day running along by the train? Yes, sir. ' What do you mean by that, that it is so frequent that you paid no attention ?” The latter question was objected to, and the objection was sustained, to which the defendant excepted. We do not think this exception valid. We know of no principle which would have justified the court in admitting evidence of the fact that boys, other than the plaintiff, frequently ran along by the defendant’s trains. We can ■discover no legitimate purpose for which this evidence was admissible, and think the court properly excluded it.

After the court had concluded its charge, the defendant requested it to instruct the jury, “ That upon the evidence in this case plaintiff must be held to have been sui juris at the time of the accident, and, therefore, bound to observe the same precaution and care in crossing the defendant’s track at Williams street as an adult.” To this request the court replied: “The first part of it I charge; but I will have to tell you what it means, perhaps, if counsel desire me to. That term is used to express that condition of a child in which he is old enough to act for himself; and I may state here, incidentally, that the books are vacillating as to that age, between the ages of about five to seven years. This boy was twelve years of age, so that he was clearly, as I charge jou, within the rule that he was old enough to act for himself, and, therefore, that negligence can be predicated in his case on his own failure. If it were a question of a child of four or five years of ■age, then the question would be, not whether the child himself was guilty of negligence, but whether his guardian, or his father •or mother were. In this case this boy was clearly within the rule charging him with personal care. The latter part of the proposition I refuse to charge, to wit, that he was bound to observe the same precaution and care in crossing the tracks at Williams street •as an adult. I have expressed the idea with reference to that. Perhaps I had" better repeat it. I dó not charge you that he was not bound by the same rule as an adult. -The defendant asked me to charge that he was. I say, 1 Ro, I cannot do that,’ nor on the other hand will I charge that he was not; but I leave it to you to say whether, considering his age and the extent of his judgment, intelligence and all that, he was ,of sufficient intelligence and age to be governed by the same rule as an adult. If not, then you apply the rule otherwise. You may in either event consider the fact of his age, intelligence and judgment as bearing upon the question.”

Subsequently, the defendant made the following request: “ I ask your honor to charge that the plaintiff must show affirmatively that he has not the same judgment and discretion as an adult, before he can be claimed to be held to a less strict responsibility as to contributory negligence than an adult." To this the-court replied: “ Yes, I will charge that; that the burden of proof is upon the plaintiff, to show that he is of less intelligence than an adult." The defendant’s counsel then proffered this further request: “I ask your honor to further charge, that in the absence-of evidence tending to show that a boy twelve years old was not, qualified to understand the danger and appreciate the necessity for observing the same degree of caution in crossing a railroad track as adults would, he must be deemed sui juris and chargeable with the same measure of caution as an adult.” To this the court said: “ The first part I charge any way. I have already. And the last part I charge, too; it is the same thing; that the-burden of proof is upon him of showing that he comes within that class of young persons who are to be excused from the complete care which is exercised by an adult.” The defendant’s-counsel then said: “ I ask your honor to say that in this case there is no evidence, either direct or circumstantial, which shows-that he is of less judgment or discretion than an adult.” This the court refused to charge, and the defendant excepted.

It has been held that the question, at what age an infant’s responsibility for negligence may be presumed to commence, is not one of fact, but of law. In the absence of evidence tending to-show that a boy twelve years of age was not qualified to understand the danger and appreciate the necessity for observing that degree of caution in crossing a railroad track that an adult would, he must be deemed sui juris and chargeable with the same measure of caution as an adult. Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y., 308; 36 St. Rep., 272.

When we examine the charge of the court, we find that it not-only charged that upon the evidence the plaintiff must be held to have been sui juris at the time of the accident, but also charged that, in the absence of evidence tending to show that he was not, qualified to understand the danger and appreciate the necessity for observing the same degree of caution in crossing a railroad track as adults would, he must be deemed sui juris and chargeable with the same measure of caution as an adult. Thus it will be observed that when all that portion of the charge relating to this question is taken together, the court instructed the jury in accordance with the principle of the 'Tucker case, and none of the defendant’s exceptions to this portion of the charge are valid within the principle of that case, unless the court erred in refusing to-instruct the jury that there was no evidence, either direct or circumstantial, which showed that the plaintiff was of less judgment or. discretion than an adult.

During the trial evidence had been given bearing upon thehistorv of the plaintiff’s life, his experience and knowledge as to railroads, switches and frogs, and he testified that he did not know what a frog was, had never noticed that where the tracks came together they made a sort of angle, and that he had no such knowledge of switches or frogs as would induce him to believe that it. was dangerous to walk over them, and other facts were testified to by him bearing upon the question of his intelligence and. knowledge in regard to railroads, their tracks and methods of operation. Under the evidence, we cannot hold, as a matter of law, that the court erred in refusing to yield to this request. In Swift v. S. I. R. T. R. R. Co. (123 N. Y., 645; 33 St. Rep., 604), where a girl fifteen years of age was injured by one of the defendant’s trains, it was held that the degree of care required by the law of a person crossing the track of a railroad depends upon the maturity and capacity of the individual, under all the surrounding circumstances. If there is any doubt as to the facts or the inferences-to be drawn from them, the question must be submitted to the jury.

Having examined all the questions to which our attention has-been called by the defendant’s counsel, either in his brief or on the argument, and having found no error that would require a-reversal, the judgment should be affirmed.

Judgment and order affirmed, with costs.

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


text:
    The People, Resp’ts, v. Franklin M. Severance, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    1. Criminal law — False entries by officer of corporation — Evidence.
    Defendant was indicted for the crime of making a false entry in a book of accounts kept by a corporation, while being an officer thereof, with intent to defraud. On the trial the People were permitted to introduce in evidence a paper, which purported to be a verified statement of balances on the bank’s deposit ledger “ C” on a certain morning, which should have been included in the statement of I alances taken from deposit ledger “B” by the bank inspector. No proof was offered that it was made by-defendant, or under his direction. Held, that the paper was clearly inadmissible, and its admission prejudicial.
    2. Evidence — Handwriting—Laws 1880, chap. 86.
    Laws 1880, chap. 86, does not authorize a trial court to permit a wit- ■ ness to testify to the handwriting of a person where he had no knowledge of its genuineness, except having seen a signature which was proved to be; genuine.
    3. Witness — Cross-examination.
    Where a witness was called by the People, examined and cross-examined, and aá he left the stand, defendant’s counsel stated to the district attorney, in the presence of the court, that he desired to further cross-examine the witness, and desired him to remain in attendance for that purpose, and so informed the witness, who left the city, and the trial court refused to delay the trial to enable the defendant to procure his attendance, or to-strike out the evidence he had given, the district attorney making affidavit that he never heard the request, Held, that the court should have permitted the defendant to secure the witness, and delayed the trial a reasonable time for him so to do.

