text:
    John Lawson, App’lt, v. William J. Merrall et al., Resp’ts.

      (Supreme Court. General Term, First Department,

      Filed May 12, 1893.)

    Master and servant—Negligence—Elevator.
    Plaintiff, while engaged in hoisting a freight elevator, was injured byitsfall, caused by the breaking of a clamp to which the wire ropes used in hoisting were attached. There was evidence that about ten months before one of the rollers on which the countershaft worked had fallen out, and that the elevator sometimes got out of the grooves, but no accident had resulted therefrom. Plaintiff testified that no repairs had been made to the elevator to his knowh dge. It was not shown that the clamp was of insufficient size, of poor iron or in any way defective, and the cause of its breaking was left unexplained. Held, that the complaint was properly-dismissed.
    Appeal from judgment dismissing the complaint.

      Alfred B. Cruikshank, for app’lt; John M. Scribner, for resp’ts.
   Follett, J.

This action was brought by an employe against his employers to recover damages for a personal injury alleged to have been caused by their negligence. The defendants occupied a stable, three stories high, in Fiftieth street, in this city, the second and third stories of which were used for storing feed for their teams. In this stable was a hand elevator for hoisting hay and grain to the upper floors, the usual load for which was 2,000 pounds. The carriage was sustained by two wire ropes,‘fastened to an iron clamp on its top, which wound around the drum as the carriage was drawn up, and unwound when it was lowered. The drum was operated by a counter-shaft and pulleys, the ends of, the counter-shaft revolving on anti-friction iron wheels or rollers. The elevator was usually operated by four or more men pulling down on a rope, which caused the drum to revolve and the carriage to move upwards. On some occasions four men worked at the rope, and at other times more, depending on the weight of the hay or grain to be hoisted. On the 24th of ¡November, 1888, the plaintiff and three others, standing on the first floor, were engaged in hoisting about a ton of oats to one of the upper floors, and before the carriage reached its destination the iron clamp to which the wire ropes were attached broke, and the carriage fell, fracturing the plaintiff’s right leg.

The plaintiff alleged in his complaint, and sought to prove on the trial, that the accident was caused by the defendants negligently permitting the elevator to be out of repair. He did not allege, nor did he seek to prove, that the elevator was defective in design or in construction. The particular defects complained of, and sought to be established by the evidence, were that about ten months before the accident one or more of the anti-friction rollers dropped out of place, and that at some time the carriage-would get out of the guides or sheaves which were designed to-hold it in place.

The plaintiff testified that about 10 months before the accident one of the anti-friction rollers dropped out He also testified: “I saw two or three other rollers out, lying upon the top floor, alongside of the elevator. As far as I know they were out all the time.” How long before the accident he saw the rollers lying on the floor does not appear, nor was it shown that new rollers had not been substituted in the place of those that were out. The plaintiff simply testified that “ up to the time this accident occurred the elevator was never repaired to my knowledge. I was there all the time.” There is no evidence that any of the rollers were out of position at the time of the accident. The-plaintiff testified that from the time when the roller fell to the time of the accident, a period of 10 months, the elevator was used daily, carrying loads as usual, and that no other accident happened. An expert called by the plaintiff testified that this state of affairs would indicate that the missing rollers had been replaced or new ones substituted. There was no attempt to show that the clamp which broke was insufficient in size, was of poor iron, or was in any way defective; nor was it shown whether the fracture was new or old. The only other defect in the working of the elevator disclosed by the evidence is that on four or five occasions-•—the last one about a month before the accident—the carriage, when hoisted, would get out of the grooves or guides on its sides; that on such occasions if would be lowered, shoved into place, and then that it worked well. A witness called by the plaintiff testified that unless the carriage was evenly loaded it would sometimes be thrown out of the grooves. On the occasion of the accident the plaintiff loaded the elevator, and the evidence fails to show that it got out of its grooves on this occasion. There is no evidence in the case showing that any of the anti-friction rollers were out of position at the time of the accident, or that any had been for a long time before. Indeed, there was an utter failure to show that there was any cause for the accident except the breaking of the clamp, but why it broke was left wholly unexplained by the evidence. We think it very clear that the evidence fell far short of showing that the defendants or any of their agents were negligent in the care or operation of the elevator, and that the judgment should be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Julius H. Caryl, Pl’ff, v. Francis X. Stafford, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    1. Foreclosure—Referee’s fees.
    A referee'appointed, to sell in foreclosure is entitled only to $50, although there may be more than one sale owing to defects in the proceedings ; but is entitled to his disbursements to whatever extent they were properly incurred, such as advertising and auctioneer’s fees.
    8. Same—Infants.
    Where there are infants interested in the proceeds of sale, a payment to the attorneys for the purchaser on the first sale made without an order of the court in reference thereto, should not be allowed as a disbursement.
    Appeal from order overruling exceptions and confirming a referee’s report of sale under foreclosure.

      J. W. Shepard, for app’lt; N. J. Waterbury, Jr., for referee, resp’t.
   Van Brunt, P. J.

It appears from the papers that the respondent was appointed referee to sell certain premises under foreclosure, and that, owing to defects in the proceedings, there were three sales by the referee; and the referee was allowed to deduct from the proceeds of the last sale $50 for his time and services upon each sale. We cannot find any warrant for such allowance. .By § 3297 of the Code (the section which fixes the compensation of the referee) it is provided that the referee's compensation, including commissions, cannot, where the sale is under a judgment in an action to foreclose a mortgage, exceed $50. This seems to us to limit the fees which a referee may charge for the sale of property, as his compensation, in any one action, to $50.

For his disbursements he would be entitled to be allowed to whatever extent they were properly incurred; -and there seems to have been no error in the allowance of the expenses for advertising, or the payment of the auctioneer’s fees.

The payment by the referee to the attorneys for the purchaser upon the first sale of $25 seems to be entirely unauthorized; there being no order of the court in reference thereto, which was absolutely necessary, in view of the fact that there were infants interested in the proceeds of sale. In passing, it may be said that even the verbal consent claimed to have been given by the defendant’s attorney, now deceased, would seem hardly sufficient, if there were infants interested, to justify the court in allowing such a disbursement.

The order should be modified by sustaining the objections as to the $50 for the referee’s compensation on the first sale, and as to the $50 for his compensation on the second sale, and as to the $25 paid to the counsel for the purchaser upon the first sale. This modification of the order would, under ordinary circumstances, have been made upon the payment of costs and disbursements of the appeal by the respondent; but the papers have been put together in such a way that it is impossible to tell to which order they apply, and some are included which have not the slightest pretense of right to be embraced within the record.

The order will therefore be modified, without costs.

O’Brien, J., concurs.


text:
    In the Matter of the Application of The Mayor, Etc., of New York to acquire title to lands under water between Thirty-third and Thirty-fourth streets, belonging to Edmund Coffin, Jr., et al.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    Jurisdiction—Judge of superior court designated to act in supreme; court.
    A judge of the superior court or common pleas who is designated to hold circuit courts and special terms of the supreme court does not thereby become a justice of the supreme court; and where, pending the determination of a motion he resigns his office and is appointed a justice of the supreme court to fill a vacancy, he thereby loses jurisdiction of the matter," and has no power to determine the same.
    Appeal from order overruling preliminary objections and appointing commissioners of estimate.

      John C. Shaw, F. A. Irish and Gratz Nathan, for app’lts; William H. Clark (C. Blandy and E. J. Freedman, of counsel), for resp’t.
   Van Brunt, P. J.

There is only one question which it is necessary to consider in the disposition of this appeal, and that is the recital in the order of the objection to the learned judge deciding the motion for the appointment of commissioners because his right to do so had expired. It appears upon the face of the ■order that this application was made to the Honorable Gfeorge L. Ingraham, a justice of the superior court of the city of New York, •sitting as a justice of this court pursuant to statute, who, after the hearing and submission thereof, and before any decision had been rendered therein, had resigned his office as a justice of said superior court, and had been duly appointed to the office of a justice of this court, and that the respondents had severally objected for that reason to a decision of said application by said justice, the ground of the objection being that he had lost jurisdiction of the application. It is to be observed that the authority of a justice of the superior court of the city of New York, presiding at any of the courts which are ordinarily held by justices of the supreme ■court, is derived from § 12, art. 6, of the constitution, which provides that the legislature may provide for detailing judges of the superior court and of the court of common pleas to hold circuit courts and special terms of the supreme court in this city; and pursuant to such authority the legislature have authorized the governor to designate judges of the superior court and of the court of common pleas to hold circuits and special terms of the supreme court; and, pursuant to this authority, the governor duly designated the Honorable George L. Ingraham, a justice of the superior court, to hold circuit courts and special terms of the supreme court, in the city of New York, and while acting under such designation this application was submitted. He, having resigned his position as judge of the superior court, was appointed by the governor a justice of the supreme court, to fill a vacancy caused by death. I am of the opinion that, when Mr. Justice Ingraham resigned his office as judge of the superior court, he lost jurisdiction of this matter, which was then undetermined, and that there is no similarity between this case and the case to which attention has been called, of a judge of the court succeeding himself by popular election. Kelly v. Christal, 16 Hun, 242. It has been held repeatedly, and has been the continuous practice, to treat the terms of judicial officers, since such officers became elective, where the judge or justice succeeds himself, as one continuous term, there being no interval of time during which he did not hold the office. But in the case at bar a different question arises. The office-which Justice Ingraham held after his resignation as judge of the superior court was a different one, although it was judicial in its character. When he ceased to be a judge of the superior-court his judicial authority ceased, and when he became a justice-of the supreme court, by appointment of the governor, his authority as such justice then first commenced. It is true that by §- 236 of the Code it is provided, in respect to judges of the superior court and court of common pleas who may be designated to hold terms of the circuit court and of the special term, that such judge, during the period of designation, possesses all the powers of a justice of the supreme court in or out of court to make orders in any action or special proceeding in the supreme court. But this does not make him a justice of the supreme court. His judicial authority arises from the fact that he is a judge of a court from which he may be detailed to hold circuits, which are independent of the supreme court, and special terms of the supreme court. He may perform some of the duties of a justice of the supreme-court ; but, notwithstanding the broad language of the provision above quoted, it cannot be claimed for a moment that he pos.sesses all the powers of a justice of the supreme court, because lie-has no power to preside at any term of any court independent of the supreme court except the circuits. He is, for example, necessarily excluded from the court of oyer and terminer, although he is said to have all the powers of a justice of the supreme court. It will be seen, therefore, that the office which the learned justice-holds is different from that which he held when this application was submitted, and, it not having been decided until that office terminated, and he entered upon the duties of a new and independent one, he clearly lost jurisdiction.

