text:
    T. Scott Thacher, App’lt, v. Hope Cemetery Association, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Contract—Construction—Statute of limitations.
    ' A certificate of indebtedness, issued by a corporation for money loaned to it, which recites that certain moneys shall be exclusively applied to pay the loan and names the amount of the contemplated loan, does not require the amount named to be set aside where only part of it was obtained, and the statute of limitations begins to run as soon as the amount of the loan is realized.
    Appeal from a judgment dismissing the complaint on the merits.

      Wesley Brown, for app’lt; J. H. Stevens, for resp’t.
   Haight, J.

—This action was brought on the 5th day of October, 1883, to recover the sum of $300, and interest thereon from August 1, 1864. The defense is that more than six years had elapsed after the plaintiff’s cause of action accrued before this action was commenced, and that the plaintiff’s cause of action was therefore barred by the statute of limitations.

On the 1st day of August, 1864, the trustees of the defendant organized by the election of a president, vice president, secretary, and treasurer, and then ordered that the sum of $2,500 be borrowed for the purpose of purchasing land for a cemetery, and improving the same, and that the president and treasurer be authorized to issue certificates of indebtness to such individuals by whom the money, or any part thereof, may be loaned; specifying the amount loaned by such individuals, and containing an agreement on the part of the association to pay 7 per cent, interest for the use of such money, and to apply one-half of the receipts from the sale of lots to repay the money. Thereupon, subscriptions for the loan were received, and certificates issued therefor to the amount of $2,200. Of that sum, the plaintiff’s testator loaned $300, and received therefor the following: “Ho. 25. We certify that Otis Thacher has this day loaned to Hope Cemetery Association there hundred dollars. It is agreed upon the part of said association that one-half of the receipts from the sale of lots shall be applied exclusively to the payment of the sum of $2,500 loaned to said association by divers persons, of which the said sum of $300 forms a part, and for the payment of the interest thereon. Said interest to be paid annually, and the receipt to be so applied shall be distributed on the first day of July and on the first day of January in each year, until said sum shall be fully paid.

‘‘A. L. Smith, President.
‘‘August 1, 1864 ' M. Adsit, Treasurer.”

It further appears that the defendant, with the avails of the loan, purchased land, and improved the same, dividing it into lots for the burial of the dead, and then between the time of the issue of said certificates and the 1st day of July, 1877, lots were sold for cash to the amount,, of $5,479.34, which amount was received by the defendant prior to that date, and that, during the same priod, lots were sold to holders of the certificates of indebtedness, who were premitted to use their certificates in payment therefor as cash ; that the certificates so used in the purchase of lots, and which were surrendered up to the defendant and canceled, gti and prior to the 1st day of July, 1877, amounted to the sum of $1,575, leaving outstanding and unpaid on that date, including the plaintiff's certificate, $625 in amount, only, of the original loan of $2,200. The appellant contends that, of the amount of cash so received, lie is entitled to but three twenty-fifths of one-half thereof, as shown by the following statement:

Amount applicable to plaintiff’s certificate July 1, 1877, $328.76, which, taken from amount of plaintiff’s certificate, and interest to that date, $571.25, leaves due on plaintiff’s certificate at that date $242.49, with interest from that time.

The difficulty, however, with his position, is that he takes no account of the $1,575 in certificates that have been surrendered up and retired from time to time on the purchase of lots, and that at this time there was only outstanding, of such certificates, $625 in amount. By treating these retired certificates as cash, a*nd as reducing the loan in the amount of the certificates so retired, the amount on hand July 1, 1877, available for the payment of the plaintiff’s certificates, would be $1,129.25,—nearly double the amount required to pay the plaintiff's claim. The referee appears to have so treated these certificates. His right so to do must be determined from the provisions of the contract: “It is agreed upon the part of the said association that one-half the receipts from the sale of lots shall be applied exclusively to the payment of the sum of $2,500 loaned to said association by divers persons, of which the said sum of $300 forms a part, and for the payment of the interest thereon.”

It does not appear to us that the $2,500 mentioned in the certificate affect the question. A loan of $2,500 had been ordered by the association, but it had succeeded in getting only $2,200. The certificates had been prepared under the supposition that the full loan would be obtained; and, if it had been, then Thacher, loaning $300 of the $2,500, would have been entitled to three twenty-fifths of one-half of the receipts of the association from the sale of lots to apply in the reduction of the amount loaned by him. But only $2,200 was loaned. One-half of the receipts from the sale of lots was required to be set apart exclusively for the payment of the loan. He thus would-be entitled to three twenty-seconds of one-half of the receipts. .One-half of the receipts from the sale of lots is to be applied upon the payment of the loan, whatever the amount thereof may be. If the plaintiff’s testator had been the only subscriber to the loan, and the amount of such loan was the $300 loaned by him, would it be claimed that even though lots had been sold amounting to upwards of $5,000 he could not have recovered the amount of his loan, for the reason that it was not yet due ? To so construe the contract would require the interpolation of a provision to the effect that three twenty-fifths of one-half of the receipts from the sales shall be applied to the payment of the loan, instead of one-half of such receipts. It does not appear to us that such a construction should prevail. "That adopted by the referee is more rational, and better in accord with the views expressed by the court on a former review of this case. 126 M". Y. 507; 38 St. Bep. 519.

The judgment appealed from should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    Ann Lee, as Administratrix, etc., App’lt, v. John Van Voorhis et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Executor, etc.—Action—Contract with counsel.
    An administrator, who brings an action for the death of his intestate by wrongful act, may make a contract with an attorney for compensation payable out of the recovery.
    2. Attorney and client—Lien.
    The attorney for plaintiff, in an action for death by wrongful act, has a lien for his services on the recovery.
    Appeal from a judgment in favor of defendant.

      Joseph W. Taylor, for app’lt; J. & Q. Van Voorhis, for resp’ts.
   Haight, J.

—This action was brought to procure a judgment declaring a contract between the plaintiff and the defendants null and void. It appears that on the 21st day of December, 1887, John Lee died, in consequence of injuries received through the negligence of the Yacuum Oil Company; that he left, him surviving, the plaintiff, his widow, and six minor children; that thereafter letters of administration were issued to the plaintiff solely for the purpose of enabling her to bring and maintain an action against the Yacuum Oil Company for damages; that she employed the defendants, who are attorneys at law, to prosecute such action, agreeing with, them that they should defray the expenses of bringing and prosecuting the action, and, as compensation, that they should have one-third of the recovery over and above taxable costs and disbursements, and, in case of their failure to recover any damages, they were to receive nothing for their services. Thereafter, and on the 13th day of June, 1888, the action was tried, and resulted in a verdict for the plaintiff for $5,000, on which a judgment was entered December 31, 1889, for $5,801.38, being the amount of the damages, costs, and extra allowance made. An appeal was then taken to the general term of the supreme court, where the judgment was affirmed, and a judgment entered for $91.56, costs of appeal. Lee v. Vacuum Oil Company, 26 St. Rep. 814. An appeal was then taken to the court of appeals, and, pending such appeal, the plaintiff, without the knowledge and consent of her attorneys, settled the judgment recovered by her with the Yacuum Oil Company for $4,500, $1,000 of which was paid to her in cash, and the remaining $3,500 were deposited with the Eochester Trust & Safe Deposit Company, under an-agreement that the same should be paid over to her upon the delivery to the Yacuum Oil Company of a release by her attorneys of all claims by them by reason of the judgments so recovered by her. The issues formed by the pleadings in this action were, by an order of the court submitted to a jury, and a verdict rendered thereon. The findings in this action were based upon the verdict and such additional testimony as was deemed material. The trial court has found as facts that, when the plaintiff signed the agreement with the defendants, she was fully informed as to its contents and meaning; that she executed the same freely, and without undue influence exerted over her by the defendants, or either of them; and that, under the circumstances of the case, the agreement was not unfair or unreasonable,—and, as conclusions of law, that she had the authority to enter into the agreement in question; that it is valid, and created a lien in favor of the defendants upon the recovery, etc. Exceptions were taken only to the conclusions of law.

Did the plaintiff have the authority to make the agreement in question ? Is it valid, and did it create a lien in favor of the defendants upon the recovery ? It appears to us that these questions should be answered in the affirmative. An attorney, dealing with his client, should show that his contracts for services are fair and reasonable. This the defendants have done.

Section 1902 of the Code provides that: “ An executor or administrator of a decedent, who has left, him or her surviving, a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect, or default, by which the decedent’s death was caused,” etc.

Section 1903 provides that: “ The damages recovered in an action, brought as prescribed in the last section, are exclusively for the benefit of the decedent’s husband or wife, and next of kin ; and, when they are collected, they must be distributed by the plaintiff, as if they were unbequeathed assets, left in his hands, after payment of all debts, and expenses of administration. But the plaintiff may deduct therefrom the expenses of the action, and his commissions upon the residue; which must be allowed by the surrogate, upon notice given in such a manner and to such persons, as the surrogate deems proper.”