      Appeal from a judgment of the court of sessions of Onondaga county, upon the conviction of the defendant by a jury of the crime of making a false entry in a book of accounts kept by a corporation while an officer thereof, under § 602 of the Penal ■Code, and from an order denying the defendant’s motion for a new trial.
    Defendant was indicted by a grand jury in the Onondaga oyer .and terminer on the 21st. day of January, 1891. He was arraigned April 6, 1891, in the court of sessions of that county, to which the indictment had been remitted for trial, and pleaded “ Not guilty.” The indictment charged the defendant with the crime of making a false entry in a book of accounts kept by a corporation, while being an officer of such corporation, with an intent to defraud. It was alleged in the indictment that the defendant on March 28, 1887, at Fayetteville, while cashier of the Farmers’ Bank of Fayetteville, a corporation duly organized under the laws ■of the state of New York, with intent to defraud said bank and •divers other persons, made and concurred in making a false entry in a “ tickler,” a book of accounts kept by said bank, and the page containing such false entry was set forth at large in the indictment. The false entry charged was that of entering the figure nine in the thousands column on one of the pages of the •“ tickler.’1
    The Farmers’ Bank of Fayetteville was organized under the banking laws of this state in March, 1870. Its capital stock was :$100,000. In December, 1877, by proper proceedings, it was reduced to $50,000. In June, 1886, by further proceedings, the stock was further reduced to the sum of $25,000. During a period of about sixteen years the bank had transacted a banking business at the village of Fayetteville, but in the following year, after an examination of the affairs of the bank by Oscar F. Richardson, the bank ■examiner designated for. that purpose by the banking department, the bank was dissolved and its affairs wound up in an action brought by the attorney general for that purpose. The bank was closed on the 80th of May, 1887, and William S. Andrews, of Syracuse, N. Y., was appointed receiver.
    The indictment in this action was not found until about three years and one-half afterwards, and after the affairs of the bank had been closed.
    A large amount of evidence was taken on the trial, both documentary and oral, to wffiich there was a great number of exceptions. The trial resulted in a verdict of “guilty,” and the defendant was sentenced to imprisonment in the state prison at AuBurn for the period of three years.

      Ceylon H. Lewis, for app’lt; Lawrence T. Jones, for resp’ts.
   Martin, J.

The principal questions presented on this appeal ■relate to the rulings of the trial court in the admission and rejection of evidence. There was a great number of exceptions taken by the defendant. Many of them are not, however, referred to By the appellant in his brief. There are others to which our attention is called that we do not deem of sufficient importance to require any special consideration further than to say, that they have been carefully examined, and we do not think they require a reversal of the judgment. After eliminating the two classes of -exceptions alluded to, others remain which seem to be valid, and to require careful consideration.

On the trial the People were permitted to introduce in evidence •a paper, which purported to be a verified statement of balances on deposit ledger “ 0,” on the mornings of May 17 and 19, 1887, which should have been included in the statement of balances taken from deposit ledger “B,” by the inspector. The admission of this paper in evidence was objected to by the defendant on the ■ground that it had not been proved. This objection was overruled, and the defendant duly excepted. The appeal book, which purports to contain all the evidence given on the trial, fails to -show that this paper was proved in any manner whatever. We ■cannot conceive of any principle of the law of evidence that would justify its admission against the defendant, with no proof, whatever, that it was made by him or under his direction. Although it was claimed by the People that it was made by the defendant, and sent to the witness by him, there was no proof of those facts. We think this paper was clearly inadmissible.

We are also of the opinion that it cannot be held that this error was not prejudicial to the defendant, and should, therefore, be ■disregarded. The effect of the evidence was to show large over drafts by the defendant and others, and thus prejudice the jury .against the defendant. Moreover, it was made the basis of evidence which tended to show that the books of the bank were improperly kept, or if they were properly kept, that the list introduced was falsely made and verified by the defendant.

The People also called as a witness one Lawrence W. Myers, who claimed to be an expert, both in bookkeeping and as to hand-writing. He testified at great length, not only as to the propriety of the manner in which the books of the "bank were kept, but was permitted to testify unqualifiedly that a great many papers and entries in the books were in the hand-writing of the ■defendant, although it was shown by the undisputed evidence that he had never seen the defendant write, and there was in evidence but a single signature that was proved to be that of the defendant.

On the occasions referred to, of which there was a great number, be was, in substance, asked : “ Is the writing I show you in defendant’s hand-writing?” These questions were objected toby the defendant, on the ground, among others, that the witness was not qualified to testify on that subject. These objections were overruled, and the defendant duly excepted. The writings were then offered in evidence, without any other proof as to their having been made by the defendant, to which he duly objected, and they were admitted by the trial court under his objection and exception. The propriety of admitting such proof of the defendant’s hand-writing, and then admitting in evidence the writing with no ■other proof of its genuineness, is sharply presented by the various objections and exceptions1 made and taken by him. - Indeed, a large portion of the written evidence received against the defendant wás verified in this manner only. The People attempted to justify these rulings under the provisions of the statute which provides that comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by witnesses in all trials and proceedings, and such writings and' the evidence of the witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute-(Laws 1880, chap. 36, § 1.)

It may be observed that this statute only permits a comparison to be made by a -witness of a disputed writing with any writing proved to be genuine, and the submission of such writings and the evidence of such witnesses to the court and jury as eviz dence of the genuineness, or otherwise, of the writing in dispute-Although this statute permits a comparison of a -genuine handwriting of a person with that of a disputed instrument, we find in it no authority which would justify a court in permitting a. witness to testify to the handwriting of a person when he had no-knowledge of its genuineness, except having seen a signature that was proved to be genuine. In this case the witness had never seen the defendant write, nor was there any claim that he had ever received documents purporting to be written by defendant, in answer to documents written by the witness or under his authority, or that in the ordinary course of business documents purporting to be written by the defendant had been habitually submitted to the witness.