The order should be reversed, with ten dollars costs and disbursements.

O’Brien" and Follett,-JJ., concur.


author: Van Wyck, J.

text:
    Kate Walton, Resp’t, v. Ann Kane, App’lt.

      (City Court of Brooklyn, General Term,

      Filed June 26, 1893.)

    1. Landlord and tenant—Negligence.
    Plaintiff was a tenant in a tenement house owned by defendant, the water closet in which had become stopped up so that the contents flowed out and upon the stairway, an'd testified that as she was descending the stair she slipped on some of this matter and was thrown down several steps and injured. Defendant’s son, who had charge of the premises, testified that he went up and down this stairway daily. Seld, that the questions of negligence were for the jury to determine.
    U. Same—Evidence—Offer of compromise.
    Evidence of a promise to compensate plaintiff, admitted without objection, does not constitute an offer of compromise merely, and is properly left for the consideration of the jury under a charge that they are to disregard any offer of compromise.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

      Charles J. Patterson, for resp’t; George F. Elliott, for app’lt.
   Van Wyck, J.

The defendant was the owner of a tenement house on the top floor of which -the plaintiff and her husband lived as tenants. The stairway leading down from the second floor had at the top thereof a water-closet. For some weeks prior to the accident -this closet was out of repair and stopped up, so that its filthy contents and water would flow out of the basin upon the floor of the closet and thence down these stairs, which were rendered slippery with fecal matter mixed with dirty water. The plaintiff testified that she went down this stairway three steps and reached a platform about four feet square, and while in the act of feeling her way to the edge of it, and about to take hold of the baluster, her foot slipped on some of this filthy matter and she was precipitated down fifteen steps, receiving the injuries complained of. Defendant’s son, who was in charge of and managed this house, testified that he went up and down this stairway -daily. Plaintiff had a verdict for $500. Under such circumstances, the negligence of defendant and the freedom of plaintiff from contributory negligence were questions for the jury. Peil v. Reinhart,, 127 N. Y., 381; 38 St. Rep., 913; Palmer v. Dearing, 93 N. Y., 7. We think the evidence fully sustains the verdict on both questions.

The only other exception called to our attention by the appellant’s counsel, either in his printed brief or oral argument, is that taken to the court’s instruction to the jury, at folios 200 to 204. He contends that the evidence of the- promise to compensate the plaintiff should have been taken entirely from the jury, on the ground that it was merely an offer to compromise, and cites Smith v. Satterlee, 130 N. Y., 677 ; 41 St. Rep., 711. There are several answers which seem to us to be fatal to this contention. First, it was not an offer to compromise merely, but a voluntary and absolute promise to compensate her. Brice v. Bauer, 108 N. Y., 428, see 433; 13 St. Rep ,765. Second, the court instructed the jury to disregard any offer of compromise. Third, Sinithr. Satterlee, and like cases simply hold that an offer of compromise is privileged, and evidence thereof will be excluded if the privilege is claimed by objection to its admission. This testimony was admitted without objection on the part of the plaintiff, and, before it was introduced defendant’s counsel had brought out similar evidence on his cross-examination of plaintiff. The defendant, by failing to object in the one instance, and by bringing out the testimony in the other instance, has waived her privilege.

For these reasons, we think the judgment and order must be-affirmed, with costs.

Osborne, J., concurs.


text:
    Frank E. Parshley, Resp’t, v. The Third Methodist Episcopal Church of the City of Brooklyn, App’lt.

      (City Court of Brooklyn, General Term,

      Filed June 26, 1893.)

    1. Religious corporations—Liability op, for expenses of member in-
    proceeding AGAINST MINISTER.
    Plaintiff, who was a member of the defendant corporation, without its request or authority, presented charges of immorality against the minister assigned to it, which were sustained. He had received contributions from other members and made an appeal to the general Methodist public to subscribe to á fund for his reimbursement, and after three years brought this-action to recover for his services and expenses in such proceeding, Held, that no authority could be implied from the nature or character of the-services, as such charges could have been preferred and moneys expended by any individual member against the express wish and command of defendant, and that it was not liable unless it had ratified his acts.
    2. Same—Ratification.
    Defendant’s board of trustees passed a resolution contracting with its attorney to conduct proceedings in relation to condemnation of its land on an agreement to pay him a certain sum, out of which the attorney paid plaintiff a certain sum, but the resolution contained nothing in reference thereto. The board thereafter appointed a committee to examine plaintiff’s claim and fix the sum, “if any,” to be paid, and requiring it to consult with the board’s attorney, which was not done, and the report of committee in plaintiff’s favor was rejected on that account. Held, that these facts did not show a ratification by defendant.
    ■Appeal from judgment in favor of plaintiff, entered on report-of referee.

      Chas. M. Stafford, for resp’t; Wm. J. Groo, for app’lt.
   Van Wyck, J.

The defendant belongs to the New York East Conference of the Methodist Society. The bishop annually assigns the ministers to the churches within his jurisdiction. Any member of the church has the power and right to request the bishop not to re-assign any minister for another year, giving his reason therefor, and also the right to make charges before the presiding elder of the district looking to the suspension of the minister, pending the charges, until the ensuing annual conference shall consider and determine the same. Charles W. Millen was duly appointed the pastor of the defendant for the year ending April, 1887. The plaintiff, Parshley, and some of his fellow-members in defendant church, complaining of the unfitness of Millen, memorialized the bishop to send them another pastor for the coming year, which was disregarded. On July 29, and in September, 1887, he, Parshley, presented charges of immorality to the presiding elder, which resulted in Millen’s suspension until the annual conference of April, 1888, by which he was found guilty of imprudent and unministerial conduct and allowed to withdraw from the conference and return his parchments. Parshley claims that, in the part he took in all these proceedings, he expended $7,500 and that his services were worth $1,500. This action was brought to recover these "amounts from the defendant The learned referee decided that his labor was worth $1,500, and that he expended $7,500 in the work, and that he received towards the reimbursement of himself, from various sources, $4,385, and was entitled to recover the balance of $4,616, with interest, from defendant. From the judgment entered thereupon this appeal is taken.

We think the evidence overwhelmingly establishes the finding of the referee that such labor, services and expenditures were rendered and made by the plaintiff without the request or authority of the defendant or of its board of trustees, or of any person or persons having authority or power to bind the defendant. No-authority could, by the most strained inference, be implied from the character or nature of the services or the labors, for any individual member of this church could have made like charges and expended his money in their prosecution against the direct wish and command of the defendant It is manifest that he did not contemplate that the defendant would reimburse him, for he secured a contract from some of his personal associates to give him financial support in the prosecution of Millen, and made an appeal by the circulation of a pamphlet calling upon the general Methodist públic to subscribe to a fund for his reimbursement.

The referee decided that, after these labors were performed and expenses were incurred in the prosecution of Millen, the defendant adopted and ratified them by its full board of trustees, and upon this finding this judgment must stand or fall. Is it sustained by the evidence, we are called upon now to consider. No formal claim upon the defendant was ever presented to the board until January 13, 1892. The referee rests his decision upon two acts of the board, and. if these are short of a ratification, then this judgment must be reversed. The first of these is a resolution of the board on May 14, 1891, contracting with its attorney, Judge Groo, to conduct the proceedings instituted by the New York and Brooklyn Bridge to acquire the church land on an agreement to pay him $6,000 for his services if he would guarantee that the sum paid for the same should be at least $104,000. It was $130,000, and the attorney received the $6,000, and out of it he paid or contributed $3,500 to plaintiff. I can find no convincing proof that the board required or intended that this sum should be so applied by the attorney, though there is some evidence that some members of the board had talked to the attorney to this effect. The mere fact that the resolution is silent as to any such purpose manifests an intention not to adopt or ratify this claim for the labors and expenditures of the plaintiff.

The second act of the board upon which the referee rests his decision is the resolution of January 14, 1892, appointing two members of the board, Salt and Jones, a committee with power to «examine “ plaintiff’s claim,” and to fix and agree upon the sum, u if any,” to be paid him, and requiring the committee to confer with and act under the advice of the board's attorney, both in the investigation and settlement of the claim. The evidence is clear that the committee intentionally failed, neglected and refused to confer with or to give an opportunity to the board's attorney to advise them, though he requested it. The committee presented their report in favor of the claim to the board, which rejected it for this glaring and inexcusable disregard of their instruction; and, for the same reason, it does not bind the defendant. We think the resolution itself plainly disclosed an intent to refer to the committee for investigation the question of liability as well as that of amount.

Having reached the conclusion that the finding of ratification, ■on the part of the defendant, is not sustained by a fair preponderance of evidence, it is unnecessary to consider the other questions and exceptions presented to us.