It thus appears that the right to bring and maintain the action is given by the express provisions of the Code. In order to bring an action, it was necessary for her to have the services of an attorney. She must therefore be deemed empowered to engage such services, and, as an incident thereto, to agree upon the compensation that should be given therefor, with the qualification that the amount so agreed upon is fair and reasonable. In re Hynes, 105 N. Y. 560-563 ; 8 St. Rep. 190 ; Taylor v. Bemiss, 110 U. S. 42. We are aware that it has been held that contracts made by executors and administrators for services to be rendered are deemed to be the individual contract of such executors and administrators, and that they do not create a liability against the estate. See Austin v. Munro, 47 N. Y. 360. While no liability may be created against the estate where the prosecution is for and on behalf of the estate, a liability by the executor or administrator individually is created; and, if the contract is fair and reasonable, such executor or administrator may be reimbursed out of the estate. In the case under consideration the action was not prosecuted for and on behalf of the estate, but was prosecuted for and on behalf of the widow and minor children. The recovery was for their benefit, and the plaintiff, as administratrix, represented them in the action, and the employment of counsel by her to prosecute the action was the discharge of one of the duties that devolved upon her ; and under the provisions of the Code referred to, as such administratrix, she is expressly authorized to deduct from the recovery the expenses of the action. This, we understand, includes all of the necessary and proper expenses incurred by her, including the services of her attorneys.

Section 66 of the Code provides -that: “ The compensation of an attorney or counselor for his services is governed by agreement express or implied which is not restrained by law. From the commencement of an action or the service of an answer containing a counterclaim the attorney who appears for a party has a lien upon his client’s-cause of action or counterclaim which attaches to a verdict, report, decision or judgment iu his client's favor and the proceeds thereof in whosoever hands they may come; and cannot be affected by any settlement between the parties before or after judgment.”

Here we have an express provision of the statute authorizing the fixing of the compensation of attorneys by agreement. We also have express provisions giving the attorney a lien upon his client’s cause of action to the amount of the compensation so . agreed upon. It is contended that this provision did not operate to give the defendants a' lien on the recovery, for the reason that the same did not belong to the plaintiff. But we cannot assent to this interpretation of the provision. It would in many cases operate to deprive the attorney of any compensation whatever, for he has no claim against the estate, and the administrator may be insolvent. As we understand, the provisions of § 66 give the attorney a lien, and § 1903 provides that the amount of his claim shall be deducted from the recovery by the administrator. This we understand to be in accord with the suggestion of the court in the case of Lee v. Vacuum Oil Co., 126 N.Y. 579; 38 St. Rep. 662. See, also, In re Knapp, 85 N. Y. 284. The $325 paid to the plaintiff by- her attorneys should be regarded as an advancement to her of that amount, and was properly allowed. The judgment appealed from should be affirmed, with costs.

All concur.


text:
    Noah R. Collins et al., Resp’ts, v. Charles Schaffer, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

      1. Deposition— Commission—Justice’s court.
    A justice of the peace may issue a commission to examine a witness in another state.
    2. Same—Withdrawal from files.
    A deposition, if .taken from the flies of the justice’s court in which the action is pending, cannot be read in evidence.
    8. Evidence—Books of account.
    Where the account book is not produced or read in evidence, a witness cannot testify that the account was for goods sold to defendant, and the entries in plaintiff’s book were made by himself.

      S. E. Graves, for app’lt; Joshua Gaskill, for resp’ts.
   Haight, J.

—This action was brought to recover a balance due . on the purchase price of sundry goods, consisting of brandy, etc., alleged, to have been sold and delivered to the defendant by the plainúíis in the year 1889. The answer of the defendant denied the allegations of the complaint, and alleged that at the time he was employed by S. M. Hodgkins as bartender in his hotel at Coleville, Pa., and that the goods alleged to have been purchased by the defendant were purchased by Hodgkins. Upon the joining of" issue, the plaintiffs, upon affidavits, moved for a commission to take the testimony of Frank J. Collins and George R. Blakely, who severally reside in the city of Bradford, in the state of Pennsylvania. This motion was granted, and a commission issued to William B. Chapman, of Bradford, Pa., to take the examination of the aforesaid witnesses upon interrogatories attached. The commission was executed, and returned to the justice, and was by him received and filed August 30, 1893. It appears that the commission was then taken by the plaintiffs’ attorney, and held by him until the 16th day of September, the day to which the trial had been adjourned, and was by him then produced upon the trial, and offered in evidence; that the defendant’s attorney called upon the justice, and asked to see the commission, and was informed by him that it had been received, but that it had been borrowed by the plaintiffs’ attorney. When the commission was offered in evidence, the defendant objected to its reception upon the grounds —First, that it is incompetent, that there was no authority for the issuance of the commission out of this court; and, second, that the „ section of the Code (2985) had not been complied with, for the reason that the commission had not remained on file with the justice, but had been removed by the plaintiffs from his possession and control, and had not been open to inspection by the defendant. The objection was overruled and the depositions were received in evidence.

We tliink that the justice had power to issue the commission. Section 2980 of the Code of Civil Procedure provides that; “Where the defendant has neglected to appear upon the return of a summons, or has failed to answer the complaint, or where an issue of fact has been joined in an action; and it appears, by affidavit, upon the application of either party, that a witness, not within the county where the action is pending, or an adjoining county, is material in the prosecution or defence of the action, the justice may award a commission to one or more competent persons, authorizing them, or either of them, to examine the witness under oath, upon interrogatories to be settled by the justice, or by the written agreement of the parties, and endorsed upon or annexed to the commission ; to take and certify the deposition of witness; and to return the same by mail, addressed to the justice.”

Under other provisions of the Code, the justice is authorized to issue a subpoena, and compel-the attendance of witnesses in the county in which the action is pending, and from the adjoining county. If a witness whose testimony is material is not within the county or an adjoining county, he may issue a commission for the purpose of taking his testimony; and we do not understand that such commission is limited to the other counties of the state, but may be issued to other states as well. This, we think, is apparent from the provisions of § 2987, which is as follows: “Where the commission is executed within the state, the commissioner, or, if there are two or more, a majority of them, have the same power to issue a subpoena, to swear a witness, and to compel his attendance, that a justice of the peace has, in an action pending before him.”

This section of the Code is, by the express terms thereof, limited to the counties within the state, but it only has application where the commission is to be executed within the state. The clause, “where the commission is executed within the state,” would be surplusage if no commission issued by a justice’s court could be executed out of the state ; and we think the inference to be drawn therefrom is that § 2980 should receive the broad construction which its language imports, and that is that the power to issue a commission is not limited as to territory except as to the county in which the action is pending, or an adjoining county. Eaton v. North, 7 Barb. 631.

As to the other ground of objection to the reception of the depositions in evidence we have more trouble. Section 2985 provides that: “The justice, to whom the package containing the commission is transmitted by mail, must receive it from the post officq, and open and file it, endorsing thereupon the date of his so doing. It must remain on file with him, until the trial; but either party is entitled to inspect it on file.”

Here we have the express command of the statute that it must remain on file with the justice until the trial, and the right of either party to inspect it is given while it is on file. Our attention has not been called to any reported case in which this precise question has been considered. Section 2986 provides that §§ 902 and 903 shall apply to a commission issued out of justice’s court. Those sections have reference to commissions issued out of courts of record for the examination of persons residing out of the state. The statute, as well as the practice in such cases, has always been to carefully guard the deposition taken from being tampered with, so that there could be no question as to their authenticity and genuineness. For this purpose the commissioner is required to subscribe his name upon each half sheet of paper upon which the the testimony has been taken. He must attach his certificate, and inclose the deposition under his seal and ad dress to the clerk of the court. If the packet is returned by an agent, he must deliver it to the clerk, or a judge of the court, and must make an affidavit that he received it from,the hands of the commissioner, and that it has not been opened or altered since he received it. The clerk or judge who receives it from the agent must open the packet, and indorse thereupon, and sign, a note of the time of the receipt and opening thereof, and immediately, file it in the office of the clerk, together with the affidavit of the person who delivered it to him. If transmitted through the post office, the clerk to whom it is addressed must receive it, open it, and indorse thereupon, and sign, a like note of the time of receipt and opening thereof, and immediately file it in his office. A commission must remain on file in the office of the clerk, unless otherwise provided by the stipula^ tian of the parties, or unless the court, by special order, directs it to be filed in the office of another clerk. The depositions are always open to the inspection of the parties, either of whom is entitled to a copy of them, or of any part thereof. Code Civ. Proc. §§ 902, 904, 906, 907, 909. It will thus be seen that the depositions are jealously guarded from the time they leave the hands of the commissioner down to the time of the trial, so that no person can mutilate, change or interfere with the testimony of the witnesses so taken. In Jackson v. Hobby, 20 Johns. 358, the commission was offered in evidence, and objected to upon the ground that it had not been filed with the clerk. It was held that it was not entitled to be received in evidence. Platt, J., in delivering the opinion of the court, says : “There is good reason for requiring the depositions to be actually filed before they are used as evidence. They are often prolix and voluminous, so that, without time to take a copy and to examine it deliberately, it is impossible to apprehend the testimony correctly, or to take the proper exceptions. Besides, the parties suing out the commission generally know pretty accurately what their witnesses have sworn to, before the commission is opened, and, if he or his agent who brings back the commission may withhold it until after the trial has commenced, it would give such party an unfair advantage, and enable him to surprise his adversary. It is the right of either party to move the court to suppress the depositions for fraud or irregularity, and this cannot be done at nisi prius, nor until the depositions are filed.”