As this witness was not qualified to give evidence as to the handwriting of the defendant, except as he compared the writings in dispute with the one proved to be genuine, he should not, we think, have been permitted to testify positively that these different entries and papers were in defendant’s handwriting. His evidence should have been confined to a comparison of the handwriting of the genuine paper with the handwriting of those in dispute, and to his opinion that they were, or were not, written by the same person. Upon such an examination the jury would have readily understood that his evidence was confined to a comparison of the writings, and his opinion was based thereon, which would naturally have given it less weight than his positive testimony, when the fact that he had no knowledge of the defendant’s-writing except by such comparison might have been easily forgotten by the jury. Such proof was all that was justified by the statute and all that should have been allowed. He was also permitted to testify that a paper was in the defendant’s handwriting which was not presented to the court or jury, and which he had not seen since the standard offered in evidence was proved to be genuine, and upon this proof he was then permitted to give secondary evidence of the contents of such paper. We think the admission of this evidence in the form in which it was given was-error.

Oscar F. Richardson, the bank examiner who examined the Bank of Fayetteville, was called as a witness by the People early in the trial of the case. He was examined by the People and cross-examined by the defendant and left the stand. Afterwards, and daring the trial, the defendant’s counsel desired to further cross-examine him, but he was not in court, having that morning; or the previous night returned to his home in the city of Brooklyn. The defendant claims and has introduced affidavits to show that at the conclusion of his examination the defendant’s counsel stated to the district attorney, in the presence of the court, that he desired to further cross-examine this witness, and desired him to remain in attendance for that purpose. The district attorney and others made affidavits that they heard no such request or notice from any source. The witness was in the city of Syracuse the-night before he was called for further cross-examination, and the defendant’s attorney had reason to believe that he would be present-when required, as one of the defendant’s attorneys informed the witness the night before that they desired to recall him for further cross-examination. The court refused either to delay the trial to enable the defendant to procure the attendance of the witness, or to strike out the evidence that he had already given on the ground that the defendant had not been permitted to fully cross-examine him. The defendant contends that this was error, and that the court should either have given him an opportunity to procure the attendance of the witness, or have stricken out the evidence he had already given.

It was said by Folger, J., in Sturm v. Atlantic Mut. Ins. Co. (63 N. Y., 87): “ It may be taken as the rule, that where a party is deprived of the benefit of the cross-examination of a witness, by the act of the opposite party, or by the refusal to testify or other misconduct of the witness, or by any means other than the act of Gfod, the act of the party himself, or some cause to which he assented, that the testimony given on the examination-in-chief may not be read.”

It was held in People v. Cole (43 N. Y., 508), that it was error to suffer to go to the jury any evidence given by a witness on-direct examination by the People, where by sudden illness or by death of such witness, or other cause without the fault of and beyond the control of the prisoner, he is deprived of his right of cross-examination.

In Sheffield v. R. & S. R. R. Co. (21 Barb., 339), where, on the trial, the plaintiff’s counsel, before dismissing the witness from the stand, inquired of the defendant’s counsel whether any of the facts testified to by the witness would be controverted, to which the defendant’s counsel replied that they should introduce no evidence on the points testified to' by him, and the right of cross-examination was not reserved, but at the close of the trial the defendant’s counsel called the witness for further examination and he did not appear, having gone home, it was held that under these circumstances the plaintiffs were under no obligation to detain the witness for the purpose of further examination by the defendant’s counsel. In that case the court said: “We are not called upon to decide whether, in every case where a party introduces and examines a witness, he is bound, at the peril of losing his evidence, to keep him in court until the trial is closed, for the benefit of the adverse party. We incline to think the counsel should avail themselves of the opportunity to cross-examine before the witness leaves the stand, unless the court, for some good reason, should allow them the privilege at a subsequent stage of the trial. In this case, the plaintiff's counsel had good reason to suppose the witness would not be wanted further by the defendant.”

In Ruloffs case (11 Abb., N. S., 245), it was held by the trial judge that where witnesses have once been cross-examined, and have left the stand without reason to expect to be called again, the fact that they do not appear when called again, to be further cross-examined as to a fact on which they were not previously examined, is not, necessarily, ground for striking out their testimony; especially where other evidence has already been given of the fact sought to be proved.

In Burden v. Pratt (1 T. & C., 554), where a witness for the plaintiff was examined and cross-examined, and at the close of the cross-examination the defendant’s attorney gave notice to the witness and plaintiff’s attorney that he wished to further cross-examine the next day and desired the witness present at that time, and the trial continued and other witnesses were examined, it was held that the plaintiff was not bound to produce the witness on the following day, for further cross-examination.

“ The court may, in all cases, permit a witness to be recalled, either for further examination-in-chief, or for further cross-examination.” Reynolds’ Stephen on Evidence, 178.

While the authorities upon this question are not in entire harmony, and some of them would seem to justify the rulings of the court in this case, yet we are disposed to think the court should have permitted the defendant to secure the attendance of this witness, and held the trial open a reasonable length of time to enable him to do so. It can be readily seen, by an examination of the case, how a further cross-examination of this witness might have been important to the defendant after the introduction of the other evidence given by the People. That the defendant intended to reserve the right of further cross-examination, and to give the People’s attorneys notice of that fact, we have no doubt. The affidavits of four witnesses are to the effect that such statement was made by the defendant's counsel, while the affidavits in opposition are only to the effect that no such notice was heard, although at the trial one of the affiants simply stated that, he did not remember that any such statement was made by the defendant’s attorney. Under these circumstances, we think the proper administration of justice would have been better served by permitting the defendant to secure the attendance of this witness, even if a brief postponement of the trial, until his attendance could be secured, had been necessary. Neil v. Thorn, 88 N. Y., 270, 276.

There are other grave exceptions in the case, but as we think the judgment should be reversed for the errors already pointed out, and as those raised by the other exceptions will probably be avoided upon a second trial, we do not deem it necessary to specially consider them on this appeal.