Judgment must be reversed, with costs to abide the event, and order of reference vacated.

Clement, Ch. J., and Osborne, J., concur.


author: Macomber, J.

text:
    Charles Potter, Jr., et al., Resp’ts, v. The Traders’ National Bank of Rochester, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Replevin—Chattel mortgage.
    Plaintiffs sold a printing press, taking back a chattel mortgage thereon as part of the purchase price, but failed to file the same for over a year, and until after defendant recovered judgment against the vendee. It was filed prior to the sale on execution, at which the press was struck off to defendant’s agent. In an action of replevin, Held, that although plaintiffs were in default in failing to file their mortgage within a reasonable time, yet as there was evidence which would sustain a finding that the sale to defendant’s agent was made subject to plaintiffs’ claim of title founded on the chattel mortgage, a motion for non-suit was properly denied.
    Appeal by the defendant, the Traders’ National Bank, from a judgment entered in Monroe county, January 7, 1893, on the verdict of the jury at the Monroe circuit, and also from an order denying defendant’s motion for a new trial made on the minutes by the court.

      David Hays, for app’lt; Hector M. Hitchings, for resp’ts.
   Macomber, J.

This action was in replevin to recover a printing press from the defendant, which came into its hands through a sale of the personal property of the Rochester Lithographing & Printing Company upon a judgment recovered by the defendant ■against that company. This printing press was purchased by the Rochester Lithographing & Printing Company from the plaintiff, and as a part of the purchase price thereof a chattel mortgage was executed by the purchaser to the seller to secure the same. The sale was made in April, 1889, and the purchase price of the press was $3,000. The amount secured by the chattel mortgage was the .sum of $2,700,payable in instalments, evidenced by ten promissory notes of $270 each, all bearing date April 15, 1889, and due at different times from four months to thirty months from their date. These notes were payable at the defendant’s bank and five of them had been paid at the time this action was begun and five remained unpaid. The mortgage was not filed until October 14, 1890. In February of that year, the defendant commenced an action against the Rochester Lithographing & Printing Company to recover a •considerable sum of money, and that action resulted, on October 9, 1890, in a judgment for $20,977. Execution was issued thereon on the last named day.

At the close of the testimony, as well as at the conclusion of the plaintiff’s case in chief, the defendant moved for a nonsuit upon the ground that the plaintiffs had failed to file or re-file their mortgage as required by statute, and on the further ground that they had failed to show due execution of the mortgage by the corporation debtor; also, that the action was brought against the wrong party. One ground, at least, of the motion, namely, that the action was brought against the wrong person, was •clearly not tenable, because the case shows that it was agreed that the person who purchased the property at the sale on the execution. took the title on such purchase in behalf of the •defendant.

The ground taken by the counsel for the defendant, that a recovery could not be had by the plaintiffs because the chattel mortgage had not been properly filed, was well taken, and doubtless would have prevailed, except for other facts in the case upon which the plaintiff relied, which consisted of testimony to the effect that upon such sale the' press was struck off to the defendant’s agent subject to the claim of these plaintiffs. The learned trial justice, in denying the defendant’s motion for a new trial made upon the minutes, wrote an opinion which does not appear in the printed case, but which has been furnished to the court since the argument. That opinion is as follows:

“ Bradley, J.—The motion to dismiss the complaint upon the ground that it failed to state facts sufficient to constitute a cause of action was properly denied. Although the fact of the title, general or special, in the plaintiff was not formally alleged, the facts constituting the elements in that respect essential to the cause of action were alleged. The complaint stated that the Rochester- Lithographing & Printing Company having purchased the press of the plaintiff, gave to the latter a chattel mortgage upon it to secure the payment of the purchase money, then proceeded to state its terms, by which the right was given to the plaintiffs to take the property on default in payment, or when they deemed themselves unsafe, sell it, etc.; charges default in payment; that the defendant .afterward took possession of the property and that the plaintiffs demanded of the defendant the possession of it, to which they were entitled under and by virtue of said mortgage, but the defendant has wholly refused and still does refuse to deliver the same to the plaintiffs and wrongfully detains the same from them.

“ The 'facts stated in respect to the provisions of the chattel mortgage and of the right which it gave, constituted, in effect, allegations of title in the plaintiffs as mortgagees. Such was the legal operation and effect of the chattel mortgage as between the parties to it. Langdon v. Buel, 9 Wend., 80.

“And the conclusion which followed, by allegations that the plaintiffs were entitled to the possession of the property, and that it was wrongfully detained from them by the defendant, had the support of the facts so alleged. The same strictness is not applicable on motion to dismiss as might be applied on demurrer.

“ The other grounds of the motion for dismissal of the complaint require no special consideration. The evidence was sufficient to justify the submission to the jury of the question whether or not the sale by the sheriff of the press was made subject to the plaintiffs’ claim of title, founded' upon the chattel mortgage, and to fairly support the finding upon it in the affirmative. And such fact having been so found by the jury must, for the purposes of this motion, be deemed effectually established. Horton v. Davis, 26 N. Y., 495; Friedrich v. Brewster, 26 Hun, 236.

It may be affirmed that an unqualified sale by the sheriff of the right, title and interest of the R. L. & P. Co. in the press would have divested the plaintiffs of any right under the mortgage, as against the purchaser at the sale, as the mortgage had not been filed. Porter v. Parmley, 52 N. Y., 185; Tremaine v. Mortimer, 128 id., 1; 88 St. Rep., 740. The court substantially so -charged the jury, and submitted to them the question whether or not, in view of the circumstances attending the sale, and what occurred there,- if so announced by the sheriff, the sale was fairly understood to have been so qualified in that respect as to have been made subject to the plaintiffs’ mortgage claim upon the property. I think the evidence permitted the conclusion that the sale, if made as of the right, title and interest of the debtor company, that it was descriptively so qualified as to have been made subject to such claim of the plaintiffs. This was a'question for the jury; and, therefore, under the circumstances, the court could not, as a. matter of law, properly hold that sale so made of property entitled the defendant to recover. The motion is denied.”

Concurring in the views above expressed, we are of the opinion that the judgment and order appealed from should be affirmed.

Judgment and order appealed from affirmed.

Dwight, P. J., Lewis and Haight, J., concur.


author: Macomber, J.—The

text:
    Silas C. Torrance, Pl’ff, v. The Third National Bank of Buffalo, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    1. Sale—Conditional—Conflict of laws.
    Plaintiff’s assignor sold to one S. a safe, which 'was to remain the property of the vendor until paid for. While a portion of the purchase price remained unpaid, the safe, which was in the office of S., in Scranlon, Pa , was seized by the sheriff under a judgment recovered by defendant against S., and was sold to defendant, which applied the purchase price on the judgment. Held, that the rights of the parties were to be determined by the laws of Pennsylvania, where the property was situated at the time of the alleged conversion.
    2. Same—Pennsylvania.
    Under the law of Pennsylvania a contract for a conditional sale, while, good as between the parties, is worthless as to creditors or bona fide purchasers from a transferee.
    Motion by the plaintiff for a new trial on exceptions at the Erie circuit in May, 1892, and directed to be heard at general term in the first instance.

      Millard Fillmore Brown, for pl’ff and motion; Loran L. Lewis, Jr., for deft, opposed.
   Macomber, J.—The

facts in this case are not in dispute, so that at the close of the evidence each side asked the court to direct a verdict in its behalf. The learned justice at the circuit directed a verdict in favor of the defendant and directed the exceptions thereto to be heard at the general term in the first instance.

It appears that on August 20, 1890, one Alonzo Smith, then a resident of Erie county, N. Y., executed a contract to the Hosier Safe Company, of Cincinnati, Ohio, through its agents at Buffalo, by the terms of which Smith agreed to take a. fire proof safe which was to be shipped to Scranton, Pa., and was to pay therefor the sum of $135 in instalments, together with an old safe theretofore owned by him. By the terms of this contract, the title of the safe was to remain in the seller until fully paid for. On the 6th day of January, 1891, there was a balance remaining unpaid for the safe of $105. The defendant recovered a judgment against this Alonzo Smith in the court of common pleas of the county of Lackawanna, in the state of Pennsylvania, and under this judgment the sheriff levied upon this safe, which then lay in Smith’s store in the city of Scranton, Pa., and thereafter in the month of January, 1891, the sheriff sold the right, title and interest of Smith therein, and the same was purchased by the defendant for the sum 'of forty-five dollars, which was applied toward its judgment against Smith. At the time of the issuing of the fi. fa. and the levying upon this safe thereunder, neither the defendant nor any of its agents had any knowledge or notice that Smith was not the real owner of the property. At or before the time of the sale, however, notice was given to the sheriff that the title of the property was in the Hosier Safe Company, and that thereupon the sheriff stated that he would sell only the right, title and interest of Alonzo Smith therein, which was accordingly done. The Hosier Safe Company assigned its interest in the claim against the Third National Bank to the plaintiff and this action was accordingly brought to* recover the value of the property which, at the trial, was conceded to be $100.00.

The rights of the parties to this action must be determined by the laws of the state of Pennsylvania, where the personal property was situated at the time of the alleged conversion thereof by the defendant. Green v. Van Buskirk, 5 Wallace, 307; 7 id., 139. This proposition has been deemed, to be undoubted since the decision of the supreme court in the last cited case, and which has been often referred to and cited in other cases, and its doctrine reaffirmed in Huntington v. Attrill, 146 U. S., 666.