In Society v. Lawrence, 4 Cow. 440,the judge or officer authorized to receive and open the commission, had not certified or indorsed thereon his certificate as to the time of its reception, or by whose hand it was received. Its reception in evidence was objected to upon this ground and sustained. Savage, G. J., says that the deposition was properly rejected, within the authority of Jackson v. Hobby. In Dwinelle v. Howland, 1 Abb. Pr. 87, it was held that, where a commission is returned by an agent, his affidavit, as prescribed by statute, that he received it from the hands of the commissioner, and that it has not been opened or altered since he received it, is indispensable to its reception in evidence. Clerks, J., after referring to the statute, says : “Indeed the whole article is very exact and minute in its precautions to prevent abuse and to insure the genuineness of the evidence. A rigorous compliance with its provisions was evidently intended, and particularly in regard to the return of the commissioner.”

As we have seen, the depositions were taken by the plaintiffs’ attorney from the office of the justice, where they had been placed on file. They were retained by the attorney until the day of the trial. The defendant’s attorney called upon the justice to see the depositions, but was unable to do so. He was thus deprived of any opportunity to inspect the evidence, or to determine whether the questions had been properly or fully answered, or whether the commission had been executed in due form of law. We have hesitated about declaring this to be reversible error, but, upon mature reflection, have concluded that the public interests require that the statute in this regard should be strictly followed, and that none should be disregarded by parties or their attorneys without destroying its character as evidence in their behalf. ,

The witness Collins, in his deposition, had testified that lie was a member of the firm of Collins & Co., and had access to their books. The eight interrogatory is as follows: “State to what persons the account hereto annexed is charged on said books, and what payment or payments have been made thereon, if any. ”

To this interrogatory he answered: “The account for the goods in controversy in this case is charged upon our books to the defendant, Charles Schaffer. The entries on August 5, 1889, were entered by me in sales book No. 20, page 183. The entry of August 23—$11.88—was entered by me on page 197, in sales book No. 20, and is in my handwriting.”

Upon the trial, the defendant’s counsel objected to the interrogatory as improper, and not the proper manner to prove the book account, that it was not the best evidence, and moved that the answer to the question be stricken out. The objection was overruled, and the portion of the answer stated was allowed to remain. The books were not produced or read in evidence, and we do not understand that their contents could be proved in this way.

The judgment of the county court and that of the justice should be reversed, with costs. All concur.


author: Dwigpt, P. J.

text:
    Elizabeth G. Faulkner, as Administratrix, etc., Resp’t, v. Ellen McNeil et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Usury—What does not constitute.
    The mere fact that a bond is for a greater sum than a check, for which it was given, does not established usury, where the difference is equal to the interest on the check from its date to the date of the bond.
    Appeal from a judgment in favor of plaintiff.

      J. H. Coyne, for app’lts; B. G. Foss, for resp’t.
   Dwigpt, P. J.

—The action is on a bond of the defendants to the plaintiff’s intestate, conditioned for the payment of the sum of $339.62, and interest, in two years from the 2d day of April, 1887, of which day it bore date, and was acknowledged and delivered on the 9th day of the same month. The answer of the defendants admits, by not denying, the execution and delivery of the bond, but proposes two defenses to the action : (1) That the bond was given in exchange for a check of Ellen McNeil on the First National Bank of Dansville for $325, which the defendants had given to the intestate nine months before, in payment for a pair of horses, and, on information and belief, that the intestate had received payment of the check from the bank, and afterwards repossessed himself of it without its being cancelled; also, that the intestate was a director of the bank, and, on information and belief, that the bank was insolvent, and the intestate knew it to be so, and that, with intent to cheat and defraud the defendants, he persuaded them to take back the check and retain the money, and give him the bond instead, and that shortly afterwards-, and while the money still remained on deposit in the bank, the bank stopped payment, and the money was lost to the defendants. (2) The defense of usury, viz., that, the surrender of the check of $325 being the only consideration for the bond, the sum of $1462 was corruptly and usuriously included in the latter, in addition to the lawful interest reserved thereby for the loan and forbearance of the sum above named. We think the evidence was insufficient to establish either of these defenses. It seems a little doubtful what the first defense is,—whether want of, consideration for the bond by reason of the fact that the check had been paid by the bank, or fraud in procuring the money to be left with the bank when in failing circumstances. The two theories are plainly inconsistent with each other, and both are negatived by the findings of the referee. The evidence tending to show that the check had been paid to the intestate was not of a very satisfactory character, and the referee was quite justified in refusing to hold the fact established, as against.the improbability that the check should after-wards be in the hands of the payee uncanceled, and that the fact should not have been disclosed to the defendants by the state of their bank account. The other and contradictory theory proposed as part of the same defense is answered by evidence that, at the time the check was returned, the defendant’s account at the bank was actually overdrawn, and that the bank did not close its doors until more than four, months after that time.

The narrative of the transaction, derived from evidence which is not very satisfactory, the mouths of all thé parties being closed, is briefly as follows : About the 1st of July, 1886, the defendants bought a pair of horses from the intestate, and gave him the check of Mrs. McNeil therefor for $325. On the 1st of April following, the intestate returned the check to McNeil, in front of his place of business, and told him he would come the next day and get the mortgage. The bond in suit, with the mortgage which accompanied it, as collateral thereto, purport to have been executed the next day,— April 2d,— and were acknowledged and delivered April 9th, and the mortgage was duly recorded April 17th. This it would seem, must have been the mortgage referred to by the intestate, which he would come for the next day, and the remark would seem to indicate that the giving and taking of a bond and mortgage in lieu of the check had been the subject of previous negotiations between the parties.

The defense of usury, we think, equally fails of being established. To establish it required a clear preponderance of evidence of a corrupt agreement to give and to receive a greater compensation than at the rate of six per centum per annum for the forbearance secured by the bond. It is true that if it appeared, either on the face of the security or by evidence aliunde, the compensation for such forbearance at a greater than the legal rate was taken or reserved, it would be presumed to have been done in pursuance of a corrupt agreement; but the fact that such compensation was taken or reserved as such, under whatever the disguise or pretense, must be established by affirmative evidence. In ’ this case there is nothing to suggest such an arrangement except the fact that the face of the check was $325, and the sum named in the condition of the bond was $339.60; the difference being precisely equal to the interest on the former sum for nine months. But this affords no proof of an usurious agreement, except upon the assumption that the sole consideration of the bond was the surrender of the check at its face value, without the allowance of interest thereon, and that the addition of an amount equal to the interest on the check was a device to cover usury. We do not think that this assumption is supported by evidence sufficient to establish the allegation of an usurious agreement.

The fact, already adverted to, that, at the time of the surrender of the check, Mrs. McNeil’s account was overdrawn, and that it had been so for several days, is established by the books of the bank, and is controverted only by the evidence of McNeil, who testifies, broadly, that he knows that Mrs. McNeil’s account was always good for the amount of the check from the time it was given to the .time it .was surrendered. How he was ab(le to say so he does not explain. He does not claim to have had a passbook, nor to-have seen the books of the bank, nor that he alone drew checks upon that account. The assertion seems too broad without some statement of .fact to justify it. On the other hand, the president and general manager of the bank, who, though a brother of the intestate, was called by the defendants, and testified in their behalf, was unable to say that the account was good at any time after the day it was given until the date of the surrender, and the only books of the bank which could be produced show that for the last ten days before the check was given up the account was overdrawn. The books of the bank covering all the time preceding the 22d day of March, 1887, were missing. The conclusion seems justified that they had been purloined, and either hidden or destroyed, by some person interested in suppressing evidence of the condition of the bank, upon the date mentioned. But the defendant’s account from the 22d of March, 1887, newly opened in books which did not share 'the fate of the older ones, was proved, and showed a balance, on the day mentioned, of $5.80 on the debit side. How long this condition had existed, or how long, at least, the account was not good for the amount of the check, is not shown; but we think that, upon the whole case as it stands, it may fairly be inferred that the delay to collect the check was due to the fact that the account was not good for it, and that that fact vras so understood by the parties at the time the bond was given, and that interest was added to the face value of the check to compensate the intestate, not for the forbearance of the money for the two years to come, but for the use of .the money which he had lost for the nine months past. If such was the case, or if it was. so understood between the parties at the time the bond was given, even though the fact were otherwise, there was no corrupt agreement, and, consequently, no usury in the transaction. The view which we suggest is supported by circumstances, and is not excluded by any such preponderance of jrroof as is required to warrant the conclusion of a corrupt and usurious agreement. We are of opinion that the referee was justified in disallowing both the defenses interposed by the answer in this case, and we find no exception which points to error in the rulings on the trial.

The judgment should be affirmed.

All concur.

Judgment appealed from affirmed.


author: Dwight, P. J.

text:
    Obed M. Rice, Resp't, v. Jacob K. Post, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Principal and agent—Sub-agent—Compensation.
    A sub-agent, who was employed by the agent without the knowledge of the principal, cannot recover compensation from him.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.