Conviction, judgment and order reversed, and a new trial ordered, and the clerk of Onondaga county directed to enter judgment and remit certified copy thereof with the return and decision of this court to the court of sessions of Onondaga county, pursuant to §§ 547 and 548 of the Code of Criminal Procedure.

Hardin, P. J., concurs; Merwin, J., concurs in result.


author: Pratt, J.

text:
    Charles Beardsley, Resp’t, v. George H. Cook, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    1. Assignment — Order given by contractor.
    An accepted order given by a cojtractor to a material man operates as an assignment of any fund due the drawer at that time, and also to assign any funds as fast as they become due, and takes precedence of any mechanic’s lien filed after that date.
    2. Same.
    The fact that the order directs the drawee to pay out of the last payment does not make the holder take the risk whether the last payment under the contract should ever become due, but the drawee should keep back enough to pay the claim.
    Appeal from judgment in favor of plaintiff, entered upon a trial by the court without a jury.
    Action upon an order accepted by defendant, as follows:

      “ Mr. George H. Cook,
    “ No. 50 Broadway, New York City:

    “ Retain and pay to Charles Beardsley, of Poughkeepsie, N. Y., from the last payment to be made by you to us on account of our contract for building houses in Dean street, Brooklyn, the sum of eleven hundred and seventy-five ($1,175) dollars, according to the terms of our contract with Mr. Beardsley.
    “Davis & Fay.
    “ Dated New York, December 11, 1890.”
    Plaintiff had furnished material to Davis & Fay, who did not complete the work, and no part of the last payment under their contract ever became due.

      John H. Clapp, for app’lt; Edward Crummey, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered upon a trial before a judge of this court without a jury.

The defendant, in his brief, makes no point that the findings are not warranted by the evidence. The only question, therefore, to be considered is whether the conclusions of law are proper from the facts found.

We have, however, examined the exceptions filed to the findings of fact, and find that each of said findings are supported by the evidence in the case.

The order in question was given in consideration of the sum of between $400 and $700, then due, and more to receive for materials furnished upon a certain building contract made between the owner and certain contractors.

The plaintiff continued to furnish material up to about the sum of $100, which were received and were without objection.

The court found facts sufficient to constitute a waiver of the obligation on the part of plaintiff to furnish materials to the full extent of the order, so that no point can be made that the plaintiff did not carry out his contract.

The order when it was given operated as an assignment of any fund due the drawer at that time, and also to assign any funds as fast as they became due. Gurnee v. Hutton, 63 Hun, 197; 44 St. Rep., 926; Gibson v. Lenane, 94 N. Y., 183; Manchester v. Braedner, 107 N. Y., 346; 12 St. Rep., 263.

Such assignment would take precedence of any mechanic’s liens filed after that date, and such assignment would have been regarded as a payment pro tanto on the contract. Stevens v. Ogden, 130 N. Y., 182; 41 St. Rep., 331; Young Stone Dressing Co. v. The St. James Church, 61 Barb., 489, and Gibson v. Lenane, supra.

After the order or assignment and the delivery of the materials under it, no arrangement that the defendant might make with his contractors could affect the rights of the plaintiff. Home Bank v. Drumgoole, 109 N. Y., 63; 14 St. Rep., 40.

The form of the order, that the drawee should pay the plaintiff out of the last payment, did not mean that plaintiff must take the., risk whether the last payment under the contract should ever become due, but referred to the last payment to be made by the defendant to the contractor, or in other words, the defendant should always keep enough back to pay the plaintiff his claim.

The judgment is right and must be affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.


text:
    In the Matter of the Petition of The Third Methodist Episcopal Church of the City of Brooklyn to Dissolve the Corporation.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

      1. Religious corporations — Dissolution.
    No meeting of the board of trustees of a religious corporation is necessary to authorize an application for dissolution under chapter 424, Laws 1872, as such application may be made by a majority of the trustees.
    2. Same.
    Nor is any meeting of the society necessary to authorize the application, except to show the court that a dissolution is favored by a majority of the society.
    3. Same — Provisions of church discipline.
    P is no objection to an order of dissolution that it is contrary to or not authorized by the rules of church discipline of the denomination, as no church discipline can supersede the Laws of the state.
    Appeal from order for the dissolution of the corporation and the transfer of its property to the Brooklyn Church Society.
    The application for dissolution is signed by five of the trustees, a majority of the board. The evidence showed that there have been no religious services since December 22, 1891.

      Horatio C. King (Frank Moss, of counsel), for app’lts; W. J. Groo, for resp’ts.
   Pratt, J.

It is not material to consider the motion to dismiss the appeal in this proceeding, as the merits are before us and a decision upon the merits will dispose of the motion.

The questions raised upon this appeal were thoroughly tried below and we think the conclusions there reached were sustained by the proofs.

In fact there is scarcely any dispute about the facts, the only contention being upon the conclusions of law arising therefrom.

It clearly appeared that the society had ceased to act in its corporate capacity and to keep up religious services, and that the petition for dissolution was “ signed by a majority of the trustees thereof,” as required by law, Laws of 1872.

It is plain from a reading of the statute that the petition was in proper form to give the court jurisdiction. It does not say “ upon application of the board of trustees,” but upon application of a majority of the trustees. It is, therefore, clear that no meeting of the board was necessary in order to authorize such application.

Neither was it essential that there should be a meeting of the society to authorize application, except to show the court that a dissolution was favSred by a majority of the society.

Much criticism has been expended upon the motives and conduct of the trustees making the application, but as far as we can gather they seem to have represented the views and feelings of a majority of the members of the society. Inasmuch, however, as no meeting of the society was necessary, it is not material as to the form of the notice calling for a meeting ; even if the meeting must be held for naught as approving the action of the trustees. If there was any great opposition to the dissolution and sale, an opportunity was offered for a hearing in court on the day the matter was tried, when it does appear that quite a number of the society were present, including leading Methodists from surrounding societies.

The objection that the order herein is contrary to or not authorized by § 334 of Church Discipline of the Methodist Episcopal Church is not well taken, as no church discipline can supersede the laws of the state.

The court below found all the material allegations of the complaint to be true, and we think the proofs justify that finding, and that the conclusions of law as found by the decision are correct.