By the law of Pennsylvania, as it was proven upon the trial of this action, the contract between the Hosier Safe Company and Smith, while good as between the parties, was worthless as to creditors or bona fide purchasers from a transferee. This rule seems to be abundantly established by the decision put in evidence, of Forrest v. Nelson, 108 Pa. St., 481.

It follows that judgment should be directed for the defendant upon the verdict.

Judgment directed for the defendant on the verdict.

Dwight, P. J., and Haight, J., concur: Lewis, J., not sitting.


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    Alexander McAndrew, Resp’t, v. The Lake Shore & Michigan Southern Railway Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Pleading—Supplemental answer.
    Plaintiff brought two actions against defendant arising out of the same accident; one for injuries to himself, which has been tried and judgment recovered and satisfied, and this one for injuries to his horses, wagon and harness. Held, that while defendant could have set up in each case the pendency of the other action, or by motion have effected a consolidation of the two actions, he could not be allowed, by supplemental answer, to * set up the judgment in the other action as a bar to a recovery in this.
    Appeal by the defendant, the Lake Shore & Michigan Southern Railway Company, from an order of the special term of Erie county, dated June 13, 1892, denying its motion for leave to serve a supplemental answer to the complaint

      Charles A. Pooley, for app’lt; George E. Towne, for resp’t.
   Macomber, J.

It appears that this plaintiff brought two actions against the defendant to recover damages for alleged negligence growing out of the same accident, one of them being for personal injuries sustained by the. plaintiff, and the other for the injuries and damage done to his horses, wagon and harness. The action for personal injuries was tried in September, 1891, at the Chautauqua circuit, and resulted in a verdict for the plaintiff, and the judgment entered thereon has since been paid and satisfied by the defendant. Thereafter the defendant made a motion at the special term for an order in the action brought to recover for injuries to the plaintiff’s personal property for leave to serve an amended or supplemental answer by which it was sought to set up the judgment in the former action as a bar to any recovery in the second action. From an order denying such motion this appeal is taken.

Section 544 of the Code of Civil Procedure provides, “ Hpon the application of either party, the court may, and, in a proper case, must, upon such terms as are just, permit him to make a supplemental complaint, answer or reply, alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made ; including the judgment or decree of a competent court, rendered after the commencement of the action, determining the matters in controversy, or a part thereof.’

We do not think that the defendant brings itself within the spirit of this section of the Code. Undoubtedly it was competent for the plaintiff to have joined in the same complaint both causes of action, but not having done so there was open to the defendant one of two courses to pursue; first, it being evident that both causes of action grew out of the same casualty, the defendant could have set up in each case the pendency of the other action, Secor v. Sturgiss, 16 N. Y., 554; Nathans v. Hope, 77 id., 22 ; Lorillard v. Clyde, 102 id., 59 ; 1 St. Rep., 155 ; or, secondly, upon motion to the court, it could have effected a consolidation of the two actions. Code, § 817.

The order appealed from should be affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements.

Dwight, P. J., Lewis and Haight, JJ., concur.


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    Frank Griffin, Resp’t, v. Barbara Griffin, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Divorce—J udgment.
    In an action for a divorce on the ground of adultery, the defendant in her answer alleged adultery by plaintiff, and on the trial gave evidence tending to prove the same. The referee made no finding as to said allega, tion, but found that a decree should be found in favor of plaintiff without reeard to the evidence adduced as to the counterclaim. Held, error; that such finding was in violation of § 1758, subd. 4, of the Code.
    Appeal from judgment in favor of plaintiff, entered upon report of a referee in an action for divorce.

      Losey & Marcey, for app’lt; Anson S. McNab, for resp’t
   Macomber, J.

The judgment entered upon the report of the referee herein should be reversed, and a new trial granted. The defendant in her answer alleged the guilt of the plaintiff, thus putting the question of the plaintiff’s guilt into the controversy. Evidence on the trial was adduced to prove, and did prove without doubt, the guilt of the plaintiff; but in regard to this portion of the testimony the referee says nothing in his report, but finds that' the decree of divorce should be found against the defendant, and in favor of the plaintiff, without regard- to the testimony adduced by the defendant upon that branch of her case, opened up by the counterclaim, and also, to that extent, in violation of paragraph 4 of § 1758 of the Code of Civil Procedure, which provides that the plaintiff is not entitled to a divorce, although adultery is established; “ where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce.’’ Paul v. Paul, 11 St. Rep., 71, and cases there cited.

J udgment reversed, and a new trial granted, with costs to abide the final award of costs.

Dwight, P. J., Lewis and Haight, JJ., concur.


author: Lewis, J.

text:
    Timothy Sheehan, Resp’t, v. Albert H. Pierce, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Slander—Counterclaim.
    In. an action for slander in charging plaintiff in the presence of others with stealing wood from defendant and being a thief, the defendant set up as a counterclaim that at the time referred to in the complaint plaintiff was on defendant’s premises, removing wood therefrom without his consent; that he directed him to desist, whereupon plaintiff charged defendant with being a wood thief and stealing plaintiff’s wood ; that this was a part of the same conversation upon which plaintiff based his cause of action and arose out of the same transaction. Held, that the slander pleaded as a counterclaim could not be said to have arisen out of the transaction which is set out in the complaint within the meaning of § 501 of the Code.
    Appeal from an interlocutory judgment sustaining a demurrer to the defendant’s answer, and from the order upon which the same was entered.

      George D. Judson, for app’lt; P. F. King, for resp't.
   Lewis, J.

The action is for slander. It is alleged in the plaintiff's complaint that on or about the 3d day of January, 1892, the defendant, in the presence of one Harriet Pierce, maliciously accused the plaintiff of stealing wood from the defendant and of being a thief. It is charged in the complaint that the words were addressed to the plaintiff personally. The defendant, in the fifth count of his answer, sets up by way of counterclaim to the plaintiff’s cause of action, that on the occasion referred to in the plaintiff’s complaint the plaintiff was upon the defendant’s premises engaged in removing therefrom wood belonging to the defendant without his consent; that the plaintiff knew that it was defendant’s wood and that he had no right to remove the same; that defendant ordered him to desist from moving the wood ; whereupon the plaintiff maliciously charged the defendant with being a wood thief and stealing plaintiff’s wood. It was further alleged that the cause of action against the plaintiff in favor of the defendant consisted of the same facts and circumstances and conversation and subject matter upon which plaintiff based his cause of action, and none other, and arose out of the same transaction set forth in the plaintiff’s complaint as the foundation of the plaintiff’s cause of action, and occurred at one and the same time and place in the presence of the same persons and in one connected and uninterrupted conversation. Plaintiff demurred to the counterclaim on the ground “ that it is not of the character specified in § 501 of the Code of Civil Procedure; that it is not a cause of action arising out of the transaction and claim set forth in the complaint as the foundation of the plaintiff’s claim and is not connected with the subject of the plaintiff’s action.” The demurrer was sustained.

It is provided in §§ 500 and 501 of the Code of Civil Procedure that the defendant may set up in his answer any new matter ■constituting a defense or counterclaim which tends in some way to diminish or defeat the plaintiff's recovery, if the cause of action set up as a counterclaim arises out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s ■claim or connected with the subject of the action. The purpose of these sections is to facilitate the disposition of controversies between parties, and to trjr them in one action.

“ The theory and policy of the statute providing for. the disposition of controversies by action is that the rights of all the parties to an action as between the plaintiff and all or any of the defendants, and as between the defendants themselves, shall be adjusted and declared by the judgment when the relation between them .and the subjects involved are such as to permit it to be done within the practice prescribed.’’ Met. Trust Co. v. Tonawanda R. R. Co., 43 Hun, 526 ; 7 St. Rep., 90.

“ It has been the policy of the law in recent times to allow parties to bring into a single action, so far as it can conveniently be done, all the controversies between them for final and complete adjustment. The statute of set-off and the doctrine of recoupment have been from time to time extended and enlarged in view of this policy. The statute of counterclaim is a still further .-advance in the same direction and should be liberally construed to accomplish the benign object of its enactment.” Campbell v. Birch, 60 N. Y., 214.

Here are counter-charges of slander. The plaintiff by demurring admits that on the occasion referred to in his complaint, and as a part of the conversation in which he claims the slanderous words were uttered by the defendant, he slandered the defendant. The matters in difference between the parties can obviously be tried in one action without any practical difficulty. Each party will be entitled upon the-trial to prove everything that occurred on the occasion which preceded and led up to the uttering of the alleged slanderous words as part of the res gestee. But did the defendant’s cause of actibn arise out of the transaction set forth in the ■complaint as the foundation of the plaintiff’s claim ? The plaintiff contends that his cause of action was complete when the defendant had finished uttering the alleged slanderous words in the presence and hearing of his wife.

He further contends that the counterclaim is based upon the words spoken by the plaintiff to the defendant in the hearing of "the same persons after his cause of action arose. That different reputations were involved; that, therefore, the two causes of action cannot be said to have arisen out of the same transaction. The defendant contends that the conversation in its entirety was a transaction, and that out of it his cause of action against the plaintiff arose. He claims that the word “transaction” as used in the -Code has a broader signification than that contended for by the plaintiff, and should be held to mean the whole connected and uninterrupted conversation between the parties on the particular occasion out of which they each claim to derive their respective causes of action, and everything that arose and came out of the conversation.

A transaction is defined by Worcester as the act of transacting or conducting any business, negotiation, management, a proceeding;” and .by Webster as “that which is done, an affair.” In ordinary language we would not speak of an assault, false imprisonment or slander as a transaction. The act of making a contract would be called a transaction. The word ordinarily implies mutuality, something done by parties each taking a part, therein. It must be held to mean something different from the word “ contract ” for both words are used, “arising out of the contract or transaction.” While a contract may be a transaction, it. does not follow that a transaction is necessarily a contract.