      M. H. Briggs, for app’lt; Herbert Stull, for resp’t.
   Dwight, P. J.

—The action was to recover a balance of commissions claimed to be due to the plaintiff on the sale of a block of buildings in the city of Rochester belonging to the defendant. One Bruff had been for many years the agent for the defendant to manage and care for the property, and to collect the rents. He was also at the time to which the evidence relates authorized to sell the property. The plaintiff had been for some time a tenant of the block. He always dealt with Bruff, and supposed that he was the owner of the property. He owed for rent of his apartments about §260, when Bruff engaged him to find a purchaser for the property, and agreed to pay him double commissions if he succeeded in finding a purchaser at the price of $14,000. He did find a purchaser whom he brought into communication with Bruff, and a sale or exchange of the property was effected, at the nominal price of $14,000. Bruff allowed the plaintiff credit for the rent due from him, which the former asserted was as much as he owed him for commissions; while the latter claimed a balance of $260, still dne, for which he brings this action against the defendant. There is no evidence that Bruff was in any manner authorized by the defendant to employ a sub-agent or broker to make a sale of the property, and of course none that he was authorized to contract for the defendant to pay double commissions for such service. There is no evidence that the defendant knew that the plaintiff was employed to or did render any service in connection with the sale; and the only evidence that he knew that the plaintiff was credited with the rent due from him, on his claim for commissions, was the admission, by the defendant’s answer, that he had paid the plaintiff the sum of $264.50. This admission affords no evidence of a ratification by the defendant of the contract made by Bruff, because there is no evidence that he ever knew before this action was commenced that any such contract had been made. The contract made did not purport to be the defendant’s contract, nor to be made by him; but was made by Bruff, and was understood by the plaintiff to be Bruff s contract in his own behalf, and to bind no one but himself. The fault of the plaintiff’s action is that it makes choice of the wrong man for defendant. It is true that the defendant has had the benefit of the plaintiff’s services, but all that benefit he was entitled to from the services of the agent whom he had employed. If the latter has employed another to render tlie services which were due from him, he only obligates himself to compensaté the person employed. Carroll v. Tucker, 50 St. Rep. 611; 21 N.Y. Supp. 952, and the cases cited. There were several exceptions to the charge of the court and refusals, which raise substantially the same questions as those presented by the motion for a nonsuit-. For the error in denying that motion, and upon the exceptions referred to, the judgment and order appealed from must be reversed, and a new trial granted.

All concur.

So ordered,' with costs to abide the event


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    In the Matter of the Estate of David L. Hallock, Deceased. In the Matter of the Application of Uriah Hannon.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Judgment—Lien—Duration.
    The lien of a judgment ceases at the end of ten years from the time of docketing.
    Appeal from an order denying an application for leave to issue execution against real estate.

      J. B. Decker, for app’lt; John A. Dutton, for resp’t.
   Dwight, P. J.

—The proceeding was by petition in the surrogate’s court of Oayuga county to obtain a decree under § 1380 of the Oode of Civil Procedure, granting a leave to the plaintiff to issue an execution against real property of David L. Hallock, deceased, situate in that county, for the enforcement of a judgment in favor of the plaintiff, claimed to be a lien thereon. The only question presented is whether the judgment was a lien on the property mentioned at the time of the application.

The judgment in question was a judgment of the supreme court, recovered in Wayne county, and the judgment roll was filed and the judgment docketed in that county August 27,1873. A transcript of the judgment was filed, and the judgment docketed, in Oayuga county, November 1, 1883. The judgment debtor, David L. Hallock, died April 11, 1884, .seized of the real estate described in the petition, and leaving four children, his sole heirs at law, who, with the administrator of his estate, were brought into this proceeding by citation. Ho one appeared to contest the granting of the petition except the respondent, Martha A. Russell. She is not mentioned b3r that name, in the petition or in the citation, though one of the heirs is named in both as Martha A. Miller, and it may be that she has changed her name since the citation was issued; otherwise, we are not informed how or why she became a pavtv to the proceeding. There is a statement in the printed brief of her counsel that she became a purchaser of the real estate in question at a judicial sale in 1888, but there is no evidence to that effect in the record before us. The duration of the lien of a judgment on real property has always been the subject of statutory regulation in this state. Under the Revised Statutes, the duration of such lien was limited to 10 years after the filing of the judgment roll, as to subsequent purchasers and incumbrances only, and not as to the judgment debtor or his heirs or devisees. 2 Rev. St. p. 359, §§ 3, 4; 2 Edm. St. p. 371. The effect of' this provision was not changed by that of the original Code of Procedure of 1848 (§ 237), nor by that of the Code of Procedure of 1849 (§ 282) as it was oiiginally enacted. But, by the amendment of that section in 1851, the limitation of 10 years was made general, without restriction to purchasers and incumbrancers; thus, apparently, terminating the lien of a judgment at the end of “10 years from the time of docketing the same in the county where the judgment roll was filed,” as to all persons interested in the real estate affected. And such is, undoubtedly, the effect of the provisions of the Code of Civil Procedure (§ 1251) as to all judgments thereafter rendered. The judgment in question here was rendered before the enactment of the Code of Civil Procedure, and the duration of its lien was, therefore, not regulated by the provision last mentioned ; but it was, undoubtedly, regulated by the provision of the Code of Procedure (§ 282, supra), as amended in 1851, and that is, it seems, equally fatal to this proceeding. As we have seen, the Revised Statutes limited the duration of the lien to 10 years only as to subsequent purchasers and incumbrances, The original Codes of 1848 and 1849, while they prescribed the mode of docketing a judgment and obtaining a lien, imposed no limit to the duration of such lien, but left that to be regulated by the provision of the Revised Statutes. On the other hand, the amendment of 1851 re-enacted the limitation of 10 years, but omitted the restriction of such limitation to the case of purchasers and incumbrancers. The new enactment covered the whole ground, and must be held to have superseded, and by implication repealed, the provisions of the Revised Statutes. After the amendment of 1851, the only provision of statute which gave to any judgment a lien on real estate was § 282, as amended; and it gave such lien, in any case, only for the period of 10 years after the original docketing. It follows that the judgment sought to be enforced in this proceeding had ceased to be a lion on the real estate described in the petition before the proceeding was commenced, and the application was therefore properly denied. The decree appealed from must be affirmed.

All concur. So ordered, with $10 costs and disbursements.


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    The People, Resp’t, v. George R. Van Alstyne, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Seduction—Criminal prosecution,
    On the trial of an indictment for seduction, the evidence was held sufficient to require the submission to the jury of the question whether the subsequent conditional promise qualified the absolute promise of marriage which preceded it.
    Appeal from a judgment of conviction for seduction under promise of marriage, and from an order denying a motion for a new trial.

      H. B. Hallock, for app’lt; Howard H. Widener, Asst. Dist. Atty. for the People.
   Haight, J.

—The defendant was indicted for having, on the 16th day of September, 1891, under and by means of a promise of marriage made to Jennie M. Campbell, seduced and had sexual intercourse with her, she being then an unmarried female of previous chaste character. Upon the trial the sexual intercourse was admitted by the defendant. All the other questions involved were sharply controverted. We have carefully examined the testimony, and reach the conclusion that the verdict is supported by the evidence.

At the trial, after the evidence was closed, the counsel for the-defendant moved for his discharge upon the grounds that the evidence showed that there was no promise of marriage, necessary to constitute the offense, under the Code, and that the facts did not show a seduction, within the statute. This was denied, and an exception was taken. The court then charged the jury: “There must be a promise of marriage,—not simply a promise that the defendant would marry the complainant in case she became pregnant. That would be a mere conditional promise,-— conditional upon the happening of an event which might never occur. It must have been an unconditional promise of marriage, made as an inducement to this act of sexual intercourse, and relied upon by the complainant in giving herself up to the defendant.”

The defendant’s counsel then asked the court to charge, as matter of law, that under the evidence no case of seduction under promise of marriage, under the Penal Code, has been made out This was refused, and an exception was taken. The question is thus presented as to whether there was evidence of a promise of marriage, sufficient to sustain the verdict, Upon this point the complainant testified that op the evening of the 16th day of September, 1891, she was returning from a social at Mr. Lonsberry’s, with the defendant, in a carriage, and that on their way home— “He wanted I should do as he wanted me to, and I objected. He put his lines around the whip, and put his arms around me, and tried to make me, but I told him I would not; and so he drove on further, to where we turned to come home. He kept teasing me all the way along, and said, if Í would, he would marry me. I said I didn’t want any boy to have to marry me in that way, and he said he would ; and finally he turned around, and wanted me to, again, and said he would not have turned around if he had thought I was not going to let him. He told me, if he got me in a family way, he would marry me. I told him I didn’t want to have any boy obliged to marry me. He said he didn’t want to be obliged to, but would. And he wanted me to get out of the wagon, and I would not. Finally, I yielded to him, and he had connection with me.”

She further testified that she yielded on the strength of, and in faith and reliance upon, the statement that he would marry her. There was sufficient corroborating testimony to carry this question of fact to the jury.

It is contended, however, that the promise here testified to was not a promise to marry in case she submitted to his wishes, but that it was only a conditional promise that he would marry her in case he got her in a family way. It is true, such an expression appears in her evidence, but it will be observed that he first promised to marry her if she would let him do as he wished. He thus held out that inducement to her, and then allayed her fears by telling her that if she got in a family way he would marry her; and, in answer to her statement that she didn’t want to have any boy obliged to fiiarry her, he stated that he did not want to be obliged to, but would,—thus indicating that the marriage would be voluntary on his part. The appellant argues that the subsequent conditional promise of marriage qualified the promise that preceded it; but we do not think that the court could so hold or charge, as a matter of law, and that the trial court very properly submitted the question to the jury. The charge upon this branch of the case was as favorable to the defendant as he was entitled to.