We have examined all the exceptions raised and find no error sufficient to warrant a reversal of the order.

The opposition had an opportunity to put in any proper proof to the utmost limit of propriety, but failed to impeach in any material effect the allegations of the petition.

Order affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    Mary B. Bancroft, Resp’t, v. The City of Newburgh, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Municipal corporations — Negligence.
    Plaintiff was injured by a fall caused by her foot being caught in a defect or depression in the sidewalk. The evidence was conflicting, but there was some evidence which, if credited, would warrant the inference-that the flagging at this point had been out of repair and more or less, dangerous for many months and that other persons had tripped or stumbled at this place. Held, that a verdict for plaintiff would not be'disturbed,
    Appeal from judgment in favor of plaintiff for $1,500, entered on verdict.

      C. L. Waring, for app’lt; M. H. Hirschberg, for resp’t.
   Pratt, J.

This is an appeal from a judgment rendered upon a verdict by a jury and from a motion for a new trial made upon the minutes. :

It appears that the plaintiff, while walking upon a public sidewalk in said city, tripped and fell, injuring her hand, and that, the fall was occasioned by a defect or depression in the sidewalk upon or by which her foot was caught.

There was dispute as usual in such cases upon the facts, but there was testimony, if credited by the jury, that warranted the inference that the flagging upon the sidewalk at tMs place had been out of repair and more or less dangerous for pedestrians for many months, and that other persons had tripped and stumbled at the same point.

All the issues were presented to the jury in a charge clear and perspicuous, and as favorable for the defendant as the evidence warranted."

It was apparent that the defect was one which by ordinary care a pedestrian would not be likely to see and avoid, still it was: one which by its location and the long time it had existed, ought, to have been discovered and remedied by the city authorities.

The rules as to defects in public streets and the care which people traveling upon them must exercise are so familiar that it. seems unnecessary to enlarge upon them. Hunt v. Mayor, 109 N. Y., 141; 15 St. Rep., 62; Davenport v. Ruckman, 37 N. Y., 573; Turner v. Newburgh, 109 id., 304; 15 St. Rep., 93, and 99 N. Y., 654.

The exceptions taken upon the trial were not urged upon the argument, but we have examined them and find no error.

The damages are not excessive and the judgment ought to» stand.

Judgment and order affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


author: Barnard, P. J.

text:
    William Harrigan, App’lt, v. The City of Brooklyn, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Municipal Corporations — Negligence—Opening in curbstone.
    Plaintiff, in avoiding a puddle of water, came to the sidewalk at a point away from any crossing, when his foot went into a V-shayed opening in the curb, and he fell and broke his leg. It appeared that such opening had been left to drain the water "from the street into a lot. Held, that this was a prudent exercise of the power of the city to make its streets and walks dry for the use of the public, and that defendant was not liable for the injury.
    Appeal from judgment dismissing the complaint.
    Action to recover for injuries sustained by plaintiff by falling-on an alleged defective curbstone in a public highway of the defendant.

      James C. Church, for app’lt; Almet F Jenks (William T. Gilbert, of counsel), for resp’t.
   Barnard, P. J.

Hicks street is one of the public streets in the city of Brooklyn. The street was graded and paved by the-city, including the sidewalks, in 1860. The street was paved with cobble stones, and there was a good, unflagged sidewalk two- or three inches below the top of the curbstone level. On the 21st of July, 1888, about twelve o'clock at night, the plaintiff crossed Hicks street on the crosswalk, until he discovered a puddle of water, and he stepped aside some three feet to avoid the water. When he reached the sidewalk he put his foot upon the curbstone and there was an open space there some four inches at the top and slanted down wide shape V, where the curbs had not. come together. The plaintiff put his foot in the V-shaped opening in the curb line, fell and broke his leg. The opening in the stone was not at the termination of the crosswalk, and had been made to carry the water from the street, which otherwise lay stagnant there, into the lot that carried the water away. There was no proof of negligence upon the part of the city. The case does not resemble Clemence v. City of Auburn, 66 N. Y., 334. In that case a sidewalk was constructed on two grades. They were connected by a slat board at a slope of six inches in about three and a half feet. The result was: a person was injured by'stepping in the incline covered by alight snow. Neither is it like the case of Goodfellow v. The Mayor, 100 N. Y., 15. There a crosswalk was supposed to continue where a stone in it had one corner on a level with the grade and the opposite corner eight inches below the level. The court held this case proper to- go to the jury. The present case does not refer either to sidewalk or crosswalk. It was failure to bring the top of the curbs close and for a good reason. It was the duty of the city to free the street and walks-from water, and this small aperture in the curb line four inches-wide and some three inches deep, and not on the sidewalk and not on the crosswalk, but detached some feet therefrom, was a prudent exercise of the power of the city to make its streets and walks dry for the use of the public.

The nonsuit was, therefore, right, and the judgment should be affirmed, with costs.

Dvkman and Pratt. JJ., concur.


text:
    The People ex rel. Flavius J. Allen, Resp’t, v. C. J. Badgley et al., Assessors, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    'Taxes — A ssessmeut.
    In a proceeding under chap. 269, Laws 1880, to review an assessment of real estate for purposes of taxation on the ground of inequality, it is not necessary to compare it with that on every piece of property in the town, hut only with that of the surrounding property.
    Appeal from judgment reducing the assessment on relator’s property from $6,000 to $4,500.

      W. Farrington, for app’lts; W. R. Woodin, for resp’t.
   Pratt, J.

This is a proceeding by certiorari under chapter '269, Laws of 1880, to review the action of the assessors as far as the assessment of the real estate of the relator is concerned.

The courts will not strain to find occasion to review and change ■the valuation set upon property by officers chosen for that purpose. It is only, therefore, where manifest injustice has resulted from the action of assessors that any change will be made.

The statute, chap. 269, Laws of 1880, was passed to give a summary remedy to an aggrieved taxpayer. To review an assessment which is erroneous “by reason of over valuation or is unequal in "that the ássessrnent has been made at a higher proportionate valuation than other real or personal property on the same roll by the -same officers, and that the petitioner is or will be injured by such illegal, erroneous or unequal assessment.”