We are not referred by the counsel to any adjudications upon the precise point here presented. This subdivision has, however,, been considered in a number of cases by the courts of our state, where the facts were somewhat similar to those presented here. In Heigh v. Willis, 50 Hun, 588; 20 St. Rep., 639, plaintiff alleged that the defendant negligently drove his wagon against that, of the plaintiff to his damage, etc. The answer set up a counterclaim for injuries caused to the defendant’s person and wagon through the alleged negligence of the plaintiff in the same collision. The general term in this department held, Dwight, P. J.,. writing the opinion, that the defendant’s counterclaim arose out of the same transaction set.forth in the complaint as, the foundation of -the plaintiff’s action, thereby holding that the, collision between the two wagons .driven respectively.by the plaintiff and defendant was a transaction in respect to which the plaintiff alleged negligence on the. part of. the . defendant, and damages to himself, and the defendant vice versa.-. .But one of the parties in that case was entitled to recover; if both were guilty of negligence contributing to the collision neither could ¡recover.- Each alleged that the negligence of the other caused .the collision, and that he was free from negligence. In the case at bar each party alleges that the other, and on the same occasion, slandered his-character.

In Xenia Bank v. Lee, 7 Abb. Pr., 373, Judge Woodruff, in a very instructive opinion in the General Term of the Superior Court of New York, gives construction to this subdivision of § 501. That was an action of trover brought to recover the value of notes or bills of exchange which had been indorsed by the plaintiff, and which it was claimed the defendant had converted. The defendant set up, by way of counterclaim, title in himself to the same notes or bills of exchange and asked judgment for their amount against the plaintiff as indorser thereon :r Judge Woodruff says: “The ‘transaction’ here in question may

either include the history of the bills of exchange in question,, so far as the title of the plaintiffs or defendants depends upon that history; or the ‘transaction’ may perhaps be confined to the manner and circumstances of the transfer -to the defendants. The difference between the parties consists not in the denial by the defendants that the transaction relied upon by the plaintiffs took place, but both adinit, and iri fact assert, that it occurred. One of the parties connects with it certain particulars which, if established, establishes the plaintiffs’ right to recover the bills or their value. The other connects with the transaction certain other particulars which, if established, not only refute the plaintiffs’ claim, but establishes the defendants’ right to recover from the plaintiff the amount of the bills. The parties differ about the accessory facts only; and when upon the trial the very truth of the matter is ascertained, the actual transaction (which the plairfíiffs set forth as the foundation of their claim and which the defendants set forth as that out of which their claim arises) will be developed, and one or the other will be seen to be by reason of that transaction entitled to recover. The transaction is then, single and entire, and it is either a just foundation of the plaintiffs’ claim or it entitles the defendants to what they claim from, the plaintiffs.” The counterclaim was held to be well pleaded.

Lamming v. Galusha, 47 St. Rep., 831, wms an action against the defendant for maintaining a nuisance in constructing and operating a steam railroad in a public highway .without authority. The action was brought by the owner of lands injuriously affected by the road and whose property rights were invaded thereby. Plaintiff demanded relief by way of injunction and special damages to his property occasioned by said nuisance. He joined in the same action a claim for damages for a personal inj ury sustained from the operating of the road, by his being thrown from his wagon while driving along the highway on which the railroad, was constructed, in consequence of his horse being frightened by the noise of a passing engine and train.

The court of appeals held that the cause of action arose out of the same transaction or transactions connected with the same subject of action within the meaning of subdivision 9, § 484 of the Code, and that they were properly united in one action. A cause of action arising out of a tort may be pleaded as a counterclaim to a cause of action for a tort. Carpenter v. Manhattan Life Ins. Co., 93 N. Y., 552. It was held otherwise by a special term, in Schnaderbeck v. Worth, 8 Abb. Pr., 37.

The commissioners on practice and pleadings, in their report to' the legislature in 1849, in a note to subdivision 1 of § 646, which is in the exact language of subdivision 1 of § 501 of the Code, say:. “It is the intention • of-the Code that-the-whole controversy between the parties should be settled in one action, and that either plaintiff or defendant should have such relief as the nature of the1 case requires.” It is as easy to do this as-it is to decide upon what was considered a mere equitable defense to a- legal demand,, and there is no difficulty in either.

Montgomery H. Throop, in a note on counterclaim, which can be found at page 212, vol. 3, New York Civ. Pro. Rep., has collected a number of cases giving construction to this subject. Similar provisions have been construed by the courts of sister states. Shelly v. Vanarsdoll, 23 Ind., 543 ; Lovejoy v. Robinson, 8 id., 399; Ritchie v. Hayward, 71 Mo., 560; Deering’s Annotated Codes & Statutes of California, vol. 3, p. 439.

We incline to the opinion that the slander the defendant as a counterclaim cannot be said to have arisen out of the transaction which is set forth in the complaint as the foundation of the plaintiff’s cause of action within the meaning of the sections of the Code referred to.

The interlocutory judgment appealed from should be affirmed, with costs, but with leave to the defendant to withdraw the demurrer and answer over within twenty days, on the payment of the costs of the demurrer and of this appeal.

Dwight, P. J., Macomber and Haight, JJ., concur.


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    Frances A. Baker, Pl’ff, v. Benjamin M. Baker, Resp’t, Johanna S. Wood, Adm’rx, et al., Impl’d, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    ^Foreclosure—Surplus proceedings—Bar.
    An interlocutory judgment in an action to declare a deed a mortgage so adjudging, and directing an accounting as to the amount due the mortgagee, where the plaintiff died before the accpunting was had and the action was not revived, is not a bar to surplus proceedings in an action brought to foreclose a prior mortgage, as the parties are not the same, the former action has abated, and the referee in the surplus proceeding has full power to hear and determine any legal or equitable claims to the surplus.
    Appeal by the defendants Wood from an order made upon the petition and motion of the defendant Benjamin M. Baker for a reference to determine claims to surplus moneys.

      Q. Van Voorhis, for app’lt; John D. Lynn, for resp’t.
   Lewis, J.

A judgment was obtained in the above entitled action for the foreclosure of' a mortgage and the sale of mortgaged premises. Upon the sale there arose a surplus of $4,474.31. The petitioner, Benjamin M. Baker, one of the defendants in the action, claimed the surplus money as á junior mortgagee, and petitioned the court for an order directing said surplus moneys to be paid to him. His application was opposed by the defendants, William O. C. Wood and Johanna S. Wood, on the ground that there was a prior action pending in the supreme court, in which action the right of the claimant to the moiieys was being contested, and that a full accounting could be had and a complete adjudication made in regard to the surplus moneys in that action. It appeared upon the hearing of the motion that one Herman Wood, deceased, was in his life time the owner of the mortgaged premises, and that in the year 1871 he executed and delivered to the petitioner an instrument in writing which was in form a deed, but which was in fact intended as a security for money loaned. An action was commenced in the supreme court by said Wood against Baker seeking to have said deed declared a mortgage; and an interlocutory judgment to that effect was obtained. A referee was appointed by said judgment, to take an accounting and inquire and ascertain what, if anything, was due Baker as such mortgagee. After the entry of said judgment, and on or about the 2nd day of August, 1891,"the plaintiff Wood died. The motion has never been revived, and has since remained in a condition where no accounting could be bad therein; and this is the judgment which it is claimed is a bar to this proceeding.

Where two proceedings are pending between the same parties for the same object, the one first commenced is, as a general rule, .a bar to the second proceeding; but we are inclined to the opinion that this proceeding is an exception to that rule. These surplus moneys have arisen out of an action for the foreclosure of a mortgage, in which Frances A. Baker was plaintiff, and the petitioner, Benjamin M. Baker, and others were defendants. The moneys have been paid into court in this action, as required by § 1633 of the Code, and they are now under the control and jurisdiction of the court in the foreclosure action, and it is fitting and proper for the court in that action to distribute the same by this proceeding, which is an incidental, or interlocutory, reference, under § 1015 of the Code. Upon the hearing before the referee all parties to the action, or any person who had a lien on the mortgaged premises at the time of the sale, and who has filed proper notice, is entitled to notice thereof, and can appear and be heard. The powers of the referee aré very broad in such a proceeding. He can hear any evidence which may be offered affecting the judgment or lien upon which the claim to the surplus is founded. He can take ■evidence or investigate any legal or equitable question pertaining to the issue the same as could be done in an independent or original action. He is required to find facts and conclusions of law. The parties to this action are not the same as they were in the action of Wood against Baker. The action sought.to be used in bar ■of these procedings, as we have seen, a'bated by the death of the plaintiff. It has not- been since revived, and from the facts appearing upon the hearing of the motion it is altogether probable that nothing will ever be done looking to its revival.

The order appealed from was properly granted, and it should be affirmed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J., Macomber and Haight, JJ., concur.


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    William C. Fitch, Resp’t, v. The Volker & Felthousen Manufacturing Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Seference—Attorneys.
    The action was for professional services as attorney in a single action, and plaintiff’s bill of particulars specified 49 items for services therein, and 7 for disbursements. The answer admitted the services, but denied that they were of the value stated. Held, that the services being performed in a single action, plaintiff could not, by dividing his labor into periods, convert liis claim into a long account within the meaning of § 1013 of the Code.
    Appeal from an order of the Erie special term referring' the action to a referee to hear, try and determine.

      Edward C. Randall, for app’lt; William C. Fitch, in person, for resp’t.
   Lewis, J.

The cause of action stated in the complaint is for services rendered and for disbursements made by plaintiff as an attornej at the request of the defendant to the amount and value of $1,000. Payment of $286.46 on account thereof is admitted, and judgment is demanded for the balance.