It is contended on behalf of the people that, even though the promise was conditional upon her pregnancy, still it would be within the provision of the Code, under the authority of People v. Hustis, 32 Hun, 58. It was so held by a majority of the court in that case, but we have doubts in reference to the correctness of the conclusion there reached. Our attention has been called to no case in the court of appeals where the question has been determined. In Armstong v. People, 70 N. Y. 38, the question was specially reserved, the court stating that it did not intimate an opinion either way upon the question. Under the view taken by us, its determination here is unnecessary.

An exception was taken to the admission of the testimony of the complainant as to the date her child was born. She said it was born on the 25th day of June, 1892. She states that the seduction took place on the 16th day of September, 1891. The time intervening exceeds but a few days the usual period of gestation, and is within the time frequently occupied in such cases. It is therefore some corroboration of her testimony. Armstrong v. People, 70 N. Y. 38. In this respect the case of People v. Kearney, 110 N. Y. 188; 17 St. Rep. 165, is distinguishable, But, if this were not so, it appears to us the evidence did no harm, for it had been shown without objection that she had become pregnant, and—from the defendant’s own showing—that bastardy-proceedings had been instituted.

The judgment, conviction, and order should be affirmed, and the case remitted to the court of sessions of Monroe county to proceed thereon. All concur.


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    Joseph Michaels et al., App’lts, v. Robert Hain et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Process—Service—Exemption.
    A person, who comes into this state neitliér as a party nor witness, but in his own interest, is not privileged from service of process.
    Appeal from an order setting aside the service of summons on one defendant, and vacating judgment by default.

      D. Hays, for app’lts; Geo. A. Benton, for resp’ts.
   Dwight, P. J.

—The sole question on this appeal is of the privilege of the defendant My.ers from the servipe of process at the time the summons in this action was served upon him. He was a resident of the state of Ohio, and came within this state to attend the taking of depositions by commission in an action pending in the state of Ohio, to which he was not a party, but in the .event of which he claimed to have an interest. His connection with the case grew out of the facts substantially as follows: His brother, George W. Myers, wdio was engaged in the retail clothing business in Oireleville, Ohio, had given him a chattel mortgage on his stock of goods, to secure an -alleged indebtedness and contingent liability to him, and later executed a general assignment to one Curtain. Thereupon unpreferred and unsecured creditors brought replevin in the courts of Ohio against the assignee for portions of the stock of goods. It was in one of these actions that a commission was issued out of an Ohio court to take the testimony of witnesses at Eochester, in this state. The commission seems to have been what is denominated, under our practice, an open commission, and Curtain, the assignee, came to Eochester to attend the taking of the testimony. According to the affidavits of Curtain and of Daniel Myers, the latter accompanied him in order to be present at the examination “in his own interest,’’ and also at the request of the assignee, “wh'o believed that his knowledge of his brother’s business would be valuable in the cross-examination of witnesses.” It was while the defendant Myers was at Eochester on the business thus described that he was served with the summons and complaint in this action, which was brought on an account of long standing for goods sold and delivered by the plaintiffs to the defendants as copartners. Jurisdiction being thus apparently acquired of the defendants, and no appearance being made in their behalf, judgment was m due time entered against them by default. That judgment was vacated and the service of the summons was set aside by the order from which this appeal is taken. We think the order was erroneously made, and that the motion should have been denied.

The rule of privilege here invoked, viz. that which exempts from service of ordinary civil process certain persons when in attendance upon certain legal proceedings, was, until recently, in this state confined to persons so attending as witnesses alone. See Tribune Association v. Sleeman, 8 St. Rep. 343, and the authorities there cited. The case of Matthews v. Tufts, 87 N. Y. 568, is believed to be the first reported case in this state in which the privilege was extended to suitors, especially as, among the authorities cited in that case, no precedent in this state is referred to. This statement is not intended to derogate from the force of the rule as now recognized and applied, but only to suggest hesitation in further extension of the privilege. Up to this time we think it has not been extended beyond the real parties in interest (whether nominal or not) to the action or proceeding attended upon, and we are unable to see how the defendant Myers comes within that definition. He was a chattel mortgagee prior to the general assignment, and there is nothing in the moving affidavits to show or- suggest that his rights as such could be affected by the judgment in an action by third persons against the assignee. He seems to have been altogether -a volunteer in his attendance at Eocliester. It may have suited his purposes to obtain early information of the ease which the vendors of the goods upon which he claimed a lien could make out against his mortgagor, and his knowledge of the latter’s business may have enabled him to render valuable service to the assignee in bis cross-examination of the witnesses produced; but he was in no sense a party to the action, either nominal or real, nor bound by the judgment to be rendered therein. To grant to him, under these circumstances, the privilege of exemption from service of civil process, would, we think, be an unwarrantable extension of the rule, which was, in this state, so lately confined to witnesses whose attendance was compelled by the mandate of the court. The order appealed from should be reversed, and the' motion denied, but without prejudice to a motion by the defendants to open the default, and for leave to come in and defend the action. All concur.

So ordered, with $10 costs and the disbursements of this appeal


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    Joseph Smith, App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Master and servant—Tort.
    The company is not liable for injuries caused by the explosion of a torpedo, placed on the track in violation of the rules by an employe, who had no authority to use them.
    Motion for a new trial on exceptions ordered to be heard at genera] term in the first instance.

      H. V. Holland, for pl’ff; J. W. Dunwell, for deft.
   Haight, J.

—This action was brought to recover the damages sustained by the plaintiff on the 23d day of July, 1891, at the West Shore Railroad station, at Port Byron, N. Y., by reason of the alleged negligence of the defendant’s station agent at that place. It appears from the evidence that the plaintiff was standing upon the platform of the station ;• that a train known as the “Local Freight” had arrived, stopped, switched some cars, and was about starting on its way, when H. S. Riker, the defendant’s station agent, stepped out, and placed two torpedoes upon the track under one of the freight cars in the central part of the train, and then ran back to the station house. The train had just begun to ■ move, and as the rear wheels of the freight car passed over the torpedoes an explosion occurred, causing' some sharp fragment to pierce the plaintiff’s leg, inflicting a serious injury. The plaintiff first testified that the train did not stop -after the explosion, but continued on its way, but he subsequently testified that it did stop for a time. But no evidence was submitted, showing that any communication took place between the station agent and the person in charge of the train thereafter. The plaintiff read in evidence the rules under which the West Shore Railroad was operated at that time, providing for the use of signals, in which it is provided that: “ (30) An explosive cap or torpedo, placed on top of the rail, is a signal to be used in addition to the regular signals. The explosion of one torpedo is a signal to stop immediately. The explosion of two torpedoes is a signal to reduce speed immediately, and look out for a danger signal.” “(77) The torpedoes must not be placed near stations or road crossings, where persons are liable to be injured by them. (78) All signals must be used strictly in accordance with the rules, and trainmen and enginemen must keep a constant lookout for signals.”

This is, in substance, the'evidence presented on behalf of the plaintiff. From it, we are asked to assume that the station agent was attempting to signal the train to stop by exploding the torpedoes ; that he was thus acting within the scope of his employment, but in the use of the torpedoes, under the circumstances, at that place, he was guilty of negligence, and consequently the plaintiff was entitled to recover. On behalf of the defendant, evidence was given to the effect that torpedoes were not furnished to station agents for their use; that they were not permitted to use them in the vicinity of a depot; that there was no occasion for signaling the train at the time of the accident; that it was not signaled, and did not stop after it had started from the station. Riker, the station agent, testified that the torpedoes used by him were thrown off by conductors of passing trains as a makeweight for the paper containing the numbers of their trains; that he picked them up, and as the train started he put them upon the track, for the purpose of hearing the explosion, and with no occasion for, or object in view of, signaling the train. It is thus apparent that the only question in the case was as to whether the station agent, in doing what he did, was acting within the scope of his employment, in the performance of a duty imposed upon him by the company. If so, and if it was negligent and dangerous to explode the torpedoes in the vicinity of the station when persons were standing upon the platform, the company is liable; but if, by doing what he did, he went outside of his employment, in order to effect a purpose of his own, in exploding the torpedoes for his own amusement, and not for the purpose of signaling the train, then the company would not be liable. Isaacs v. Third Ave. R. R. Co., 47 N. Y. 122; Mott v. Consumers Ice Co., 73 N. Y. 543-547; Mulligan v. N. Y. & R. B. R. R. Co., 129 N. Y. 506; 42 St. Rep. 83; Mars v. D. & H. C. Co., 54 Hun, 628; 28 St. Rep. 228; Finley v. Hudson El. Ry. Co., 64 Hun, 373; 46 St. Rep. 202. It may be that Eiker was so far an interested witness that his credibility was involved, which could only be passed upon by the jury. But, as we have seen, the plaintiff showed, from the rules of the company, that the explosion of torpedoes near statiens and road crossings, where persons were liable to be injured, was prohibited. He has not shown that there was any occasion or reason for signaling the train on this occasion, or that the torpedoes were exploded for that purpose. It appears that the torpedoes were placed upon the track close together so that the explosion of one instantly followed the other. This was not a signal, under the regulations of the company. In case a signal was to be given, to slow up, and proceed with caution, two torpedoes would be placed upon the track, but several rails apart, so that there would be two distinct reports, several seconds intervening; and, if it was desired to bring a train to a stand, one torpedo, only, would be used. We are therefore inclined to the view that the plaintiff failed to show that Eiker was acting within the scope of his employment, in exploding the torpedoes.