In this case the claim was that the assessment upon the relator’s property was unequal and out of proportion with the bulk of property, and much higher than other property upon, the same tax roll.

That issue involved primarily a question of fact. The only question of law that can be raised is whether the evidence is sufficient to bring the case within the terms of the statute. Undoubtedly the petitioner must produce sufficient proof to satisfy the court that his case fairly fails under the scope of the remedy w hich the statute provides.

There are various ways in which assessors estimate the value of property for the purposes of taxation, such as its cost, its earning capacity or its desirability as residence property or as farming land ; each of these estimates are considered, and it is one of the ■difficulties to be encountered by the court in reviewing the action •of assessors to ascertain accurately these various rules. Even adjoining farms of an equal number of acres may be very unequal in value.

The statute does not seem to lay down any precise rule, but the .court of appeals in the case of People ex rel. Warren v. Carter et al., 109 N. Y., 576, 16 St. Rep., 367, says: “Without undertaking to define the precise scope of the remedy for disproportionate valuations of property, given by the act of 1880, we think it may be safely said that the petitioner must show a state of facts from which a presumption justly arises that the inequality of which he complains will subject him to the payment of more than his just proportion of the aggregate tax, and that this presumption is not raised by pVoof that in a particular instance property is assessed at a proportionately lower valuation than his own.”

In this case the only evidence to sustain the finding of inequality in the assessment of one lot was, that the assessment of one adjoining lot was lower in amount.

It cannot be necessary that every piece of property in a town should be compared with the property upon which the tax is sought to be corrected, as that would furnish no safe or proper ■rule, but it must be of th.e surrounding property upon the same •roll that will furnish a safe test of comparison with the property in question. * .

In this case many pieces of real estate adjoining and surrounding the relator’s property were compared with his valuation both in regard to farming land and residence property, and they fairly ■showed a lower assessment than that put upon the relator.

We think the findings of fact made by the court below are fully sustained by the evidence, and that the conclusions of law are correct.

Judgment affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.


author: Dykman, J. Pratt, J.

text:
    John Donovan, Resp’t, v. Thomas E. Wheeler et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    1. Cloud on title — Deed not delivered.
    In an action to set aside a deed as a cloud on title, the evidence tended to show that the deed had never been delivered, and was intended to be delivered only in exchange for a reconveyance, the plaintiff’s intention being to have it appear on the record that defendant was the owner, so as to facilitate a sale by plaintiff as broker. Held, that such a transaction should not be permitted to stand.
    2. Same — Evidence of gift.
    On the trial defendant claimed a gift of the premises. The only allegation on that subject in the answer was that after the conveyance plaintiff had declared to defendant that the grant was effectual, and an absolute gift of _ the real property to defendant. Held, that this was insufficient to authorize the admission of evidence to prove and establish a gift of the premises. °
    3. Same — Costs—Extra allowance.
    In an action to set aside a deed as a cloud on title, where no sum of money is claimed or recovered, an extra allowance cannot he granted.
    Appeal from judgment rendered at special term.

      James Kearney (Jas. W. Ridgway, of counsel), for app’lt T. E. Wheeler; John H. Regan, for app’lt Mary A. Wheeler; John B. Shanahan, for resp’t.
   Dykman, J.

This action is brought to obtain a judgment of this court which shall determine that a certain deed of conveyance -of real property was not delivered, and the title to the premises therein described was not conveyed to the defendant, Thomas E. Wheeler, by the said deed, and that the deed and the recor thereof be cancelled.

The claim of the plaintiff is that the deed was executed to sub-serve a special purpose, which was not carried into* execution,, and that the deed was not delivered, and there never was any intention to vest the title absolutely in the grantee.

The cause was tried before a judge at special term, who found the facts in favor of the plaintiff, and directed a judgment in his-favor for the relief demanded in the complaint.

The defendants have appealed from the judgment, but we find the appeal destitute of merit upon the main question.

The testimony on the part of the plaintiff was contradicted by the defendants, but we think the trial judge took the correct view of the evidence and the circumstances surrounding the transaction.

The appellants contend that an error was committed upon the trial by the exclusion of testimony tending to prove and establish a gift of the premises to the grantee.

That testimony was excluded because no such defense was set. up in the answer, and we think that the trial judge gave the correct construction of the answer, and that it manifests no intention to set up a donation of the premises.

True, the fourth clause of the answer contains a statement that the plaintiff, after the conveyance, declared to the defendant that the grant was effectual and an absolute gift of the real property from the plaintiff to the defendant, but that is but the statement of an evidentiary fact by way of enlargement of the first part of the paragraph, vrhich denied that the plaintiff never intended to grant the premises to the defendant.

It falls far short of an independent defense, which was necessary to the reception of the testimony.

The trial judge made the plaintiff an additional allowance of $200, which was erroneous. Such allowances are made in a proper case, based upon the sum recovered or claimed, or the value of the subject matter involved. In this case no sum was-claimed or recovered and nothing was involved but the validity óf a deed, and that had no value. The fact that the determination of the question remotely affected the property described in the deed, is not sufficient to justify an additional allowance-under the statute. Conaughty v. Saratoga County Bank, 92 N. Y., 404.

The judgment should be modified by striking out the $200 from the costs, and, as so modified, affirmed, without costs to either party upon this appeal.

Pratt, J.

This is an action brought to set aside a conveyance-of certain land in Queens county, executed by the plaintiff to the defendant, Thomas E. Wheeler, upon the ground that the deed constitutes a cloud upon the title.

Upon the trial the defendant claimed that the deed was a gift,, and further that it was executed to perpetrate a fraud upon a third party.

It clearly appeared from the evidence that the deed was never •delivered to the defendant and never was intended to be delivered ■except simultaneously with a deed from the defendant to the plaintiff for the same property.

The intention of the plaintiff was to have it appear upon the records that the defendant was the owner, so as to facilitate a sale thereof by the plaintiff as broker, while in fact it was his own property.

The defendant paid nothing for the conveyance, and in fact no fraud was proved in the transaction.

The proof was all one way, that the plaintiff never intended to vest the title to the property in the defendant as a gift, but the motive seems to have been a matter of convenience to the plaintiff to enable him to appear as a broker in making a sale. To permit such a transaction to stand as a valid gift would be a gross fraud. There being no delivery of the deed there was no valid conveyance. Judgment affirmed, without •costs.