The defendant’s answer admits that plaintiff performed services and paid money as attorney for the defendant, but denies that they were of the amount and value of $1,000.'

In response to a demand therefor, the plaintiff served a bill of particulars which contains 56 items, 49 of which are for services, and the balance for disbursements. It is apparent from a perusal of the bill of particulars that the services and disbursements mentioned therein were all rendered and made in one action.

The action was originally commenced in the municipal court, of Buffalo; was tried in that court, an appeal was taken to the-superior court of Buffalo; was there tried and thereafter an appeal was taken to the. general term of that court.

The plaintiff adopted the plan of keeping an itemized book account of his services and disbursements in the action. The first charge is for a retaining.fee, and then follow charges for bringing the action and for services from time to time rendered in the action, for perfecting an appeal; there .are five separate charges for preparing amendments to a proposed case and for services on the settlement thereof.

There is but one cause of action arising out of the contract, to wit: the agreement to collect a claim against one Duero. The service rendered by plaintiff was essentially single, though it required different days work to complete it. Bathgate v. Haskin, 59 N. Y., 533.

The main question litigated upon the trial will be as to the amount and value of plaintiff’s services. He cannot by dividing his labor into periods convert his claim into a long account •within the meaning of § 1013 of the Code of Civil Procedure.

The cases of Randall v. Sherman, 131 N.Y., 669; 43 St. Rep., 923, and Spence v. Simis, No. 1 of the Combined Official Series of N. Y. Rep., 616; 51 St. Rep., 167, are decisive of the question presented by this appeal. The latter case was brought to recover for a lawyer’s services and disbursements in four different actions. The account contained 125 items and yet the court held that it was not a case for a compulsory reference, that it was not a long account within the meaning of the term as it is used in the law and as it has been construed and defined in the practice of the courts.

The order appealed from should be reversed, with ten dollars, costs and disbursements.

Haight and Bradley, JJ., concur.


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    Martin Mahoney, App’lt, v. Julia A. Mahoney, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Yenue—Action to set aside assignment of judgment and kestobe its-
    LIEN ON LAND.
    Plaintiff was induced by fraud and undue influence to assign a judg.
    znent which he held against defendant’s husband to defendant,, to whom the husband had previously conveyed certain real estate upon which the judgment was a lien. Held, that an action to set aside the assignment and restore the lien of the judgment was a local one and must be tried in the county in which said real estate is situated.
    Appeal from an order of Monroe special term, changing the place of trial of the action from the county of Monroe to the ■county of Oneida.
    The action was brought to set aside and cancel an assignment •of a judgment made by .the plaintiff to the defendant, and to restore the lien of the judgment upon certain real estate owned by the defendant.

      Q. Van Voorhis, for app’lt; Timothy Curtiss, for resp’t.
   Lewis, J.

On the 23d day of July, 1887, the plaintiff recovered a judgment against one Morris J. Mahoney for $485.75. Morris was at the time of the recovery of the judgment the owner of a house and lot in the city of Eome, Oneida county, in this state. The judgment became a lien thereon, and this was all the real estate then owned by Mahoney. While the judgment was a lien upon said premises Morris con\reyed them to the defendant, Julia A Mahoney, his wife. Thereafter, and on the 6th day of January, 1888, the plaintiff assigned the judgment to the defendant without receiving any consideration therefor. He was induced to make the assignment by the fraud and undue influence of the defendant and her husband. The defendant is still the owner of said real estate. Morris has died since the recovery of the judgment. The relief demanded in the complaint is that said assignment of the judgment be cancelled and set aside, and that the defendant be restrained pending the action from discharging said judgment, or transferring or otherwise disposing of the said assignment, and that any discharge of the said judgment executed by the defendant, or any other person, be cancelled and set aside, and that the lien of the plaintiff’s said judgment upon the real estate owned by the said Morris J. Mahoney, and conveyed as aforesaid to the defendant, be restored. The county of Monroe was designated in the complaint as the place for the trial of the action.

The defendant duly demanded and required that the action be tried in Oneida county on the ground that the real estate upon which the plaintiff seeks to have the lien of the judgment reinstated and restored is situated in that county. An order was granted changing "the place of trial from Monzoe to Oneida, and from that order an appeal was taken to this court. The defendant being at the time of the assignment of the judgment to her the owner in fee of the real estate on which it was a lien, the judgment was merged in the greater estate and ceased to be a lien. Asche v. Asche, 113 N. Y., 232; 22 St. Rep., 799.

Plaintiff seeks the judgment of the court vacating and setting aside the assignment and adjudging that the lien of the judgment, notwithstanding its merger in the greater estate, be restored and again made a lien upon the land.

Section 982 of the Code of Civil Proceduz-e provides that: “An action to recover or to procure a judgment establishing, determining or affecting an established right, title, lien or other interest in real property, must be tried in the county in which the-subject of the action is situated.”

The main purpose of this action is to obtain a judgment restoring the lien of a judgment upon land owned by the defendant and which had ceased to be a lien thereon. The action, therefore, directly affects a right or lien on the land. The cases of the Yates County National Bank v. Blake, 43 Hun, 162 ; 5 St. Rep., 486, and Knickerbocker L. Ins. Co. v. Clark, 22 Hun, 506, relied upon by the appellant, are not. authority to the contrary. The first case was an action by a junior mortgagee to compel the assignment to him of a prior mortgage upon the same premises upon which his mortgage was a lien, upon the payment by him of the amount secured by said first mortgage. The court held that the lien of the mortgage was. not sought to be affected; that-in the hands of the plaintiff it would remain the same lien and for the same amount, and the action was not, therefore, local.

The case in 22 Hun, supra, was brought in the county of New York, to restrain the defendant who had in his possession a satisfaction piece of a judgment against one Nelson, from delivering the same to Nelson. Nelson owned real estate in Ulster county. The defendant, upon an affidavit showing that Nelson had disposed of the Ulster county property and owned land iu Kings county, asked to have the place of trial changed to Kings county,, under § 982 of the Code. The motion was denied upon the ground that the recovery of the judgment would not affect a right or lien upon real property. The subject of the litigation was simply the right to the possession of the satisfaction piece. If the plaintiff secured the relief he sought, the lien of the j udgment would not in any manner have been affected thereby. The court, below correctly held this to be a local action.

The order appealed from should he affirmed,' with ten dollars costs and disbursements of the appeal.

Dwight, P. «T., Macomber and Haight, JJ., concur.


author: Haight, J.

text:
    The People, Resp’ts, v. William McDowell, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Excise—License.
    Where a person in good faith applies for a license to a hoard, of excise commissioners, who are in possession and acting as such, believing them to be the legally constituted board, receives and pays, for his license, and sells under it, such license is a protection against an indictment charging him with selling liquor without a license.
    Appeal from a judgment entered upon a verdict of the court of sessions of Allegany county, convicting the defendant of the crime of selling liquor without a license and from an order of that court denying the defendant’s motion for a new trial.

      S. S. Taylor, for app’lt; Charles H. Brown, dist. att’y,, for resp’ts.
   Haight, J.

The defendant was indicted for selling liquor without a license in the town of Cuba, Allegany county, U. Yl, on the 80th day of May, 1892. Upon the trial the defendant admitted the selling, but claimed that it was done under a license duly-issued to him by the commissioners of excise of that town.

The facts are substantially as follows: At the town meeting

held in and for the town of Cuba on the 10th day of March, 1890, Lemuel T. Hendricks was elected commissioner.of excise for the term of three years. The board of commissioners was then composed of Henry C. Petitt, who was elected in 1888, John Armstrong, who was elected in 1889, and Lemuel C. Hendricks, who was elected, as we have seen, in 1890. They entered upon the discharge of their duties as such commissioners of excise and granted some licenses. They neglected, however, to take out and file the 'oath required by the Laws of 1890, chapter 163, within the time-required by that statute. On the 7th day of June, 1890, the town board declared the offices of commissioners of excise vacant, and appointed Frank B. Lyon, Martin 1ST. Butts and David Thompson commissioners of excise to hold office until the next regular town meeting. These persons so appointed qualified as such commissioners and entered upon the discharge of their duties as such and served until the next annual town meeting. After the appointment and qualification of the new board of commissioners, andón the 9th day of June, 1890, Petitt, Armstrong and Hendricks took the oath required by chapter 163, of the Laws of 1890, and filed the same in the town clerk’s office. At the annual town meeting held in the town in March, 1891, Tobias Snyder was elected commissioner of excise for the term of three years in the place of Petitt, whose term of office had expired. David Thompson was elected such commissioner for the term of two years in the place of Hendricks and James Ormiston was elected for the term of one year in the place of Armstrong. The new board so elected qualified and entered upon the discharge of their duties as such officers; received the applications and granted licenses for the year 1891. Ormiston and Armstrong resigned in July, 1891. At a meeting of the board of commissioners held on the first day of May, 1892, a license was issued to the defendant signed by commissioners Thompson and Snyder, and the defendant paid them therefor the sum of fifty dollars.-

Snyder having been elected to succeed Petitt, at the expiration of his term, and having duly qualified and complied with the requirements of the statute, became a commissioner of excise de jure, and there is no question but that he had the right to act as such commissioner. Thompson, as we have seen, was elected for the term of two years to succeed Hendricks, whose term had not then expired, and the contention is that his election was void and that he had no right to serve as commissioner. The determination of this question involves a construction of chapter 163 of the Laws of 1890, and an adjudication as to the validity of the action of the town board on the seventh day of June, 1890, in declaring the offices of commissioners of excise vacant and the appointment of new commissioners. We, however, have concluded to dispose of this case upon other grounds, and inasmuch as the terms of office of the old commissioners have now expired, there is no necessity, public or otherwise, for the determination of that question.