The motion for a new trial should be denied, and judgment ordered for the defendant upon the nonsuit.

All concur.


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    Moses B. Watkins et al., App’lts, v. T. Frank Jones, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Equity—Cancellation oe mortgage.
    A mortgage given to prevent satisfaction of a judgment to be recovered in a pending action will be cancelled, where it was executed to, and at the fraudulent instance of, the trusted adviser of the mortgagors, without any intention on their part to perpetrate a fraud upon any person.
    Appeal from a judgment in favor of defendant.

      H. L. Bennett, for app’lts; J. A. Barhite, for resp’t.
   Dwight, P. J.

—The action was to set aside a bond and mortgage for §5,000 and upwards, executed by the plaintiffs to the defendant, on the ground of want of consideration, and of fraud, artifice, and undue influence on the part of the mortgagee. At the trial the complaint was dismissed on the facts alleged therein, as not being sufficient to constitute a cause of action ; and the very proper practice was adopted by the trial judge of finding as facts all those alleged in the complaint, and, as a conclusion of law, that the defendant was entitled to judgment thereupon. The following is a brief narrative of the facts thus adjudged to be the facts in this case: The plaintiffs, at the time of the execution of the bond and mortgage, were aged people, living on a farm of 65 acres, in the town of Webster, in Monroe county, which was owned by the plaintiff Moses, subject to a mortgage of $2,500, in which the plaintiff Catherine had an inchoate right of dower. The income from the farm was barely sufficient to pay the interest on the mortgage, and to furnish a support to the plaintiffs, and had little or no other property. In November, 1892,-a woman of bad character, for the purpose of extorting money from the plaintiff Moses, commenced an action against him in this court, in which she falsely charged him with a criminal assault upon her, with intent to violate her person, and claimed damages in the sum of $10,000. The plaintiff Moses appeared and answered in the action, denying all the allegations of the complaint,- and on the trial of the. issues joined a verdict Was rendered in his favor, and he had judgment thereon, dismissing the complaint on the merits. 'Pending that action the defendant herein, who was the husband’ of the plaintiffs’ only child, and living in the same house with them, and upon whom they relied as their business adviser and friend, designing and contriving to cheat them out of their farm, falsely and fraudulently represented to them that the woman above mentioned would propably succeed in her action, and would get the farm, unless it was covered by a mortgage, or otherwise placed beyond the reach of the judgment to bo recovered by her; and he urged them to execute a bond and mortgage to him, promising that when the woman’s action was got rid of, and her claim defeated or released, lie would either surrender up and discharge the bond and mortgage, or assign them to the plaintiff Catherine, as they should-direct. The plaintiffs, being old and feeble, and unaccustomed to litigation, and being greatly alarmed by the defendant’s representations, and having entire confidence in his judgment and integrity, and in the sincerity of his motives toward them, and relying upon his promise in respect to the final disposition of'the bond and mortgage to be given to him, did on the 13tliday of February, 1893, execute, acknowledge, and deliver to the defendant a bond, with á mortgage on the farm above mentioned as collateral thereto, conditioned for the payment of the sum of $5,277.15 as follows: $200 in six months, and the balance in five years with semiannual interest, with the further condition that should default be made in the payment of interest, taxes, or insurance, as therein provided, the whole sum should thereupon become due at the election of the defendant; and the defendant received the bond and mortgage, and caused the latter to- be recorded in the clerk’s office of Monroe county. The bond and mortgage were wholly without consideration, and were given and accepted on the express understanding that they were not to be enforced, but were to be surrendered or assigned as before stated. After the termination of the action against the plaintiff Moses, as above stated, the defendant refused, on the request of the plaintiffs, to surrender up and discharge the said bond and mortgage, but declared his purpose to enforce those securities against the plaintiffs and their farm.

, We are of the opinion that upon these facts the plaintiffs were entitled to the relief sought by them in this action, and that it was error to dismiss their complaint. The rule that equity will not interpose in favor of either of two parties who are in pari delicto in a scheme to defraud another, but will leave them in the position, relative to each other, in which they have placed themselves by their own acts, is in the interest of good morals and public policy, and will ordinarily be enforced, even though one of the parties to the fraudulent scheme is thereby enabled to profit by his own bad faith towards the other. But this is, plainly, not such a case. On the facts here found the plaintiffs were not parties to a scheme to defraud anybody. The woman who prosecuted the action against Moses B. Watkins was not his creditor, and had no claim against him or his property. She was an adventuress, engaged in a wicked attempt to charge him, by prejury, with liability in damages for an offense bf which he was innocent, and thus, by an abuse of the processes of the law, to rob him of the property upon which he depended for the support of himself and his wife in their old age. And it is to be observed that this statement of facts does not depend for its verity upon the result of the action referred to, which had not been reached when the bond and mortgage were executed, but that such are the actual facts found by the court in this case, irrespective of the verdict and the judgment in the other action. It is demonstrated, therefore, for the purposes of this appeal, that no fraud was perpetrated or intended by the plaintiffs here upon the plaintiff in that action,—and, if not upon her, then not upon any one,.—and the case is thereby taken out of the operation of the rule which denies relief to a plaintiff who is found to have been in complicity with the defendant in an attempt to perpetrate a fraud upon third parties.

In this view of the case,—which seems to us unavoidable, under the findings,-—-we are relieved from a discussion of the" question whether the plaintiffs were in pari delicto with the defendant. That was the question, the negative answer to which determined the issue in favor of the plaintiffs in the cases of Freelove v. Cole, 41 Barb. 318; affirmed, 41 N. Y. 619, and Ford v. Harrington, 16 N. Y. 285. In those cases the question was pertinent, because, in each of them, it was found that the conveyance set aside was given and received with intent to hinder, delay, or defraud the creditors of the grantor, but that the grantee occupied such a position of trust and confidence in his relation with the grantor, and so availed himself of it to persuade the latter to make the conveyance that though in delicto, the grantor was not in pari delicto with the grantee. But, if the question of pari delicto were in the case before us, we think the result would be the same as in the cases cited. -In this case the defendant, though not an attorney at law, was the trusted advisor of the plaintiffs in their matters of business. He was their near relative, and lived under the same roof. He assumed to possess a knowledge, superior to theirs, of the danger of their situation, and was able to operate upon their fears because they relied upon his superior judgment. He made the suggestion of a mortgage, and persuaded them to give it, with entire confidence that he would keep his faith with them. If this had been a scheme to defraud creditors, it would be impossible to hold' the plaintiffs in pari delicto with the defendant.

The case of Renfrew v. McDonald, 11 Hun, 254, which is specially relied upon by counsel for the defendant, is radically distinguished from this, in the respect first considered. In the language of the opinion, the case there presented was “a bold case of a conveyance of the property in question with an express intent to hinder, delay, and defraud the creditors of the plaintiff.” And, in the light of later authorities, we are not disposed to concur in the apparent doctrine of that .case, to the effect that relief will be granted, as between the parties, only when the party obtaining the 'benefit of the fraudulent transfer stands in the relation of guardian, trustee, or attorney at law of the .other party to the transaction. See Freelove v. Cole, supra; Fisher v. Bishop, 108 N. Y. 25; 13 St. Rep. 466; Kerr, Fraud & M. 377. The gross and palpable character of the wrong devised by the defendant against the plaintiffs is unquestioned, for the purpose of this review ; and there is nothing, we believe, in the case which deprives the court of the power to rebuke and correct that wrong. The judgment should be reversed, and a new trial granted, with costs to abide the final award of costs. All concur. So ordered.


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    The People, Resp’t, v. Daniel Linzey, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Witness—Competency—Infant.
    A child ten years of age, who shows sufficient ability to comprehend the nature and effect of an oath, is a competent witness.
    2. Trial—Jury—Justice in room.
    It is reversible error for a justice of a court of special sessions to enter, in the absence of defendant’s attorney, the jury room while they art-deliberating upon their verdict.
    3. Appeal—Return—Court of special sessions.
    When an affidavit, annexed to a return of a justice of special sessions, will be treated as part of the return.
    Appeal from a judgment affirming a conviction for petit larceny in a court of special sessions.

      John E. Robson, for app’lt; Royal R. Scott, Dist. A tty., for the People.
   Haight, J.

—The defendant was convicted of the offense of stealing a ¿20 bill from the money drawer in the coal office owned by John Hamlin at East Broomfield Station, in the county of Ontario. Upon the trial, Robert Linzey was sworn as a witness for the people, and, under objection by the appellant’s counsel to the effect that he was not competent to understand the nature of an oath, was permitted to testify that he saw the appellant take the bill in question from Mr. Hamlin’s money drawer. It appears that the witness was about 10 years of age, and, before he was permitted to testify, was examined in reference to his qualification, and stated that he had been to Sunday schopl; had been taught it was wrong to steal or to tell a lie; said that he knew that it was wrong not to tell the truth, and knew there was some punishment to be administered when a witness swears to tell the truth and does not; and that he understood that to tell a lie under oath was wrong, and that he might be punished for it. We think that the trial court, in the exercise of the discretion vested in it, properly permitted the witness to testify. The law fixes no precise age within which children are excluded as witnesses. Their competency depends upon their intelligence, judgment, understanding and ability to comprehend the nature and effect of an oath. If a witness is over 14 years of age, the law presumes him to possess the requisite discretion and understanding. If under that age, the duty devolves upon the trial court, in the exercise of a sound discretion, to determine whether the witness has the requisite capacity and intelligence; and this discretion will not be interfered with upon appeal except upon a clear showing of its abuse. Bap. Wit. § 7, and authorities there cited. The trial of this action took place before chapter 279 of the Laws of 1892 took effect, so that the amendment of § 892 of the Code of Criminal Procedure therein provided for has no application.