Judgment modified by striking out $200 from the costs, and •affirmed as modified, without costs of appeal.

Barnard, P. J., not sitting.


text:
    Harlan P. Christie, Resp’t, v. The Cornelius Callahan Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    •Contkact — Sunday.
    The fact that the contract in question was made on Sunday in Massachusetts is no defense to an action for services rendered thereunder, where the plaintiff has fully complied with such contract, and the defendant has obtained all the benefit therefrom which the plaintiff was able to give.
    Appeal from judgment in favor of plaintiff, entered upon the report of a referee.
    Action for services performed under a contract to sell defendant’s goods on commission.
    The defendant claims that as the contract was made in Massachusetts on Sunday the same is void.

      Bradford W. Hitchcock (Ambrose G. Todd, of counsel), for app’lt; Horatio C. King, for resp’t.
   Pratt, J.

So far as we can see, the referee’s decision in this •case was based upon sufficient evidence, after he had carefully weighed seriously conflicting testimony. We, therefore, decline ■ to interfere in that aspect of the case.

If the contract was made in Massachusetts on Sunday, it is •quite evident that defendant induced plaintiff to perform it in pretty much all the rest of the United States on Monday and every other week day until it had obtained all the benefit therefrom which plaintiff was able to give.

We affirm the judgment, with costs.

Barnard, P. j., and Dykman, J., concur.


text:
    Wilbur H. Weston, Pl'ff, v. The City of Newburgh et al., Def’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    1. Municipal corporations — Special election for extraordinary expenditure.
    The common council of defendant being desirous of purchasing plaintiff’s building for a city hall, passed a resolution calling a special election, and estimating the amount necessary to be raised would not exceed $50,000, for the following purposes, viz., for the purchase of the building; said building to be remodeled, converted and changed so as to be suitable for such use, and that it was necessary to raise $18,000 to make the necessary changes and alterations. The question submitted to the electors was “for the iaising by tax of a sum not exceeding $50,000 for purchasing” the building; “ said b; ilding to be remodeled, converted and changed so‘as to be made suitable for use as a city hall and station-house combined.” The price asked for the building was $32,000. The charter required that when more than one object for a special tax was proposed at an election, each should be separately acted upon. Held, that the question was properly submitted; that the item was a single one.
    2. Same — Mandamus.
    A proceeding by mandamus to compel performance of the contract of sale is proper in such a case to determine the legality of the bonds to be issued under the power given by the vote.
    Submission of controversy without action.

      M. H. Hirschberg and W. D. Dickey, for pl’ff; C. L. Waring, for def’t; L. S. Sterrit (E. L. Fancher, of counsel), for taxpayers.
   Barnard, P. J.

The submission shows that there is a building in Newburgh called the Bazzoni Building which the city wished to purchase for municipal purposes. The plaintiff owned the property, and asked $32,000 for the same, which the city was willing to give, and passed resolutions to that effect. It was necessary to expend $18,000 as additional thereto to fit the building up so as to meet the municipal necessities. By chapter 541, Laws of 1865, title 5, § 21, it was necessary to' submit the question whether the people would authorize the city to raise the money, and to that end the common council passed these resolutions :

“ The following resolutions were also passed and adopted by the common council at said meeting, August 2, 1892 :
“ Resolved, That the objects hereinafter named be included in the notice for special election to be held Wednesday, September 7V 1892 ; and that the following resolutions be adopted :
■ “ Resolved, That the common council hereby estimate the sum necessary to be raised for the purpose hereinafter stated will not. exceed $50,000, and the objects for which said sum is required are as follows, viz.:
“ For purchasing the large four-story brick building known as-the Bazzoni building, located on the southwest corner of Broadway and Grand street; said building to be remodeled, converted and changed so as to be made suitable for use as a city hall and station house combined.
“ The common council are of the opinion that this building is conveniently situated for the purpose of a city hall, and that the-price at which the same can be purchased is a reasonable figure; that it is a matter of economy for the city to be the possessor and owner of a city hall, and also that this building is substantially built, and so constructed and arranged as to make it easily possible to change and alter the same in such a manner as to be easily suitable for the offices of mayor, city clerk, city collector, health officer, city surveyor, excise board, street superintendent, marshal, recorder’s court and station house all combined, including cells-for prisoners.
Second. That it is necessary to raise a sum not exceeding $18,000 for the purpose of making necessary changes and alterations in and to the brick building known as the Bazzoni building so as to render the same suitable for the purpose of a city hall hereinbefore mentioned.”

The section of the city charter provided that if there should be: more than one object for a special tax proposed at any election, the word “ for ” or “ against ” must be placed opposite each one of these objects of taxation. The object of the tax as proposed: to the election was as follows:

“ For the raising by tax of a sum not exceeding $50,000 for purchasing the large four-story brick building known as the Bazzoni building, located on the southwest corner of Broadway and Grand street. Said building to be remodeled, converted and changed so as to be made suitable for use as a city hall and station house combined.”

The item is a single one. No assent would be proper by which the city could raise one sum without the other. If the election would not buy the building there was no need of the $18,000, and if the building was approved, it was useless for the purposes intended without the expenditure of the $18,000. The election approved the item as it stood: $50,000 for the building and fitting it up. The plaintiff is willing to sell and the city is willing to take. The plaintiff is entitled to a writ of mandamus to compel the performance of the contract. This form of action is needed to determine the legality of the bonds to be given so as to raise the money under the power granted by the vote. No one has any standing but the land owner and the city.

Judgment for the plaintiff upon the submitted case.

Pratt, J., concurs; Dykman, J., not sitting.


author: Bookstaver, J.

text:
    In the Matter of the Probate of the Last Will of John Gannon, Dec’d.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    1. Will — Probate—Trial of issues by jury.
    Where the surrogate directs the proceeding for the prohate of a will to-he determined in the court of common pleas and the issues there tried, the verdict can he reviewed only hy a motion for a new trial upon the minutes, and must he considered the same as in a case tried by a jury under § 999 of the Code, and in such case any errors that may have occurred upon the trial may he reviewed hy the general term.