It appears, as we have seen, that Thompson had served as commissioner two years, one by appointment and one by election. It further appears that during this time Hendricks had not acted or offered to act as commissioner, until May 1, 1892. At the town meeting in 1891, at which Thompson was elected, Hendricks was present and advocated the election of Thompson, voted for him and asked others to vote for him.

Upon the trial Hendricks was sworn as a witness, and testified: ■“ I did not file my oath of office within the thirty days required by the statute. I was advised by Mr. Todd that I had forfeited the office by my failure to take the oath. That Mr. Todd is the one that, as supervisor of the town of Cuba, called the town board together and nominated a board of excise. From that time until to day I have never known whether I was an excise commissioner of the town of Cuba or not. I have believed and have stated that I was not an excise commissioner from that time on, from the time the new board was appointed by Mr. Todd I have never granted any licenses. I have said repeatedly, when interrogated on that subject, that I did not know whether I was an excise commissioner or not; and so did not propose to act until I found out; I did not propose to get into any trouble. The time I said I met once as a board of excise and Mr. Todd had to make a motion to adjourn, was in Mr. Straight’s office, the first Monday in May, 1892.”

W hen a person comes into court asking for the enforcement of a right, or the recovery of property, which he claims by virtue of an office, he must show that he is an officer dejure. If he only shows that he merely acts in the office, or is an officer de facto, it is not enough to support a recovery. People v. Nostrand, 46 N. Y., 375-382 ; People v. Hopson, 1 Den., 574.

But as to third persons or strangers, whose rights are dependent upon his official acts, it is sufficient for them to show that he was an officer de facto.

Chancellor Walworth, in People v. White, 24 Wend., 539, says: “An officer de facto is one who comes into a legal and constitutional office by color of a legal appointment, or an election to that office, and as the duties of the office must be discharged by someone for the benefit of the public, the law does not require third persons, at their peril, to ascertain whether such officer has been properly elected or appointed before they submit themselves to his authority, or call upon him to perform official acts which it is necessary should be performed."

In Adams v. Tator, 42 Hun, 384, 387; 6 St. Rep., 359, Landon, J., says: “ The general rule with respect to de facto officers is that the office is so far void as to prevent the officer from asserting it to his own advantage at the expense or to the injury of another, but is valid so far as to protect third parties from inj ury; in other -words, void as to himself, and valid as to strangers.”

Nichols v. MacLean, 101 N. Y., 526-538 ; Matter of Kendall, 85 id., 302; Weeks v. Ellis, 2 Barb., 320.

It is said that there cannot be an officer de jure, and another in the same office de facto, at the same time. Cronin v. Gundy, 16 Hun, 520-524.

Perhaps not, for a de facto officer is one who is in possession of the office, discharging its duties, under color of an appointment or election, acting under such circumstances as to induce third persons or strangers to believe that lie is the real and true officer. We are aware that in the case of Cronin v. Stoddard, 97 N. Y., 271, a remark appears to the effect that one who desires to enjoy, the privileges afforded by the excise law must see to it that they are granted by one duly authorized. This remark was . made in connection with the statement that the person alluded to had not even apparent authority or color of title to act as excise commissioner, and was doubtless intended as applying to the circumstances of that case. It cannot be that it was intended to overrule the old and well established rule protecting third parties who in good faith have relied upon the action of a- de facto officer, believing that he was an officer de jure. In tíat case the de jure commissioner was in the possession of the office, performing its duties, when the person who signed the license assumed to. act as commissioner.

As we have seen, Thompson had acted as commissioner of excise for two years. Hendricks during that time had not acted as commissioner. Thompson in 1892 was acting under •color of an election; he was in possession of the office, recognized by Snyder, the de jure commissioner, as the proper commissioner; and if the defendant believed him to be such, and in good faith applied to the board for a license, obtained the ■same, and paid the fee required therefor, he is entitled to protection.

We think this question was raised by the exceptions taken. After the evidence closed the defendant’s counsel insisted that he had the right to have the jury determine that the people having elected Thompson as successor to Hendricks, based upon Hendricks’ refusal to act, that Thompson thereby had a legal right to issue licenses in accordance with the law for the year 1892, and having so issued a license to the defendant, it is a protection against any charge contained in the indictment The court thereupon held that the commissioners of excise of the town of Cuba at the time the license in the case was granted to the defendant were Hendricks and Snyder, and that the only question to go to the jury was as to whether there was a sale. The defendant’s counsel thereupon excepted to the ruling.

The court then proceeded to charge the jury, and in the charge stated that the license which was granted to the defendant to sell under was not granted by a legally constituted board of excise of the town of Cuba, and hence it affords no protection to him upon the indictment. An exception was taken by the defendant’s Counsel to this charge.

The judgment and order appealed from should he reversed and a new trial granted, and for that purpose the case should be remitted to the court of sessions of Allegany county.

Dwight, P. J., Lewis and Macomber, JJ., concur.


author: Vah Wyck, J.

text:
    Anna Korneman, Resp’t, v. The Fred Hower Brewing Co., App’lt.

      (City Court of Brooklyn, General Term,

      Filed June 26, 1893.)

    1. Conversion—Demand—Chattel mortgage.
    Where a subsequent mortgagee of chattels has taken possession of the property and claims to be the absolute owner as against all the world, it is not necessary for the holder of a prior mortgage, payable on demand, to make a demand of the mortgagor for the amount thereof as a basis of a further demand for the property before bringing suit for conversion, against such subsequent mortgagee.
    2. Same—Evidence.
    Where the defendant charges and undertakes to prove that plaintiff’s mortgage was without consideration and given with intent to defraud creditors, this gives plaintiff the right to show the real transaction, as well as the good faith thereof, by the conversation between the parties-thereto at the time it was executed.
    Appeal from judgment in favor of plaintiff entered on verdict,, and from order denying motion for a new trial.

      Frank C. Marvin, for resp’t; Hurd & Grim, for app’lt.
   Vah Wyck, J.

The plaintiff brought this action to recover damages for the conversion of certain personal property, consisting of various articles constituting the entire fittings of a first class saloon, including, among other things, a bar, back-bar, and pump. Plaintiff had a verdict for $1,025, and from the judgment entered thereupon, and from an order denying a motion for a new trial, this appeal is taken.

Plaintiff claims upon evidence which, if believed, shows that some time prior to and upon July 6, 1891, one Fowler was the owner of this saloon business and the personal property therein above referred to, which he, on that day, sold to Carhart & Hunold for $2,500, $2,000 of which was paid by the purchasers, on the same day, at the request of the vendor, giving to the plaintiff, with her consent, without any effort to defraud creditors, a chattel mortgage payable on demand for that sum on the property in question; that the consideration of this mortgage was an honest indebtedness of Fowler to her for that sum, for which Fowler-had previously given her a mortgage which she surrendered on receiving this one from Carhart & Hunold. The latter was filed in the register’s office of this county on July 7,1891. On July 17, 1891, Fowler gave a mortgage on the same property to the defendant for $600 payable the next day, and claimed by the defendant to have been to secure the purchase price of a bar, back-bar and pump sold to him on that-day. On July 18, 1891, this mortgage was filed in the register’s office, and foreclosed by defendant, who bought the property in and subsequently removed it from the saloon and appropriated it to its own use. The plaint iff claims this property by virtue of her mortgage and the defendant by virtue of its mortgage.

Defendant defends on three grounds:

First That plaintiff’s mortgage was without consideration and in fraud of the creditors of Fowler.

Second. That the bar, back-bar and pump included in this mortgage belonged to this defendant at the time it was made.

Third. That, assuming this mortgage to be valid, and binding on all the property, the plaintiff cannot recover from this defendant, because the plaintiff never made a specific demand rof the whole sum of $2,000'from Carhart & Hunold.

Whether or not the plaintiff’s mortgage was made with the intent to defraud creditors was properly submitted to the jury on conflicting testimony, and we see no reason, after a critical examination of the evidence, to disturb the decision of that question in favor of plaintiff. Whether or not the bar, back-bar and pump were the property of defendant at the time the mortgage was made to plaintiff was likewise properly submitted to the jury on conflicting testimony, and for the same reason should not be disturbed. The circumstance that Fowler, the only witness on value, testified that the whole property was worth $1,600, taken in connection with the circumstance that it i§ admitted that the bar, back-bar and pump cost the defendant $575, suggests that the jury decided this question in favor of the defendant, as their verdict was $1,025.

The testimony that there was a specific demand for the entire $2,000 is not very convincing, but it is very strong that she demanded ten dollars on account, which Carhart & Hunold repeatedly refused to pay. It does seem to us an idle ceremony to demand $2,000 from a creditor who will not pay even ten dollars on account, and we are not certain that a demand for the whole can not be fairly implied therefrom, though it is not necessary, in our opinion, to decide that. The defendant has taken possession of this property and converted it to its own use, claiming to be the absolute owner thereof against Carhart & Hunold, this plaintiff, and the whole world. Under such circumstances, to demand of Carhart & Hunold the sum of $2,000 as the basis of making a further demand upon them for the property that they cannot deliver, without any fault on their part, is a useless-form that the law does not require, in our judgment. Moore v. Craig, 24 St. Rep., 111; Reading v. Lamphier, 31 id., 53; Moloughney v. Hegeman, 9 Abb. N. C., 403 ; Hughes v. Griffith, 12 Weekly Dig., 501.