The defendant’s counsel, in his affidavit to procur an allowance of an appeal from the judgment of the court of special sessions, among other things states that: “He has been informed by the said justice and one of the jurors who tried said case that, after the jury retired to consider their verdict, said justice went to said jury room, and read to said jury the information upon which the warrant was issued in said case, and that that was done without the knowledge or consent of the defendant or his attorney, nor was either of them present when said statement were so read as aforesaid.”

The justice in his return says nothing in reference to this charge, but he attaches thereto his affidavit, in which he states: “That he entered the jury room, while they were deliberating upon the case, at the request of the officer in charge, supposing that a verdict had been agreed upon; that upon learning, immediately after entering, that no agreement had been reached, deponent told the jurymen he had no right to be there without the attorney, and turned to leave the room, when one of the jurymen said that they wanted to know with what crime the defendant was charged ; to which deponent replied, after opening the information, but not reading therefrom, ‘Petit larceny;’ that no other conversation was had by deponent while in the jury room, and no information or evidence was read to them.”

The practice is that where an appeal is founded upon an error in fact not appearing upon the record, and not within the knowledge of the justice, the court may determine the matter upon affidavit; but the error here charged was within the knowledge of the justice, for it has reference to his own conduct pending the deliberation of the jury, and the facts in reference thereto, should have been incorporated in his return. Vallen v. McGuire, 49 Hun, 594; 18 St. Rep. 410. But, we think, in this case we may treat his affidavit attached to the return as a part thereof and determine the question upon the facts presented. In Sargent v. Roberts, 1 Pick. 337, the foreman of the jury wrote to the judge that they could not agree, and that they waited for his directions. The judge answered in writing, saying that he was unwilling, after so much time had been consumed in the ease, to premit them to separate, and gave some directions that would enable them to consider the case in a more systematic manner, and added that the officer had directions to take them too more convenient apartment, if they desired. On review, the judgment was reversed, and a new trial granted. Parker, O. J., in delivering the opinion of the court, says: “It is impossible, we think, to complain of the substance of the communication. The only question is whether any communication at all is proper, and, if it was not, the party against whom the verdict was is entitled to a new trial, and we are all of the opinion, after considering the question maturely, that no communcaition whatever ought to take place between the judge and the jury after the cause has been committed to them by the charge of the judge, unless in open court, and, where practicable, in the presence of the counsel in the case. The oath administered to the officer seems to indicate this as the proper course. He is to suffer no person to speak to them, nor to speak to them himself, unless to aslc them whether they are agreed, and he is not to suffer them to separate until they are agreed, unless by the order of the court. When the court has adjourned, the judge carries no power with him to his lodging, and has no more authority over the jury than any other person, and any direction to them from him, either verbally or in writing, is improper. It is not sufficient to say that the power is in the hands highly responsible for a proper exercise of it. The only sure way to prevent all jealousies and suspicions is to consider the judge as having no control whatever over the case except in open court, in the presence of the parties and their counsel. The public interest requires that litigating parties should have nothing to complain of or suspect in the administration of justice, and the convenience of jurors is of small consequence when compared to this great object.”

In Bunn v. Croul, 10 Johns. 239, while the jury was deliberating on their verdict, the justice was requested to inform them whether a particular point of evidence had been given, stating it to him. The justice informed the jury that it had, and mentioned the name of the witness who had testified to the fact. A verdict was found for the plaintiff, on which the justice gave judgment. On review, the judgment was reversed, the court saying : “IteaiKnot fairly be inferred from the return that the explanation given by the justice to the jury after they had retired to make up their verdict was by the consent or in the presence of the parties. If it was not, the allowance of such a practice would be dangerous to the rights of parties. The justice’s recollection might not be accurate as to what the witness had said, and for that reason the testimony might be misstated, when, if the parties were present, or the witnesses again called to repeat their testimony, any mistake might be corrected.”

In Taylor v. Betsford, 13 Johns. 487, the justice went into the jury room, at the request of the jury, to answer certain questions proposed to him, and the judgment was reversed, the court saying : “The only error necessary to be noticed in this case is that the justice went into the room with the jury at their request, privately and apart from the parties, to answer certain questions proposed to him by the jury. This we have repeatedly held to be erron eons, unless done with the consent of the parties. Whether the information given by the justice was material, or had any influence upon the verdict of the jury, is a matter which we will not inquire into.”

In Watertown Bank & Loan Co. v. Mix, 51 N. Y. 558, it was held that a party to an action on trial by a jury is entitled to have all the proceedings public, both in respect to the production of proof and to the instructions to the jury by the court, and there ought to be no communication between the judge and the jury after the latter have gone from the bar to consider their verdict; that this right is a substantial one, and is not in the discretion of the court; and a party moving for a new trial upon this ground is not bound to show affirmatively that such communication tended to his injury. So much for the authorities bearing upon the question. As we have seen, the justice is charged with having read to the jury the information upon which the warrant was issued. The appellant’s attorney states that he was so informed by the justice and one of the jurymen. The information consisted of the ex parte affidavits taken before the justice. It was certainly improper, and might well have tended to prejudice the jury. The justice admits in his affidavit that he opened the information, but states that he did not read therefrom; that then he answered that the charge was petit larceny. As has been stated in the cases, his recollection might not be accurate as to what he did before the jury. It leaves an opportunity for a defeated party to suspect that an injustice has been done him, and, in the language of one of the learned judges to which we have referred: “The public interest requires that litigating parties should have nothing to complain of or suspect in the administration of justice.”

Undoubtedly, treating the affidavit of the justice as a part of his return, we are bound by his statement as to the facts, but, as we have already seen, it is not incumbent upon the appellant to show that he has been prejudiced in order to entitle him to a new trial.

The judgment of the court of special sessions and of the court of sessions of Ontario county appealed from should be reversed, and a new trial granted in the court of sessions of that county, and for that purpose the proceedings should be remitted to that court.

All concur.


text:
    Catherine Higgins, Resp’t, v. New York, Lake Erie and Western Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Watercourses—Bridge—Question for jury.
    Whether a bridge has an opening of sufficient capacity to meet all the ordinary and extraordinary exigencies of the climate and situation of the stream, is a question for the jury.
    2. Damages—Washing away of soil.
    The measure of damages for washing away soil is the difference in the value of the land before and after the injury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      James H. Stevens, for app’lt; Leslie W. Wellington, for resp’t.
   Haight, J.

—This action was brought to recover damages which the plaintiff is alleged to have sustained to her house and premises by the action of water during the floods of June 1 and August 1, 1889, through the negligence of the defendant. The defendant’s railroad crosses Munlcey run, a creek in the city of Corning, by means of an iron bridge, resting upon stone abutments. The size of the throat of the bridge is 19f- feet wide, and from 2 feet 8 inches to 3.27 feet deep. The area furnished for the flow of water, according to the testimony of one of the engineers, was 65.08 square feet. The plaintiff’s house is situated on the south side of the defendant’s railroad, and upon the east side of the creek. Between the house and the railroad track is one of the streets of the city, with a bridge over the creek. The creek is upon the land of the plaintiff, and her barn is located at the rear of her lot, and constructed over the creek, resting upon stone walls upon either side of the stream. The creek descends from a mountain, running north across several streets, and empties into the Chemung river. From the barn to the defendant’s bridge the descent is eight feet. On the occasion of the June flood, gravel, stones and floodwood were carried down the stream, lodging under the defendant’s bridge, nearly filling the throat thereof, and, as is claimed, extending back through the channel of the stream to the barn, so as to cause the water flowing in the channel of the creek to depart therefrom above the barn and around the end thereof, through the plaintiff’s lot, cutting a channel therein several feet in depth. The water also filled the cellar underneath her house, destroying some personal property therein, and doing other damage. The bridge over the highway was washed away, and carried against the bridge of the railroad company, and that bridge was raised up upon one side, so that the ties upon which the rails were laid stood on end.

It is claimed that the defendant was guilty of negligence in the construction of its bridge, in not leaving proper space for the flow of the water. It was the duty of the defendant to provide a bridge with an opening of sufficient capacity to meet all the ordinary exigencies of the climate and the situation of the stream, and also such extraordinary exigencies as experience would lead the people residing in that vicinity to believe might sometimes occur, although infrequently. Bogart v. D., L. & W. Railroad Co., 72 Hun, 412; 55 St. Rep. 291; Bellinger v. N. Y. C. Railroad Co., 23 N. Y. 42; Ward v. Atlantic & P. Telegraph Co., 71 id. 81-84. The trial court properly and fairly charged upon this branch of the case, and submitted the question of fact to the jurors for their determination.