      53. Same — Appeal.
    Although the general term has the power to reverse for errors even where no exception has been taken, it will not do so unless it is clear that injustice has been done and justice would be promoted by a new trial.
    "3. New trial — Improper evidence.
    A party cannot be allowed to speculate upon the result of an action by' willingly admitting incompetent testimony in the hope of an advantage to himself, and afterwards, when he finds that the speculation has been unsuccessful, claim that there was such error in the admissions as to entitle him to a new trial.
    4. Will — Capacity.
    In order to invalidate a will, it is not necessary that the intellect should be in total eclipse and oblivion, or that the testator should be generally insane.
    Appeal from an order made in the above entitled proceeding denying a motion for a new trial.

      Daniel J. Cushing (Abram K ling, of counsel), for app’lt; James P. Campbell, for Sarah Gannon, resp’t; William F. Clare, for Bridget McGrath, resp’t; Jesse Grant Roe (Charles H. Beckett, of counsel), for Catherine Brophy, resp’t.
   Bookstaver, J.

The alleged will- of John Gannon was executed on November 19, 1887, and was contested by all his next of kin, namely, his widow Sarali Gannon, and his sisters Bridget McGrath and Catherine Brophy. By § 2547 of the Code, the surrogate may direct any special proceeding for the probate of a will to be determined in the court of common pleas, and he so directed in this case. The issues so sent to this court were tried by the court and a jury, and resulted in a verdict in favor of the ■contestants.

This verdict can be reviewed only by a motion for a new trial upon the minutes and must be considered the same as in a case tried by a jury under § 999 of the Code, when a motion is made for a new trial upon the minutes, and in such case any errors that may have occurred upon the trial may be reviewed by the general term. The appellant contends that there were manifest errors in the admission of testimony.

The widow was allowed to testify as to transactions between herself and her husband; Bridget McGrath, a sister of the decedent, interested in the estate as a contestant, was allowed to testify as to what the deceased had told her in regard to his wife; George McGauran, the physician, who had at times attended Gannon as such, was also allowed to testify as to whether Gannon had the disease which he imagined he had; the Rev. Matthew A. Taylor was allowed to testify as to conversations between himself and the deceased. But no objection was taken to this testimony when offered, nor was any motion made at any time during the progress of the trial to have it stricken out. And although it is true that the court at general term has the power to reverse for errors, even where no exception has been taken, Wehle v. Haviland, 42 How., 399; Kelly v. Frazier, 27 Hun, 314; Smith v. Insurance Co., 49 N. Y., 211, yet it will not do so unless it is clear that injustice has been done and justice would be promoted by a new trial, •which does not appear in this case.

The testimony admitted was for the most part merely cumulative, and the facts testified to by the witnesses whose testimony is now objected to were established beyond any question, in our judgment, by perfectly competent testimony of other and disinterested witnesses, by the deceased’s own letter, and the testimony of proponent’s witness, who was also a physician and had examined the deceased as such. In this last respect the appellant did precisely the same thing which he now complains of the contestants doing, that is, offering the testimony of a physician who had attended the deceased, as to his mental and physical condition. And it is now the well settled law of this state that when such testimony is admitted by the parties to the proceeding without objection, the result will not be disturbed; in other words, that the objection to such testimony must be specifically taken or the defeated party cannot avail himself of it upon appeal. Loder v. Whelpley, 111 N. Y., 239; 19 St. Rep., 631; Hoyt v. Hoyt, 112 N. Y., 493; 21 St. Rep., 593. And in this case particularly we should not reverse on this account, as it is manifest from the case that these witnesses were deliberately allowed to testify by the appellant, without objection, because he hoped to obtain from them certain admissions favorable to himself. A party cannot be allowed to speculate upon the result of an action by willingly admitting incompetent testimony in the hope of an advantage to himself, and afterwards, when he finds that the speculation has been unsuccessful, claim that there was such error in the admission as to entitle him to a new trial. To reverse in such cases would not be in the interest of justice, but would be putting a premium upon speculation.

Appellant also contends that the court erred in excluding the articles of separation executed between the deceased and his wife. The will was executed in 1887, and the separation agreement was not executed until 1890. This had nothing to do with, nor could it show in any way any motive for the peculiar provisions of the alleged will, as it was executed three years after the will. If admitted, it would have simply tended to show that Gannon's delusion possessed his mind completely.

The appellant also claims that the jury having found the decedent had testamentary capacity at the time of the execution of the will, it was error to set it aside on any ground. But it was clearly established on the trial that the decedent was possessed of the idea that his wife was unfaithful to him and had communicated to him a venereal disease; and it was also clearly established that this was a delusion and that neither the wife had had such a disease nor had he at any time suffered from it. And it is very certain that this delusion was the chief, if not the sole, cause for making a will by which he deprived his wife of any portion of his property; the provision for dower amounting to nothing, as he had no real estate. The court correctly charged the law in regard to such delusions. In order to invalidate a will it is not necessary that the intellect should be in total eclipse and oblivion, or that the testator should be generally insane. There is a partial insanity and a total insanity. Such partial insanity may exist as respects particular persons, things or subjects, while as to others the person may not be destitute of the use of reason. A person may have, upon some subjects and even generally, mind and memory, and sense to know and apprehend.ordinary transactions, and yet, upon the subject of' those who would naturally be the objects of his care and bounty and the reasonable and proper disposition to them of his estate, he may be of unsound mind. In this case we think it clear that he was a monomaniac in respect to his wife’s fidelity and as to the disease which he claimed she had communicated to him. Monomania is a perversion of the understanding in regard to a single object or a small number of objects, with the predominance of mental excitement; while mania is a condition in which the perversion of the understanding embraces all kinds of objects and is accompanied with general mental excitement

The verdict of the jury in this case preserves and emphasizes that distinction. By it the jury found that Gannon had general testamentary capacity,' was not a monomaniac on all subjects, but had an insane delusion affecting the will in question, and was a maniac on that subject, and that such mania influenced the making of the will. This conforms to the rule in this state. Jarmin on Wills, 112; Formans Will, 54 Barb., 274; Parish Will case 25 N. Y., 9, and cases there cited.

The order should, therefore, be affirmed, with costs.

Daly, Oh. J., and Bischoff, J., concur.