The defendant charged, and undertook to prove, that this mortgage given to plaintiff was without consideration and with the intent to defraud the creditors of Fowler. This gave the plaintiff the right to show the real transaction, as well as the good faith thereof, by the conversation had at the time it was executed between the parties thereto, such as that it was given to plaintiff, at the request of herself and Fowler, by Carhart & Hunold, to secure Fowler’s indebtedness to her, etc. This disposes of the exceptions taken by the defendant at folios 57, 58, 98, 99, and 102. Nugent v. Jacobs, 103 N. Y., 125; 2 St. Rep., 798 ; Billings v. Russell, 101 N. Y., 226; Starin v. Kelly, 88 id., 418.

Defendant’s requests 1, 2, and 3 were properly refused, for they'seem to have been based upon the erroneous theory that a mortgage cannot be given in good faith for an existing indebtedness which will be valid against a mortgage subsequently given for value parted with at the time, Coffey on Chattel Mortgages, § 126, and for the further reason that, in them, it is assumed that plaintiff parted with no value at the time the mortgage was given, whil& there is testimony that she surrendered a mortgage previously given at the time she received this one.

We do not think we would be justified on the evidence in holding that the damages were excessive. The only witness (Fowler) who testified to the value of this property was familiar with it and qualified as an expert. He said it was worth $1,600, and the defendant had possession of the property, and introduced no evidence in rebuttal on the subject of value.

This disposes of all the exceptions requiring consideration, and, for the foregoing reasons, the judgment and order must be affirmed, with costs.

Clement, Ch. J., concurs.


author: Osborne, J.

text:
    Ada Brooks, Resp’t, v. The Kings County Elevated Railroad Co., App’lt.

      (City Court of Brooklyn, General Term,

      Filed June 27, 1893.)

    1. Negligence—Nonsuit.
    Plaintiff testified that as she was passing under defendant’s elevated structure some one called to her to look out, when, seeing a heavy wrench falling from above, she threw herself forward to avoid it and fell, breaking one of the bones of her leg; that she then made her way up the stair to the station on one foot and the knee of the injured limb and. told the agent there of her mishap. Held, that on this evidence a motion tor a, nonsuit was properly denied.
    2. Same—Weight oe evidence.
    Defendant called five railroad employes, who all testified to seeing the wrench fall, but denied having seen any woman there ; one testifying that there was no woman within fifteen feet of spot and that a crowd gathered within a minute, as to which latter fact he was contradicted by the other four. Defendant’s surgeon called on plaintiff almost as soon as she reached home. Held, that a verdict in favor of plaintiff was not against the weight of evidence.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

      James & T. H. Troy, for resp’t; Hirsh & Rasquin, for app’lt.
   Osborne, J.

Plaintiff obtained a. verdict against the defendant for damages for injuries alleged to have been sustained by her through the negligence of the defendant’s servants. From the judgment entered thereon and’ an order denying motion for a new trial defendant appeals. The main ground on which the learned counsel for the defendant asks for a reversal is that the verdict was against the weight of evidence.

Plaintiff testified on the trial that, on the afternoon of April 25, 1892, she started to cross Fulton street at or near the corner of Sands - street, passing under the elevated structure of the defendant; that someone called out “Look out, lady!” and pointed upwards; that she looked up and saw something falling from above and close to her head, and, fearing injury, she threw herself forward, and, in so doing, one ankle went under her, and she fell and broke the small outer bone of her leg near the ankle joint. The article which fell from the defendant’s structure was a large wrench weighing some ten or fifteen pounds, which one of defendant’s workmen came down from the elevated structure and got and took back with him. Plaintiff further testified that this wrench struck the ground with great force close by her. side; that she recrossed Fulton street, and went up the stairway leading to defendant’s station on her foot and the knee of the injured leg, told the agent there of her mishap, then picked up a piece of stick to aid her, and managed to hobble home. Ño other witness was called, by plaintiff to substantiate her statement

On this evidence, we think the motion to nonsuit was properly denied. The falling of the wrench from defendant’s structure raised a presumption of negligence sufficient to put defendant to its proof to rebut the presumption, if it could, Volkmar v. Manhattan Railway Co., 134 N. Y., 418; 47 St. Rep., 631 and cases there cited, or to show that plaintiff was guilty of contributory negligence.

Defendant called five witnesses, all employes of the Brooklyn City Railroad Company, for the purpose of contradicting plaintiff’s evidence; these men all testified to seeing the wrench fall; one of them, Jennings, testified that there was no woman within fifteen feet of the spot where the wrench fell at the time of its fall, and that a crowd gathered there within a minute; the other four testified that when the wrench fell they did not see any woman there, and they contradicted the witness, -McLaughlin, as to the gathering of any crowd.

We cannot say that there was any such preponderance of evidence in favor of the defendant as to make it the duty of the learned trial judge to grant the motion to dismiss at the close of the testimony. The evidence of the plaintiff was of such a character as to warrant the jury in finding a verdict in her favor; hers was not a case with a mere scintilla of evidence to support it, or one creating a mere surmise of negligence on the part of the defendant; while there were some minor discrepancies in her statement, still they were not of such importance as to discredit her story of the manner in which she was injured. We can not but regard it as corroborative of plaintiff’s statement that she at once climbed up the stairs leading to defendant’s station as best she could, with.a view of calling the attention of defendant’s servants to the injury which she had sustained ; almost as soon as she got home the surgeon of the defendant called at her house, and she then signed a written statement as to how she was injured which did not materially vary from her evidence on the witness-stand. We think it highly improbable that this plaintiff, suffering from a broken bone in her leg, should have immediately fabricated a falsehood in order to make the defendant responsible for injuries which she had incurred in some other way. The jury heard her story, and they saw and heard the witnesses for the defendant testify, and they were certainly better able, under the circumstances, to judge of their credibility than we are, and we think their verdict should be upheld.

None of the exceptions in the case seem to us to be well taken, or of sufficient importance to call for any discussion.

The judgment and order appealed from should be affirmed, with costs.

Clement, Ch. J., concurs.


text:
    Edward H. W. Mason, Adm’r, Resp’t, v. The Atlantic Avenue Railroad Co., App’lt.

      (City Court of Brooklyn, General Term.

      Filed June 27, 1893.)

    '¡Negligence—Steeet bailboads.
    Plaintiffs intestate, a child of six years and of ordinary intelligence, while going upon an errand, as it was accustomed to do, attempted to cross the avenue on which defendant’s cars run. When part way across he stooped to pick up something and then proceeded, when he was si ruck by an open car going at a rapid rate. There was evidence that the driver was not looking, but talking to some one on the platform; that the view was unobstructed, but the driver did not see deceased until his attention was called to it after the car had gone seventy-five feet. Held, that the evidence was sufficient to make it proper to submit the question of the driver’s negligence to the jury.
    Appeal from judgment in favor of plaintiff, entered upon verdict and from order denying motion for a new trial.
    Dailey, Bell & Crane, for resp’t; Wm. S. Cogswell, for app’lt.
   Osborne, J.

Plaintiff brought this action as administrator, etc., to recover damages against the defendant for negligently causing the death of his son. Plaintiff obtained a verdict in his favor, and from the judgment entered thereon, and an order denying a motion for a new trial, defendant appeals.

The learned counsel for the appellant bases his appeal on two grounds, firstly, that his motion to dismiss the complaint at the close of respondent’s case should have been granted, for the reason that no negligence was shown on the part of the defendant, and that contributory negligence was shown on the part of decedent, and, secondly, that, the verdict was against the weight of evidence.

The evidence adduced on behalf of the plaintiff showed that decedent was a child six years of age, about four feet in height, and possessed of the ordinary intelligence of his years; he had been in the habit of going on errands for his mother to the grocery store, almost daily, for a period of six months prior to the date of the accident; he resided on Pacific street, near Flatbush avenue. On the afternoon of September 3, 1892, deceased was sent by his mother on an errand to the grocery store on the further side of Flatbush avenue from his residence; he started to ■cross Flatbush avenue from the west curb, and when about twelve or fifteen feet from the curb, and at the first, or westerly-track, he stopped to pick up something, then proceeded across the avenue and was struck by the horses of one of defendant’s open ■cars, proceeding northwardly, on the easterly, or down track. It further appeared that at, and just before the accident the car was .going at a very fast rate, the driver was not looking ahead of him but was engaged in conversation with a passenger on the front seat and had his head turned to one side; that he did not see the boy, or even know that he had run over him till the conductor whistled for the driver to stop, and when the latter looked around to ■the conductor, the conductor pointed back to the body of the boy, then lying on the track to the rear of the car; the car went about seventy-five feet from where the boy was lying before it ■stopped; it was also testified that there was no obstruction to prevent the driver from seeing the boy, if the driver had been looking ahead and attending to his duties.

We think that this evidence clearly made out a case of negligence on the part of the driver; .it certainly established a state of facts which made it proper to submit to a jury the question of the driver’s negligence.

Whether the decedent was or was not sui juris, and whether he ■exercised that degree of care which might reasonably have been 'expected of him, were questions for the jury to determine. Stone v. Dry Dock, etc., R. R. Co., 115 N. Y., 104; 23 St. Rep., 551. "The law on this subject was carefully laid down by the learned trial judge to the jury, in a charge to which no exception was taken, and the rights of the defendant in this respect were thereby ■secured to it

We have carefully gone over all the evidence in this case, and we cannot say that the verdict was against the weight of" evidence, or that it was the result of passion, bias or prejudice. There undoubtedly was a sharp conflict between the witnesses on both sides as to some material points in the case, but there was no such preponderance in favor of the defendant as would justify us in setting aside the verdict.

The judgment and order appealed from should be affirmed, with costs.

Clement, Oh. J., concurs.