A serious question of fact is presented as to whether the defendant should be chargeable with the damages resulting from the June flood. It was on the occasion of the noted Johnstown disaster, and the evidence tends to show that the flood was greater in magnitude than had ever been known to exist in that locality. There is also a question as to whether, in case of liability, the defendant should be charged with the damages resulting from the cutting of a channel through the plaintiff’s yard, it being claimed that the water was turned from the channel of the stream above the barn by reason of the clogging of the channel under the barn, and that this could not well have been occasioned by any fault in the construction of the bridge, which was located lower down the stream. But, after a careful reading of the evidence, we have concluded that it was of such a character as to justify the trial court in submitting these questions to the jury. As to the August flood, occurring on Emancipation day, the situation is different. While heavy, it is not contended that it was of such a magnitude as not to be within the experience of the people. The witness Tong, in substance, tells us that it was dammed up under the railroad bridge with’gravel and stone; that the damming was within a foot of the top of the piles, and that the water coming from the creek spread over the land east and west; that it ran across the lawn on the corner of the plaintiff’s premises next to the creek, and took off some of the land and a part of the sidewalk, and that some of the trees in front of the house were washed out; that on that occasion the men were at work upon the track; that there was a stick of timber about eighteen inches through, which they had chained across the creek; and that railroad planks and pieces of logs we;e placed at the end of the stick so as to throw the water off; and that it turned the water across the plaintiff’s premises. If this evidence is true, it tends to show that much of the damage suffered by the plaintiff on this occasion occurred through the means adopted by the defendant’s servants in protecting the bridge, and, if so, there can be doubt as to the right of the plaintiff to recover. This question was also submitted to the jury. The damages shown to have been sustained by the June flood were much greater than the amount of the verdict awarded, and, judging therefrom, it is probable that the award was made for the damages suffered in consequence of the August flood.

The court charged that the rule of damages to the real estate was the depreciation in value occasioned by the flood. An exception was taken to this charge. During the trial the defendant asked the witness Tourney if he knew what it was worth to cart in dirt for filling. This was objected to, sustained, and exceptions taken. The defendant’s counsel also offered to show what it would be worth to fill in the ditch with stone, gravel and earth, and put it in the condition it was left in. This was objected to as not a proper measure of damages, and the objection was sustained, and exception taken. The offer is quite informal. We presume that it was the intention of the defendant’s counsel to refer to the channel that had been cut through the plaintiff’s premises, and it, perhaps, was his purpose to show what it would cost to fill that channel, and put it in the condition it was in before the flood. We do not think either exception requires a reversal of the judgment. It does not appear what the character of the soil was that washed away, or what it cost to procure like soil for the purpose of filling, and neither the question nor" the offer covers this element of damage; and this we regard as important when the soil has been washed away, for in such a case it is impossible to restore the same soil. We are aware that in the case of Hartshorn v. Chaddock; 135 N. Y. 116-122; 48 St. Rep. 932, the judge delivering the opinion says: “ The rule seems to be that when the reasonable cost of repairing the injury, or, in this case, the cost of restoring the land to its former condition, is less than what is shown to he the diminution in the market value of the whole property by reason of the injury, such cost of restoration is the proper measure of damages. Ón the other hand, when the cost of restoring is more than any such diminution, the latter is generally the true measure of damages.”

This rule, as it appears to be understood by the appellant’s counsel, would establish a double rule of damages; and upon a trial, evidence may be given with reference to each, and then the jury adopt that which is the most favorable to the defendant. In such cases a difference in opinion may often occur as to which would be the most favorable, with the result that part of the jurors may.base their verdict upon one measure of damages, and the rest upon the other. Wo have not so understood the rule where the damages are permanent and the restoration impossible. If a man has upon his lands a sand bank, and a load of sand is taken therefrom, it being an .article of merchandise, his damages, doubtless, would be the value of the sand taken. If a forest tree was ont therefrom, which had «a market value either for lumber or wood, he may be compensated in damages by awarding to him the value thereof; but if he should have grown fruit trees standing upon his premises, and they should be cut therefrom, the tree would possess no value of consequence after being severed from the freehold, and it could not be replaced or repaired, so that the injury would be perminent, and the damages would be the difference in the value of the premises before and after its removal. Dwight v. Elmira, C. & N. Railroad Co., 132 N. Y. 199; 43 St. Rep. 723.

As we have seen, soil washed away cannot be restored. Other soil may be substituted in its place, and the premises partially restored. In such case, it appears to us, the proper measure of damages is the difference in the value before and after the injury. It doubtless would be competent cross-examination or on the defense to show that the plaintiff’s claim for damages was extravagant, by showing that a substantial restoration could be effected by filling the place from which earth had been washed away at a trifling cost. But this would not operate to change the measure of damages. It would only tend to show that the damages wefe not as great as claimed. But, as we have seen, neither the question nor the offer referred to was sufficiently comprehensive to cover This question. We have examined the other exceptions presented by the case, but find none that require a new trial.

The judgment and order appealed from should therefore be affirmed.

All concur.


author: Freedman, J.

text:
    Francis Gottsberger, Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York, App’lt.

      (New York Superior Court, General Term,

      Filed July 2, 1894.)

    1. Municipal corporations—Docks—Defective.-
    The city of New York is not liable for injuries caused by defective dock structure.
    2. Same—Obstruction in street.
    Nor is it liable for injuries caused by a string-piece in the street, unless it is a nuisance per se or a dangerous obstruction to public travel.
    Appeal from a judgment entered on a verdict in favor of plaint ff, and from an order denying a motion for a new trial.

      W. H. Clark, for app’lt; C. A. Flanner, for resp’t.
   Freedman, J.

—At the trial the plaintiff testified that on the evening of October 14, 1890, he walked down Warren street, with the intention of taking the Erie ferry, at the foot of Chambers street, to catch the 7 o’clock train for Sterlington; that upon arriving at the southeast corner of West and AYarren streets, instead of continuing on the cast side of West street till he would have reached the crosswalk in front of the ferry house, he took a diagonal course over the cobblestone pavement towards the ferry house, at what he termed a “ slow run, off a sort of dogtrot; ” that at said time he had an umbrella in his right hand, and a little handbag in his left hand; and that while he was proceeding in this way, diagonally across West street, he suddenly collided with a string-piece on the westerly side of West street, fell over it, and was injured. The action was brought to recover damages for the injury sustained under these circumstances. The plaintiff also admitted that there was no obstruction in West street which prevented him from crossing to the Chamber street ferry by the ordinary crosswalks ; that the street was entirely deserted at the time, except there were a few horse ears upon it; and that he was in a hurry because he was apprehensive that he might be late. The alleged stringpiece had, according to all evidence, been used for about eight years as a protection to a water pipe that runs into the buildings on the dock, and also to prevent the teams going up and down the pier from interfering and colliding with one another. It therefore had, for quite a number of years, served a highly useful purpose.

There was some conflict, however, as to whether the precise spot at which the plaintiff claimed to have fallen over the stringpiece was or was not within the limits of West street proper, as laid out by law. If it was west of the westerly line of West street, it was upon ground which may well be deemed to be a part of a dock structure, and over which the department of docks had elusive control, under the statutes, which define and regulate the jurisdiction, powers, and duties of said department. In that aspect, the plaintiff has no cause of action against the corporation of the city of New York. Bigler v. Mayor, etc., 5 Abb. N. C. 51; McKay v. City of Buffalo, 9 Hun, 401; affirmed, 74 N. Y. 619; Maxmilian v. Mayor, etc., 62 N. Y. 160; Tone v. Mayor, etc., 70 N. Y. 157 ; Ham v. Mayor, etc., Id. 459; New York & Brooklyn Sawmill & L. Co. v. City of Brooklyn, 71 N. Y. 580; Smith v. City of Rochester, 76 N. Y. 506.

But suppose the stringpiece did encroach upon the limits of West street, considered as a public highway. If it did, it was to an inconsiderable extent. It was not a nuisance per se, and the liability of the city must rest upon negligence. The plaintiff so treated it in his complaint, which is based upon negligence. There was nothing out of repair, and consequently, if the city is liable at all, it is liable for permitting something to exist which constituted a dangerous obstruction of the public highway. Not every obstruction is actionable. If that were so, no water hydrants, trees, hitching posts, telegraph poles, awning posts, stepping-stones,— not even the stoops of the houses projecting beyond the house lines,—could be permitted to remain. This subject has been so fully discussed in the recent case of Platt v. Mayor, etc., 59 St. Rep. 492 ; 28 N. Y. Supp. 672, that a bare reference to that case is all that is necesary here. The plaintiff was therefore bound to prove that, to the extent that the stringpiece encroached upon the westerly line of West street, it constituted a dangerous obstruction to public travel. The plaintiff failed to sustain the burden of proof in this respect. The mere fact that he himself, was injured, while proceeding in a hurry, cannot be held sufficient, in the face of the fact—established beyond controversy — that the so-called stringpiece had fulfilled a highly useful purpose for many years, and that such purpose was a public one. So far from being bound to apprehend danger from the mere existence of the stringpiece, which was from 12 to 15 inches high, the city may be deemed to have been justified in assuming that the stringpiece was sufficiently conspicuous and safe for all ordinary purposes.

Upon the whole case, I am satisfied that, even if the plaintiff did not contribute by negligence on his part, the occurrence was an accident for which the city should not be held liable.

The judgment and order should be reversed, and a new trial ordered, with costs to appellant to abide the event.